

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1335

                CONSERVATION LAW FOUNDATION, INC.,
                           Petitioner,

                                v.

                   JAMES BUSEY, ADMINISTRATOR,
             FEDERAL AVIATION ADMINISTRATION, ET AL.,
                           Respondents.

                                           

No. 92-1464

                TOWN OF NEWINGTON, NEW HAMPSHIRE,
                           Petitioner,

                                v.

              DEPARTMENT OF TRANSPORTATION, ET AL.,
                           Respondents.

                                           

                ON PETITION FOR REVIEW OF AN ORDER
              OF THE FEDERAL AVIATION ADMINISTRATION

                                           
No. 95-1019

                CONSERVATION LAW FOUNDATION, INC.,
                      Plaintiff - Appellant,

                                v.

               DEPARTMENT OF THE AIR FORCE, ET AL.,
                     Defendants - Appellees.

                                           

No. 95-1020

                TOWN OF NEWINGTON, NEW HAMPSHIRE,
                      Plaintiff - Appellant,

                                v.

               DEPARTMENT OF THE AIR FORCE, ET AL.,
                     Defendants - Appellees.

                                           

No. 95-1047

                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.

                                           

No. 95-1048

                CONSERVATION LAW FOUNDATION, INC.,
                      Plaintiff - Appellee,

                                v.

               DEPARTMENT OF THE AIR FORCE, ET AL.,
                     Defendants - Appellants.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

      [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                                                    

                                           

                               -2-

                              Before

                  Selya and Cyr, Circuit Judges,                                                         

              and Schwarzer,* Senior District Judge.                                                             

                                           

     Lewis M.  Milford,  with whom  Mark A.  Sinclair, Robert  A.                                                                           
Backus and Backus, Meyer &amp; Soloman were on brief for Conservation                                            
Law Foundation.
     Perry  M.  Rosen,  with  whom   Dana  C.  Nifosi,  Cutler  &amp;                                                                           
Stanfield, Malcolm R.  McNeill, Jr.  and McNeill  &amp; Taylor,  P.A.                                                                           
were on brief for Town of Newington, New Hampshire.
     Jeffrey P. Kehne, Attorney,  Environment &amp; 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 &amp;  Natural Resources                             
Division, U.S. Department of Justice, Douglas J. Heady, Office of                                                                
the  General Counsel,  Department  of the  Air  Force, Daphne  A.                                                                           
Fuller, Attorney,  Office of the Chief  Counsel, Federal Aviation                
Administration, and  John R. Michaud, Office  of General Counsel,                                              
U.S.  Environmental  Protection Agency,  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,  were on brief for  State of New  Hampshire and Pease                    
Development Authority.

                                           

                          April 2, 1996                                    April 2, 1996
                                           

                                                  

*     Of  the   Northern  District  of   California,  sitting  by
designation.

                               -3-

          SCHWARZER,  Senior  District  Judge.   We  must  decide                    SCHWARZER,  Senior  District  Judge.                                                       

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), and  section

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  NEPA and CERCLA and directed it to submit

a Supplemental Final Environmental Impact Statement (Supplemental

FEIS),  including  a  remedial  design  for  contaminated parcels

                               -4-

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                                 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 &amp; 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

                               -5-

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,

see 864 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

                               -6-

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.  See 42 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

                               -7-

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                                 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),  cert.                                                                           

denied,  115 S. Ct. 1176 (1995).   Review of the district court's                

grant or denial of injunctive relief, in so far as it involves no

question of law, is for abuse of discretion.  Sunshine Dev., Inc.                                                                           

                               -8-

v. FDIC, 33 F.3d  106, 111 (1st  Cir. 1994;  Narragansett  Indian                                                                           

Tribe v. Guilbert, 934 F.2d 4, 54 (1st Cir. 1991).                            

           Regarding   our  review   of   the  district   court's

assessment of the  record on  which agency action  was based,  we

have  taken "a practical  approach to  deciding what  standard of

review to apply."   Sierra Club v. Marsh, 976  F.2d 763, 769 (1st                                                  

Cir.  1992).  When the  district court's judgment  turns upon its

own  assessment of evidence, "or even upon lengthy district court

proceedings in  which knowledgeable counsel explain  the agency's

decision-making  process  in  detail,  we will  show  appropriate

hesitation  to overturn  that  judgment. .  .  . But,  where  the

district  court simply  reviews  a set  of agency  documents and,

applying  the same  legal standard  as we  apply here,  reaches a

particular  legal  conclusion  about the  'reasonableness'  of an

agency's action, we have greater legal freedom to differ with the

district court's ultimate  characterization of agency  behavior."

Sierra Club  v. Marsh, 769 F.2d  868, 872 (1st Cir.  1985).  With                               

these principles in mind, we turn to the merits of the appeal.

                  III.  THE CLEAN AIR ACT CLAIMS                            III.  THE CLEAN AIR ACT CLAIMS

          The purpose of the CAA, as the district court observed,

is  "to protect and enhance the Nation's air quality, to initiate

and  accelerate a  national program  of research  and development

designed  to  control air  pollution,  to  provide technical  and

financial assistance  to the States in the execution of pollution

control programs,  and to  encourage the development  of regional

pollution  control programs."  See 864 F. Supp. at 273 (citing 42                                                                        

                               -9-

U.S.C.    7401(b)  (1988)).    Pursuant  to  the  Act,  the   EPA

established  National  Ambient  Air  Quality   Standards  (NAAQS)

reflecting  the   maximum  concentration  levels   of  particular

pollutants  (criteria pollutants)  allowable  to  protect  public

health.   See 42 U.S.C.   7409 (Supp. III 1991).  Among them were                       

NAAQS for ozone and  carbon monoxide, both of which  are relevant

here.   See 40 C.F.R.     50.8, 50.9 (1995).   Responsibility for                     

achieving  and maintaining the  NAAQS falls on  the states, which

are  required   to  submit  state  implementation   plans  (SIPs)

specifying the manner in which they will achieve and maintain the

NAAQS for the various criteria pollutants.   See 42 U.S.C.   7407                                                          

(1988 &amp; Supp. III 1991).  

          The  EPA  and  the  states  have  designated  different

regions  according to the  level of  criteria pollutants  in each

area.   See 42 U.S.C.    7407(d)(1)(A).   A region which  has not                     

attained the NAAQS for a certain criteria pollutant is designated

a  "nonattainment"   area;  a   region  about  which   there  are

insufficient  data  to determine  compliance  with  the NAAQS  is

designated  "unclassified"  and  deemed  in  compliance  with the

NAAQS.  See id.   At the time the decisions challenged  here were                         

made,  the  Portsmouth-Dover-Rochester  region, where  the  Pease

project is located, was designated a "serious nonattainment" area

for ozone and an "unclassified" area for carbon monoxide.  See 40                                                                        

C.F.R.   81.330 (1991).  

          For   serious  nonattainment   areas  for   ozone,  the

statutory  deadline for attaining the NAAQS is November 15, 1999.

                               -10-

42  U.S.C.    7511(a)(1) (Supp.  III 1991).   To  ensure progress

toward that goal, the  1990 amendments to the CAA  require states

to revise their SIPs in  a manner that will result in  attainment

of both the ultimate  deadline and interim milestones established

by the 1990  amendments.  See 42 U.S.C.    7511a(c)(2) (Supp. III                                       

1991).

          To  further  promote  attainment   of  the  NAAQS   for

different  criteria pollutants,  the 1990  amendments also  added

specific criteria to section 7506(c)(1) (section 176(c)(1) of the

CAA), the conformity  provision of the  Act, to wit,  subsections

(A) and (B)(i)-(iii).   See S. Rep. No. 101-228, 101st  Cong., 2d                                     

Sess.  28 (1990), reprinted in 1990 U.S.C.C.A.N. 3385, 3414.  The                                        

conformity provision prohibits federal agencies from approving or

supporting any activity which does not conform to  an SIP.  Under

the  new criteria,  conformity means  that the activity  will not

cause  new  violations, increase  the  frequency  or severity  of

violations,   or   delay   attainment   of   various   standards,

requirements, and milestones.  See 42 U.S.C.   7506(c)(1)(B).                                            

          Plaintiffs claim that  the EPA, the  Air Force and  the

FAA  violated the  conformity provision.   Plaintiffs  make three

arguments: (1) that no determination of conformity could  be made

until NEPA had  been complied with;  (2) that  the EPA failed  to

make a conformity determination;  and (3) that the Air  Force and

the FAA  violated the substantive requirements  of the conformity

provision.  As  a preliminary  matter, however,  we must  address

                               -11-

PDA's contention  that the  district court lacked  subject matter

jurisdiction over plaintiffs' CAA claims.  

 A.  Subject Matter Jurisdiction           A.  Subject Matter Jurisdiction                                          

          Plaintiffs   assert   that   jurisdiction  over   their

conformity  determination claims  exists  under the  citizen suit

provision of  the CAA, 42  U.S.C.   7604(a)(1) (1988  &amp; Supp. III

1991), or in the  alternative, under the Administrative Procedure

Act  (APA),  5 U.S.C.    702  (1988).    Defendants dispute  that

jurisdiction exists under either provision.  We address first the

knotty question of whether  jurisdiction exists under the citizen

suit  provision;   if  it does,  jurisdiction  under the  APA  is

precluded.   See  5  U.S.C.    704  (1988) ("Agency  action  made                          

reviewable  by statute and final agency action for which there is                                                                           

no  other  adequate remedy  in a  court  are subject  to judicial                                                 

review" under  the APA  (emphasis added)).    See Oregon  Natural                                                                           

Resources Council v.  United States Forest  Serv., 834 F.2d  842,                                                           

851  (9th Cir. 1987); Allegheny County Sanitary Auth. v. EPA, 732                                                                      

F.2d 1167,  1177 (3d  Cir. 1984);  Environmental Defense  Fund v.                                                                        

Tidwell, 837 F. Supp. 1344, 1355-57 (E.D.N.C. 1992) (APA provides                 

a  right  of  review  of   agency  decisions  precisely  where  a

plaintiff's  claim is not covered by  the citizen suit provisions                                   

of the substantive act).

          1.  The Citizen Suit Provision, 42 U.S.C.   7604.                    1.  The Citizen Suit Provision, 42 U.S.C.   7604.                                                                     

          We  addressed  the issue  of citizen  suit jurisdiction

over claims of violation of the  conformity provision once before

in Conservation  Law Found.  v. Federal Highway  Admin., 24  F.3d                                                                 

                               -12-

1465  (1st Cir.  1994)  (CLF).   Although  we held  citizen  suit                                      

jurisdiction  to  extend  to   the  conformity  provision  claims

asserted there, we cautioned  that because the "issue is  a close

one.  . .  . [and]  because the  outcome of  [the] case  does not

depend upon [the] jurisdictional  ruling, this Court remains free

to revisit the issue in a  future case where it may be decisive."

Id. at 1478 n.6.  We do so now.             

            a.  Legislative History  and Precedent.  "In enacting                      a.  Legislative History  and Precedent.                                                             

[the  citizen suit]  provision, Congress  expanded federal  court

jurisdiction  by  circumventing  the  diversity  of  citizenship,

jurisdictional  amount,  and traditional  standing requirements."

Wilder v. Thomas, 854 F.2d 605, 613 (2d Cir. 1988), cert. denied,                                                                          

489 U.S.  1053 (1989).  See  S. Rep. No. 91-1196,  91st Cong., 2d                                     

Sess. 64 (1970), reprinted  at Natural Resources Defense Council,                                                                           

Inc.  v. Train, 510 F.2d  692, 725, Appendix  B (D.C. Cir. 1974).                        

Prior   to  the   enactment  of   the  citizen   suit  provision,

"[g]overnment initiative in  seeking enforcement under the  Clean

Air Act [had] been  restrained."  S. Rep. No.  91-1196, reprinted                                                                           

at 510  F.2d at 723.   By authorizing citizens to  bring suit for            

violations   of  CAA  standards,  Congress  sought  to  "motivate

governmental agencies  charged with  the responsibility to  bring

enforcement  and abatement proceedings."   Id.  In recognition of                                                        

the  fact that  "[f]ederal facilities  generate considerable  air

pollution,"  the  citizen  suit  provision allowed  suits  to  be

"brought against an  individual or  government agency."   Id.  at                                                                       

724.  

                               -13-

          As Congress opened the  door to citizen suits, however,

it also sought to  limit that jurisdiction to claims  that "would

not require reanalysis  of technological or other  considerations

at  the enforcement stage" and  would have to  meet "an objective

evidentiary  standard."  Id.   To  that end,  Congress "carefully                                      

restricted   [citizen  suit   jurisdiction]   to  actions   where

violations  of standards and regulations or a failure on the part

of officials to act are alleged."  Id. at 723.                                                

          Conscious of the concerns  expressed in the legislative

history,  courts  interpreting  citizen  suit  jurisdiction  have

largely focused on whether the particular standard or requirement

plaintiffs sought  to enforce  was sufficiently specific.   Thus,

interpreting citizen suit jurisdiction  as limited to claims "for

violations  of  specific  provisions   of  the  act  or  specific

provisions  of an  applicable  implementation  plan," the  Second

Circuit  held  that  suits can  be  brought  to enforce  specific

measures,  strategies,   or   commitments  designed   to   ensure

compliance with the NAAQS, but not to enforce the NAAQS directly.

See,  e.g., Wilder, 854 F.2d  at 613-14.   Courts have repeatedly                            

applied this test  as the linchpin of  citizen suit jurisdiction.

See, e.g., Coalition Against  Columbus Ctr. v. City of  New York,                                                                          

967 F.2d 764, 769-71 (2d Cir. 1992); Cate v. Transcontinental Gas                                                                           

Pipe  Line Corp.,  904  F. Supp.  526,  530-32 (W.D.  Va.  1995);                          

Citizens  for a  Better Env't  v. Deukmejian, 731  F. Supp. 1448,                                                      

1454-59 (N.D. Cal.), modified, 746 F. Supp. 976 (1990).                                        

                               -14-

          Our  decision in  CLF  and  plaintiffs' arguments  have                                         

therefore focused  on whether the conformity  provision meets the

requisite level of specificity to serve as the basis of a citizen

suit.  Before  asking whether the conformity provision passes the

specificity test,  however, we must consider  the threshold issue

whether  the  conformity  provision   falls  within  one  of  the

statutory categories  of violations  for which citizen  suits are

authorized. 

            b.  Terms of the Statute.  The CAA permits any person                      b.  Terms of the Statute.                                               

to bring a  civil action "against any person . . . who is alleged

to  have violated  or to  be in violation  of .  . .  an emission

standard or  limitation under this  chapter . .  . ."   42 U.S.C.

  7604(a)(1)(A).  An "emission standard or limitation" is defined

as "a  schedule or timetable of  compliance, emission limitation,

standard  of performance or emission  standard . .  . which is in

effect   under  this  chapter  .  .  .  or  under  an  applicable

implementation plan."   42 U.S.C.   7604(f)(1) (Supp.  III 1991).

The additional definitions  in subsections (2), (3),  and (4) are

not  applicable here.1   Thus, citizen  suit jurisdiction  over a

violation of the  conformity provision is subject  to a two-prong

test:  (1)  the  conformity  provision  must  be  a  schedule  or

                                                  

1    Subsections  (2)  and (3)  deal  with  controls, conditions,
prohibitions  and requirements related to specific situations and
provisions  not  at  issue  here.    Subsection  (4)  deals  with
conformity requirements under  an SIP and does  not apply because
the requirements were not  incorporated into New Hampshire's plan
at the material times;  the only relevant conformity requirements
were those  in  effect  under the  Act  itself.   See  42  U.S.C.                                                               
  7604(f)(2)-(4).

                               -15-

timetable  of  compliance,   emission  limitation,  standard   of

performance, or emission standard,  and (2) it must be  in effect

under this  chapter or an  applicable implementation  plan.   See                                                                           

Cate,  904 F. Supp. at  529.  The  conformity provision meets the              

second prong; as a provision of the Act, it is clearly "in effect

under the Act."  See CLF, 24 F.3d at 1477.   The sole question is                                  

whether the conformity provision  qualifies as (1) a  schedule or

timetable  of  compliance,  (2)  an emission  limitation,  (3)  a

standard of  performance, or (4)  an emission standard,  as these

terms are defined by other provisions of the Act.  If it does not

fall within one of these four cat categories, there is no citizen

suit jurisdiction over the conformity provision claims. 

            (i) Emission Limitation/Emission  Standard.   Section                      (i) Emission Limitation/Emission  Standard.                                                                 

7602(k)  defines the  terms  "emission  standard"  and  "emission

limitation" to  mean "a requirement  established by the  State or

the   Administrator  which   limits   the   quantity,  rate,   or

concentration  of emissions  of  air pollutants  on a  continuous

basis . . . ."   42 U.S.C.    7602(k) (Supp. III 1991); see  also                                                                           

40 C.F.R.   51.100(z) (1991) (EPA's regulations implementing  the

CAA).  The conformity provision is not "a requirement established

by the State or the Administrator";  it is a provision of the CAA

enacted by Congress.   And  while the provision  seeks to  ensure

conformity with  existing emission  standards or  limitations, it

does  not itself limit emissions of air  pollutants.  Thus, it is

not an emissions limitation or standard.

                               -16-

            (ii)    Standard  of Performance.    Section  7602(l)                      (ii)    Standard  of Performance.                                                       

defines "standard of performance" as "a requirement of continuous

emission  reduction,  including any  requirement relating  to the

operation  or  maintenance  of  a  source  to  assure  continuous

emission  reduction."   42  U.S.C.    7602(l)  (1988 &amp;  Supp. III

1991).   CLF argues that  the conformity provision  constitutes a

"standard of  performance" within the meaning  of section 7602(l)

because it prohibits a federal agency from supporting an activity

unless that activity is  "consistent with 'reducing' the severity

and number of  violations in  a nonattainment area  and will  not

delay timely attainment of any required emission reductions."  In

support of its argument, CLF relies upon this court's decision in

CLF, 24 F.3d 1465, to which we now turn.             

          In that case plaintiff  challenged the Federal  Highway

Administration's  approval of  a highway  project on  the ground,

among others, that it  violated the conformity provisions  of the

CAA.    Unlike the  instant case,  CLF  involved conformity  of a                                                

transportation plan subject to section 7506(c)(3).  Under section

7506(c)(3)(A)(iii),  a  transportation  plan  or  program  is  in

conformity  if it  contributes to  annual emission  reductions in

amounts specified elsewhere in the CAA. 

          Referring to  "  7506(c)(1)  &amp; (c)(3)," the  court held                                                         

that  "[t]hese  conformity  requirements  plainly  constitute  an

emissions  'standard  of  performance.'"  CLF, 24  F.3d  at  1477                                                       

                               -17-

(emphasis  added).2  In so holding, the court observed that those

provisions  "mandate  that  defendants  demonstrate   that  their

transportation  projects 'would  contribute  to annual  emissions

reductions  consistent with' the levels  set out in   7511a(b)(1)

and    7512a(a)(7)."  Id.   This language reveals that  the court                                   

was relying on    7506(c)(3) for its finding that  the conformity                                      

requirements constitute a standard of performance.  See 42 U.S.C.                                                                 

  7506(c)(3)(A)(iii)  (to be in conformity,  transportation plans

or programs in ozone and carbon monoxide nonattainment areas must

"contribute   to  annual  emissions  reductions  consistent  with

sections 7511a(b)(1) and 7512a(a)(7)").

          On further reflection, it appears to us that  the route

to  section 7506(c)(3) lies through  section 7506(c)(1).  In CLF,                                                                          

as in the case before us, plaintiffs  were challenging government

action  in approving  an  activity that  did  not conform  to  an

approved implementation  plan or other conformity  criteria.  See                                                                           

id. at  1478.   While  subsection  (c)(3) spells  out  particular            

conformity  criteria for  transportation plans,  the crux  of the

action remained the noncompliance by a government agency, not the

violation  of an emission standard  by the activity  itself.  The

                                                  

2  The court also held that prior case law  limiting citizen suit
jurisdiction  to enforcement  of specific  measures, commitments,
and strategies for ensuring compliance with air quality standards
did  not  preclude  citizen  suit  jurisdiction  over  conformity
provision  claims  because  the  requirements of  the  conformity
provision were sufficiently specific and objective.  CLF, 24 F.3d                                                                  
at  1477-78.   While we  do not  disagree with  that part  of the
analysis,  we do not reach  the specificity issue  unless we find
that  the   conformity  provision  otherwise   falls  within  the
statutory definition of an "emission standard or limitation."

                               -18-

foundation of the plaintiffs' claims, both there and here, is the

subsection (c)(1) prohibition of the federal agency's approval or

support of any activity  not in conformity with an  approved plan

or other standards, requirements, or milestones.

          As noted above, a standard of performance is defined as

"a requirement  of continuous emission  reduction .  . .  ."   42                                                           

U.S.C.   7602(l) (emphasis added).  Nothing in section 7506(c)(1)

imposes  an  emissions  reduction   requirement.    That  section

prohibits a federal agency from approving, supporting, or funding

any activities that  do not "conform" to the provisions of an SIP

or   other  standards,  emissions   reduction  requirements,  and

milestones.   The sources  of those standards,  requirements, and

milestones may  include the  NAAQS or standards  and requirements

set  out in  an SIP  or provisions  of the  CAA itself.   Section

7605(c)(1)(A) and (B)  define what  standards must be  met for  a

project to  be in conformity.   In  the case of  a transportation

plan  or program,  such  as the  one  at  issue in  CLF,  section                                                                 

7506(c)(3)  imposes additional standards.   Thus,  the conformity

provision    refers   to   or   involves   standards,   reduction                                                  

requirements, and milestones, in the  sense that a federal agency

must determine that a  project meets those standards in  order to

approve or support  it.  However, the conformity provision itself

imposes no such standards  or requirements.  It simply  imposes a

duty on federal agencies  not to approve or support  any activity

that does  not meet  standards, requirements, and  milestones set

out in an SIP or the CAA.

                               -19-

            (iii)  Schedule or Timetable of Compliance.  Section                      (iii)  Schedule or Timetable of Compliance.                                                                 

7602(p) defines a "schedule and  timetable of compliance" to mean

"a  schedule  of  required  measures   including  an  enforceable

sequence  of actions or operations  leading to compliance with an

emission limitation, other limitation, prohibition, or standard."

42 U.S.C.    7602(p) (1988).     CLF argues  that the  conformity

provision  is  a  "schedule  or timetable  of  compliance"  under

section    7604(f)    because    the     "[c]onformity    section

176(c)(1)(B)(iii)  specifically  prohibits federal  agencies from

supporting any  activity if it will 'delay  timely attainment' of

the schedule of compliance set  for nonattainment states like New

Hampshire to reach 15% emission reduction milestones in  1996 and

full  ozone  attainment in  1999."   This  argument  is, however,

inapposite.   The issue  is not whether  the conformity provision

requires the  federal agency to determine that a project complies

with  a  schedule or  timetable  of  compliance found  elsewhere;

rather it  is  whether  the  conformity  provision  is  itself  a

schedule or  timetable of  compliance.   Plaintiffs here  are not

suing  a polluter for violation  of the schedule  or timetable of

compliance  referenced  in  section  176(c)(1)(B)(iii);  they are

suing  three  federal agencies  for  approving  and supporting  a

project  that   may  violate   that  schedule  or   timetable  of

compliance. 

          It might be argued that the conformity provision itself

constitutes a "schedule or timetable of compliance" as defined by

section  7602(p) in that  it requires federal  agencies to follow

                               -20-

"an enforceable sequence of  actions . . . leading  to compliance

with an  emission limitation,  other limitation,  prohibition, or

standard."   See 42 U.S.C.    7602(p).   The conformity provision                          

requires  federal agencies  to follow  a sequence  of  actions to

ensure a  project's conformity with limitations  and standards in

an existing  SIP or with  the NAAQS.   Those actions,  though not

specified in  the statute, necessarily include analyses comparing

"the  most recent estimates of emissions" in the proposed project

area with the projected emissions in the area were the project to

go forward, an assessment whether the project meets the  specific

statutory criteria for conformity based  on those analyses, and a

determination  whether to support or approve the project.  See 42                                                                        

U.S.C.   7506(c)(1);  see also Cate, 904 F. Supp. at 523 (finding                                             

that an  agreement  requiring gas  pipe line  company to  conduct

certain modeling and analyses for determining what measures would

eliminate violations of  the NAAQS  and to develop  and submit  a

plan  specifying  corrective  measures  and milestone  dates  for

instituting  corrective  measures  constituted  a  "schedule"  of

compliance  within  the  meaning  of  42  U.S.C.      7604(f)(1),

7602(p)).

          We  reject this argument, however, on  the basis of the

EPA's interpretation of "compliance  schedule" in its regulations

implementing  the CAA.    40 C.F.R.     51.100 (1991).    Section

51.100(p)  defines "compliance  schedule"  to mean  "the date  or

dates  by which a  source or category  of sources  is required to                                                           

comply  with  specific  emission  limitations  contained  in   an

                               -21-

implementation plan  and with  any increments of  progress toward

such  compliance."   (Emphasis  added.)   40  C.F.R.    51.100(q)

defines "increments of progress" to mean "steps toward compliance

which will be  taken by  a specific source  . . .  ."   (Emphasis                                                    

added.)    These  definitions  make  clear  that  a  schedule  of

compliance  is  a  sequence  of  actions  that  a  polluter  must                                                                     

undertake  by  certain  specified   dates  in  order  to  achieve

compliance with relevant emissions limitations or standards.  The

conformity  requirements  themselves  do  not  fall  within  that

definition.

          2.  Review under the APA, 5 U.S.C.   702                    2.  Review under the APA, 5 U.S.C.   702                                                            

          Having  concluded that  citizen suit  jurisdiction does

not  extend to violations of the conformity provision, we turn to

the question whether judicial review is available  under the APA.

In  the absence  of  a  contrary  statutory  provision,  the  APA

entitles a person  aggrieved by final  agency action to  judicial

review  and  requires   that  agency  action  be  set   aside  if

"arbitrary, capricious, an abuse  of discretion, or otherwise not

in  accordance with law."  5 U.S.C.    702, 706(2)(A) (1988); see                                                                           

Marsh  v. Oregon  Natural Resources  Council, 490  U.S. 360,  375                                                      

(1989).  While  the APA does not provide an independent source of

subject  matter jurisdiction, it does  provide a federal right of

action where subject matter jurisdiction exists under 28 U.S.C.  

1331 (giving  district courts  jurisdiction of all  civil actions

arising under the laws of the United States).   See Japan Whaling                                                                           

                               -22-

Ass'n v. American Cetacean  Soc'y, 478 U.S. 221, 230  n.4 (1986);                                           

Califano v. Sanders, 430 U.S. 99, 104-07 (1977).                              

          Defendants argue that   1331 cannot confer jurisdiction

over  the conformity claims against  the Air Force because, under

Middlesex County  Sewerage Auth. v. National  Sea Clammers Ass'n,                                                                          

453  U.S. 1  (1981), no  implied private  right of  action exists

under the Clean Air Act.  Defendants' reliance on Sea Clammers is                                                                        

misplaced.   In  Sea  Clammers, the  Supreme  Court held  that  a                                        

comprehensive  statutory  enforcement  mechanism complemented  by

provisions for  citizen suits precluded an  implied private cause

of action for damages.  See Sea Clammers, 453 U.S. at 17-18.  But                                                  

an implied  right of  action is  not a predicate  for a  right of

judicial  review  under the  APA.    See,  e.g.,  Oregon  Natural                                                                           

Resources Council, 834 F.2d at  851.  The central purpose of  the                           

APA  is  to "provid[e]  a broad  spectrum  of judicial  review of

agency  action."    Bowen v.  Massachusetts,  487  U.S. 879,  903                                                     

(1988).  Therefore, "[a]  cause of action for review  of [agency]

action  is  available  [under  the APA]  absent  some  clear  and

convincing evidence of legislative intention to preclude review."

Japan Whaling, 487  U.S. at 904.   The citizen suit  provision of                       

the CAA provides no "clear and convincing evidence of legislative

intention to preclude  review"; to the  contrary, it includes  an

explicit  savings  clause for  other rights  of  relief.   See 42                                                                        

U.S.C.   7604(e) (1988) (preserving "any right which any person .

. .  may have under  any statute  . . .  to seek . . . any  other

relief");  Oregon Natural Resources Council, 834 F.2d at 851 n.15                                                     

                               -23-

(same  savings clause  under Clean Water  Act preserves  right of

review under APA);  Hough v.  Marsh, 557 F.  Supp. 74, 77-79  (D.                                             

Mass.  1982) (same).  Moreover, cases  decided after Sea Clammers                                                                           

have expressly recognized that the APA provides a right of review

of  agency decisions precisely  where a plaintiff's  claim is not

covered  by the  citizen suit  provision of the  substantive act.

See, e.g., Oregon  Natural Resources  Council, 834  F.2d at  851;                                                       

Allegheny County Sanitary  Auth., 732 F.2d at 1177;  Tidwell, 837                                                                      

F. Supp. at 1355-57.  Other cases cited by defendants are equally

inapposite since  none involve judicial review  of agency action.

See,  e.g., Greenfield and Montague Transp. Area v.  Donovan, 758                                                                      

F.2d  22, 26  (1st  Cir. 1985)  ("mere  existence of  a  disputed

question  of  federal  law   does  not  confer  federal  question

jurisdiction").

          Finally,  we must  consider whether  42 U.S.C.  7607(b)

bars  district   court  jurisdiction  under  the   APA  over  the

conformity  provision claim  against  the EPA.   Section  7607(b)

provides for  judicial review of "any  . . . final  action of the

Administrator"  by the  filing  of a  petition  in the  court  of

appeals.  In this case, plaintiffs complain that the EPA violated

section  7506  by  approving  and supporting  the  Pease  project

without  making  the  requisite conformity  determination.    The

obligation under  that section  runs to any  "department, agency,

[and] instrumentality of the Federal Government."   Action by the

EPA to comply with section 7506 is not action taken by  it in its

capacity of administrator and  enforcer of the CAA.   The text of

                               -24-

the  statute supports  this  distinction.    Where it  refers  to

obligations  imposed  on the  EPA by  the  CAA, it  imposes those

obligations  on   the  Administrator.    See,   e.g.,  42  U.S.C.                                                              

  7506(c)(4)(A)("the Administrator shall promulgate  criteria and

procedures  for  determining conformity  .  .  .  of  . .  .  the

activities  referred to  in [section  7506(c)(1)])"; 42  U.S.C.  

7601(a)(1)("the  Administrator  is authorized  to  prescribe such

regulations as  are necessary  to carry out  his functions  under

this chapter").   And review  under section 7607(b)  is only  "of

action  of the  Administrator."   In summary,  plaintiffs' claims

concern  action  taken  by the  EPA  qua  agency  of the  federal

government,  not as  administrator  or enforcer  of the  CAA, and

hence are not subject to review under section 7607(b).

B.  Conformity Determination in Absence of NEPA Compliance          B.  Conformity Determination in Absence of NEPA Compliance                                                                    

          Plaintiffs argue  that since  the district  court found

the air quality analyses  used by the federal  agencies deficient

and not in compliance with NEPA, it should not have addressed the

merits of  the CAA claims.  Neither the agencies nor the district

court,  the   argument  goes,  could   make  reasoned  conformity

determinations under  the CAA  based on noncomplying  air quality

analyses.   The  argument  raises two  separate  issues:   Was  a

conformity  determination precluded  as  a matter  of law  before

completion of the NEPA process?   And, even if it was  not, could

the  Air Force and the  FAA reasonably make  such a determination

before the NEPA process had been completed here?

                               -25-

          We  can readily  dispose of the  first issue.   Section

7506(c)(1)   sets  forth   its  own   standards  for   evaluating

conformity.   Nothing  in that  section or  elsewhere in  the CAA

requires the  information on which a  conformity determination is

based to have been subject to review, analysis, or public comment

pursuant to NEPA.   Moreover,  regulations issued by  the EPA  in

1993   prescribing   procedures  and   criteria   for  conformity

determinations  suggest  no  connection   between  NEPA  and  CAA

compliance.  See 42  U.S.C.   7506(c)(4)(A);  40 C.F.R.  Part 51,                          

Subpart W  (1994); 40 C.F.R. Part  93, Subpart B (1994).   To the

contrary,  they specify that  "[w]here multiple  Federal agencies

have jurisdiction  for various aspects  of a  project, a  Federal

agency may choose to adopt the analysis of another Federal agency

or  develop  its own  analysis in  order  to make  its conformity

determination."   40  C.F.R.    93.154  (1994).   And  40  C.F.R.

  93.156(b) (1994) states that  the 30-day comment period  for an

agency's draft conformity  determination "may be concurrent  with

any  other  public  involvement,  such  as  occurs  in  the  NEPA

process."  We see no basis  for engrafting a requirement that the

NEPA process be completed before a determination is made.

          Plaintiffs next contend that the Air Force and  the FAA

could  not reasonably  make the  conformity determination  before

completing  the NEPA process.  If the federal agencies had relied

entirely  on  the  FEIS   as  the  basis  for  their   conformity

determinations, and if  the district  court had  later found  the

analyses  in the FEIS deficient under NEPA on substantive grounds

                               -26-

that would also have affected the conformity analysis required by

the CAA,  the CAA conformity  determination might also  have been

deficient.  See, e.g., Sierra Club v. Sigler,  695 F.2d 957, 980-                                                      

83  (5th  Cir.),  reh'g denied,  704  F.2d  1251  (1983).   That,                                        

however, is not what happened here.   The NEPA problem arose from

a failure to comply  with the public comment requirement  in that

the  agencies   relied  for  their  conformity  determination  on

information and analyses that  they had failed to include  in the

FEIS or a  Supplemental FEIS  for public comment.   The  district

court  found that those materials were a sufficient basis for the

conformity  determinations; they simply  should have been subject

to  public review and comment  to meet the  requirements of NEPA.

See 864 F. Supp. at 284-85, 288.  Because such  public review and             

comment  are not required  under the conformity  provision of the

CAA,  the NEPA  violation  did  not  affect  the  merits  of  the

conformity determination and hence does not require that we defer

passing on the conformity claims. 

C.  Conformity Determination by the EPA          C.  Conformity Determination by the EPA                                                 

          "In  accordance with [the EPA's] responsibilities under

. . . [NEPA and CAA]," the EPA issued a review of the Air Force's

FEIS on August 14, 1991.  In that review, the EPA addressed air

                               -27-

quality concerns related to the Pease project.  It first reviewed

its  earlier conclusions  that  the project's  air impacts  would

hinder New Hampshire's ability  to achieve required reductions in

ozone precursor emissions  and would cause  violations of the  CO

standards.  The EPA then reviewed the terms of the MOU into which

it had  entered with PDA  and NHDES  and concluded  that the  MOU

"provides  a framework  that,  if  successful,  gives  reasonable

assurance that  the Pease  development can proceed  in compliance

with the CAA."  The MOU itself quotes the text of section 7506(c)

and states  that its  purpose  is to  "accommodate the  statutory

responsibilities of the Parties  and provide assurance of orderly

and  phased development  in  compliance with  CAA  requirements."

Moreover,  the commitments in the  MOU indicate that  the EPA was

considering  the specific  statutory criteria  in  the conformity

provision.  For example, the MOU specifies that, in the event the

CO air quality analysis  required by the MOU shows  that proposed

traffic increases from redevelopment  "may cause or contribute to

a new violation of the carbon monoxide NAAQS," PDA must implement

measures necessary  to reduce projected  traffic increases and/or

air emissions  impacts to a level which will not result in such a

condition.  See infra pp.  48-50.                               

           Section 7506(c) does not specify the form a conformity

determination must take; when the  agencies acted, they had  only

the  statute  to  guide them  because  the  regulations  were not

adopted until 1993.  Taking that fact into  account, we think the

EPA's  actions  sufficiently  reflect  that  it  considered   the

                               -28-

project's  potential  impact  on  air  quality  in  light  of the

conformity provision  and, based on  the commitments in  the MOU,

see infra pp. 48-54, determined that the project could be carried                   

out in conformity with applicable air quality standards. 

D.  Agencies' Compliance with 42 U.S.C.   7506(c)(1)          D.  Agencies' Compliance with 42 U.S.C.   7506(c)(1)                                                              

          Having found that the  EPA made the required conformity

determination, we now consider  whether its determination and the

determinations  made by the Air  Force and the  FAA complied with

the statute.   As noted,  the statute prohibits  federal agencies

from  supporting  or  approving  a project  unless  that  project

"conforms to an implementation plan after it has been approved or

promulgated  under  section 7410  of this  title."   42  U.S.C.  

7506(c)(1). "[C]onformity to an implementation plan means"

          (A)  conformity  to an  implementation plan's
          purpose  of  eliminating   or  reducing   the
          severity  and  number  of violations  of  the
          national ambient air quality standards; and 
          (B) that such activities will not--
            (I)   cause  or   contribute  to   any  new
          violation of any standard in any area;
            (ii)  increase the frequency or severity of
          any existing violation of any standard in any
          area; or 
            (iii)  delay  timely   attainment  of   any
          standard  or  any  required interim  emission
          reductions or other milestones in any area.

42 U.S.C.   7506(c)(1)(A),(B). 

          At  the outset  we  note  two relevant  considerations:

First,  no regulations  interpreting  these  provisions had  been

promulgated   when    the   agencies   made    their   conformity

determinations; therefore, they had only the words of the statute

to  guide them.  Second, a conformity determination is inherently

                               -29-

fact-intensive;  therefore,  what  constitutes  conformity  is  a

function  of  the unique  characteristics  of  the project  being

approved. 

          1.  Substance of the Conformity Determinations.                    1.  Substance of the Conformity Determinations.                                                                   

          The EPA, the Air Force, and the FAA all determined that

the  transfer  and  redevelopment  of Pease  met  the  conformity

requirements of section 7506(c)(1).  As discussed above, evidence

that the EPA made a conformity  determination is found in the MOU

and the EPA's review of the FEIS.   See supra pp. 33-35.  The Air                                                       

Force's conformity determination  is contained in two  documents:

its  ROD,  issued August  20, 1991,  and  its Memorandum  for the

Record,   issued  March   20,   1992.     The  FAA's   conformity

determination is contained  in its ROD, issued February 26, 1992.

Those  documents reveal  the bases  for the  agencies' conformity

determinations.   We now examine those bases to determine whether

the agencies abused  their discretion  when they  found that  the

Pease  project  met   the  conformity  requirements  of   section

7506(c)(1).

          The  agencies relied  on  information  and  commitments

contained   in  various  documents  in  making  their  conformity

determinations.    The  EPA,   as  previously  noted,  based  its

conformity determination on the commitments made in the MOU.  The

Air Force based its determination  on the MOU, post-FEIS  studies

conducted by NHDES and  discussed in the letter of  certification

written  by  Robert  W.  Varney, Commissioner  of  NHDES  (Varney

letter), and the FAA's conditional approval of certain aspects of

                               -30-

the  Pease  project.   Similarly,  the FAA  based  its conformity

determination  on  the MOU,  the  NHDES  studies and  conclusions

discussed  in  the  Varney   letter,  the  Governor's  letter  of

assurance,3 and  its own conditional approval  of certain aspects

of  the Pease  project.  Each  of  the  bases  of  the  agencies'

conformity determinations is briefly summarized below.

            a.   The  Memorandum of  Understanding.   Because the                      a.   The  Memorandum of  Understanding.                                                             

FEIS concluded that air  emissions likely to be generated  by the

expected redevelopment of the  airport would add to the  level of

ozone   precursor  emissions4   experienced  in   the  Portsmouth

Metropolitan Statistical  Area and because of  the EPA's concerns

about the  air quality impacts  of Pease redevelopment,  the EPA,

PDA,  and   NHDES  entered   into   an  agreement--the   MOU--"to

accommodate the  statutory responsibilities  of the Parties,  and

provide assurance of orderly and phased development in compliance

with CAA requirements."

          The MOU acknowledges  that, because  the region  around

Pease  was a serious nonattainment region for ozone, the 1990 CAA

amendments required New  Hampshire to revise  its SIP to  achieve

                                                  

3   Both the  Air Force  and the FAA  cite Governor  Judd Gregg's
February 13, 1992, letter of assurance (Governor's letter) as one
basis  for   their  conformity   determinations.     Because  the
Governor's letter relied  primarily on the NHDES  studies and the
Varney  letter as the grounds for its assurance of conformity, we
do not discuss it separately.

4   Ozone  precursors include  nitrous oxide  (NOx) and  volatile
compounds  (VOCs)  such  as hydrocarbons  (HC).    See 40  C.F.R.                                                                
  51.852  (1995)  (ozone precursors  include  NOX  and VOCs);  40
C.F.R.   51.100(s)  (1995) (VOCs  include any compound  of carbon
except those listed in regulation).

                               -31-

net reductions of  15% in total  volatile organic compound  (VOC)

emissions  by November  15, 1996,  and 3%  each year  thereafter,

until the  region achieved compliance  with the NAAQS  for ozone.

To  ensure compliance  with the  CAA and the  SIP, PDA  and NHDES

committed themselves, under the terms of the MOU, to take certain

actions.  

          With respect to carbon monoxide (CO) emissions, the MOU

provides that:

            (1) PDA will undertake a surface transportation study

          examining existing vehicle traffic  patterns, projected

          vehicle traffic increases associated  with development,

          and potential for alternative modes of transportation.

            (2) Based on the results of the transportation study,

          PDA  will  develop  a comprehensive  traffic  model and

          surface transportation master plan  for the Pease area.

            (3) Using the traffic model  and periodically updated

          traffic  counts,  PDA  will undertake  intermittent  CO

          analyses to determine compliance with the one and eight

          hour CO NAAQS and report the results of all CO analyses

          to EPA.

            (4)  In the  event that  the CO  analyses demonstrate

          that   a   proposed   traffic   increase   from   Pease

          redevelopment  may  cause   or  contribute  to  a   new

          violation of the NAAQS for CO, PDA, in conjunction with

          any  other  state  agency  whose  participation  may be

                               -32-

          necessary, "will implement measures necessary to reduce

          projected  traffic  increases   and/or  air   emissions

          impacts  to  a  level  which  will  not  result in  any

          violation of,  or any  contribution to a  violation of,

          the NAAQS" for CO.

          With  respect to hydrocarbon (HC) emissions, PDA agreed

not to develop Pease  beyond a level anticipated to  generate 3.3

tons  per day  of  HCs until  New Hampshire  revised  its SIP  to

accommodate greater emissions and the EPA approved the new SIP.  

          Finally, with respect to all emissions, NHDES agreed to

consult with PDA in preparing the revised SIP and to evaluate and

incorporate into  the new  SIP projected emission  increases from

Pease redevelopment.

            b.   NHDES Studies and the Varney Letter.  The Varney                      b.   NHDES Studies and the Varney Letter.                                                               

letter  considered  two  possible   readings  of  the  conformity

requirements  of section  7506(c)(1)(B):  (1)  that "the  federal

agency need  only  determine that  the  proposed activity  is  in

conformity with the terms of the existing SIP," and (2) that "the

determination  must  address  the  three elements  set  forth  in

  [7506(c)(1)(B] . . . separately, regardless of the terms of the

SIP."   The  letter  concluded that  Pease development  conformed

under  either reading.  This  conclusion was based  on studies of

air emissions  completed  by NHDES  after  the FEIS  was  issued.

These studies compared baseline emissions from 1989 (during full-

scale  military  operations  at Pease)  and  1990  (when the  CAA

amendments were enacted and some military operations at Pease had

                               -33-

already ceased) with projected emissions to 1997.5  According  to

the Varney letter,  the emissions were not  projected beyond 1997

because such projections would be too speculative and  because by

1997 New Hampshire would adopt a new SIP to address any increases

in emissions.

          Based on these  studies, NHDES concluded,  with respect

to  ozone,  that  by  1997  emissions  of  HCs,  ozone's  primary

precursor, would likely reach approximately 2.5 tons per day, the

same level  as Pease  emitted in  1990, when  military operations

were  less than full-scale.  At full-scale, HC emissions at Pease

had been  variously estimated at 3.3 to 4 tons per day, which was

still  in compliance with the existing SIP.  Overall ozone levels

generated locally  were expected  to decline because  older cars,

which  produce more HCs,  were slowly being  replaced and because

"stage  II  vapor  recovery  at gasoline  filling  stations"  was

commencing.   For  these  reasons, projections  of overall  ozone

levels  generated by the Pease area were expected to remain below

the 1989 and 1990 levels through Phase I of redevelopment.

          With respect  to CO emission levels,  the NHDES studies

showed that, comparing 1989 and 1990 to 1997, Pease redevelopment

would not result  in a  significant increase in  the air  quality

region.    And  improvement  of  the  intersection  at  Spaulding

Turnpike  and  Gosling  Road  (Spaulding   Turnpike/Gosling  Road

                                                  

5   Projected emissions  to 1997 took  into account redevelopment
through Phase I of the Pease project, i.e., the first five years.                                                    

                               -34-

interchange) would significantly lessen  CO levels locally during

the period studied.6

          NHDES  ultimately  concluded  that Pease  redevelopment

satisfied  the  three  conformity  criteria set  out  in  section

7506(c)(1)(B): that, through 1997, Pease redevelopment would  not

cause  or contribute to any new  violation of any standard in any

area;  increase  the  frequency   or  severity  of  any  existing

violation of any standard in any area; or delay attainment of any

standard  or any  required interim  emission reductions  or other

milestones in any area.

          NHDES  also concluded that  Phase I redevelopment would

not  violate any specific provision  of the SIP  but rather would

"conform  to the  SIP's purpose  of eliminating  or  reducing the

severity  and number of  violations of  the national  ambient air

quality standards,  and achieving expeditious attainment  of such

standards."  See  42 U.S.C.  7506(c)(1)(A).   NHDES reached  this                          

conclusion  for  several  reasons:   (1)  the  existing  SIP  was

developed  when  Pease  was  fully  operational and  incorporated

emissions from Pease  at that level of operation; (2)  Phase I of

Pease redevelopment was expected  to produce fewer emissions than

                                                  

6  Although the NHDES studies noted that the "air quality region"
had "no  historic attainment  or maintenance problem  with carbon
monoxide" NAAQS, the air  quality analysis in the FEIS  had shown
present and ongoing violations of the NAAQS for CO at the Gosling
Road/Spaulding  Turnpike  interchange, the  main  gate  to Pease.
Post-FEIS supplemental  air quality  modeling of the  interchange
area,  based  on corrected  data, showed  that  CO levels  at the
interchange would  stay  within  the  NAAQS through  Phase  I  of
redevelopment upon  completion of scheduled  improvements at  the
interchange.

                               -35-

the base produced during full operation; and (3) increased levels

of emissions from later stages of development would be taken into

account in the future SIP.

            c.  FAA's Approval of Airport Redevelopment.  The FAA                      c.  FAA's Approval of Airport Redevelopment.                                                                  

reviewed  the  Airport  Layout  Plan  (ALP),  PDA's  proposal  to

redevelop airport-related  property at Pease, as  required by the

Surplus Property Act.  In its ROD, it approved each  of the items

in  the   ALP,  either  unconditionally  or   conditionally,  and

recommended  that the Air Force proceed with its proposal to make

property at Pease  available for use as  a civilian airport.   It

gave unconditional  approval to  the minor,  interim and  Phase I

redevelopment outlined in the ALP but, to ensure conformity, only

conditional approval to key  items in the ALP.  It concluded that

its approval "conform[s] with the approved SIP."

          Regarding the later phases  of the redevelopment, which

could have a significant impact on air quality, FAA approval will

be  required once plans for them  are made final and proposed for

implementation; that approval will be  granted only after the FAA

determines  whether additional  air  quality analysis  and a  new

conformity finding are  required.  Further, FAA  approval will be

required  for any new projects not depicted in the ALP, providing

additional assurances of conformity.

          2.      Plaintiffs'   Challenges   of   the  Conformity                    2.      Plaintiffs'   Challenges   of   the  Conformity                                                                           

Determinations.          Determinations.                         

          Plaintiffs   charge   that  the   agencies'  conformity

determinations ignore evidence  demonstrating that  redevelopment

                               -36-

would   cause  new   CO  violations,   increase  existing   ozone

violations,  and delay  attainment  of the  clean air  standards.

Instead of  properly addressing these problems  prior to approval

of the project,  they contend, the agencies improperly shifted to

New Hampshire  the burden of achieving  future conformity through

amendments to the SIP.

            a.   Evidence  of Violation  of  Conformity Criteria.                      a.   Evidence  of Violation  of  Conformity Criteria.                                                                           

Plaintiffs contend that the redevelopment of Pease will cause new

violations  of the NAAQS for CO, increase violations of the NAAQS

for   ozone,  and   delay   attainment  of   CAA  standards,   in

contravention of section 7506(c)(1)(B).

            (i)   Evidence   Regarding   Effects   of   Phase   I                      (i)   Evidence   Regarding   Effects   of   Phase   I                                                                           

Redevelopment.  The  NHDES studies discussed in the Varney letter          Redevelopment.                        

and the post-FEIS studies  on the Spaulding Turnpike/Gosling Road

interchange indicate  that Phase I redevelopment  activities will

conform to the  section 7506(c)(1)(B)  criteria, as  long as  New

Hampshire   improves   the   Spaulding    Turnpike/Gosling   Road

interchange  as required.7    As discussed  above, NHDES  studies

used  1989 and  1990  emissions  estimates  as the  baseline  for

performing  the conformity analyses.  The EPA, Air Force, and the

FAA   adopted  those   studies   in   making   their   conformity

determinations.
                                                  

7   New  Hampshire  is  committed  to making  these  improvements
because,   as   noted  above,   NHDES's  conclusion   that  Pease
redevelopment through  Phase I meets the  conformity criteria was
based on the assumption that this  interchange would be improved.
See  supra   p.  42  n.6.     Similarly   the  FAA's   conformity                    
determination was based  in part on improvement of  the Spaulding
Turnpike/Gosling Road interchange. 

                               -37-

          Section 7506(c)(1)(B) states that  "[t]he determination

of  conformity shall  be based  on the  most recent  estimates of

emissions .  . . ."   NHDES explained  that it selected  1989 and

1990 rather than  1991 (the  year it performed  the analysis)  as

baseline years because 1989 was 

          "the most recent year representative of full-
          scale  military  operation  at  Pease.   This
          appears  to   us  to  be  the  most  relevant
          comparison,  since  Congress's  intention  in
          Section [7506(c)] is clearly to  evaluate new
          developments in the  context of  pre-existing
          conditions . . . .   We assume  that Congress
          did  not  intend that  a  project like  Pease
          redevelopment   would   be  penalized   under
          [7506(c)]  because there  is  a temporal  gap
          between the federal government's  decision to
          terminate  operations at Pease and the start-
          up of the State's redevelopment of the  base,
          during which  a  temporary reduction  in  the
          emission  inventory occurred  as a  result of
          activity phase-down." 

Use of 1991 as a baseline, it added, "would unfairly penalize the

Pease redevelopment project, since 1991  emissions of CO, NOX and

VOCs are significantly less than historical norms because  of the

Air Force's cessation of activities at Pease."

          Under the Chevron doctrine, an  agency's interpretation

of a statute is entitled to  weight when the statute is silent or

ambiguous.    See  Chevron,  U.S.A., Inc.  v.  Natural  Resources                                                                           

Defense  Council,  Inc.,  467 U.S.  837,  842-3  (1984).   As  an                                 

abstract  matter,   the  words  of  the   statute,  "most  recent

estimates,"  would  not   be  considered  ambiguous;   a  literal

interpretation  would require the agencies to use 1991 data.  See                                                                           

42  U.S.C.    7506(c)(1)(B) (conformity  determination "shall  be

                               -38-

based  on  the  most recent  estimates  of emissions  .  .  . .")                                     

(emphasis added).  

          Courts have, however, recognized that  "[a] statute may

be  ambiguous if its application leads to an irrational or absurd

result."   Ewing v.  Rodgers, 826  F.2d 967,  970 n.3  (10th Cir.                                      

1987) (citing  In re Rodman,  792 F.2d  125, 128  n.8 (10th  Cir.                                     

1986));  see also  United  States v.  Real  Estate Known  as  916                                                                           

Douglas  Ave., 903 F.2d 490,  492 (7th Cir.  1990), cert. denied,                                                                          

498  U.S. 1126 (1991).   Courts have also  recognized that "[t]he

plain meaning of legislation should be conclusive, except in  the                                                                   

'rare  cases [in which] the literal application of a statute will

produce  a result demonstrably at odds with the intentions of its

drafters.'"  United States v. Ron Pair Enters., 489 U.S. 235, 242                                                        

(1989), (quoting  Griffin v.  Oceanic Contractors, Inc.  458 U.S.                                                                 

564, 571 (1982)) (emphasis added).   This appears to us to be one

of  those rare  cases where  the plain  meaning would  lead to  a

result  that is irrational and at  odds with the intention of the

legislature.  Read  literally, the plain language  of the statute

as  applied  in  base-closing  cases  would  require   conformity

determinations to be based on  a wholly artificial situation, the

interval  during which  military  operations have  shut down  and

civilian  activities not yet started.   The likely consequence in

many cases would be to  preclude any economically beneficial  use

of  a closed  military base.   Such  a result  is  irrational and

presumably unintended by Congress.  In  view of Congress's strong

support of  civilian redevelopment of closed  military bases, see                                                                           

                               -39-

infra pp.  57-58,  it would  not  have wanted  to  erect a  major               

obstacle to economically beneficial, post-closing uses of a base.

Thus, the agencies' reliance  on the NHDES studies based  on 1989

and 1990 estimates was reasonable under the circumstances.  Those

studies  support the  determination  that Phase  I  redevelopment

meets the statutory conformity criteria.

            (ii)  Evidence  Regarding  Effects  of  Post-Phase  I                      (ii)  Evidence  Regarding  Effects  of  Post-Phase  I                                                                           

Redevelopment.   Other  air quality  studies conducted  by NHDES,          Redevelopment.                        

however, suggest  potential violation of the  conformity criteria

in  later  phases  of  Pease   redevelopment,  absent  mitigation

measures.   With respect to CO emissions, the FEIS indicated that

by the  year 2010 redevelopment  was expected to  generate 68,000

daily  vehicle  trips into  the Pease  area.   The  main  area of

concern for traffic congestion causing emissions increases is the

intersection of  Spaulding Turnpike and Gosling  Road.  Post-FEIS

air quality  studies of  that intersection indicated  that, while

construction  of   the   new  Spaulding   Turnpike/Gosling   Road

interchange by  NHDOT would bring  the area into  compliance with

NAAQS  for  CO through  the end  of  the decade,  traffic volumes

associated with Pease  redevelopment and regional  growth through

the  full build-out  year  2010 could  cause violations  unless a

second   entrance   interchange   to   Pease   was   constructed.

Redevelopment would therefore contribute to new violations of the

NAAQS for CO sometime after the turn of the century.

          Similarly,  an  EPA  memorandum  dated  July 24,  1991,

indicated that, while Phase I of Pease redevelopment was expected

                               -40-

to  generate  only  2.5  tons  per  day  of  HCs  (a  major ozone

precursor),  Phase II extending to the year 2002 was estimated to

generate 4.8  tons  per day.    At  that level,  Phase  II  would

increase existing violations, as well as delay attainment, of the

NAAQS for ozone absent  some other changes or the  institution of

mitigation measures.

            b.  Mitigation Measures.  Plaintiffs contend that the                      b.  Mitigation Measures.                                              

supporting agencies  improperly shifted the burden  of compliance

to  New Hampshire  and the  SIP process  and that  the mitigation

measures  agreed to by the  parties failed to  meet the statutory

criteria of the conformity provision.

            (i) Carbon  Monoxide.  With respect  to CO emissions,                      (i) Carbon  Monoxide.                                           

the  MOU requires PDA to  conduct a surface transportation study,

develop  a  traffic model  and master  plan  for the  Pease area,

conduct  intermittent  CO   analyses,  and  implement  mitigation

measures  as  needed.     As  to  the  latter,  the   MOU  states

categorically that "PDA, and if necessary in conjunction with any

other appropriate state agency, will implement measures necessary                                                                 

to  reduce  projected  traffic  increases  and/or  air  emissions

impacts to  a level which will not result in any violation of, or

any  contribution  to  a  violation  of,  the  NAAQS  for  carbon

monoxide." (Emphasis added.) 

          These  commitments are sufficient  to ensure compliance

with the statutory requirement that Pease redevelopment "will not

cause  or contribute to  any new violation" of  the NAAQS for CO,

see 42 U.S.C.   7506(c)(1)(B)(I), for two reasons.             

                               -41-

          First,   PDA's   open-ended  commitment   to  implement

necessary  mitigation   measures   includes  by   implication   a

commitment   to  implement   the   mitigation  measures   already

identified  in the  area of  the Spaulding  Turnpike/Gosling Road

interchange.   Specifically,  it  includes a  commitment by  PDA,

along with NHDOT and other necessary state agencies, to build the

second access  to Pease,  unless later studies  reveal preferable

alternatives for satisfying the commitment.  See supra pp. 38-39.                                                                

          Corroborating  this  commitment  is  a July  31,  1991,

letter from PDA to the Air Force stating that compliance with the

NAAQS would  require completion of improvements  to the Spaulding

Turnpike/Gosling Road  interchange as  well as construction  of a

second access to Pease prior to the time the improved interchange

reaches maximum capacity.   To permit construction of the  second

access, PDA requested that a portion  of the golf course at Pease

be made available.   In  the Application and  Acceptance for  the

transfer of  airport property, the  Air Force agreed  to transfer

the needed portions of the golf course.

          Second, the  agreement  requiring ongoing  studies  and

analyses and implementation of  mitigation measures as needed was

a reasonable  way to  ensure conformity under  the circumstances.

The  details of the redevelopment  project are not  fixed and its

time line is extended.   As the FAA pointed  out in its ROD,  air

quality  impacts stemming  from  certain aspects  of the  airport

development  were speculative when  the conformity determinations

                               -42-

were made because the project-specific design detail necessary to

assess those impacts properly and  develop a range of alternative

mitigation  measures  was lacking.    Similarly,  the nonaviation

business tenants at  the on-airport industrial  park had not  yet

been  selected.   In  addition, over  the  20-year life  of Pease

redevelopment, other environmental factors in the region, as well

as technologies available  to address  them, may  change.   Given

these uncertainties,  a commitment to pursue  ongoing studies and

analyses and  to implement appropriate mitigation  measures based

on demonstrated needs  was a reasonable  approach to meeting  the

statutory requirement.     

            (ii)  Ozone  Precursors.    With  respect  to   ozone                      (ii)  Ozone  Precursors.                                              

standards,   the  MOU  requires  NHDES   to  work  with  PDA  and

incorporate projected emissions from Pease redevelopment into the

SIP  revisions.8 Unless  and  until  the  new  SIP  is  approved,

however,  it  bars PDA  from developing  Pease "beyond  the level

anticipated  to   generate  3.3  tons  per   day  of  hydrocarbon

emissions"--the level of emissions from Pease permitted under the

existing SIP.  Thus, the MOU does not place the  entire burden of

addressing HC emissions on the SIP process. 

          To the extent that the MOU does rely on the SIP process

to deal  with projected  increases in  HC emissions, however,  it
                                                  

8  According to  the 1990 Amendments, New Hampshire  was required
to revise  its SIP  to achieve  at least a  15% reduction  in VOC
emissions (including HCs) from 1990  levels on or before November
of  1996 (accounting for any growth in emissions after 1990), and
3%  additional annual  reductions on  average thereafter  through
1999.   See  42 U.S.C.    7511a(b)(1)(A)  &amp; (c)(2)(B)  (Supp. III                     
1991).  

                               -43-

does  so  properly  under  the  circumstances.    The  1990   CAA

amendments required  New Hampshire to  revise its SIP  to address

VOC emissions (which  include HC emissions) within  approximately

three years.   See 42 U.S.C.     7511a(c), (b)(1).   See supra p.                                                                        

14.   NHDES's  commitment to  consult  with PDA  and  incorporate

emissions from  Pease development into required  revisions of the

SIP is  consistent with the SIP  process and NHDES's  role as the

state agency responsible for  developing the SIP.  While  the EPA

and the  legislature set ultimate standards  and goals--including

the NAAQS and deadlines  for attaining them--the state prescribes

in its SIP  how it  will achieve those  goals.   See 42 U.S.C.                                                                 

7407.   Thus, if NHDES  chooses to incorporate  into the required

revisions of the SIP  certain levels of emissions from  the Pease

project, that is its prerogative under the statutory SIP process.

          By  agreeing to  incorporate Pease  emissions into  SIP

revisions that will  reduce overall ozone-precursor emissions  in

the region, NHDES has enabled  PDA to undertake the redevelopment

without increasing the severity of or delaying attainment of  the

NAAQS  for  ozone.   Presumably  New  Hampshire will  accommodate

increased HC  emissions from  Pease and achieve  interim required

emissions reductions and timely attainment of the NAAQS for ozone

by cutting VOC emissions in other areas.  This will permit  later

stages of  Pease redevelopment  to go forward  without increasing

existing violations of the NAAQS for ozone or delaying attainment

                               -44-

of  the NAAQS  for  ozone  or  other  CAA  standards.  42  U.S.C.

  7506(c)(1)(B)(ii), (iii).   

          Unless and until a  new SIP incorporating higher levels

of  emissions from Pease is  approved, however, the MOU prohibits

redevelopment  of Pease beyond a level producing 3.3 tons per day

of HC emissions.   While the cap is in  compliance with the terms

of the existing SIP, it is not so clear it will ensure that Pease

redevelopment  activities  will  not  increase  the  severity  of

existing  ozone  violations  and   delay  compliance  with  ozone

standards.   Whether redevelopment will increase  the severity of                                                          

existing violations  depends in  part on the  baseline emissions.

When compared to 1989  emissions, 3.3 tons per day  represents no

increase  in the severity of  violations of the  NAAQS for ozone.

Because,  as  we  stated  earlier,  use  of   1989  estimates  is

reasonable  under the  circumstances,  see supra  pp. 45-47,  and                                                          

because the existing  SIP permits  this level  of emissions,  the

provisions of  the MOU satisfy the  conformity requirements under

section 7506(c)(1)(B)(ii).  

          Regarding delaying attainment  of the ozone  standards,

plaintiffs   appear  to   suggest  that   to  meet   the  section

7506(c)(1)(B)(iii)  criteria, emissions  from  the Pease  project

must be consistent with  the VOC emissions reductions set  out in

42 U.S.C.   7511a(c)(2).   Prior to incorporation into  a revised

SIP, however, these reductions apply only in conformity decisions

related  to  transportation  plans,  programs  and  projects  and

therefore   are    not   relevant   here.       See   42   U.S.C.                                                             

                               -45-

  7506(c)(3)(A)(iii); see also 136 Cong. Rec. S16973 (October 27,                                        

1990) (Statement  of Senator Baucus,  sponsor and manager  of the

Senate bill) ("[Transportation]  plans and  programs adopted  for                                                              

areas that are  nonattainment for ozone or carbon monoxide during

the interim period shall contribute to annual emission reductions

consistent with the emissions reductions schedules adopted in the

bill for such areas. . . .") (emphasis added). 

                      IV.  THE CERCLA CLAIM                                IV.  THE CERCLA CLAIM

          Newington claims that the  Air Force's 55-year lease of

portions  of Pease  to  PDA violates  section 120(h)(3)(B)(i)  of

CERCLA (42  U.S.C.   9620(h)(3)(B)(I)).   The district  court had

jurisdiction over  the claim under  42 U.S.C.    9613(b)  (1988).

Section 120  was  added  by the  1986  Superfund  Amendments  and

Reauthorization  Act (SARA), Pub.  L. No. 99-499,  100 Stat. 1613

(1986),  to   address  issues   concerning  hazardous   waste  on

federally-owned sites.  Section  120(a) subjects federal agencies

to CERCLA.   Subsections (b) through (f) outline  a comprehensive

program   to  identify  and   remediate  hazardous  waste  sites.

Subsection  (h)  deals  with   transfers  of  property  on  which

hazardous substances are known to  have been released or disposed

of.    Subsection  (h)(1)  requires  notice  of  such release  or

disposal in any contract "for the sale  or other transfer of real

property which is owned by the United States."

          Subsection  (h)(3) addresses  the "contents  of certain

deeds."  Before its recent amendment, it required that

          .  . . in the case of any real property owned
          by the  United States on which  any hazardous

                               -46-

          substance was  stored for  one year  or more,
          known to have been released, or disposed  of,
          each deed  entered into  for the  transfer of
          such property  by the  United  States to  any
          other person or entity shall contain--
            (B) a covenant warranting that--
            (i)  all  remedial   action  necessary   to
          protect human health and the environment with
          respect  to any  such substance  remaining on
          the property  has been taken before  the date
          of such transfer, . . . .

42 U.S.C.   9620(h)(3).

          Newington  argues that section  120(h)(3) prohibits the

federal government from  transferring contaminated property until

it has constructed, installed and is successfully operating clean

up  procedures  and  mechanisms  that  ensure  full  remediation.

Although  section  120(h)(3)  by  its  terms  applies  to  deeds,

Newington contends  that the substance of  the transaction should

control  and that the government should not be permitted to avoid

the mandate of the  statute by labeling the transaction  a lease.

The District Court  held that  the transfer  without an  approved

remedial design violated  section 120(h) of CERCLA, and  that the

failure to disclose in the  FEIS the decision to transfer  by way

of a  long-term lease rather  than deed  violated NEPA.   See 864                                                                       

F.Supp. at  290.  Although the court  declined to hold the leases

void,  it directed the Air  Force to prepare  a supplemental FEIS

delineating  the remedial  design.   Newington contends  that the

relief granted  is inadequate  to secure compliance  with section

120(h).

                               -47-

          Any question about whether section 120(h)(3) applies to

long-term  leases has been laid to rest  by the 1996 amendment of

that section, adding the following language:

            The  requirements of subparagraph (B) [of a
          covenant   warranting   completion   of   all
          necessary remedial action] shall not apply in
          any  case  in  which   the  transfer  of  the
          property occurs or has occurred by means of a
          lease,  without regard to  whether the lessee
          has   agreed  to  purchase  the  property  or
          whether  the duration of  the lease is longer
          than 55 years.

National Defense Authorization Act for Fiscal Year  1996, Pub. L.

No. 104-106,   2834, 110 Stat.     (1996). 

          "When a case implicates a federal statute enacted after

the  events in  suit,  the court's  first  task is  to  determine

whether Congress has  expressly prescribed  the statute's  proper

reach."  Landgraf v.  USI  Film Prods.,  114  S. Ct.  1483,  1505                                                

(1994).  In  this case, Congress left no doubt that the amendment

was to apply to the instant  lease.  The Conference Report on the

Defense  Authorization  Act  states  in part  that  section  2834

"addresses a  recent federal  district court decision  that could

undermine  reuse plans  at  military  installations selected  for

closure  with  similar  reuse plans.    The  provision serves  to

clarify  the legislative intent on  the issue."   H.R. Conf. Rep.

No. 450,  104th Cong., 2d Sess.  [1996 WL 33108 at  1724 (LH data

base)] (1996).  Senator  Bob Smith of New Hampshire,  the sponsor

of the amendment, explained that the need for the amendment arose

out of the District Court's decision  in this case which "has . .

. placed a cloud over redevelopment efforts at Pease .  . . [and]

                               -48-

has helped  to hinder  the expedited redevelopment  of facilities

across  the Nation that are  being closed under  the Base Closure

and Realignment  Act . . . .  The  language that was  included in

section 2824 . . . was intended to modify section 120(h)(3) . . .

to  provide that the Department  of Defense may  enter into long-

term . . . leases while any phase of the cleanup is ongoing . . .

. [N]ot only are  existing leases appropriate, but  future leases

may be entered into  . . . ."   141 Cong. Rec. S11557  (daily ed.

Aug.  5, 1995) (statement of  Sen. Smith).   The recent amendment

validates the Air Force's lease to PDA under CERCLA.

            V.  THE NEPA CLAIM                      V.  THE NEPA CLAIM

          The  federal  defendants  do  not  appeal  the district

court's  order  finding a  violation  of  "the public  disclosure

requirements of NEPA" and  directing the Air Force to  "compile a

Supplemental FEIS."  With  regard to the NEPA claims  against the

FAA,  the FAA  adopted  the  FEIS  prepared  by  the  Air  Force;

therefore,  the  district  court's  decision that  the  FEIS  was

deficient under NEPA binds the  FAA.  The only NEPA  issue before

us then is plaintiffs'  appeal of the district court's  denial of

injunctive relief for the NEPA violations.

          Plaintiffs first attack the denial of injunctive relief

on the ground that the district court  failed to make findings of

fact and conclusions of law  sufficient to meet the  requirements

of Fed. R. Civ. P. 52.   Plaintiffs contend that the court failed

to provide sufficient factual or legal support for its conclusion

that  plaintiffs "have  [not]  demonstrated the  irreparable harm

                               -49-

necessary for granting  a preliminary injunction."   See, 864  F.                                                                  

Supp. at 292.  "The  purpose   of   Rule  52(a),   pertinent   to

injunctions,  is to  provide  the appellate  court  with a  clear

understanding of  the  decision."   Wynn  Oil  Co.  v.  Purolator                                                                           

Chemical Corp.,  536 F.2d 84,  85 (5th  Cir. 1976).   "Rule 52(a)                        

calls for a level  of detail adequate to permit  appellate review

on factual issues, and what is adequate depends on the importance

of an issue,  its complexity,  the depth and  nature of  evidence

presented, and  similar elements  that vary  from case  to case."

Knapp Shoes, Inc. v. Sylvania Mfg. Corp., 15 F.3d 1222, 1228 (1st                                                  

Cir.  1994).   Although the  district court  did not  discuss its

factual  or legal reasons for concluding  that the plaintiffs did

not  suffer  irreparable harm,  its  lengthy  opinion provides  a

detailed  discussion  of  the  factual and  legal  bases  for its

substantive  conclusions.    That   discussion,  along  with  the

voluminous  and undisputed  documentary evidence  in the  record,

provides  this  court with  sufficient  information  to determine

whether  the  district court  abused  its  discretion in  denying

injunctive relief;  thus, the omission of a  statement of reasons

for the denial of  injunctive relief was at most  harmless error.

See,  e.g.,  Associated Elec. Coop.,  Inc. v. Mid-America Transp.                                                                           

Co.,  931 F.2d  1266,  1272 (8th  Cir.  1991) ("failure  to  make             

findings of fact  and conclusions  of law may  be harmless  error

where,  as here, most relevant  facts are undisputed  and the law

can be applied without the district court's assistance"); Koerpel                                                                           

v. Heckler, 797 F.2d  858, 866 n.4 (10th Cir.  1986) (even though                    

                               -50-

district court "should have elaborated on the facts which  formed

the  basis  for its  conclusions .  .  . [s]uch  an  omission is,

however,  harmless  error   because  the  record  supports   such

findings")  (citation omitted); Huard-Steinheiser, Inc. v. Henry,                                                                          

280 F.2d 79, 84 (6th Cir. 1960) (failure of district court to put

on record findings of fact and conclusions of law  resulted in no

prejudicial error where record clearly disclosed basis upon which

denial of injunction rested).  Plaintiffs   next  challenge   the

court's  decision  to  deny  injunctive  relief  on  the  merits.

Whether to  grant injunctive  relief  under NEPA  is governed  by

traditional equity  standards.   Sierra Club  v. Marsh,  872 F.2d                                                                

497,  503-04  (1st  Cir. 1989).    The  court  must consider  the

plaintiffs'  likelihood of  success  on the  merits, whether  the

plaintiffs would suffer irreparable  harm without an  injunction,

the appropriate  "balance" of  harms to  the  plaintiffs and  the

defendants, and the  effect upon  the public  interest.   Planned                                                                           

Parenthood  League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st                                                 

Cir. 1981). 

          We review  orders granting or  denying injunctions  for

abuse  of discretion.  Celebrity,  Inc. v. Trina,  Inc., 264 F.2d                                                                 

956, 958 (1st Cir. 1959).  "District courts have broad discretion

to evaluate  the  irreparability  of alleged  harm  and  to  make

determinations regarding the propriety of injunctive relief."  K-                                                                           

Mart  Corp. v. Oriental Plaza, Inc., 875  F.2d 907, 915 (1st Cir.                                             

1989)  (quoting Wagner v. Taylor, 836 F.2d 566, 575-76 (D.C. Cir.                                          

1987)). 

                               -51-

          The  district court  denied  injunctive  relief on  the

ground  that   plaintiffs  would  suffer  no   irreparable  harm.

Plaintiffs  challenge this  finding,  relying on  Sierra Club  v.                                                                       

Marsh, 872 F.2d 497  (1st Cir. 1989), and Massachusetts  v. Watt,                                                                          

716  F.2d  946  (1st  Cir.  1983).   In  those  cases,  we  found

irreparable harm  to exist when  agencies become entrenched  in a

decision uninformed by the proper NEPA  process because they have

made  commitments or  taken  action to  implement the  uninformed

decision.  See Watt, 716 F.2d  at 951-53; Marsh, 872 F.2d at 499-                                                         

503. Our rationale  derived from the purpose  of NEPA:   "NEPA is

designed  to influence  the  decision making  process" by  making

"governmental officials notice  environmental considerations  and

take them into account."   Watt, 716 F.2d at 952.   "Thus, when a                                         

decision  to which NEPA  obligations attach  is made  without the

informed environmental consideration that NEPA requires, the harm

that NEPA intends to prevent has been suffered."  Id.   That harm                                                               

is not  merely a procedural harm,  but is "the added  risk to the

environment  that takes place  when governmental  decision makers

make  up their minds without having before them an analysis (with

prior public  comment) of  the likely  effects of  their decision

upon the environment."  Marsh, 872 F.2d at 500.                                       

          Plaintiffs   argue   that,   without   an   injunction,

development  of Pease will continue and they will suffer the kind

of  irreparable  harm we  described in  Watt  and Marsh.    As we                                                                 

emphasized  there,  however, our  holdings did  not mean  "that a

likely NEPA violation automatically  calls for an injunction; the

                               -52-

balance  of harms may point the other  way."  See Marsh, 872 F.2d                                                                 

at 504 (quoting Watt,  716 F.2d at 952) (emphasis added). In Watt                                                                           

and  Marsh,  plaintiffs moved  for  injunctions  in the  earliest                    

stages  of  development of  the  projects  at  issue,  when  NEPA

injunctions could  implement the  statutory purpose in  the sense

that "bureaucratic decision makers . . . are less  likely to tear

down a nearly completed  project than a barely  started project."

Marsh, 872 F.2d at 500.   In contrast, plaintiff here, well aware               

of the  defective FEIS, waited  nearly three years  before moving

for  injunctive relief.  CLF  filed its complaint  in March 1992,

some  six months after the  challenged FEIS and  ROD were issued;

Newington  filed its  complaint  in June  1992.   Both complaints

recited requests  for permanent injunctions in  their prayers for

relief.   Despite  these  early references  to equitable  relief,

however, neither  CLF nor  Newington ever  moved  to restrain  or

enjoin any aspect of the project.  When the cases came before the

district court on cross-motions for summary judgment, plaintiffs'

briefs focused on the  merits of the substantive claims,  not the

need for injunctive relief.  Only  after the entry of the court's

order granting summary judgment in  part did plaintiffs argue, in

a  motion to amend, that  they were entitled  to broad injunctive

relief.

          To  be taken into  account in assessing  the balance of

harms is the  fact that  between the time  when plaintiffs  filed

suit  and  when  they  ultimately moved  for  injunctive  relief,

significant  commitments were  made to  the  Pease project.   The

                               -53-

State of New  Hampshire issued $8  million in general  obligation

bonds to fund the  operation of PDA and $40 million in guaranteed

bonds to help finance the location of two major tenants at Pease;

construction  contracts aggregating $50  million were entered and

federal  grants of more than  $6 million received  to support the

airport operations;  and more than 1,100  persons became employed

by tenants and agencies  as a result of the  development project.

These commitments would be  placed at risk if an  injunction were

granted.

          Thus, the  type of public and  private commitments with

which Watt and Marsh were concerned had already been made here by                              

the  time plaintiffs sought injunctive relief.  If harm was done,

it largely had been done, not by the court's denial of injunctive

relief, but by plaintiffs' failure  to timely seek it.  While  it

is true that as development continues other actions will be taken

to implement the project, their impact  will be only incremental.

Future risks  of environmental harm will  be minimized, moreover,

by the district court's retention of jurisdiction under its order

that  the Air  Force  compile a  Supplemental  FEIS, by  the  Air

Force's commitment to  this court that  it "will use the  SEIS to

review  its August 1991 ROD and April 1992 Supplemental ROD," and

by the continuing oversight responsibilities of the FAA under the

Surplus Property Act and of the EPA under the CAA.

          Under  these  circumstances, it  was  not  an abuse  of

discretion for the district  court to deny the  injunctive relief

sought.  

                               -54-

                         VI.  CONCLUSION                                   VI.  CONCLUSION

          We  reverse  the  district  court's  determination that

defendants  violated CERCLA and affirm the  judgment below in all

other respects.   Pending the completion of the Supplemental FEIS

on which the FAA is working in conjunction with the Air Force, we

retain  jurisdiction  under  the  petitions of  the  NEPA  claims

against the FAA but dismiss the CAA claims against it.

          SO ORDERED.                              

                               -55-
