
USCA1 Opinion

	




                            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 & Soloman were on brief for Conservation          ______     _______________________          Law Foundation.               Perry  M.  Rosen,  with  whom   Dana  C.  Nifosi,  Cutler  &               ________________                ________________   _________          Stanfield, Malcolm R.  McNeill, Jr.  and McNeill  & Taylor,  P.A.          _________  ________________________      ________________________          were on brief for Town of Newington, New Hampshire.               Jeffrey P. Kehne, Attorney,  Environment & Natural Resources               ________________          Division, U.S. Department of Justice, with whom Lois J. Schiffer,                                                          ________________          Assistant Attorney General, Beverly Sherman Nash, Richard Sarver,                                      ____________________  ______________          Edward  J. Shawaker,  Attorneys, Environment &  Natural Resources          ___________________          Division, U.S. Department of Justice, 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 & 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 & 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  & 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 &  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)  & (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)  & (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-
