Notice of Policy and Procedures for Voluntary Preparation of
National Environmental Policy Act (NEPA) Documents
[Federal Register: October 29, 1998 (Volume 63, Number 209)]
[Notices]
[Page 58045-58047]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc98-72]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-6181-5]
Notice of Policy and Procedures for Voluntary Preparation of
National Environmental Policy Act (NEPA) Documents
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of new policy and repeal of existing policy.
-----------------------------------------------------------------------
SUMMARY: EPA is today withdrawing its May 7, 1974 Statement of Policy
for Voluntary Environmental Impact Statements (EIS) (39 FR 16186) and
publishing a Statement of Policy for Voluntary Preparation of National
Environmental Policy Act (NEPA) Documents. The new Statement of Policy
updates Agency policy to make it more consistent with current practice.
This policy change widens the scope of Agency activities for which a
NEPA document may be prepared voluntarily and enables EPA to address
actions for which a voluntary EIS would have been prepared previously
with a voluntary Environmental Assessment (EA) if appropriate.
Additionally, EPA is withdrawing the Procedures for the Voluntary
Preparation (39 FR 37419, October 21, 1974) and instead will use
procedures as set out at 40 CFR Part 6, Subparts A through D, as
specified below.
DATES: This policy shall take effect October 29, 1998.
FOR FURTHER INFORMATION CONTACT: Joseph Montgomery at (202) 564-7157;
Email: montgomery.joseph@epamail.epa.gov; or Marguerite Duffy at (202)
564-7148; E-mail:duffy.marguerite@epa.gov; U.S. Environmental
Protection Agency, Office of Federal Activities (2252-A), 401 M Street,
SW, Washington, DC 20460.
SUPPLEMENTARY INFORMATION:
I. Background
In the November 28, 1997 Federal Register (62 FR 63334), EPA
proposed changes in its Statement of Policy for Voluntary EISs, which
it had adopted and published on May 7, 1974 in the Federal Register (39
FR 16186). This revised policy updates EPA's 1974 policy to reflect how
Congress and the Courts have defined EPA's NEPA obligations and to
ensure that EPA's voluntary practices regarding NEPA compliance are
consistent with practices provided in the NEPA regulations issued by
the Council on Environmental Quality (CEQ) at 40 CFR Parts 1500 through
1508. The revised policy also encourages expansion of the increased
discretionary use of NEPA procedures voluntarily in circumstances where
they can be particularly helpful for decision-making involving other
federal agencies, cross-media issues, or other concerns such as
environmental justice. The revised policy affects certain EPA standard-
setting and cancellation procedures.
II. Response to Comments
A total of four comments were received in response to the November
28, 1997 proposed changes. Three organizations were supportive of the
proposed changes. One state government concurred with the proposed
changes but requested that EPA consult with states regarding any
actions which were previously reviewed through the EIS process but
which EPA believes should be evaluated through environmental
assessments in the future. The state also requested that EPA continue
to prepare EISs in the case of site designations under the Marine
Protection, Research and Sanctuaries
[[Page 58046]]
Act. EPA appreciates the support for its proposed change to the policy.
In response to the first request, EPA supports early consultation with
the states, particularly on specific actions which affect one or more
states, and expects that there will be early coordination with affected
states on these actions. EPA does not believe that there is a need to
formalize this process in the policy statement and notes that, in
addition to early consultation between EPA and the states, under the
EPA NEPA implementing regulations at 40 CFR Part 6, which EPA will
follow in its voluntary NEPA compliance, a 30-day public review is
required for any proposed Finding of No Significant Impact. This allows
an additional opportunity for state involvement in the decision on
preparing a voluntary EIS. As to the second point, EPA believes that
decisions on preparing EISs for proposed ocean disposal sites should be
made on a case-by-case basis. States have been working closely with EPA
Regional offices on this program for many years; the Agency does not
envision significant changes to the decision making process or working
relationship. EPA voluntarily will follow NEPA procedures in ocean
disposal site designations under MPRSA and these procedures provide for
consultation with the states. Therefore, states will have an
opportunity to comment on the need for an EIS as discussed above.
III. Statement of Policy
Section 102(2)(C) of the National Environmental Policy Act (NEPA)
of 1969, as amended (Pub. L. 91-190, 42 U.S.C. 4321 et seq.) requires
that federal agencies prepare detailed environmental impact statements
(EISs) on proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment.
Regulations promulgated in 1978 and amended in 1986 by CEQ at 40 CFR
Parts 1500 through 1508 further provide for the preparation of
Environmental Assessments (EAs) to provide sufficient evidence and
analysis for determining whether to prepare an EIS or to prepare a
Finding of No Significant Impact (FONSI). The objective of NEPA is to
build into the agency decision-making process an appropriate and
careful consideration of all environmental aspects of proposed actions.
The Environmental Protection Agency (EPA) is legally required to
comply with the procedural requirements of NEPA for its research and
development activities, facilities construction, wastewater treatment
construction grants under Title II of the Clean Water Act (CWA), EPA-
issued National Pollutant Discharge Elimination System (NPDES) permits
for new sources, and for certain projects funded through EPA annual
Appropriations Acts. Section 511(c) <SUP>1</SUP> of the CWA exempts
other EPA actions under the CWA from the requirements of NEPA. Section
7(c) of the Energy Supply and Environmental Coordination Act of 1974
(15 U.S.C. 793(c)(1)) exempts actions under the Clean Air Act from the
requirements of NEPA. EPA is also exempted from the procedural
requirements of environmental laws, including NEPA, for Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA)
response actions. Courts also consistently have recognized that EPA
procedures or environmental reviews under enabling legislation are
functionally equivalent to the NEPA process and thus exempt from the
procedural requirements in NEPA.
---------------------------------------------------------------------------
\1\ In its May 7, 1974 Statement of Policy, EPA construed CWA
Sec. 511(c) as authorizing that ``environmental impact statements be
prepared only'' in connection with the activities to which that
section's exemptions did not apply. After the Policy's adoption, in
language virtually identical to that in Sec. 511(c), Congress
enacted an exemption for EPA Clean Air Act activities (15 U.S.C.
Sec. 793(c)(1)). EPA did not construe the Clean Air Act exemption as
precluding voluntary preparation of NEPA documents, and has, in
fact, also prepared voluntary NEPA documents for activities exempted
under CWA Sec. 511(c). This policy does not preclude voluntary
preparation of EAs or EISs for any EPA programs, including Clean
Water Act Programs.
---------------------------------------------------------------------------
Under the new policy, EPA may undertake voluntary preparation of
EAs and EISs under programs where it is not legally required to prepare
such documents, where such voluntary documents can be beneficial in
addressing Agency actions. Voluntary NEPA documentation can be
particularly useful in situations where other federal agencies are
preparing NEPA documentation for related actions, where NEPA's well-
understood and long-standing procedures provide an opportunity for
increased public understanding and involvement, and where the NEPA
process can facilitate analysis of environmental impacts. Accordingly,
the Agency has determined that, while it is not legally bound to do so
by NEPA, EPA may voluntarily prepare EAs and, as appropriate, EISs in
connection with certain EPA actions. The voluntary preparation of these
documents in no way legally subjects the Agency to NEPA's requirements.
A. Applicability
EPA will prepare an EA or, if appropriate, an EIS on a case-by-case
basis in connection with Agency decisions where the Agency determines
that such an analysis would be beneficial. Among the criteria that may
be considered in making such a determination are: (a) the potential for
improved coordination with other federal agencies taking related
actions; (b) the potential for using an EA or EIS to comprehensively
address large-scale ecological impacts, particularly cumulative
effects; (c) the potential for using an EA or an EIS to facilitate
analysis of environmental justice issues; (d) the potential for using
an EA or EIS to expand public involvement and to address controversial
issues; and (e) the potential of using an EA or EIS to address impacts
on special resources or public health.
For standard setting under the CAA; the Noise Control Act; and the
Atomic Energy Act; criteria for ocean disposal under the Marine
Protection, Research and Sanctuaries Act (MPRSA); and pesticide
disposal regulations and pesticide cancellations under the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA); EPA will continue
to fulfill its commitment to meeting the fundamental elements of NEPA
through the Agency's Regulatory Development Process for rule-making,
and through negotiated settlements with pesticide producers under
FIFRA. The new policy will not preclude the voluntary preparation of an
EA or EIS in an individual case should it be determined that an EA or
EIS would be beneficial.
B. Procedures
With respect to voluntary EAs and EISs prepared pursuant to this
policy, the Agency will follow, as appropriate, procedures set out at
40 CFR Part 6, Subparts A through D (which can be found on EPA's Web-
Site at www.epa.gov/oeca/ofa). In specific cases where following these
procedures in the preparation of voluntary EAs or EISs would not be
practicable or appropriate, the Director, Office of Federal Activities,
Office of Enforcement and Compliance Assurance, may approve exemptions.
The public shall be notified of any exemptions.
IV. Repeal of Current Policy
Effective upon publication of this policy in the Federal Register
the Statement of Policy for Voluntary EISs (39 FR 16186) and the
Environmental Impact Statements Procedures for the Voluntary
Preparation (39 FR 37419), are withdrawn and replaced by this policy.
[[Page 58047]]
V. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996, does
not apply because this action is not a rule for purposes of 5 U.S.C.
804(3).
Dated: October 23, 1998.
Carol M. Browner,
Administrator.
[FR Doc. 98-29019 Filed 10-28-98; 8:45 am]
BILLING CODE 6560-50-P
![[logo] US EPA](https://webarchive.library.unt.edu/eot2008/20090512225846im_/http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}