9. Conducting Public Participation Under the National Environmental Policy Act (NEPA)

Management System: Environment, Safety, and Health

Subject Area: Implementing the National Environmental Policy Act (NEPA) Within the Office of Science (SC)

Procedure 9. Conducting Public Participation Under the National Environmental Policy Act (NEPA)

Subject Matter Expert: PETER SIEBACH
Management System Owner: PATRICK SMITH
Secondary Management System Owner: KARL MORO

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Issue Date:  12/11/2012
SCMS Revision:  2.0

1.0  Applicability

This Procedure applies to Office of Science (SC) Staff who manage or participate in the public participation process under 42 U.S.C. 4321 et seq., National Environmental Policy Act (NEPA) of 1969, As Amended. This includes the Secretarial Officer (SO) (i.e., the Undersecretary for Science), Heads of Field Organizations (HFOs) (i.e., SC Site Office Managers and SC Integrated Support Center [ISC] Managers), NEPA Compliance Officer (NCO), NEPA Coordinator, NEPA Document Manager (NDM), Public Affairs/Communications Staff, and Legal Counsel.

2.0  Required Procedure 

Step 1 Per Paragraph 5a(3) of U.S. Department of Energy (DOE) O 451.1B, Admin. Change 3, National Environmental Policy Act Compliance Program, the SC NCO prepares and maintains a NEPA public participation plan for SC. Other NCOs prepare NEPA public participation plans for the organizational units under their responsibility. In preparation of plans, NCOs consult Effective Public Participation under the National Environmental Policy Act, 2nd Edition, and the organizational unit’s general public participation plan (if any exist).
Step 2

For each NEPA action, the NDM and/or NCO establishes the level and type of public participation. It will differ depending upon the type and complexity of the action. Consultation among the NDM, NCO, the Public Affairs/Communications Staff and other NEPA Project Team Members is crucial.

For Categorical Exclusions (CXs), proceed to Step 3.

For Environmental Assessments (EAs), proceed to Step 4.

For Environmental Impact Statements (EISs) (Includes Site‑Wide and Programmatic EISs), proceed to Step 7.

For Supplemental Environmental Impact Statements (SEISs) and Supplement Analysis (SA), proceed to Step 10.

Categorical Exclusions (CXs)
Step 3

Per (1) 10 CFR § 1021.410(e) , Application of categorical exclusions (classes of actions that normally do not require EAs or EISs), (2) Paragraph 5d(2) of DOE O 451.1B, Admin. Change 3, National Environmental Policy Act Compliance Program; (3) 74 FR 52129, U.S. Department of Energy, 10 CFR Part 1021, Online Posting of Certain DOE Categorical Exclusion Determinations; Policy Statement; and (4) Implementation Guidance for the DOE Policy on Documentation and Online Posting of Categorical Exclusion Determinations: NEPA Process Transparency and Openness, Revision 1, the NCO or the NEPA Coordinator, if one has been designated, ensures CX Determinations for actions listed in Appendix B shall be documented and made available to the public by posting online to the organization’s Website, generally within two weeks of the determination.

Posting can be performed per local procedure or via the SC NEPA Website. If CXs are made available through the SC NEPA Website, the NCO ensures that a general link to the SC NEPA Website exists on the homepage of the Field organization’s Website (or the Laboratory’s if the Field organization does not maintain one).

It is not necessary to post the entire Environmental Checklist, however, the actual signed determination page must be included. If the entire Environmental Checklist is posted on‑line, the NCO should ensure that it protects classified information, ‘‘confidential business information,’’ and other information that DOE would not disclose pursuant to 5 U.S.C. 552, Freedom of Information Act (FOIA). Minimal supporting information posted must include items listed below.

  1. Determination date

  2. Name of action/short description

  3. Categorical exclusion number

  4. Whether there is an extraordinary circumstance

  5. Whether the action is connected to another action

  6. Whether there is potential for cumulative impact, and

  7. Whether it is precluded by 40 CFR 1506.1, Limitations on Actions During NEPA Process, or 10 CFR 1021.211, Interim Actions: Limitations on Actions During the NEPA Process.

Environmental Assessments (EAs)
Step 4 Scoping Phase:
  1. During internal scoping, the NDM and the Local Public Affairs/Communications Specialist develop an approach for public participation. Public Participation Activities, Responsibilities, and Timing is an example of a matrix that can guide the process.

  2. During internal scoping, the NEPA Project Team weighs in on the plan, which the NDM modifies as appropriate.

  3. The SO/HFO is subsequently briefed on the plan.

  4. If an optional EA implementation plan (IP) is prepared by the NDM and Local Public Affairs/Communications Staff, a specific public participation plan may be documented there.

  5. During internal scoping, the NEPA Project Team also identifies potential stakeholders. The process begins by consulting the Directory of Potential Stakeholders for DOE Actions under NEPA to identify potential stakeholders. The NDM ensures that a stakeholder database of all interested individuals and groups is started early in EA preparation and maintained throughout the process.

  6. Public scoping is not required, but if the NDM, NCO, and Public Affairs Official consider it prudent, to a lesser or greater extent it can follow Step 5 and the Scoping Guidance in Memorandum from Council on Environmental Quality to General Counsels, NEPA Liaisons, and Participants in Scoping.

  7. The NDM must notify host state(s) and tribe(s) in writing of the intent to prepare an EA.

  8. The NCO should also commence outreach to other Federal and local government officials, and other appropriate stakeholders (if any) identified in the NEPA Project Team’s stakeholder database.

  9. The NDM may prepare an Notice of Intent (NOI) as with an EIS (see Step 5), but this should be reserved for those EAs where preparation of an EIS was a possibility. When an NOI is prepared for an EA, it should be written such that if a transition is made to an EIS, a subsequent NOI need not be prepared.

  10. If a floodplain or wetland action is part of the NEPA Federal Action, the NDM and Local Public Affairs/Communications Staff should ensure that a Notice of Proposed Floodplain/Wetland Action required by 10 CFR 1022, Compliance with Floodplain and Wetland Environmental Review Requirements (68 FR 51429, Wednesday, 08/27/2003), is part of the notification.

Step 5 Draft EA Phase:
  1. The NDM provides those notified with an opportunity to review and comment on the Draft EA. At DOE’s discretion, this review period is from 14 to 30 calendar days. A full 30-calendar-day review and comment period can preclude the need for later schedule extension. Extensions are granted at the discretion of DOE.

    40 CFR Part 1500 - 1508, Council on Environmental Quality (CEQ): Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA), require Agencies to involve the public in the preparation of EAs "to the extent practicable." See 40 CFR § 1501.4[b], Whether to Prepare an Environmental Impact Statement. DOE NEPA policy recommends “enhanced public involvement” (see Secretarial Policy Statement on the National Environmental Policy Act, signed by Hazel O’Leary and Section V of Questions and Answers on the Secretarial Policy Statement on the National Environmental Policy Act). Suggestions include:

    1. Early public notice of DOE's intent to prepare an EA (concurrent with state/tribal notification); and

    2. Opportunity for interested parties, on request, to review EAs (concurrent with state/tribal review) prior to DOE approval.

  1. The DOE Policy on Public Involvement in the Environmental Assessment Process requires that when an Office makes a draft EA available for public review, the Office shall make sure that the draft EA is posted on the DOE NEPA Website before the start of the public review period. Note that the Policy allows for instances when DOE will chose not to make a draft EA publically available. But when it does, DOE should both post the draft EA (with review instructions) on its own Website and inform the DOE Headquarters (HQ) Office of NEPA Policy and Compliance (GC‑54) Webmaster that the EA is available for central posting. In the latter case, the NDM provides the necessary electronic files, utilizing the GC‑54 Document Certification and Transmittal Form.

  2. If there is public interest, the NDM may arrange for public meeting. A variety of means should be used to announce the location, date, and time. In addition to including notification in letters distributing the draft to the State and Tribes, notices in the local media, and letters to those individuals and organizations in the stakeholder database can be used.

Step 6 Final EA and Decision-Making Phase:
  1. The HFO/SO, NCO, or NDM may issue a Proposed Finding of No Significant Impact (FONSI) for a 30 calendar day comment period if one or more of the following criteria are met:
    • The proposed action is, or is closely similar to, one which normally requires preparation of an EIS

    • The nature of the proposed action is one without precedent

  1. The NDM coordinates with the responsible Public Affairs/Communications Staff, and together they ensure that the EA is made available.

  2. The NDM distributes the Final EA and FONSI (normally within 2 weeks of approval) in accordance with 10 CFR 1021.322(c), Findings of No Significant Impact, and the approach to public participation established during scoping. Distribution must include host State(s)/Tribe(s) and local reading rooms identified in the Directory of Potential Stakeholders for DOE Actions under NEPA. Distribution may also include specific members of the public/organizations and local government officials per the stakeholder database maintained by the project.

  3. If scope and/or intensity of impacts are controversial, or for any other reason, per 10 CFR 1021.321(d), Requirements for Environmental Assessments, DOE may make a proposed FONSI available for comment to State, Tribal, and other Federal and local government officials, and other appropriate stakeholders (if any) identified in the stakeholder database.

  4. GC‑54 posts Final EAs and FONSI(s) on the DOE NEPA Website. The NDM provides the necessary hard copies and electronic files, utilizing the GC‑54 Document Certification and Transmittal Form. The Final EA/FONSO can also be made available on the Internet by the applicant and/or the involved SC organizational units.

Environmental Impact Statements (EISs) (Includes Site‑Wide and Programmatic EISs)
Step 7 Scoping Phase
  1. As part of internal scoping, the NDM and the Local Public Affairs/Communications Specialist develop an approach for public participation. Public Participation Activities, Responsibilities, and Timing can guide the process.

  2. During internal scoping, the NEPA Project Team weighs in on the plan, which the NDM modifies as appropriate.

  3. The SO/HFO is subsequently briefed on the plan.

  4. If an optional EIS IP is prepared by the NDM, in conjunction with the Local Public Affairs/Communications Staff, a specific public participation plan may be documented there.

  5. During internal scoping, the NEPA Project Team also identifies potential stakeholders. The process begins by consulting the Directory of Potential Stakeholders for DOE Actions under NEPA to identify potential stakeholders. The NDM ensures that a stakeholder database of all interested individuals and groups is started early in EIS preparation and maintained throughout the process.

  6. The NDM prepares an NOI. Previous SC NOIs should be consulted to determine the most appropriate content and format.

  7. The SO/HFO (can be delegated) transmits the approved NOI to GC‑54 for approval followed by issuance in the Federal Register through the Federal Register Liaison in DOE HQ Office of Deputy General Counsel for Energy Policy (GC‑70). The publication date of the NOI begins the scoping period for the EIS. There is a minimum of 30 calendar days from the date the NOI is published for receipt of comments. The concurrence chain is the NCO, Field organization Chief Counsel, Line Program/Project Manager, the Local Public Affairs/Communications Manager, and sponsoring Deputy Director (Field Operations [SC‑3] and/or Science Programs [SC‑2]).

  8. The NDM should simultaneously notify host state(s) and tribe(s) in writing the intent to prepare an EIS, including the NOI in the correspondence and inviting comments and suggestions on the scope of the EIS. The NCO should also commence outreach to other Federal and local government officials, and other appropriate stakeholders (if any) identified in the stakeholder database.

  9. The NDM, in conjunction with the Local Public Affairs/Communications Staff, may publish the NOI concurrently with a Floodplain/Wetland Notice of Involvement required by 10 CFR 1022, Compliance with Floodplain and Wetland Environmental Review Requirements (68 FR 51429, Wednesday, 08/27/2003).

  10. Per 40 CFR 1506.6, Public Involvement, the NDM ensures diligent efforts to involve the public.

    1. The NDM works with the Public Affairs Office to determine if a press release is prudent and if so, to prepare and disseminate it.

    2. Per 10 CFR 1021.311, Notice of Intent and Scoping, the NDM arranges for at least one public scoping meeting. DOE announces the location, date, and time of public scoping meetings in the NOI or by other appropriate means, such as additional notices in the local media, or letters to other interested parties in the stakeholder database. Public scoping meetings are not to be held until at least 15 days after public notification.

      If DOE changes the location, date, or time of a public scoping meeting, or schedules additional public scoping meetings, DOE publicizes these changes in the Federal Register and notifies those previously notified.

Step 8 Draft EIS
  1. Per 10 CFR 1021.313, Public Review of Environmental Impact Statements, the NDM provides for a public review of the EIS. The public review and comment period on a DOE Draft EIS is to be no less than 45 days. See 40 CFR 1506.10(c), Timing of Agency Action.

  2. The NDM, in conjunction with GC‑54, ensures that the Draft EIS is appropriately filed with the U.S. Environmental Protection Agency (EPA) according to their “Submitting Environmental Impact Statements instructions. Statements must be filed with the EPA no earlier than they are transmitted to commenting agencies and made available to the public.

  3. The EPA publishes a Notice of Availability in the Federal Register, at which point the public comment period officially begins.

  4. DOE must hold at least one public hearing on DOE Draft EISs. Such public hearings are to be announced at least 15 days in advance. The Notice of Availability identifies necessary background and logistical information.

  5. DOE may use additional means to publicize the availability of Draft EISs and the time and place for public hearings, most importantly, its stakeholder database. The methods chosen are to focus on reaching states, tribes, other Federal and local government agencies, and the public who may be interested in or affected by the proposal and may include the methods listed in 40 CFR 1506.6(b)(3), Public Involvement (see 57 FR 15144, 04/24/1992, As Amended at 68 FR 51432, 08/27/2003). The NDM, in conjunction with the Local Public Affairs/Communications Staff, must post Draft EISs on the DOE NEPA website, and may place Draft EISs on local DOE Websites to facilitate commenting. The GC‑54 Document Certification and Transmittal Form is used to forward hard copies and electronic files to that Office.

Step 9 Final EIS (FEIS) Distribution
  1. The NDM, in conjunction with GC‑54, ensures that the FEIS is appropriately filed with the EPA according to their "Submitting Environmental Impact Statements" instructions.

  2. The NDM also makes the FEIS available through distribution to host State(s)/Tribe(s) and local reading rooms identified in the Directory of Potential Stakeholders for DOE Actions under NEPA. Distribution may also include specific members of the public/organizations and local government officials per the stakeholder database maintained by the project.

  3. The NDM, in conjunction with GC-54, must post the FEIS on the DOE NEPA Website and may place the FEIS on local DOE Websites. The GC‑54 Document Certification and Transmittal Form is used to forward hard copies and electronic files to that Office.

  4. The NDM, in conjunction with GC‑54, ensures that the FEIS is appropriately filed with the EPA according to their "Submitting Environmental Impact Statements" instructions. Statements must be filed with EPA no earlier than they are transmitted to commenting agencies and made available to the public.

  5. The EPA publishes a Notice of Availability in the Federal Register.

    After 30 days, Records of Decision (RODs) can be published. The NDM must ensure RODs are posted on the DOE NEPA website, and may place RODs on local DOE or applicant Websites. The GC‑54 Document Certification and Transmittal Form is used to forward hard copies and electronic files of RODs to that Office.

    Similar to proposed FONSIs, at the discretion of DOE HQ Office of the General Counsel (GC‑1) or the SO/HFO, if delegated, proposed RODs can be made available for comment prior to approval.

Supplemental Environmental Impact Statements (SEISs) and Supplement Analysis (SA)
Step 10

Public outreach for Supplemental EISs is identical to that for EISs except that a public scoping process is optional for Supplemental EISs (See 40 CFR 1502.9[c][4], Draft, Final, and Supplemental Statements).

3.0  References


This is the online OFFICIAL SCMS COPY of this file. Before using a printed copy, verify that it is the most current version by checking the Last Major Revision and Last Minor Revision dates (at the bottom of each document) on the SCMS Web site.


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