Procedure 9. Conducting Public Participation Under the National Environmental Policy Act (NEPA)
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.
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.
-
Determination date
-
Name of action/short description
-
Categorical exclusion number
-
Whether there is an extraordinary circumstance
-
Whether the action is connected to another action
-
Whether there is potential for cumulative impact, and
-
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:
-
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.
-
During internal
scoping, the NEPA Project Team weighs in on the plan, which the NDM modifies
as appropriate.
-
The SO/HFO is subsequently briefed on the plan.
-
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.
-
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.
-
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.
-
The NDM must notify host state(s) and tribe(s) in writing of the intent
to prepare an EA.
-
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.
-
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.
-
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:
-
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:
-
Early public notice of DOE's intent to prepare an
EA (concurrent with state/tribal notification);
and
-
Opportunity for interested parties, on request, to review EAs (concurrent
with state/tribal review) prior to DOE approval.
-
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.
-
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:
- 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
-
The NDM coordinates with the responsible Public Affairs/Communications
Staff, and together they ensure that the EA is made available.
-
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.
-
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.
-
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
-
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.
-
During internal scoping, the NEPA Project Team weighs in on the
plan, which the NDM modifies as appropriate.
-
The SO/HFO is
subsequently briefed on the plan.
-
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.
-
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.
-
The NDM prepares an NOI. Previous SC NOIs should be consulted to
determine the most appropriate content and format.
-
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]).
-
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.
-
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).
-
Per 40 CFR 1506.6, Public Involvement, the NDM ensures diligent efforts
to involve the public.
-
The NDM works with the Public Affairs
Office to determine if a press release is prudent and if
so, to prepare and disseminate it.
-
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
-
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.
-
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.
-
The EPA publishes a Notice of Availability in the Federal Register,
at which point the public comment period officially begins.
-
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.
-
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
-
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.
-
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.
-
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.
-
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.
-
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). |
-
Acronyms
-
A
Citizen’s
Guide to the NEPA: Having Your Voice Heard (12/2007)
-
10 CFR Part 1021, U.S.
Department of Energy (DOE): National Environmental Policy
Act (NEPA) Implementing Procedures
-
10 CFR Part 1022, Compliance
with Floodplain and Wetland Environmental Review Requirements
-
40 CFR Part 1500 - 1508, Council
on Environmental Quality (CEQ): Regulations for Implementing
the Procedural Provisions of the National Environmental
Policy Act (NEPA)
-
Definitions
-
DOE O 451.1B, Admin. Change 3, National
Environmental Policy Act Compliance Program (01/19/2012)
-
DOE, NEPA, and
You Pamphlet (2011)
-
DOE
Policy on Public Involvement in the Environmental Assessment Process (Memorandum,
07/16/2010)
-
Directory of
Potential Stakeholders for DOE Action under NEPA, 29th Edition (07/2012;
Revised 08/07/2012)
-
Document
Certification and Transmittal Form (08/2012)
-
Effective
Public Participation under the National Environmental
Policy Act, 2nd Edition (08/1998)
-
NEPA
Guidance on EIS Distribution (Memorandum, 06/2006)
-
NEPA
Guidance on the EIS Comment-Response Process (Memorandum, 10/08/2004)
-
Frequently
Asked Questions on Filing EISs with EPA's Office of Federal Activities (Letter,
02/15/1994)
-
Implementation
Guidance for the DOE Policy on Documentation and Online Posting of Categorical
Exclusion Determinations: NEPA Process Transparency and Openness, Revision
1 (05/25/2010)
-
Improving
the NEPA Process Through Enhanced Tribal Capacity (Memorandum,
07/30/2004)
-
74
FR 52129, U.S. Department of Energy, 10 CFR Part 1021, Online
Posting of Certain DOE Categorical Exclusion Determinations;
Policy Statement (10/09/2009)
-
Secretarial
Policy Statement on the National Environmental
Policy Act, signed
by Hazel O’Leary (06/13/1994)
-
Procedure 2, Establishing
the Level of National Environmental Policy Act (NEPA) Review
and Documentation
-
Procedure 5, Following the Environmental Assessment (EA) Process
-
Procedure 6, Following
the Environmental Impact Statement (EIS) Process
-
Procedures
for Submitting Documents for Posting on the DOE NEPA Website (www.gc.energy.gov/NEPA) (08/2008)
-
Public Participation Activities,
Responsibilities, and Timing
-
Questions
and Answers on the Secretarial Policy Statement on the National Environmental
Policy Act (07/1994)
-
SC
NEPA Website
-
Scoping
Guidance in Memorandum from Council on Environmental Quality to General
Counsels, NEPA Liaisons, and Participants in Scoping (Memorandum,
04/30/1981)
-
Submitting
Environmental Impact Statements Website
-
5 U.S.C. 552, Freedom
of Information Act (FOIA)
-
42 U.S.C. 4321 et
seq., National Environmental Policy Act (NEPA) of 1969, As
Amended