[Federal Register Volume 72, Number 181 (Wednesday, September 19, 2007)]
[Rules and Regulations]
[Pages 53652-53672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18053]
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Part III
Environmental Protection Agency
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40 CFR Part 6
Procedures for Implementing the National Environmental Policy Act and
Assessing the Environmental Effects Abroad of EPA Actions; Final Rule
Federal Register / Vol. 72, No. 181 / Wednesday, September 19, 2007 /
Rules and Regulations
[[Page 53652]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 6
[EPA-HQ-OECA-2005-0062; FRL-8467-5]
RIN 2020-AA42
Procedures for Implementing the National Environmental Policy Act
and Assessing the Environmental Effects Abroad of EPA Actions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
amending its procedures for implementing the requirements of the
National Environmental Policy Act of 1969 (NEPA). This also includes
minor, technical amendments to the Agency's procedures for implementing
Executive Order 12114, ``Environmental Effects Abroad of Major Federal
Actions.''
This rule amends EPA's NEPA implementing procedures by:
consolidating and standardizing the procedural provisions and
requirements of the Agency's environmental review process under NEPA;
clarifying the general procedures associated with categorical
exclusions, consolidating the categories of actions subject to
categorical exclusion, and amending existing and adding new categorical
exclusions; consolidating and amending existing and adding new
extraordinary circumstances; consolidating and amending the listing of
actions that generally require an environmental impact statement;
clarifying the procedural requirements for consideration of applicable
environmental review laws and executive orders; and incorporating other
revisions consistent with the Council on Environmental Quality's
regulations (CEQ Regulations).
DATES: This final rule is effective on October 19, 2007.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OECA-2005-0062. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
http://www.regulations.gov or in hard copy at the Public Reading Room,
Room B102, Enforcement and Compliance Docket and Information Center,
EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20004.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
OECA Docket is (202) 566-1752.
FOR FURTHER INFORMATION CONTACT: Mr. Robert Hargrove; NEPA Compliance
Division; Office of Federal Activities (Mailcode 2252A); Environmental
Protection Agency; 1200 Pennsylvania Avenue, NW., Washington, DC 20460;
telephone (202) 564-7157; fax number: (202) 564-0072; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION: The contents of this preamble are organized
according to the following outline:
I. General Information
A. Does This Rule Apply to Me?
B. Statutory Authority
C. Background
D. Exemptions From NEPA for Certain EPA Actions
E. EPA's Voluntary NEPA Policy and Procedures
F. EPA's Statement of Procedures on Floodplain Management and
Wetlands Protection
II. Summary of This Rule
III. Responses to Comments
A. Comments Relating to the Scope of the Regulations
B. Comments Relating to Categorical Exclusions (CEs)
C. Comments Relating to Extraordinary Circumstances (ECs)
D. Comments Relating to the NEPA Process
IV. Statutory and Executive Order Reviews
A. Executive Order 12866
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution and Use
I. National Technology Transfer and Advancement Act of 1995
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. General Information
A. Does This Rule Apply to Me?
Those subject to this rule include EPA employees who must comply
with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-
4347) or Executive Order 12114, and certain grant and permit applicants
who must submit environmental information documentation to EPA for
their proposed projects.
EPA's Procedures for Implementing NEPA. Compliance with these
regulations is the responsibility of EPA's Responsible Officials.
Certain procedures in these NEPA regulations require those defined as
applicants (that is, grant and permit applicants) to provide
environmental information for EPA's use in its environmental review
process.
These regulations consolidate and standardize the environmental
review process applicable to all EPA proposed actions subject to NEPA.
These regulations supplement and should be used in conjunction with the
government-wide CEQ NEPA Regulations (40 CFR parts 1500 through 1508).
EPA's Procedures for Implementing Executive Order 12114. Compliance
with these procedures is the responsibility of EPA's Responsible
Officials. For applicant-proposed actions, applicants may be required
to provide environmental information for EPA's use in its environmental
review process. EPA's Executive Order 12114 implementing procedures
ensure that environmental information is available to the Agency's
decision-makers and other appropriate Federal agencies and officials
for proposed actions subject to Executive Order 12114.
This rule also includes minor, technical amendments to the Agency's
procedures for implementing Executive Order 12114 (42 U.S.C. 4321,
note, E.O. 12114, 44 FR 1979, 3 CFR 1979, Comp., p. 356). EPA actions
typically subject to Executive Order 12114 include major EPA actions
that affect the environment of a foreign nation or the global commons
and may include: Major research or demonstration projects, ocean
dumping activities carried out under section 102 of the Marine
Protection, Research, and Sanctuaries Act (33 U.S.C. 1401 et seq.), and
major permitting or licensing of facilities by EPA (such as EPA-issued
permits for hazardous waste treatment, storage, or disposal facilities
under section 3005 of the Resource Conservation and Recovery Act (42
U.S.C. 6925), National Pollutant Discharge Elimination System permits
under section 402 of the Clean Water Act (33 U.S.C. 1342), and
prevention of significant deterioration approvals under Part C of the
Clean Air Act (42 U.S.C. 7470 et seq.)).
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To determine whether a project would be subject to either of these
procedures, carefully examine the applicability criteria in Sec. 6.101
and Subpart C of the NEPA implementing procedures, and Sec. 6.401 of
the Executive Order 12114 implementing procedures in this proposed
rule. If there are questions regarding the applicability of these
procedures to a particular entity, consult the person listed in the
preceding ``FOR FURTHER INFORMATION CONTACT'' section of this Preamble.
B. Statutory Authority
NEPA establishes the federal government's national policy for
protection of the environment. The CEQ Regulations at 40 CFR parts 1500
through 1508 establish procedures implementing this national policy.
The CEQ's Regulations (40 CFR 1505.1) require federal agencies to adopt
and, as needed, revise their own NEPA implementing procedures to
supplement the CEQ Regulations and to ensure their decision-making
processes are consistent with NEPA.
Executive Order 12114, ``Environmental Effects Abroad of Major
Federal Actions,'' (see 46 FR 3364) is the authority and basis for
EPA's policy, criteria, and procedures contained in the portion of
today's proposed rule entitled ``Assessing the Environmental Effects
Abroad of EPA Actions.''
C. Background
The Environmental Protection Agency initially established its NEPA
regulations as 40 CFR Part 6 (Part 6), Subparts A through H on April
14, 1975 (see 40 FR 16823). Subpart I was added on January 11, 1977
(see 42 FR 2450). On November 29, 1978, the CEQ promulgated regulations
establishing uniform federal procedures for implementing NEPA (see 43
FR 55978). Section 102 of NEPA and the CEQ Regulations require federal
agencies to adopt appropriate NEPA procedures to supplement those
regulations. As a result, EPA amended its NEPA regulations on November
6, 1979, to make them consistent with the CEQ Regulations (see 44 FR
64177).
Under the Agency's 1979 Part 6 amendments, Subparts A through D
described general NEPA procedures for preparing environmental reviews
applicable to all EPA NEPA actions and established certain categorical
exclusions. Subpart A contained an overview of EPA's NEPA regulations,
including environmental impact statement (EIS) requirements for EPA
legislative proposals and requirements for environmental information
documents (EIDs) to be submitted to EPA by applicants, grantees, or
permitees as required in Subparts E through I. Subpart B described the
requirements for the content of an EIS prepared pursuant to Subparts E
through I. Subpart C described the requirements for coordination of
applicable environmental laws and certain executive orders with the
environmental review procedures. It provided a brief recitation of the
provisions of those laws or executive orders and EPA implementing
procedures. Subpart D described the public information requirements to
be undertaken in conjunction with the environmental review requirements
under Subparts E through I. Subparts E through I established specific
criteria for conducting environmental reviews for particular types of
actions and categorical exclusions applicable to those actions.
Specifically, Subpart E established NEPA environmental review
procedures for the Wastewater Treatment Construction Grants Program of
the Clean Water Act; Subpart F for the issuance of new source NPDES
permits; Subpart G for research and development program actions;
Subpart H for solid waste demonstration projects; and Subpart I for EPA
actions for construction of special purpose facilities or facility
renovations. EPA's ``Statement of Procedures on Floodplain Management
and Wetlands Protection,'' dated January 5, 1979, was included as
Appendix A to clarify the effective date and to emphasize the
importance of this Statement of Procedures.
In 1981, Subpart J, ``Assessing the Environmental Effects Abroad of
EPA Actions,'' was added as EPA's general policy, criteria, and
procedures for implementing Executive Order 12114, ``Environmental
Effects Abroad of Major Federal Actions'' (see 46 FR 3364). Executive
Order 12114 does not impose NEPA compliance requirements on Federal
agencies, rather it ``furthers the purpose'' of NEPA and identifies the
documents, including environmental impact statements (EISs) and
environmental assessments (EAs), to be used when conducting assessments
under Executive Order 12114.
In 1982, the Agency revised its Part 6 NEPA regulations by removing
CEQ from the consultation process on requests to segment wastewater
treatment facility construction grant projects (see 47 FR 9831). In
1983, EPA revised the categorical exclusions and the criteria for not
granting an exclusion, and corrected a factual error on the
responsibility for preparing a final EA (see 48 FR 1012).
In 1985, the Agency promulgated procedural amendments and minor
substantive amendments to its Part 6 NEPA regulations to accommodate
changes in EPA's regulations for the construction grants program found
at 40 CFR Part 35 (see 50 FR 26310). The modifications in the
construction grants program changed the process that EPA grant
recipients followed in planning and building wastewater treatment
facilities. The amendments to Subpart E and related sections of the EPA
NEPA regulations streamlined and clarified the criteria and process for
an environmental review and for preparing an EIS, including
partitioning of the review process and the public involvement
requirements. These amendments also included Office name and technical
changes to reflect an Agency reorganization.
In 1986, EPA amended its Part 6 NEPA regulations to clarify and
streamline procedures for partitioning and re-evaluating environmental
reviews, making categorical exclusion (CE) determinations, providing
for public participation, and producing and distributing environmental
review documents; and to make various technical changes including
Office name changes due to reorganizations.
In 1991, EPA amended Subpart G of its Part 6 NEPA regulations by
adding categorical exclusions and a list of projects that normally
result in preparation of EAs; revising the criteria used to determine
whether preparation of an EIS is required; revising the provision
directing coordination, where feasible, with other EPA program reviews;
and clarifying the NEPA review process for Office of Research and
Development actions (see 56 FR 20541). In addition, EPA amended Subpart
D by eliminating the requirement for public notice of categorical
exclusion determinations for all EPA programs except the Wastewater
Treatment Construction Grants Program.
In 1993, EPA amended its Part 6 NEPA regulations to address the
requirement that EPA actions conform to any air quality State
implementation plan, and to clarify that air pollution control
requirements need to be considered when performing NEPA reviews for
wastewater treatment works (see 58 FR 63214).
D. Exemptions From NEPA for Certain EPA Actions
Certain EPA actions are exempt from the procedural requirements of
NEPA, including the CEQ Regulations. Congress has provided specific
statutory exemptions for certain EPA actions taken under the Clean
Water Act (CWA) and all EPA actions taken under the Clean Air Act
(CAA). Specifically,
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under CWA Section 511(c)(1), EPA is exempt from preparing EISs for all
actions taken under the CWA except for issuance of NPDES permits under
CWA Section 402 for ``new sources'' as defined in Section 306, and for
Federal financial assistance provided for assisting construction of
publicly owned treatment works under CWA Section 201 (33 U.S.C.
1371(c)). Under the Energy Supply and Environmental Coordination Act of
1974 (15 U.S.C. 793(c)(1)), all actions taken under the CAA are deemed
not to be major federal actions significantly affecting the
environment.
Further, the courts have exempted certain EPA actions from the
procedural requirements of NEPA through the functional equivalence
doctrine. Under the functional equivalence doctrine, courts have found
EPA to be exempt from the procedural requirements of NEPA for certain
actions under the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA); the Resource Conservation and Recovery Act (RCRA), the Toxic
Substances Control Act (TSCA), the Safe Drinking Water Act (SDWA), and
the Marine Protection, Research, and Sanctuaries Act (MPRSA). The
courts reasoned that EPA actions under these statutes are functionally
equivalent to the analysis required under NEPA because they are
undertaken with full consideration of environmental impacts and
opportunities for public involvement. See, e.g., EDF v. EPA, 489 F.2d
1247 (D.C. Cir. 1973) (FIFRA); State of Alabama v. EPA, 911 F. 2d 499
(11th Cir. 1990) (RCRA); Warren County v. North Carolina, 528 F. Supp.
276 (E.D. N.C. 1981) (TSCA); Western Nebraska Resources Council v. U.S.
EPA, 943 F.2d 867 (8th Cir. 1991) (SDWA); Maryland v. Train, 415 F.
Supp. 116 (D. Md. 1976) (MPRSA).
Agency actions exempt from the requirements of NEPA remain exempt
under this rule. If a question arises regarding the applicability of
the NEPA requirements to certain proposed actions, the Responsible
Official should consult with the NEPA Official and the Office of
General Counsel.
E. EPA's Voluntary NEPA Policy and Procedures
In 1974, EPA Administrator Russell Train determined that the Agency
could voluntarily prepare EISs for certain regulatory activities that
were exempt from NEPA. In 1998, Administrator Carol Browner amended
this policy to permit the preparation of non-EIS NEPA documents for
certain EPA regulatory actions. The Agency's current ``Notice of Policy
and Procedures for Voluntary Preparation of National Environmental
Policy Act (NEPA) Documents'' (see 63 FR 58045) sets out the policy and
procedures EPA uses when preparing environmental review documents under
the Voluntary NEPA Policy. This rule does not make any changes to the
voluntary NEPA policy and procedures. However, the rule can serve as a
framework for the preparation of voluntary NEPA documents.
F. EPA's Statement of Procedures on Floodplain Management and Wetlands
Protection
On January 5, 1979, EPA issued its Statement of Procedures on
Floodplain Management and Wetlands Protection to implement Executive
Orders 11988 (Floodplain Management) and 11990 (Protection of
Wetlands); the Statement had been included in 40 CFR Part 6 as Appendix
A. As part of this rulemaking, EPA is removing the Statement as an
appendix to the rule. The Statement remains in effect, and can be
viewed on EPA's NEPA Web site, at: http://www.epa.gov/compliance/resources/policies/nepa/floodplain-management-wetlands-statement-pg.pdf.
II. Summary of This Rule
On December 19, 2006, EPA published a Federal Register notice
seeking comment on a proposed rule that would amend its regulations for
implementing the NEPA and EO 12114.
The Agency is amending its procedures for implementing the
requirements of NEPA. The rule amends EPA's NEPA implementing
procedures by: (1) Consolidating and standardizing the procedural
provisions and requirements of the Agency's environmental review
process under NEPA; (2) clarifying the general procedures associated
with categorical exclusions, consolidating the categories of actions
subject to categorical exclusion, amending existing and adding new
categorical exclusions, and consolidating and amending existing and
adding new extraordinary circumstances; (3) consolidating and amending
the listing of actions that generally require an environmental impact
statement; (4) clarifying the procedural requirements for consideration
of applicable environmental review laws and executive orders; and (5)
incorporating other proposed revisions consistent with CEQ Regulations.
These regulations supplement and are to be used in conjunction with the
CEQ Regulations.
40 CFR Part 6 also includes EPA's procedures, ``Assessing the
Environmental Effects Abroad of EPA Actions,'' that implement Executive
Order 12114, ``Environmental Effects Abroad of Major Federal Actions''
(see 46 FR 3364). The rule includes minor, technical amendments to
EPA's procedures for implementing the Order. These procedures further
the purpose of NEPA and provide that EPA may be guided by the CEQ
Regulations and EPA's NEPA implementing regulations to the extent they
are applicable. Therefore, when EPA conducts an environmental
assessment pursuant to its Executive Order 12114 procedures, the Agency
generally follows its NEPA procedures (unless the assessment process is
addressed in other EPA programs). EPA's Executive Order 12114
implementing procedures ensure that environmental information is
available to the Agency's decision-makers and other appropriate Federal
agencies and officials for actions subject to Executive Order 12114.
After considering comments made on the December 19, 2006 proposed
rule, EPA is finalizing the rule substantially as proposed, with some
minor modifications. Two changes in the rule were made in response to
public comment. One change was to clarify that only major Federal
actions require the preparation of an EIS (this change can be found at
Sec. 6.207(a) of the rule). Another clarified the role of cooperating
agencies in the preparation of EPA NEPA documents (found at Sec.
6.202(a)).
Other changes were made by EPA to clarify the rule's applicability,
clarify the CE for on site replacement systems, and improve the overall
flow of the regulation. These changes can be found at Sec. Sec.
6.101(a), 6.101(b), 6.203(b), 6.204(a)(1)(iii) and 6.210. In Sec.
6.101(a), the specific reference to the STAG account was eliminated to
avoid confusion about the need for NEPA compliance for all STAG account
activities. In this regard, the text was revised to indicate that the
rule applies to certain grants awarded to projects authorized through
the Agency's annual Appropriation Acts, which includes special grants
for municipal wastewater treatment and water supply projects, projects
funded through the US-Mexican Border program, and projects funded
through the Indian Environmental General Assistance Program. The other
change regarding the rule's applicability was to move Sec. 6.101(f) to
Sec. 6.101(b), to improve the flow of the section, and to clearly
state that this rule does not apply to actions that are statutorily
exempt from NEPA. The paragraph at Sec. 6.203(b) was separated into
two paragraphs: one for the standard procedure, and one for deviations
from this procedure under
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the appropriate circumstances. This also demonstrates that even under
an abbreviated comment period, there is still a need to circulate the
FONSI/EA for public review. The additional language is meant to improve
the overall flow of the section. Additionally, the text of Sec.
6.204(a)(1)(iii) has been clarified. Lastly, Sec. 6.210 has been
restructured to clarify that consultation with CEQ must occur prior to
the approval of any alternate arrangements for emergency circumstances.
III. Responses to Comments
Comments received expressed general support for the revisions to
the rule; however, some comments raised concerns regarding specific
aspects of the rule. The comments fell into the following four areas:
the scope of the rule; categorical exclusions; extraordinary
circumstances; and the NEPA process. EPA's responses to the comments
have been grouped into these four areas.
A. Comments Relating to the Scope of the Regulations
Comment: One commenter asked that the EPA not weaken the Clean
Water Act.
EPA's Response: EPA appreciates the commenter's concern. The
purpose of this rule, however, is to revise and consolidate EPA's NEPA
implementing procedures. These regulations are strictly procedural;
they set out the procedures EPA follows to comply with NEPA. They have
no effect on EPA's authorities under the Clean Water Act, nor do they
weaken EPA's implementation of the Clean Water Act.
Comment: A commenter asked that applicants be specifically
referenced in various sections of the rule because of their integral
part in the process.
EPA's Response: EPA agrees that applicants have an integral role in
the NEPA environmental review process. EPA believes, however, that it
is unnecessary to include additional specific references to applicants.
As the commenter acknowledged, the proposed regulations already
specifically include applicants. For example, Sec. 6.103(b)(3)
requires the Responsible Official to ``ensure to the extent
practicable, early and continued involvement of interested federal
agencies, state and local governments, federally-recognized Indian
tribes, and affected applicants in the environmental review process.''
(emphasis added) Applicants also are specifically identified in Subpart
C ``Requirements for Environmental Information Documents and Third-
Party Agreements.'' EPA believes that inclusion of applicants in the
broad definition of the public (see Sec. 6.203(a)(2)), as well as the
identification of applicants in specific sections and subsections of
the proposed rule, provides applicants with sufficient and appropriate
participation in the environmental review process.
Comment: Another commenter asked that EPA define the term ``major
Federal action'' and clarify that only major federal actions trigger
the requirement to prepare an environmental impact statement.
EPA's Response: EPA agrees that the proposed rule may have been
unclear because it used the term ``major action'' instead of ``major
federal action.'' Therefore, in response to this comment, EPA modified
Sec. 6.207(a) of the rule to clarify that an EIS is required only for
its major federal actions significantly affecting the quality of the
human environment. In regard to defining the term ``major federal
action,'' EPA does not agree that the term should be defined in EPA's
regulations. The CEQ Regulations, which EPA is adopting through this
rule, define the term ``major federal action.'' (See 40 CFR 1508.18.)
Since EPA is adopting the CEQ Regulations, it is not necessary for
EPA's regulations to define the term.
Comment: A tribal commenter asserted that the rule is inconsistent
with EPA's trust obligation to protect Indian country because the rule
may have negative impacts on the Tribe's efforts to protect water
quality. In particular, the commenter claims that the rule
``compromises the Tribe's ability to certify'' that certain discharges
will meet tribal water quality standards.
EPA's Response: EPA recognizes the federal government's trust
responsibility to federally-recognized Indian tribes that arises from
Indian treaties, statutes, executive orders, and the historical
relations between the United States and Indian tribes. This rule
complies with NEPA and other applicable federal statutes and
regulations; therefore, it meets the federal trust responsibility and
does not negate or diminish that responsibility.
The commenter's assertion regarding the rule compromising the
Tribe's ability to certify that certain discharges will meet tribal
water quality standards and to protect water quality mischaracterizes
the effect of the rule. The rule does not alter or limit any authority
or ability the Tribe has under Tribal law, federal law, or any
agreement to protect water quality. Moreover, in this case, the Tribe's
approval for treatment in the same manner as a state for the Clean
Water Act Water Quality Standards and Certification programs and
federal approval of the Tribe's water quality standards enhances the
Tribe's ability to protect its waters. Under Section 401 of the Clean
Water Act, no federal permit can be issued to approve any activity
until the Tribe certifies that any discharge under the permit will
comply with applicable tribal water quality standards. Also, EPA
regulations require that any permit for a discharge upstream from the
Tribe's reservation must include conditions that ensure compliance with
applicable downstream water quality standards.
B. Comments Relating to Categorical Exclusions (CEs)
Comment: Some commenters expressed concern about the new CE that is
established at Sec. 6.204(a)(1)(iv) for the reissuance of new source
NPDES permits because the commenters believe it would eliminate the
need for EPA to comply with NEPA for NPDES permits.
EPA's Response: It appears that the commenters mistakenly believe
that NEPA compliance is required for all NPDES permits. In point of
fact, pursuant to section 511(c) of the Clean Water Act, 33 U.S.C.
1371(c), NEPA compliance is required only for NPDES permits for the
discharge of any pollutant by a ``new source,'' which is defined in the
Clean Water Act as a source that is subject to promulgated new source
performance standards (see, 33 U.S.C. 1316(a)(2)). Thus, NPDES permits
for sources other than ``new sources'' are not subject to NEPA. It
should also be noted that NEPA applies only to federal actions. The
issuance of NPDES permits by an EPA-authorized state is a state, not
federal, action and is, thus, not subject to NEPA. Currently, most
states are authorized and, thus, the bulk of the NPDES permits issued
in the United States are not subject to NEPA and the new CE has no
effect on those actions. Those state permit actions, however, will
continue to be subject to the environmental and public review
procedures established for those state programs.
EPA does not agree that the use of a CE eliminates the need for EPA
to comply with NEPA. A CE, as defined by the CEQ Regulations, is a
``category of actions which do not individually or cumulatively have a
significant effect on the human environment and which have been found
to have no such effect in procedures adopted by a Federal agency in
implementation of these regulations and for which, therefore, neither
an environmental assessment nor an environmental impact statement is
required.'' 40 CFR 1508.4. Accordingly, the establishment and proper
use of a CE achieves NEPA
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compliance. The rule requires that the Responsible Official determine
that the proposed action first fits within the category of actions
described by the CE, and then determines that the proposed action does
not involve any extraordinary circumstances. Sec. 6.204(a). Further,
the decision that an action is eligible to be excluded from further
NEPA review based on this CE is required to be documented in writing,
the documentation must include an explanation of why no extraordinary
circumstances apply to the action, and the documentation must be made
available to the public on request. Sec. 6.204(a)(1).
Finally, not all NPDES new source permits would qualify for this
CE. First, the permit must be a re-issuance, not a first-time permit.
First-time NPDES new source permits issued by EPA are reviewed and the
environmental effects are considered in either an EA or EIS. Second,
the Responsible Official must determine that the conclusions of the
NEPA document for the original permit are still valid. Third, the
Responsible Official must determine that the re-issuance of the permit
will not result in degradation of the receiving waters. Lastly, the
permit conditions in the re-issued permit must be the same as those in
the original permit or more environmentally protective. Based on EPA's
experience, EPA believes that the re-issuance of permits that meet all
of these conditions will not have a significant impact on the quality
of the human environment.
Comment: One commenter expressed the opinion that expanding the
list of CEs reduces public participation in the NEPA process.
EPA Response: EPA acknowledges that the use of a CE may reduce
opportunities for public participation on that specific action.
However, the public has the opportunity to comment on new CEs when they
are developed. This provides a better use of agency resources for the
public benefit than repeatedly focusing resources on environmentally
insignificant actions. Moreover, other aspects of the approval of
specific actions may provide an opportunity for public input
independent from the NEPA process.
Comment: One commenter expressed concern that relying on past NEPA
documents risks compounding errors or oversights in prior environmental
review.
EPA Response: EPA's experience with relying on past NEPA documents
is that when the action in question is a continuation and the
conclusions of the earlier NEPA document regarding the lack of
significant impacts have been reviewed and determined to still be
valid, the continuation of that action will not cause significant
impacts. The only CE that requires a re-evaluation of a past NEPA
document and decision is the new CE that is established at 40 CFR
6.204(a)(1)(iv) for the reissuance of new source NPDES permits. As
noted in the Supporting Statement for this rule, EPA's experience with
such actions is that where the original NEPA document projected that
the action would not cause significant environmental effects, it was
determined that the continuation of the discharge would not degrade the
receiving waters and that the permit conditions do not change or are
more environmentally protective, the reissuance of the respective new
source NPDES permit does not result in significant impacts. It should
also be noted that the use of this CE will require additional
evaluation beyond an evaluation of the action for consistency with a
prior NEPA decision. Accordingly, EPA believes that the review process
that must be employed before approval of this CE is adequate to ensure
that past errors/oversights (assuming there are any) will not be
repeated.
Comment: One commenter requested clarification about whether NPDES
construction general permits are subject to NEPA and recommended that
EPA add the following CE to the regulations: ``Residential construction
undertaken in accordance with the environmental protection requirements
of a NPDES construction general permit.'' The commenter also stated
that EPA's economic analysis of the impact of the rule on small
businesses, pursuant to the Regulatory Flexibility Act (RFA), did not
include consideration of the potential number of affected small
businesses that would require permit coverage under the construction
general permit.
EPA Response: EPA believes that there is no need to add the
recommended CE into the rule because NPDES construction general permits
are not new source permits. Under section 511(c) of the Clean Water
Act, 33 U.S.C. 1371(c), NEPA compliance is required only for NPDES
permits for the discharge of any pollutant by a ``new source,'' which
is defined in the Clean Water Act as a source that is subject to
promulgated new source performance standards (see, 33 U.S.C.
1316(a)(2)). Since there are no new source performance standards for
construction discharges, NEPA compliance is not required for these
permit actions.
As to the comment on the RFA economic analysis, as noted above,
construction general permits are not new source NPDES permits and,
therefore, are not subject to EPA NEPA regulations. Therefore, there is
no need to include small businesses that apply for such permits as part
of the regulated public subject to this rule.
Comment: One commenter questioned why the revised rule did not
propose CEs for EPA actions under the Resource Conservation and
Recovery Act, Superfund, and the Clean Air Act.
EPA Response: EPA actions under the Clean Air Act are statutorily
exempt from NEPA. See, 15 U.S.C. 793(c)(1). Additionally, the decision-
making processes for EPA actions under the Resource Conservation and
Recovery Act and Superfund are considered to be the functional
equivalent of NEPA--see Section I.D above. Accordingly, CEs are
unnecessary for EPA actions under these programs.
Comment: A commenter expressed the opinion that the CE process
should allow for project-specific flexibility.
EPA Response: EPA agrees with this comment and believes that the CE
process in the rule allows for the most flexibility possible.
Comment: Several commenters expressed the opinion that the CEs
established in the rule should include activities that create temporary
disturbances with minimal impacts and whose impacts are already
relatively well-known and for which mitigation measures are well-
established.
EPA Response: EPA appreciates this comment, and believes that the
CEs established in the rule meet these general criteria for the actions
covered. However, EPA believes that establishing CEs for the activities
described in the comment would be too broad and too subjective; EPA
does not have sufficient historical support for such broad CEs for all
of its programs. Further, it is unlikely that such CEs could be
approved without some level of environmental review on the individual
projects, which would defeat the intent of establishing CEs in the
first place.
C. Comments Relating to Extraordinary Circumstances (ECs)
Comment: One commenter objected to the broad nature of the
extraordinary circumstances, and the similarity between the
extraordinary circumstances, which, if present, would prohibit the use
of a CE, and the list of criteria that normally require the preparation
of an EIS.
EPA's Response: EPA believes that the extraordinary circumstances,
which require determinations regarding the proximity of environmental/
natural features in the project area, and/or the application of
professional judgment
[[Page 53657]]
about the severity of an action's potential environmental effects are
not too broad. Moreover, as required by the CEQ Regulations, when
establishing a CE, agencies must determine whether the actions in
question result in significant effects on the quality of the human
environment either individually or cumulatively. The CEQ regulations
also require that each agency's NEPA procedures include circumstances
in which ``a normally excluded action may have a significant
environmental effect.'' 40 CFR 1508.4. Accordingly, EPA believes that
it is essential that these two lists parallel each other.
Comment: Several commenters believe that the Agency will not have
enough information to make an informed decision regarding the
applicability of extraordinary circumstances without input from the
public.
EPA Response: EPA appreciates this concern, and has included an
extraordinary circumstance that requires the evaluation of public
controversy about an action's potential environmental effects--40 CFR
6.204(b)(8). Of the remaining extraordinary circumstances, many relate
to the presence of environmental/natural features (endangered species,
historic properties, and farmland) in the project area. The rest
require the application of routine professional judgment in making
preliminary determinations about the potential severity of the action's
environmental effects. EPA does not believe that public input is needed
to make these routine determinations.
Comment: One commenter expressed concern about the extraordinary
circumstance in Sec. 6.204(b)(7), which prohibits the use of a CE if
the action will likely have a significant effect on land use patterns
or be inconsistent with an approved land use plan because the commenter
believes the criterion has little to do with NEPA, and is outside of
EPA's jurisdiction.
EPA Response: EPA disagrees with this comment because federal
actions that significantly alter land use patterns or are inconsistent
with approved land use plans can result in significant environmental
effects. Moreover, this criterion is consistent with CEQ Regulations.
See 40 CFR 1502.16.
Comment: One commenter expressed concern about the extraordinary
circumstance in Sec. 6.204(b)(8), which prohibits the use of a CE if
the action is expected to cause significant public controversy about a
potential environmental impact because the commenter believes public
controversy alone (i.e., in the absence of an environmental impact)
should not prohibit the use of a CE.
EPA Response: EPA agrees that public controversy alone should not
prohibit the use of a CE. As written, this extraordinary circumstance
is limited to significant public controversy about a potential
environmental effect. EPA believes it is appropriate to prohibit the
use of a CE if there is significant public controversy regarding a
potential environmental impact. Moreover, this criterion is consistent
with CEQ Regulations at 40 CFR 1508.27(b)(4), which state that in
determining whether an action is significant, the agency is to consider
`` the degree to which the effects on the quality of the human
environment are likely to be highly controversial.''
Comment: One commenter expressed concern about the extraordinary
circumstance in Sec. 6.204(b)(10), which prohibits the use of a CE if
the action may conflict with federal, state, or local government, or
federally-recognized Indian tribe environmental, resource protection,
or land-use laws or regulations because the commenter believes that the
criteria have little to do with NEPA, and are outside of EPA's
jurisdiction.
EPA Response: EPA disagrees with this comment because federal
actions that are inconsistent with environmental, resource protection,
or land-use laws or regulations, can, regardless of the source of these
requirements, result in significant environmental effects. Therefore,
it is appropriate to prohibit the use of a CE in such cases. Moreover,
this criterion is consistent with CEQ Regulations.
D. Comments Relating to the NEPA Process
Comment: One commenter suggested that the proposed rule be revised
to provide for public hearings if an interest is expressed.
EPA Response: EPA appreciates the comment and agrees that public
participation in the NEPA process is important, but does not agree that
the rule should require public hearings. The proposed rule requires the
Responsible Official to ``make diligent efforts to involve the public *
* * in the preparation of [environmental assessments] and
[environmental impact statements] consistent with 40 CFR 1501.4 and
1506.6 and applicable EPA public participation regulations.'' Section
6.203(a)(2). The Responsible Official also is required to ``use
appropriate communication procedures to ensure meaningful public
participation throughout the NEPA process.'' Section 6.203(a)(5).
Further, in preparing in EIS, the Responsible Official may hold one or
more scoping meetings, and public meetings or hearings on the draft
EIS. Section 6.203(c)(3)(iii) and (iv). Thus, EPA does not believe that
the rule in any way reduces opportunities for public participation in
the environmental review process. Rather, it provides the Responsible
Official the flexibility to use the most appropriate public
participation process considering both the unique circumstances of the
project and any applicable EPA public participation requirements. This
approach is consistent with CEQ Regulations, which require the agency
to ``make diligent efforts to involve the public in preparing and
implementing their NEPA procedures,'' 40 CFR 1506.6(a), but do not
prescribe how that public participation is to be carried out.
Comment: A commenter expressed support for the Emergency
Circumstance provision in the rule, but urged EPA to expand the
authority of the Responsible Official.
EPA Response: EPA appreciates the comment, but does not agree that
the Responsible Official should be given more authority because the
rule gives the responsible Official, in consultation with the NEPA
Official and CEQ, the authority necessary to properly address NEPA
compliance for emergency situations. The authority EPA is providing to
the Responsible Official is consistent with CEQ Regulations, which
require EPA to consult with CEQ about alternative arrangements for
emergency circumstances. See 40 CFR 1506.11.
Comment: A commenter asked EPA to set page and time limits for NEPA
documents and processes, respectively.
EPA Response: While EPA appreciates the comment, we believe that it
is not necessary or appropriate for this rule to set time or page
limits. CEQ Regulations provide general guidelines for time and page
limits, but the nature of the specific environmental issues evaluated
in NEPA documents appropriately affects their length and preparation
time. Generally, the depth of analysis should correlate to the severity
and probability of a proposed action's potential environmental effects.
Since the purpose of a NEPA environmental review is to thoroughly and
appropriately analyze the environmental impacts of a federal action, it
would be counter-productive to establish mandatory time or page limits.
Comment: A commenter asked that NEPA review be limited to
economically and technically feasible alternatives.
[[Page 53658]]
EPA Response: EPA does not agree that the NEPA review should be
limited to economically and technically feasible alternatives. While
these are two important factors, they are not the only ones to be
considered in establishing the range of reasonable alternatives for
NEPA analyses. Indeed, not all economically and technically feasible
alternatives that meet the purpose and need are reasonable. Other
factors (e.g., environmental soundness, compliance with statutory and
regulatory requirements, and public concern) must also be considered
when determining whether alternatives are reasonable under NEPA.
Comment: One commenter suggested that the rule clarify the meaning
of cumulative impacts that are examined in an EIS.
EPA Response: EPA appreciates the comment, but does not believe
that clarification of the meaning of cumulative impacts is necessary.
The reference to cumulative impacts in the rule is consistent with
accepted NEPA practice, as well as the definition of cumulative impacts
in Sec. 1508.7 of CEQ Regulations, which EPA is adopting through this
rulemaking (see Sec. 6.100(b)). Moreover, both CEQ and EPA have issued
considerable guidance on the definition of cumulative impacts and
techniques for assessing them. Accordingly, EPA believes that it is not
necessary to expand the definition of cumulative impacts in this rule.
Comment: One commenter expressed concern because the proposed rule
appeared to increase the authorities of cooperating agencies to require
their approval in the preparation of EPA NEPA documents prior to
issuance.
EPA Response: EPA agrees that the proposed rule implied that
cooperating agencies would always assume a greater role in preparing
EPA NEPA documents than is envisioned by EPA or the CEQ Regulations (40
CFR 1501.6). As acknowledged by those regulations, and demonstrated by
NEPA practice, cooperating agencies may jointly prepare the NEPA
document, or may focus their involvement to those specific issues on
which they have jurisdiction or expertise. Accordingly, the rule, at 40
CFR 6.202(a) has been revised to clarify the role of cooperating
agencies in the development of EPA NEPA documents.
Comment: One commenter suggested that EPA use the phrase
``significant adverse effect'' as the threshold for requiring an EIS.
EPA Response: EPA does not agree that the threshold for requiring
an EIS should be limited to ``significant adverse effects.''
Restricting the threshold of significant impacts (that would require
the preparation of an EIS) to only adverse effects would result in
limiting analyses, which could result in overlooking and/or
disregarding effects where there is controversy over the ``beneficial''
or ``adverse'' nature of the environmental consequence. This approach
is consistent with 40 CFR 1508.27(b)(1).
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and changes that were made in response to OMB
recommendations have been documented in the docket for this action.
In addition, EPA prepared an analysis of the costs and benefits
associated with this action. A copy of the analysis is available in the
docket for this action, and the analysis is briefly summarized here.
The total annual public reporting and recordkeeping burden for this
collection of information is estimated at 48,147 hours and $3,823,740
for contractor hours and costs, direct labor hours and costs, and O&M
costs. The hour and cost estimates reflect the annual preparation of
documentation for an anticipated 312 applicant-proposed projects that
may be documented with a CE, or an EA/FONSI, or an EIS/ROD.
B. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2020-0033.
EPA collects information from certain applicants as part of the
process of complying with either NEPA or Executive Order 12114. EPA's
Executive Order 12114 procedures further the purpose of NEPA and
provide that EPA may be guided by NEPA procedures to the extent they
are applicable. Therefore, when EPA conducts an environmental
assessment pursuant to its Executive Order 12114 procedures, the Agency
generally follows its NEPA procedures. For this ICR, applicant-proposed
projects subject to either NEPA or Executive Order 12114 (and that are
not addressed in other EPA programs' ICRs), are addressed through the
NEPA assessment process. Those subject to the rule include EPA
employees who must comply with NEPA and certain grant and permit
applicants who must submit environmental information to EPA for their
proposed projects.
The NEPA review for a project may result in a categorical exclusion
(CE), or an EA documented with a finding of no significant impact (EA/
FONSI), or an EIS documented with a record of decision (EIS/ROD). (EPA
assumes a project may be documented with a CE only for grantee-proposed
projects. EPA does not anticipate that an initial new source NPDES
permit application would be documented with a CE.) For any specific
project, only one of these levels of documentation is generally
prepared. Applicants must submit an environmental information document
(EID) to EPA as part of the environmental review process, unless the
applicant submits a draft EA or a draft EIS and supporting documents.
Applicants may prepare and submit the information directly, or may
enter a third-party contract agreement with EPA for preparation of an
EA or EIS and supporting documentation. For purposes of determining the
maximum costs to applicants for this ICR, EPA assumed that grant and
permit applicants would expend time and contractor costs to submit: (1)
Information to support application of a CE with environmental
information prepared directly by the applicant's contractor; or (2) a
draft EA and supporting documents prepared directly by the applicant's
contractor; or (3) a draft and final EIS and supporting documents
prepared by the applicant's contractor under a third-party contract
agreement with EPA. Based on EPA's experience, EPA anticipates there
will be approximately 300 grantee projects annually with about 60% of
these projects documented with a CE, and about 40% with an EA/FONSI. In
addition, EPA estimates that one project (less than one percent of the
total annual grantee projects) will have an EIS/ROD completed during
the 3-year period of this ICR. For permit applicants, EPA assumes there
will be approximately 12 projects annually with about 11 of the
projects documented with an EA/FONSI, and one project will have an EIS/
ROD completed. None will be documented with a CE. EPA estimated the
one-time costs for applicants to prepare the environmental
documentation by including contractor hours and costs, direct labor
hours and costs, and O&M for documentation submitted to EPA to support
a CE determination, or an EA/FONSI, or an
[[Page 53659]]
EIS/ROD. For a grantee, EPA estimates an applicant's one-time costs for
submitting environmental information will be: 45 hours and $3,292 for
CE documentation, or 260 hours and $18,340 for EA/FONSI documentation,
or 2,840 hours and $324,480 for EIS/ROD documentation. For a permit
applicant, EPA estimates an applicant's one-time costs for submitting
environmental information will be: 460 hours and $53,940 for EA/FONSI
documentation, or 2,840 hours and $328,880 for EIS/ROD documentation.
These figures may vary depending on the complexity of issues associated
with the project and the availability of relevant information,
particularly for EISs. EPA believes the calculations for this ICR are
representative of most projects.
For purposes of this ICR, the total annual public reporting and
recordkeeping burden for this collection of information is estimated at
48,147 hours and $3,823,740 for contractor hours and costs, direct
labor hours and costs, and O&M costs. This burden reflects the annual
submission of documentation for an anticipated 312 applicant-proposed
projects that may be documented with a CE, or an EA/FONSI, or an EIS/
ROD. Over the 3-year period of this ICR, EPA anticipates 937 applicant-
proposed projects with a 3-year total burden estimate of 144,440 hours
and $11,471,220. Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An agency may not conduct or sponsor, and a person is not required
to respond, to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR Part 9. In addition, EPA is
amending the table in 40 CFR Part 9 of currently approved OMB control
numbers for various regulations to list the regulatory citations for
the information requirements contained in this final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
The environmental information submitted by an applicant under the
rule is one-time only for EPA actions subject to NEPA based on
applicant proposals; i.e., actions proposed by grantees seeking funding
assistance from EPA or for an NPDES permit application initiated by the
permit applicant. In either case, EPA assumes the action will directly
benefit the applicant (such as a grantee seeking STAG funding for
renovation of a community drinking water system, or a permit applicant
seeking an NPDES permit from EPA to further the applicant's business
interests). Nonetheless, if the applicant cannot afford to provide the
required environmental information to EPA, then EPA would undertake the
environmental review without input from the applicant. (Applicants
would normally be requested to demonstrate financial hardship,
including inability to provide the requested environmental
information.) Grantees may be grant-eligible for certain costs
associated with providing environmental information to EPA; permit
applicants are not eligible for EPA financial assistance. Further, EPA
has attempted to reduce the cost on all entities, including small
entities, through the following provisions of the rule: Section 6.300
provides that an EID is not required when the action is categorically
excluded, or the applicant will prepare a draft EA and supporting
documents. The Responsible Official may prepare the NEPA documents
without assistance from the applicant. Section 6.302 provides that the
Responsible Official may prepare generic guidance for categories of
actions involving a large number of applicants; and must ensure early
involvement of applicants, consult with the applicant and provide
guidance describing the scope and level of environmental information
required, and provide guidance on a project-by-project basis to any
applicant seeking assistance. This Section also provides that the
Responsible Official must consider the extent to which the applicant is
capable of providing the required information, must not require the
applicant to gather data or perform analyses that unnecessarily
duplicate either existing data or the results of existing analyses
available to EPA, and must limit the request for environmental
information to that necessary for the environmental review. Section
6.303 provides that an applicant may enter into a third-party agreement
with EPA. For grantees, third-party agreement contractor costs may be
grant-eligible. Permit applicants are not eligible for EPA financial
assistance.
This final rule is applicable to certain EPA actions subject to
NEPA, including certain applicant-proposed projects. Because the
projects are proposed by the applicants, who are non-federal entities,
including small businesses and small governments, EPA does not know
what projects will be proposed, when they will be proposed, or what
level of NEPA review will be required for each individual project. In
this regard, EPA's NEPA review process is reactive to an applicant's
request. These factors are built into this screening assessment,
[[Page 53660]]
including assumptions about the entities likely to be subject to the
regulations, the types of projects they are likely to propose, and the
degree of possible economic impact based on the NEPA review process and
the three levels of environmental documentation possible under this
process using available historical information as future indicators.
More detailed information on the small entity screening analysis can be
found in the docket for this proposed rulemaking, EPA-HQ-00OECA-2005-
0062 (available at http://www.regulations.gov), and is summarized
below.
Based on EPA's past experience, EPA anticipates that annually there
will be approximately 170 small governments applying to EPA for STAG
grants for projects subject to NEPA, and four small businesses applying
to EPA for new source NPDES permits for a total of approximately 174
small entities out of potential 312 total entities. Of the 174 small
entities possibly affected by this rule, we have determined that the
economic impact of submitting one-time environmental documentation to
support a CE determination would be less than 1% of annual revenues for
all small entities; and that for the one-time costs associated with
submitting EA-related environmental documentation six small entities
(3.4%) could experience an economic impact of 1-3%, and up to four
small entities (2%) could experience an economic impact of greater than
3%. Additionally, we have also determined that approximately 57 of the
174 small entities (33%) could experience an economic impact of 1-3%,
and up to 26 of the 174 small entities (15%) could experience an
economic impact of greater than 3% for the one-time costs associated
with submitting EIS-related environmental documentation. In all, these
approximately 83 small entities represent about 48% of the estimated
174 total number of small entities that could experience a one-time
economic impact of 1-3% or greater of annual revenues. Of these 83
small entities, 79 are likely to be governmental grant applicants and
could be grant-eligible for EPA financial assistance with only one EIS
anticipated per three years with this likelihood spread over 300 total
grant applicants, including small and large governments, including
tribes, and special districts.
We have therefore concluded that today's final rule will relieve
regulatory burden for all affected small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector.
EPA believes the calculation for this UMRA assessment is
representative of most projects. On an annual one-time submission
basis, EPA's aggregate estimate for applicants is $3,823,740 for
contractor hours and costs, direct labor hours and costs, including
third-year costs for an EIS/ROD for one grantee project. The
requirement in today's final rule for applicants to submit one-time,
project-specific environmental information does not impose substantial
compliance costs on applicants, including governmental grantees,
because it is not likely to result in the expenditure by applicants,
including State and local governments, and tribes, in the aggregate, or
the private sector, of $100 million or more in any one year. Thus,
today's final rule is not subject to the requirements of sections 202
and 205 of the UMRA, and EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Under these NEPA regulations, as
well as EPA's procedures for implementing Executive Order 12114, State
and local governments are required to submit environmental information
only when the State or local government is a project-applicant for an
EPA action subject to NEPA, for example, when the State or local
government applies for a grant for a special project identified in
EPA's State and Tribal Assistance (STAG) account, or for a new source
NPDES permit issued by EPA. The requirement to submit environmental
information to EPA for the NEPA review does not impose substantial
compliance costs because it is not likely to result in the expenditure
by State and local governments in the aggregate of $100 million or more
in any one year. Further, this requirement does not preempt State law,
or alter the current relationship between the States and the Federal
Government. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicited comment on the
[[Page 53661]]
proposed rule from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. Neither the
amendments to EPA's NEPA implementing regulations nor the minor,
technical amendments to EPA's procedures implementing Executive Order
12114 impose new regulatory obligations on tribes. They will not have
substantial direct effects on tribes, on the relationship between the
national government and tribes, or on the distribution of power and
responsibilities between the national government and tribes. Under
EPA's regulations, Tribes are required to submit environmental
information only when the Tribes are project-applicants for EPA actions
subject to NEPA or Executive Order 12114, for example, when Tribes
apply for grants for special projects identified in EPA's State and
Tribal Assistance (STAG) account, or for new source NPDES permits
issued by EPA. The requirement to submit environmental information to
EPA for the environmental review process do not impose substantial
compliance costs because it is not likely to result in the expenditure
by state, local, and tribal governments in the aggregate of $100
million or more in any one year. Further, these requirements do not
preempt tribal law. Thus, Executive Order 13175 does not apply to this
rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks,'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This final rule is not subject
to Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution and Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. Further, we have
concluded that this rule is not likely to have any adverse energy
effects.
I. National Technology Transfer and Advancement Act of 1995
As noted in the proposed rule, Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards. This action does not involve
technical standards. Therefore, EPA did not consider the use of any
voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA maintains an ongoing commitment to ensure environmental justice
for all people, regardless of race, color, national origin, or income.
Ensuring environmental justice means not only protecting human health
and the environment for everyone, but also ensuring that all people are
treated fairly and given the opportunity to participate meaningfully in
the development, implementation, and enforcement of environmental laws,
regulations, and policies. In recognizing that minority and/or low-
income communities frequently may be exposed disproportionately to
environmental harms and risks, EPA works to protect these and other
burdened communities from adverse human health and environmental
effects of its programs, consistent with existing environmental and
civil rights laws, and their implementing regulations, as well as
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations.'' (59 FR
7629 (February 16, 1994)). Executive Order 12898 establishes federal
executive policy on environmental justice. Its main provision directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and/or low-income populations in the
United States. In developing this rule in compliance with Executive
Order 12898, EPA determined that this rule did not raise any
environmental justice concerns.
Today's rule, including the amended EPA NEPA implementing
procedures and the minor, technical amendments to the Agency's
procedures for implementing Executive Order 12114, does not impose new
regulatory program, policy, or activity obligations on EPA, state or
local governments, tribes, or individual applicants required to provide
environmental information to EPA for certain grants or permits.
Therefore, EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. However, the NEPA rule at Sec. 6.201 requires that for
specific projects, consistent with 40 CFR 1500.5(g) and 1502.25, the
EPA Responsible Official must determine the applicability of executive
orders, including Executive Order 12898, and should incorporate
applicable requirements as early in the NEPA review process as
possible. In addition, sections 6.203(a)(5) and (c)(3)(iv) require the
Responsible Official to choose public participation methods and
[[Page 53662]]
engage in outreach designed to reach those in ``potentially affected
communities where the proposed action is known or expected to have
environmental impacts including minority communities, low-income
communities, or federally-recognized Indian tribal communities.'' EPA
provides guidance to Responsible Officials and EPA staff on
incorporating environmental justice concerns into the NEPA analysis.
See ``Final Guidance For Incorporating Environmental Justice Concerns
in EPA's NEPA Compliance Analyses,'' April 1998.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective October 19, 2007.
List of Subjects in 40 CFR Part 6
Environmental protection, Environmental assessments, Environmental
impact statements, Environmental protection reporting, Foreign
relations, Grant programs--environmental protection, Reporting and
recordkeeping requirements.
Dated: September 7, 2007.
Stephen L. Johnson,
Administrator.
0
Therefore, for the reasons set forth in the preamble, EPA hereby amends
title 40, chapter I of the Code of Federal Regulations by revising part
6 to read as follows:
PART 6--PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL
POLICY ACT AND ASSESSING THE ENVIRONMENTAL EFFECTS ABROAD OF EPA
ACTIONS
Subpart A--General Provisions for EPA Actions Subject to NEPA
Sec.
6.100 Policy and Purpose.
6.101 Applicability.
6.102 Definitions.
6.103 Responsibilities of the NEPA and Responsible Officials.
Subpart B--EPA's NEPA Environmental Review Procedures
6.200 General requirements.
6.201 Coordination with other environmental review requirements.
6.202 Interagency cooperation.
6.203 Public participation.
6.204 Categorical exclusions and extraordinary circumstances.
6.205 Environmental assessments.
6.206 Findings of no significant impact.
6.207 Environmental impact statements.
6.208 Records of decision.
6.209 Filing requirements for EPA EISs.
6.210 Emergency circumstances.
Subpart C--Requirements for Environmental Information Documents and
Third-Party Agreements for EPA Actions Subject to NEPA
6.300 Applicability.
6.301 Applicant requirements.
6.302 Responsible Official requirements.
6.303 Third-party agreements.
Subpart D--Assessing the Environmental Effects Abroad of EPA Actions
6.400 Purpose and policy.
6.401 Applicability.
6.402 Definitions.
6.403 Environmental review and assessment requirements.
6.404 Lead or cooperating agency.
6.405 Exemptions and considerations.
6.406 Implementation.
Authority: 42 U.S.C. 4321 et seq., 7401-7671q, unless otherwise
noted.
Subpart A--General Provisions for EPA Actions Subject to NEPA
Sec. 6.100 Policy and purpose.
(a) The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4321 et seq., as implemented by the Council on Environmental Quality
(CEQ) Regulations (40 CFR Parts 1500 through 1508), requires that
Federal agencies include in their decision-making processes appropriate
and careful consideration of all environmental effects of proposed
actions, analyze potential environmental effects of proposed actions
and their alternatives for public understanding and scrutiny, avoid or
minimize adverse effects of proposed actions, and restore and enhance
environmental quality to the extent practicable. The U.S. Environmental
Protection Agency (EPA) shall integrate these NEPA requirements as
early in the Agency planning processes as possible. The environmental
review process shall be the focal point to ensure NEPA considerations
are taken into account.
(b) Through this part, EPA adopts the CEQ Regulations (40 CFR Parts
1500 through 1508) implementing NEPA; subparts A through C of this part
supplement those regulations, for actions proposed by EPA that are
subject to NEPA requirements. Subparts A through C supplement, and are
to be used in conjunction with, the CEQ Regulations.
Sec. 6.101 Applicability.
(a) Subparts A through C of this part apply to the proposed actions
of EPA that are subject to NEPA. EPA actions subject to NEPA include
the award of wastewater treatment construction grants under Title II of
the Clean Water Act, EPA's issuance of new source National Pollutant
Discharge Elimination System (NPDES) permits under section 402 of the
Clean Water Act, certain research and development projects, development
and issuance of regulations, EPA actions involving renovations or new
construction of facilities, and certain grants awarded for projects
authorized by Congress through the Agency's annual Appropriations Act.
(b) Subparts A through C of this part do not apply to EPA actions
for which NEPA review is not required. EPA actions under the Clean
Water Act, except those identified in Sec. 6.101(a), and EPA actions
under the Clean Air Act are statutorily exempt from NEPA. Additionally,
the courts have determined that certain EPA actions for which analyses
that have been conducted under another statute are functionally
equivalent with NEPA.
(c) The appropriate Responsible Official will undertake certain EPA
actions required by the provisions of subparts A through C of this
part.
(d) Certain procedures in subparts A through C of this part apply
to the responsibilities of the NEPA Official.
(e) Certain procedures in subparts A through C of this part apply
to applicants who are required to provide environmental information to
EPA.
(f) When the Responsible Official decides to perform an
environmental review under the Policy for EPA's Voluntary Preparation
of National Environmental Policy Act (NEPA) Documents, the Responsible
Official generally will follow the procedures set out in subparts A
through C of this part.
Sec. 6.102 Definitions.
(a) Subparts A through C of this part use the definitions found at
40 CFR part 1508. Additional definitions are listed in this subpart.
(b) Definitions.
(1) Administrator means the Administrator of the United States
Environmental Protection Agency.
(2) Applicant means any individual, agency, or other entity that
has:
[[Page 53663]]
(i) Filed an application for federal assistance; or
(ii) Applied to EPA for a permit.
(3) Assistance agreement means an award of federal assistance in
the form of money or property in lieu of money from EPA to an eligible
applicant including grants or cooperative agreements.
(4) Environmental information document (EID) means a written
analysis prepared by an applicant that provides sufficient information
for the Responsible Official to undertake an environmental review and
prepare either an EA and FONSI or an EIS and record of decision (ROD)
for the proposed action.
(5) Environmental review or NEPA review means the process used to
comply with section 102(2) of NEPA or the CEQ Regulations including
development, supplementation, adoption, and revision of NEPA documents.
(6) Extraordinary circumstances means those circumstances listed in
section 6.204 of this part that may cause a significant environmental
effect such that a proposed action that otherwise meets the
requirements of a categorical exclusion may not be categorically
excluded.
(7) NEPA document is a document prepared pursuant to NEPA.
(8) NEPA Official is the Assistant Administrator for Enforcement
and Compliance Assurance, who is responsible for EPA's NEPA compliance.
(9) Responsible Official means the EPA official responsible for
compliance with NEPA for individual proposed actions.
Sec. 6.103 Responsibilities of the NEPA and Responsible Officials.
(a) The NEPA Official will:
(1) Ensure EPA's compliance with NEPA pursuant to 40 CFR 1507.2(a)
and the regulations in subparts A through C of this part.
(2) Act as EPA's liaison with the CEQ and other federal agencies,
state and local governments, and federally-recognized Indian tribes on
matters of policy and administrative procedures regarding compliance
with NEPA.
(3) Approve procedural deviations from subparts A through C of this
part.
(4) Monitor the overall timeliness and quality of EPA's compliance
with subparts A through C of this part.
(5) Advise the Administrator on NEPA-related actions that involve
more than one EPA office, are highly controversial, are nationally
significant, or establish new EPA NEPA-related policy.
(6) Support the Administrator by providing policy guidance on NEPA-
related issues.
(7) Assist EPA's Responsible Officials with establishing and
maintaining adequate administrative procedures to comply with subparts
A through C of this part, performing their NEPA duties, and training
personnel and applicants involved in the environmental review process.
(8) Consult with Responsible Officials and CEQ regarding proposed
changes to subpart A through C of this part, including:
(i) The addition, amendment, or deletion of a categorical
exclusion, or
(ii) Changes to the listings of types of actions that normally
require the preparation of an EA or EIS.
(9) Determine whether proposed changes are appropriate, and if so,
coordinate with CEQ, pursuant to 40 CFR 1507.3, and initiate a process
to amend this part.
(b) The Responsible Official will:
(1) Ensure EPA's compliance with the CEQ regulations and subparts A
through C of this part for proposed actions.
(2) Ensure that environmental reviews are conducted on proposed
actions at the earliest practicable point in EPA's decision-making
process and in accordance with the provisions of subparts A through C
of this part.
(3) Ensure, to the extent practicable, early and continued
involvement of interested federal agencies, state and local
governments, federally-recognized Indian tribes, and affected
applicants in the environmental review process.
(4) Coordinate with the NEPA Official and other Responsible
Officials, as appropriate, on resolving issues involving EPA-wide NEPA
policy and procedures (including the addition, amendment, or deletion
of a categorical exclusion and changes to the listings of the types of
actions that normally requires the preparation of an EA or EIS) and/or
unresolved conflicts with other federal agencies, state and local
governments, and federally-recognized Indian tribes, and/or advising
the Administrator when necessary.
(5) Coordinate with other Responsible Officials, as appropriate, on
NEPA-related actions involving their specific interests.
(6) Consistent with national NEPA guidance, provide specific policy
guidance, as appropriate, and ensure that the Responsible Official's
office establishes and maintains adequate administrative procedures to
comply with subparts A through C of this part.
(7) Upon request of an applicant and consistent with 40 CFR 1501.8,
set time limits on the NEPA review appropriate to individual proposed
actions.
(8) Make decisions relating to the preparation of the appropriate
NEPA documents, including preparing an EA or EIS, and signing the
decision document.
(9) Monitor the overall timeliness and quality of the Responsible
Official's respective office's efforts to comply with subparts A
through C of this part.
(c) The NEPA Official and the Responsible Officials may delegate
NEPA-related responsibilities to a level no lower than the Branch Chief
or equivalent organizational level.
Subpart B--EPA's NEPA Environmental Review Procedures
Sec. 6.200 General requirements.
(a) The Responsible Official must determine whether the proposed
action meets the criteria for categorical exclusion or whether it
requires preparation of an EA or an EIS to identify and evaluate its
environmental impacts. The Responsible Official may decide to prepare
an EIS without first undertaking an EA.
(b) The Responsible Official must determine the scope of the
environmental review by considering the type of proposed action, the
reasonable alternatives, and the type of environmental impacts. The
scope of an EIS will be determined as provided in 40 CFR 1508.25.
(c) During the environmental review process, the Responsible
Official must:
(1) Integrate the NEPA process and the procedures of subparts A
through C of this part into early planning to ensure appropriate
consideration of NEPA's policies and to minimize or eliminate delay;
(2) Emphasize cooperative consultation among federal agencies,
state and local governments, and federally-recognized Indian tribes
before an EA or EIS is prepared to help ensure compliance with the
procedural provisions of subparts A through C of this part and with
other environmental review requirements, to address the need for
interagency cooperation, to identify the requirements for other
agencies' reviews, and to ensure appropriate public participation.
(3) Identify at an early stage any potentially significant
environmental issues to be evaluated in detail and insignificant issues
to be de-emphasized, focusing the scope of the environmental review
accordingly;
(4) Involve other agencies and the public, as appropriate, in the
environmental review process for
[[Page 53664]]
proposed actions that are not categorically excluded to:
(i) Identify the federal, state, local, and federally-recognized
Indian tribal entities and the members of the public that may have an
interest in the action;
(ii) Request that appropriate federal, state, and local agencies
and federally-recognized Indian tribes serve as cooperating agencies
consistent with 40 CFR 1501.6 and 1508.5; and
(iii) Integrate, where possible, review of applicable federal laws
and executive orders into the environmental review process in
conjunction with the development of NEPA documents.
(d) When preparing NEPA documents, the Responsible Official must:
(1) Utilize a systematic, interdisciplinary approach to integrate
the natural and social sciences with the environmental design arts in
planning and making decisions on proposed actions subject to
environmental review under subparts A through C of this part (see 40
CFR 1501.2(a) and 1507.2);
(2) Plan adequate time and funding for the NEPA review and
preparation of the NEPA documents. Planning includes consideration of
whether an applicant will be required to prepare an EID for the
proposed action.
(3) Review relevant planning or decision-making documents, whether
prepared by EPA or another federal agency, to determine if the proposed
action or any of its alternatives have been considered in a prior
federal NEPA document. EPA may adopt the existing document, or will
incorporate by reference any pertinent part of it, consistent with 40
CFR 1506.3 and 1502.21.
(4) Review relevant environmental review documents prepared by a
state or local government or a federally-recognized Indian tribe to
determine if the proposed action or any of its alternatives have been
considered in such a document. EPA will incorporate by reference any
pertinent part of that document consistent with 40 CFR 1502.21.
(e) During the decision-making process for the proposed action, the
Responsible Official must:
(1) Incorporate the NEPA review in decision-making on the action.
Processing and review of an applicant's application must proceed
concurrently with the NEPA review procedures set out in subparts A
through C of this part. EPA must complete its NEPA review before making
a decision on the action.
(2) Consider the relevant NEPA documents, public and other agency
comments (if any) on those documents, and EPA responses to those
comments, as part of consideration of the action (see 40 CFR
1505.1(d)).
(3) Consider the alternatives analyzed in an EA or EIS before
rendering a decision on the action; and
(4) Ensure that the decision on the action is to implement an
alternative analyzed or is within the range of alternatives analyzed in
the EA or EIS (see 40 CFR 1505.1(e)).
(f) To eliminate duplication and to foster efficiency, the
Responsible Official should use tiering (see 40 CFR 1502.20 and
1508.28) and incorporate material by reference (see 40 CFR 1502.21) as
appropriate.
(g) For applicant-related proposed actions:
(1) The Responsible Official may request that the applicant submit
information to support the application of a categorical exclusion to
the applicant's pending action.
(2) The Responsible Official may gather the information and prepare
the NEPA document without assistance from the applicant, or, pursuant
to Subpart C of this part, have the applicant prepare an EID or a draft
EA and supporting documents, or enter into a third-party agreement with
the applicant.
(3) During the environmental review process, applicants may
continue to compile additional information needed for the environmental
review and/or information necessary to support an application for a
permit or assistance agreement from EPA.
(h) For all NEPA determinations (CEs, EA/FONSIs, or EIS/RODs) that
are five years old or older, and for which the subject action has not
yet been implemented, the Responsible Official must re-evaluate the
proposed action, environmental conditions, and public views to
determine whether to conduct a supplemental environmental review of the
action and complete an appropriate NEPA document or reaffirm EPA's
original NEPA determination. If there has been substantial change in
the proposed action that is relevant to environmental concerns, or if
there are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its
impacts, the Responsible Official must conduct a supplemental
environmental review of the action and complete an appropriate NEPA
document.
Sec. 6.201 Coordination with other environmental review requirements.
Consistent with 40 CFR 1500.5(g) and 1502.25, the Responsible
Official must determine the applicability of other environmental laws
and executive orders, to the fullest extent possible. The Responsible
Official should incorporate applicable requirements as early in the
NEPA review process as possible.
Sec. 6.202 Interagency cooperation.
(a) Consistent with 40 CFR 1501.5, 1501.6, and 1508.5, the
Responsible Official will request other appropriate federal and non-
federal agencies to be joint lead or cooperating agencies as a means of
encouraging early coordination and cooperation with federal agencies,
state and local governments, and federally-recognized Indian tribes
with jurisdiction by law or special expertise.
(b) For an EPA action related to an action of any other federal
agency, the Responsible Official must comply with the requirements of
40 CFR 1501.5 and 1501.6 relating to lead agencies and cooperating
agencies, respectively. The Responsible Official will work with the
other involved agencies to facilitate coordination and to reduce delay
and duplication.
(c) To prepare a single document to fulfill both NEPA and state or
local government, or federally-recognized Indian tribe requirements,
consistent with 40 CFR 1506.2, the Responsible Official should enter
into a written agreement with the involved state or local government,
or federally-recognized Indian tribe that sets out the intentions of
the parties, including the responsibilities each party intends to
assume and procedures the parties intend to follow.
Sec. 6.203 Public participation.
(a) General requirements. (1) The procedures in this section apply
to EPA's environmental review processes, including development,
supplementation, adoption, and revision of NEPA documents.
(2) The Responsible Official will make diligent efforts to involve
the public, including applicants, in the preparation of EAs or EISs
consistent with 40 CFR 1501.4 and 1506.6 and applicable EPA public
participation regulations (e.g., 40 CFR Part 25).
(3) EPA NEPA documents will use plain language to the extent
possible.
(4) The Responsible Official will, to the greatest extent possible,
give notice to any state or local government, or federally-recognized
Indian tribe that, in the Official's judgment, may be affected by an
action for which EPA plans to prepare an EA or an EIS.
(5) The Responsible Official must use appropriate communication
procedures to ensure meaningful public participation throughout the
NEPA
[[Page 53665]]
process. The Responsible Official must make reasonable efforts to
involve the potentially affected communities where the proposed action
is expected to have environmental impacts or where the proposed action
may have human health or environmental effects in any communities,
including minority communities, low-income communities, or federally-
recognized Indian tribal communities.
(b) EA and FONSI requirements. (1) At least thirty (30) calendar
days before making the decision on whether, and if so how, to proceed
with a proposed action, the Responsible Official must make the EA and
preliminary FONSI available for review and comment to the interested
federal agencies, state and local governments, federally-recognized
Indian tribes and the affected public. The Responsible Official must
respond to any substantive comments received and finalize the EA and
FONSI before making a decision on the proposed action.
(2) Where circumstances make it necessary to take the action
without observing the 30 calendar day comment period, the Responsible
Official must notify the NEPA Official before taking such action. If
the NEPA Official determines that a reduced comment period would be in
the best interest of the Government, the NEPA Official will inform the
Responsible Official, as soon as possible, of this approval. The
Responsible Official will make the EA and preliminary FONSI available
for review and comment for the reduced comment period.
(c) EIS and ROD requirements. (1) As soon as practicable after the
decision to prepare an EIS and before beginning the scoping process,
the Responsible Official must ensure that a notice of intent (NOI) (see
40 CFR 1508.22) is published in the Federal Register. The NOI must
briefly describe the proposed action; a preliminary list of
environmental issues to be analyzed, and possible alternatives; EPA's
proposed scoping process including, if available, whether, when, and
where any scoping meeting will be held; and the name and contact
information for the person designated by EPA to answer questions about
the proposed action and the EIS. The NOI must invite comments and
suggestions on the scope of the EIS.
(2) The Responsible Official must disseminate the NOI consistent
with 40 CFR 1506.6.
(3) The Responsible Official must conduct the scoping process
consistent with 40 CFR 1501.7 and any applicable EPA public
participation regulations (e.g., 40 CFR Part 25).
(i) Publication of the NOI in the Federal Register begins the
scoping process.
(ii) The Responsible Official must ensure that the scoping process
for an EIS allows a minimum of thirty (30) days for the receipt of
public comments.
(iii) The Responsible Official may hold one or more public meetings
as part of the scoping process for an EPA EIS. The Responsible Official
must announce the location, date, and time of public scoping meetings
in the NOI or by other appropriate means, such as additional notices in
the Federal Register, news releases to the local media, or letters to
affected parties. Public scoping meetings should be held at least
fifteen (15) days after public notification.
(iv) The Responsible Official must use appropriate means to
publicize the availability of draft and final EISs and the time and
place for public meetings or hearings on draft EISs. The methods chosen
for public participation must focus on reaching persons who may be
interested in the proposed action. Such persons include those in
potentially affected communities where the proposed action is known or
expected to have environmental impacts including minority communities,
low-income communities, or federally-recognized Indian tribal
communities.
(v) The Responsible Official must circulate the draft and final
EISs consistent with 40 CFR 1502.19 and any applicable EPA public
participation regulations and in accordance with the 45-day public
review period for draft EISs and the 30-day public review period for
final EISs (see Sec. 6.209 of this part). Consistent with section
6.209(b) of this part, the Responsible Official may establish a longer
public comment period for a draft or final EIS.
(vi) After preparing a draft EIS and before preparing a final EIS,
the Responsible Official must solicit the comments of appropriate
federal agencies, state and/or local governments, and/or federally-
recognized Indian tribes, and the public (see 40 CFR 1503.1). The
Responsible Official must respond in the final EIS to substantive
comments received (see 40 CFR 1503.4).
(vii) The Responsible Official may conduct one or more public
meetings or hearings on the draft EIS as part of the public involvement
process. If meetings or hearings are held, the Responsible Official
must make the draft EIS available to the public at least thirty (30)
days in advance of any meeting or hearing.
(4) The Responsible Official must make the ROD available to the
public upon request.
Sec. 6.204 Categorical exclusions and extraordinary circumstances.
(a) A proposed action may be categorically excluded if the action
fits within a category of action that is eligible for exclusion and the
proposed action does not involve any extraordinary circumstances.
(1) Certain actions eligible for categorical exclusion require the
Responsible Official to document a determination that a categorical
exclusion applies. The documentation must include: A brief description
of the proposed action; a statement identifying the categorical
exclusion that applies to the action; and a statement explaining why no
extraordinary circumstances apply to the proposed action. The
Responsible Official must make a copy of the determination document
available to the public upon request. The categorical exclusions
requiring this documentation are listed in paragraphs (a)(1)(i) through
(a)(1)(v) of this section.
(i) Actions at EPA owned or operated facilities involving routine
facility maintenance, repair, and grounds-keeping; minor
rehabilitation, restoration, renovation, or revitalization of existing
facilities; functional replacement of equipment; acquisition and
installation of equipment; or construction of new minor ancillary
facilities adjacent to or on the same property as existing facilities.
(ii) Actions relating to existing infrastructure systems (such as
sewer systems; drinking water supply systems; and stormwater systems,
including combined sewer overflow systems) that involve minor
upgrading, or minor expansion of system capacity or rehabilitation
(including functional replacement) of the existing system and system
components (such as the sewer collection network and treatment system;
the system to collect, treat, store and distribute drinking water; and
stormwater systems, including combined sewer overflow systems) or
construction of new minor ancillary facilities adjacent to or on the
same property as existing facilities. This category does not include
actions that: involve new or relocated discharges to surface or ground
water; will likely result in the substantial increase in the volume or
the loading of pollutant to the receiving water; will provide capacity
to serve a population 30% greater than the existing population; are not
supported by the state, or other regional growth plan or strategy; or
directly or indirectly involve or relate to upgrading or
[[Page 53666]]
extending infrastructure systems primarily for the purposes of future
development.
(iii) Actions in unsewered communities involving the replacement of
existing onsite systems, providing the new onsite systems do not result
in substantial increases in the volume of discharge or the loadings of
pollutants from existing sources, or relocate existing discharge.
(iv) Actions involving re-issuance of a NPDES permit for a new
source providing the conclusions of the original NEPA document are
still valid (including the appropriate mitigation), there will be no
degradation of the receiving waters, and the permit conditions do not
change or are more environmentally protective.
(v) Actions for award of grants authorized by Congress under EPA's
annual Appropriations Act that are solely for reimbursement of the
costs of a project that was completed prior to the date the
appropriation was enacted.
(2) Certain actions eligible for categorical exclusion do not
require the Responsible Official to document a determination that a
categorical exclusion applies. These categorical exclusions are listed
in paragraphs (a)(2)(i) through (a)(2)(x) of this section.
(i) Procedural, ministerial, administrative, financial, personnel,
and management actions necessary to support the normal conduct of EPA
business.
(ii) Acquisition actions (compliant with applicable procedures for
sustainable or ``green'' procurement) and contracting actions necessary
to support the normal conduct of EPA business.
(iii) Actions involving information collection, dissemination, or
exchange; planning; monitoring and sample collection wherein no
significant alteration of existing ambient conditions occurs;
educational and training programs; literature searches and studies;
computer studies and activities; research and analytical activities;
development of compliance assistance tools; and architectural and
engineering studies. These actions include those conducted directly by
EPA and EPA actions relating to contracts or assistance agreements
involving such actions.
(iv) Actions relating to or conducted completely within a
permanent, existing contained facility, such as a laboratory, or other
enclosed building, provided that reliable and scientifically-sound
methods are used to appropriately dispose of wastes and safeguards
exist to prevent hazardous, toxic, and radioactive materials in excess
of allowable limits from entering the environment. Where such
activities are conducted at laboratories, the Lab Director or other
appropriate official must certify in writing that the laboratory
follows good laboratory practices and adheres to all applicable
federal, state, local, and federally-recognized Indian tribal laws and
regulations. This category does not include activities related to
construction and/or demolition within the facility (see paragraph
(a)(1)(i) of this section).
(v) Actions involving emergency preparedness planning and training
activities.
(vi) Actions involving the acquisition, transfer, lease,
disposition, or closure of existing permanent structures, land,
equipment, materials, or personal property provided that the property:
has been used solely for office functions; has never been used for
laboratory purposes by any party; does not require site remediation;
and will be used in essentially the same manner such that the type and
magnitude of the impacts will not change substantially. This category
does not include activities related to construction and/or demolition
of structures on the property (see paragraph (a)(1)(i) of this
section).
(vii) Actions involving providing technical advice to federal
agencies, state or local governments, federally-recognized Indian
tribes, foreign governments, or public or private entities.
(viii) Actions involving approval of EPA participation in
international ``umbrella'' agreements for cooperation in environmental-
related activities that would not commit the United States to any
specific projects or actions.
(ix) Actions involving containment or removal and disposal of
asbestos-containing material or lead-based paint from EPA owned or
operated facilities when undertaken in accordance with applicable
regulations.
(x) Actions involving new source NPDES permit modifications that
make only technical corrections to the NPDES permit (such as correcting
typographical errors) that do not result in a change in environmental
impacts or conditions.
(b) The Responsible Official must review actions eligible for
categorical exclusion to determine whether any extraordinary
circumstances are involved. Extraordinary circumstances are listed in
paragraphs (b)(1) through (b)(10) of this section. (See 40 CFR 1508.4.)
(1) The proposed action is known or expected to have potentially
significant environmental impacts on the quality of the human
environment either individually or cumulatively over time.
(2) The proposed action is known or expected to have
disproportionately high and adverse human health or environmental
effects on any community, including minority communities, low-income
communities, or federally-recognized Indian tribal communities.
(3) The proposed action is known or expected to significantly
affect federally listed threatened or endangered species or their
critical habitat.
(4) The proposed action is known or expected to significantly
affect national natural landmarks or any property with nationally
significant historic, architectural, prehistoric, archeological, or
cultural value, including but not limited to, property listed on or
eligible for the National Register of Historic Places.
(5) The proposed action is known or expected to significantly
affect environmentally important natural resource areas such as
wetlands, floodplains, significant agricultural lands, aquifer recharge
zones, coastal zones, barrier islands, wild and scenic rivers, and
significant fish or wildlife habitat.
(6) The proposed action is known or expected to cause significant
adverse air quality effects.
(7) The proposed action is known or expected to have a significant
effect on the pattern and type of land use (industrial, commercial,
agricultural, recreational, residential) or growth and distribution of
population including altering the character of existing residential
areas, or may not be consistent with state or local government, or
federally-recognized Indian tribe approved land use plans or federal
land management plans.
(8) The proposed action is known or expected to cause significant
public controversy about a potential environmental impact of the
proposed action.
(9) The proposed action is known or expected to be associated with
providing financial assistance to a federal agency through an
interagency agreement for a project that is known or expected to have
potentially significant environmental impacts.
(10) The proposed action is known or expected to conflict with
federal, state or local government, or federally-recognized Indian
tribe environmental, resource-protection, or land-use laws or
regulations.
(c) The Responsible Official may request that an applicant submit
sufficient information to enable the Responsible Official to determine
whether a categorical exclusion applies to the applicant's proposed
action or
[[Page 53667]]
whether an exceptional circumstance applies. Pursuant to Subpart C of
this part, applicants are not required to prepare EIDs for actions that
are being considered for categorical exclusion.
(d) The Responsible Official must prepare an EA or EIS when a
proposed action involves extraordinary circumstances.
(e) After a determination has been made that a categorical
exclusion applies to an action, if new information or changes in the
proposed action involve or relate to at least one of the extraordinary
circumstances or otherwise indicate that the action may not meet the
criteria for categorical exclusion and the Responsible Official
determines that an action no longer qualifies for a categorical
exclusion, the Responsible Official will prepare an EA or EIS.
(f) The Responsible Official, or other interested parties, may
request the addition, amendment, or deletion of a categorical
exclusion.
(1) Such requests must be made in writing, be directed to the NEPA
Official, and contain adequate information to support and justify the
request.
(2) Proposed new categories of actions for exclusion must meet
these criteria:
(i) Actions covered by the proposed categorical exclusion generally
do not individually or cumulatively have a significant effect on the
human environment and have been found by EPA to have no such effect.
(ii) Actions covered by the proposed categorical exclusion
generally do not involve extraordinary circumstances as set out in
paragraphs (b)(1) through (b)(14) of this section and generally do not
require preparation of an EIS; and
(iii) Information adequate to determine that a proposed action is
properly covered by the proposed category will generally be available.
(3) The NEPA Official must determine that the addition, amendment,
or deletion of a categorical exclusion is appropriate.
(g) Any addition, amendment, or deletion of a categorical exclusion
will be done by rule-making and in coordination with CEQ pursuant to 40
CFR 1507.3 to amend paragraph (a)(1) or paragraph (a)(2) of this
section.
Sec. 6.205 Environmental assessments.
(a) The Responsible Official must prepare an environmental
assessment (EA) (see 40 CFR 1508.9) for a proposed action that is
expected to result in environmental impacts and the significance of the
impacts is not known. An EA is not required if the proposed action is
categorically excluded, or if the Responsible Official has decided to
prepare an EIS. (See 40 CFR 1501.3.)
(b) Types of actions that normally require the preparation of an EA
include:
(1) The award of wastewater treatment construction grants under
Title II of the Clean Water Act;
(2) EPA's issuance of new source NPDES permits under section 402 of
the Clean Water Act;
(3) EPA actions involving renovations or new construction of
facilities;
(4) Certain grants awarded for special projects authorized by
Congress through the Agency's annual Appropriations Act; and
(5) Research and development projects, such as initial field
demonstration of a new technology, field trials of a new product or new
uses of an existing technology, alteration of a local habitat by
physical or chemical means, or actions that may result in the release
of radioactive, hazardous, or toxic substances, or biota.
(c) The Responsible Official, or other interested parties, may
request changes to the list of actions that normally require the
preparation of an EA (i.e., the addition, amendment, or deletion of a
type of action).
(d) Consistent with 40 CFR 1508.9, an EA must provide sufficient
information and analysis for determining whether to prepare an EIS or
to issue a FONSI (see 40 CFR 1508.9(a)), and may include analyses
needed for other environmental determinations. The EA must focus on
resources that might be impacted and any environmental issues that are
of public concern.
(e) An EA must include:
(1) A brief discussion of:
(i) The need for the proposed action;
(ii) The alternatives, including the no action alternative (which
must be assessed even when the proposed action is specifically required
by legislation or a court order);
(iii) The affected environment, including baseline conditions that
may be impacted by the proposed action and alternatives;
(iv) The environmental impacts of the proposed action and
alternatives, including any unresolved conflicts concerning alternative
uses of available resources; and
(v) Other applicable environmental laws and executive orders.
(2) A listing or summary of any coordination or consultation
undertaken with any federal agency, state or local government, or
federally-recognized Indian tribe regarding compliance with applicable
laws and executive orders;
(3) Identification and description of any mitigation measures
considered, including any mitigation measures that must be adopted to
ensure the action will not have significant impacts; and
(4) Incorporation of documents by reference, if appropriate,
including, when available, the EID for the action.
Sec. 6.206 Findings of no significant impact.
(a) The Responsible Official may issue a finding of no significant
impact (FONSI) (see 40 CFR 1508.13) only if the EA supports the finding
that the proposed action will not have a significant effect on the
human environment. If the EA does not support a FONSI, the Responsible
Official must prepare an EIS and issue a ROD before taking action on
the proposed action.
(b) Consistent with 40 CFR 1508.13, a FONSI must include:
(1) The EA, or in lieu of the EA, a summary of the supporting EA
that includes a brief description of the proposed action and
alternatives considered in the EA, environmental factors considered,
and project impacts; and
(2) A brief description of the reasons why there are no significant
impacts.
(c) In addition, the FONSI must include:
(1) Any commitments to mitigation that are essential to render the
impacts of the proposed action not significant;
(2) The date of issuance; and
(3) The signature of the Responsible Official.
(d) The Responsible Official must ensure that an applicant that has
committed to mitigation possesses the authority and ability to fulfill
the commitments.
(e) The Responsible Official must make a preliminary FONSI
available to the public in accordance with section 6.203(b) of this
part before taking action.
(f) The Responsible Official may proceed with the action subject to
any mitigation measures described in the FONSI after responding to any
substantive comments received on the preliminary FONSI during the 30-
day comment period, or 30 days after issuance of the FONSI if no
substantive comments are received.
(g) The Responsible Official must ensure that the mitigation
measures necessary to the FONSI determination, at a minimum, are
enforceable, and conduct appropriate monitoring of the mitigation
measures.
(h) The Responsible Official may revise a FONSI at any time
provided the revision is supported by an EA. A revised FONSI is subject
to all provisions of paragraph (d) of this section.
[[Page 53668]]
Sec. 6.207 Environmental impact statements.
(a) The Responsible Official will prepare an environmental impact
statement (EIS) (see 40 CFR 1508.11) for major federal actions
significantly affecting the quality of the human environment, including
actions for which the EA analysis demonstrates that significant impacts
will occur that will not be reduced or eliminated by changes to or
mitigation of the proposed action.
(1) EISs are normally prepared for the following actions:
(i) New regional wastewater treatment facilities or water supply
systems for a community with a population greater than 100,000.
(ii) Expansions of existing wastewater treatment facilities that
will increase existing discharge to an impaired water by greater than
10 million gallons per day (mgd).
(iii) Issuance of new source NPDES permit for a new major
industrial discharge.
(iv) Issuance of a new source NPDES permit for a new oil/gas
development and production operation on the outer continental shelf.
(v) Issuance of a new source NPDES permit for a deepwater port with
a projected discharge in excess of 10 mgd.
(2) The Responsible Official, or other interested party, may
request changes to the list of actions that normally require the
preparation of an EIS (i.e., the addition, amendment, or deletion of a
type of action).
(3) A proposed action normally requires an EIS if it meets any of
the following criteria. (See 40 CFR 1507.3(b)(2)).
(i) The proposed action would result in a discharge of treated
effluent from a new or modified existing facility into a body of water
and the discharge is likely to have a significant effect on the quality
of the receiving waters.
(ii) The proposed action is likely to directly, or through induced
development, have significant adverse effect upon local ambient air
quality or local ambient noise levels.
(iii). The proposed action is likely to have significant adverse
effects on surface water reservoirs or navigation projects.
(iv) The proposed action would be inconsistent with state or local
government, or federally-recognized Indian tribe approved land use
plans or regulations, or federal land management plans.
(v) The proposed action would be inconsistent with state or local
government, or federally-recognized Indian tribe environmental,
resource-protection, or land-use laws and regulations for protection of
the environment.
(vi) The proposed action is likely to significantly affect the
environment through the release of radioactive, hazardous or toxic
substances, or biota.
(vii) The proposed action involves uncertain environmental effects
or highly unique environmental risks that are likely to be significant.
(viii) The proposed action is likely to significantly affect
national natural landmarks or any property on or eligible for the
National Register of Historic Places.
(ix) The proposed action is likely to significantly affect
environmentally important natural resources such as wetlands,
significant agricultural lands, aquifer recharge zones, coastal zones,
barrier islands, wild and scenic rivers, and significant fish or
wildlife habitat.
(x) The proposed action in conjunction with related federal, state
or local government, or federally-recognized Indian tribe projects is
likely to produce significant cumulative impacts.
(xi) The proposed action is likely to significantly affect the
pattern and type of land use (industrial, commercial, recreational,
residential) or growth and distribution of population including
altering the character of existing residential areas.
(4) An EIS must be prepared consistent with 40 CFR Part 1502.
(b) When appropriate, the Responsible Official will prepare a
legislative EIS consistent with 40 CFR 1506.8.
(c) In preparing an EIS, the Responsible Official must determine if
an applicant, other federal agencies or state or local governments, or
federally-recognized Indian tribes are involved with the project and
apply the applicable provisions of Sec. 6.202 and Subpart C of this
part.
(d) An EIS must:
(1) Comply with all requirements at 40 CFR parts 1500 through 1508.
(2) Analyze all reasonable alternatives and the no action
alternative (which may be the same as denying the action). Assess the
no action alternative even when the proposed action is specifically
required by legislation or a court order.
(3) Describe the potentially affected environment including, as
appropriate, the size and location of new and existing facilities, land
requirements, operation and maintenance requirements, auxiliary
structures such as pipelines or transmission lines, and construction
schedules.
(4) Summarize any coordination or consultation undertaken with any
federal agency, state and/or local government, and/or federally-
recognized Indian tribe, including copies or summaries of relevant
correspondence.
(5) Summarize any public meetings held during the scoping process
including the date, time, place, and purpose of the meetings. The final
EIS must summarize the public participation process including the date,
time, place, and purpose of meetings or hearings held after publication
of the draft EIS.
(6) Consider substantive comments received during the public
participation process. The draft EIS must consider the substantive
comments received during the scoping process. The final EIS must
include or summarize all substantive comments received on the draft
EIS, respond to any substantive comments on the draft EIS, and explain
any changes to the draft EIS and the reason for the changes.
(7) Include the names and qualifications of the persons primarily
responsible for preparing the EIS including an EIS prepared under a
third-party contract (if applicable), significant background papers,
and the EID (if applicable).
(e) The Responsible Official must prepare a supplemental EIS when
appropriate, consistent with 40 CFR 1502.9.
Sec. 6.208 Records of decision.
(a) The Responsible Official may not make any decisions on the
action until the time periods in 40 CFR 1506.10 have been met.
(b) A record of decision (ROD) records EPA's decision on the
action. Consistent with 40 CFR 1505.2, a ROD must include:
(1) A brief description of the proposed action and alternatives
considered in the EIS, environmental factors considered, and project
impacts;
(2) Any commitments to mitigation; and
(3) An explanation if the environmentally preferred alternative was
not selected.
(c) In addition, the ROD must include:
(1) Responses to any substantive comments on the final EIS;
(2) The date of issuance; and
(3) The signature of the Responsible Official.
(d) The Responsible Official must ensure that an applicant that has
committed to mitigation possesses the authority and ability to fulfill
the commitment.
(e) The Responsible Official must make a ROD available to the
public.
(f) Upon issuance of the ROD, the Responsible Official may proceed
with the action subject to any mitigation
[[Page 53669]]
measures described in the ROD. The Responsible Official must ensure
adequate monitoring of mitigation measures identified in the ROD.
(g) If the mitigation identified in the ROD will be included as a
condition in the permit or grant, the Responsible Official must ensure
that EPA has the authority to impose the conditions. The Responsible
Official should ensure that compliance with assistance agreement or
permit conditions will be monitored and enforced under EPA's assistance
agreement and permit authorities.
(h) The Responsible Official may revise a ROD at any time provided
the revision is supported by an EIS. A revised ROD is subject to all
provisions of paragraph (d) of this section.
Sec. 6.209 Filing requirements for EPA EISs.
(a) The Responsible Official must file an EIS with the NEPA
Official no earlier than the date the document is transmitted to
commenting agencies and made available to the public. The Responsible
Official must comply with any guidelines established by the NEPA
Official for the filing system process and comply with 40 CFR 1506.9
and 1506.10. The review periods are computed through the filing system
process and published in the Federal Register in the Notice of
Availability.
(b) The Responsible Official may request that the NEPA Official
extend the review periods for an EIS. The NEPA Official will publish
notice of an extension of the review period in the Federal Register and
notify the CEQ.
Sec. 6.210 Emergency circumstances.
If emergency circumstances make it necessary to take an action that
has a significant environmental impact without observing the provisions
of subparts A through C of this part that are required by the CEQ
Regulations, the Responsible Official must consult with the NEPA
Official at the earliest possible time. Consistent with 40 CFR 1506.11,
the Responsible Official and the NEPA Official should consult with CEQ
about alternative arrangements at the earliest opportunity. Actions
taken without observing the provisions of subparts A through C of this
part will be limited to actions necessary to control the immediate
impacts of the emergency; other actions remain subject to the
environmental review process.
Subpart C--Requirements for Environmental Information Documents and
Third-Party Agreements for EPA Actions Subject to NEPA
Sec. 6.300 Applicability.
(a) This section applies to actions that involve applications to
EPA for permits or assistance agreements.
(b) The Responsible Official is responsible for the environmental
review process on EPA's action (that is, issuing the permit or awarding
the assistance agreement) with the applicant contributing through
submission of an EID or a draft EA and supporting documents.
(c) An applicant is not required to prepare an EID when:
(1) The action has been categorically excluded or requires the
preparation of an EIS; or
(2) The applicant will prepare and submit a draft EA and supporting
documents.
(d) The Responsible Official must notify the applicant if EPA will
not require submission of an EID.
Sec. 6.301 Applicant requirements.
(a) The applicant must prepare an EID in consultation with the
Responsible Official, unless the Responsible Official has notified the
applicant that an EID is not required. The EID must be of sufficient
scope and content to enable the Responsible Official to prepare an EA
and FONSI or, if necessary, an EIS and ROD. The applicant must submit
the EID to the Responsible Official.
(b) The applicant must consult with the Responsible Official as
early as possible in the planning process to obtain guidance with
respect to the appropriate level and scope of environmental information
required for the EID.
(c) As part of the EID process, the applicant may consult with
appropriate federal agencies, state and local governments, federally-
recognized Indian tribes, and other potentially affected parties to
identify their interests in the project and the environmental issues
associated with the project.
(d) The applicant must notify the Responsible Official as early as
possible of other federal agency, state or local government, or
federally-recognized Indian tribe requirements related to the project.
The applicant also must notify the Responsible Official of any private
entities and organizations affected by the proposed project. (See 40
CFR 1501.2(d)(2).)
(e) The applicant must notify the Responsible Official if, during
EPA's environmental review process, the applicant:
(1) Changes its plans for the project as originally submitted to
EPA; and/or
(2) Changes its schedule for the project from that originally
submitted to EPA.
(f) In accordance with Sec. 6.204, where appropriate, the
applicant may request a categorical exclusion determination by the
Responsible Official. If requested by the Responsible Official, the
applicant must submit information to the Responsible Official regarding
the application of a categorical exclusion to EPA's pending action and
the applicant's project.
Sec. 6.302 Responsible Official requirements.
(a) Consistent with 40 CFR 1501.2(d), the Responsible Official must
ensure early involvement of applicants in the environmental review
process to identify environmental effects, avoid delays, and resolve
conflicts.
(b) The Responsible Official must notify the applicant if a
determination has been made that the action has been categorically
excluded, or if EPA needs additional information to support the
application of a categorical exclusion or if the submitted information
does not support the application of a categorical exclusion and that an
EA, or an EIS, will be required.
(c) When an EID is required for a project, the Responsible Official
must consult with the applicant and provide the applicant with guidance
describing the scope and level of environmental information required.
(1) The Responsible Official must provide guidance on a project-by-
project basis to any applicant seeking such assistance. For major
categories of actions involving a large number of applicants, the
Responsible Official may prepare and make available generic guidance
describing the recommended level and scope of environmental information
that applicants should provide.
(2) The Responsible Official must consider the extent to which the
applicant is capable of providing the required information. The
Responsible Official may not require the applicant to gather data or
perform analyses that unnecessarily duplicate either existing data or
the results of existing analyses available to EPA. The Responsible
Official must limit the request for environmental information to that
necessary for the environmental review.
(d) If, prior to completion of the environmental review for a
project, the Responsible Official receives notification, that the
applicant is proposing to or taking an action that would result in
significant impacts or would limit alternatives, the
[[Page 53670]]
Responsible Official must notify the applicant promptly that EPA will
take appropriate action to ensure that the objectives and procedures of
NEPA are achieved (see 40 CFR 1506.1(b)). Such actions may include
withholding grant funds or denial of permits.
(e) The Responsible Official must begin the NEPA review as soon as
possible after receiving the applicant's EID or draft EA. The
Responsible Official must independently evaluate the information
submitted and be responsible for its accuracy (see 40 CFR 1506.5).
(f) At the request of an applicant and at the discretion of the
Responsible Official, an applicant may prepare an EA or EIS and
supporting documents or enter into a third-party contract pursuant to
Sec. 6.303.
(g) The Responsible Official must review, and take responsibility
for the completed NEPA documents, before rendering a final decision on
the proposed action.
Sec. 6.303 Third-party agreements.
(a) If an EA or EIS is to be prepared for an action subject to
subparts A through C of this part, the Responsible Official and the
applicant may enter into an agreement whereby the applicant engages and
pays for the services of a third-party contractor to prepare an EA or
EIS and any associated documents for consideration by EPA. In such
cases, the Responsible Official must approve the qualifications of the
third-party contractor. The third-party contractor must be selected on
the basis of ability and absence of any conflict of interest.
Consistent with 40 CFR 1506.5(c), in consultation with the applicant,
the Responsible Official shall select the contractor. The Responsible
Official must provide guidance to the applicant and contractor
regarding the information to be developed, including the project's
scope, and guide and participate in the collection, analysis, and
presentation of the information. The Responsible Official has sole
authority for final approval of and EA or EIS.
(1) The applicant must engage and pay for the services of a
contractor to prepare the EA or EIS and any associated documents
without using EPA financial assistance (including required match).
(2) The Responsible Official, in consultation with the applicant,
must ensure that the contractor is qualified to prepare an EA or EIS,
and that the substantive terms of the contract specify the information
to be developed, and the procedures for gathering, analyzing and
presenting the information.
(3) The Responsible Official must prepare a disclosure statement
for the applicant to include in the contract specifying that the
contractor has no financial or other interest in the outcome of the
project (see 40 CFR 1506.5(c)).
(4) The Responsible Official will ensure that the EA or EIS and any
associated documents contain analyses and conclusions that adequately
assess the relevant environmental issues.
(b) In order to make a decision on the action, the Responsible
Official must independently evaluate the information submitted in the
EA or EIS and any associated documents, and issue an EA or draft and
final EIS. After review of, and appropriate changes to, the EA or EIS
submitted by the applicant, the Responsible Official may accept it as
EPA's document. The Responsible Official is responsible for the scope,
accuracy, and contents of the EA or EIS and any associated documents
(see 40 CFR 1506.5).
(c) A third-party agreement may not be initiated unless both the
applicant and the Responsible Official agree to its creation and terms.
(d) The terms of the contract between the applicant and the third-
party contractor must ensure that the contractor does not have recourse
to EPA for financial or other claims arising under the contract, and
that the Responsible Official, or other EPA designee, may give
technical advice to the contractor.
Subpart D--Assessing the Environmental Effects Abroad of EPA
Actions
Authority: 42 U.S.C. 4321, note, E.O. 12114, 44 FR 1979, 3 CFR,
1979 Comp., p. 356.
Sec. 6.400 Purpose and policy.
(a) Purpose. On January 4, 1979, the President signed Executive
Order 12114 entitled ``Environmental Effects Abroad of Major Federal
Actions.'' The purpose of this Executive Order is to enable responsible
Federal officials in carrying out or approving major Federal actions
which affect foreign nations or the global commons to be informed of
pertinent environmental considerations and to consider fully the
environmental impacts of the actions undertaken. While based on
independent authority, this Order furthers the purpose of the National
Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) and the Marine
Protection, Research, and Sanctuaries Act (MPRSA) (33 U.S.C. 1401 et
seq.). It should be noted, however, that in fulfilling its
responsibilities under Executive Order 12114, EPA shall be guided by
CEQ regulations only to the extent that they are made expressly
applicable by this subpart. The procedures set forth below reflect
EPA's duties and responsibilities as required under the Executive Order
and satisfy the requirement for issuance of procedures under section 2-
1 of the Executive Order.
(b) Policy. It shall be the policy of this Agency to carry out the
purpose and requirements of the Executive Order to the fullest extent
possible. EPA, within the realm of its expertise, shall work with the
Department of State and the Council on Environmental Quality to provide
information to other Federal agencies and foreign nations to heighten
awareness of and interest in the environment. EPA shall further
cooperate to the extent possible with Federal agencies to lend special
expertise and assistance in the preparation of required environmental
documents under the Executive Order. EPA shall perform environmental
reviews of activities significantly affecting the global commons and
foreign nations as required under Executive Order 12114 and as set
forth under these procedures.
Sec. 6.401 Applicability.
(a) Administrative actions requiring environmental review. The
environmental review requirements apply to the activities of EPA as
follows:
(1) Major research or demonstration projects which affect the
global commons or a foreign nation.
(2) Ocean dumping activities carried out under section 102 of the
MPRSA which affect the related environment.
(3) Major permitting or licensing by EPA of facilities which affect
the global commons or the environment of a foreign nation. This may
include such actions as the issuance by EPA of hazardous waste
treatment, storage, or disposal facility permits pursuant to section
3005 of the Resource Conservation and Recovery Act (42 U.S.C. 6925),
NPDES permits pursuant to section 402 of the Clean Water Act (33 U.S.C.
1342), and prevention of significant deterioration approvals pursuant
to Part C of the Clean Air Act (42 U.S.C. 7470 et seq.)
(4) Wastewater Treatment Construction Grants Program under section
201 of the Clean Water Act when activities addressed in the facility
plan would have environmental effects abroad.
(5) Other EPA activities as determined by OFA and OIA (see Sec.
6.406(c)).
(b) [Reserved].
[[Page 53671]]
Sec. 6.402 Definitions.
As used in this subpart, environment means the natural and physical
environment and excludes social, economic and other environments;
global commons is that area (land, air, water) outside the jurisdiction
of any nation; and responsible official is either the EPA Assistant
Administrator or Regional Administrator as appropriate for the
particular EPA program. Also, an action significantly affects the
environment if it does significant harm to the environment even though
on balance the action may be beneficial to the environment. To the
extent applicable, the responsible official shall address the
considerations set forth in the CEQ regulations under 40 CFR 1508.27 in
determining significant effect.
Sec. 6.403 Environmental review and assessment requirements.
(a) Research and demonstration projects. The appropriate Assistant
Administrator is responsible for performing the necessary degree of
environmental review on research and demonstration projects undertaken
by EPA. If the research or demonstration project affects the
environment of the global commons, the applicant shall prepare an
environmental analysis. This will assist the responsible official in
determining whether an EIS is necessary. If it is determined that the
action significantly affects the environment of the global commons,
then an EIS shall be prepared. If the undertaking significantly affects
a foreign nation EPA shall prepare a unilateral, bilateral or
multilateral environmental study. EPA shall afford the affected foreign
nation or international body or organization an opportunity to
participate in this study. This environmental study shall discuss the
need for the action, analyze the environmental impact of the various
alternatives considered and list the agencies and other parties
consulted.
(b) Ocean dumping activities. (1) The Assistant Administrator for
Water shall ensure the preparation of appropriate environmental
documents relating to ocean dumping activities in the global commons
under section 102 of the MPRSA. For ocean dumping site designations
prescribed pursuant to section 102(c) of the MPRSA and 40 CFR part 228,
and for the establishment or revision of criteria under section 102(a)
of the MPRSA, EPA shall prepare appropriate environmental documents
consistent with EPA's Notice of Policy and Procedures for Voluntary
Preparation of National Environmental Policy Act (NEPA) Documents dated
October 29, 1998.
(2) For individual permits issued by EPA under section 102(b) an
environmental assessment shall be made by EPA. Pursuant to 40 CFR part
221, the permit applicant shall submit with the application an
environmental analysis which includes a discussion of the need for the
action, an outline of alternatives, and an analysis of the
environmental impact of the proposed action and alternatives consistent
with the EPA criteria established under section 102(a) of MPRSA. The
information submitted under 40 CFR part 221 shall be sufficient to
satisfy the environmental assessment requirement.
(c) EPA permitting and licensing activities. The appropriate
Regional Administrator is responsible for conducting concise
environmental reviews with regard to permits issued under section 3005
of the Resource Conservation and Recovery Act (RCRA permits), section
402 of the Clean Water Act (NPDES permits), and section 165 of the
Clean Air Act (PSD permits), for such actions undertaken by EPA which
affect the global commons or foreign nations. The information submitted
by applicants for such permits or approvals under the applicable
consolidated permit regulations (40 CFR parts 122 and 124) and
Prevention of Significant Deterioration (PSD) regulations (40 CFR part
52) shall satisfy the environmental document requirement under Section
2-4(b) of Executive Order 12114. Compliance with applicable
requirements in part 124 of the consolidated permit regulations (40 CFR
part 124) shall be sufficient to satisfy the requirements to conduct a
concise environmental review for permits subject to this paragraph.
(d) Wastewater treatment facility planning. 40 CFR part 6, subparts
A through C, detail the environmental review process for the facilities
planning process under the wastewater treatment works construction
grants program. For the purpose of these regulations, the facility plan
shall also include a concise environmental review of those activities
that would have environmental effects abroad. This shall apply only to
the Step 1 grants awarded after January 14, 1981, but on or before
December 29, 1981, and facilities plans developed after December 29,
1981. Where water quality impacts identified in a facility plan are the
subject of water quality agreements with Canada or Mexico, nothing in
these regulations shall impose on the facility planning process
coordination and consultation requirements in addition to those
required by such agreements.
(e) Review by other Federal agencies and other appropriate
officials. The responsible officials shall consult with other Federal
agencies with relevant expertise during the preparation of the
environmental document. As soon as feasible after preparation of the
environmental document, the responsible official shall make the
document available to the Council on Environmental Quality, Department
of State, and other appropriate officials. The responsible official
with assistance from OIA shall work with the Department of State to
establish procedures for communicating with and making documents
available to foreign nations and international organizations.
Sec. 6.404 Lead or cooperating agency.
(a) Lead Agency. Section 3-3 of Executive Order 12114 requires the
creation of a lead agency whenever an action involves more than one
Federal agency. In implementing section 3-3, EPA shall, to the fullest
extent possible, follow the guidance for the selection of a lead agency
contained in 40 CFR 1501.5 of the CEQ regulations.
(b) Cooperating Agency. Under Section 2-4(d) of the Executive
Order, Federal agencies with special expertise are encouraged to
provide appropriate resources to the agency preparing environmental
documents in order to avoid duplication of resources. In working with a
lead agency, EPA shall to the fullest extent possible serve as a
cooperating agency in accordance with 40 CFR 1501.6. When other program
commitments preclude the degree of involvement requested by the lead
agency, the responsible EPA official shall so inform the lead agency in
writing.
Sec. 6.405 Exemptions and considerations.
Under section 2-5 (b) and (c) of the Executive Order, Federal
agencies may provide for modifications in the contents, timing and
availability of documents or exemptions from certain requirements for
the environmental review and assessment. The responsible official, in
consultation with the Director, Office of Federal Activities (OFA), and
the Assistant Administrator, Office of International Affairs (OIA), may
approve modifications for situations described in section 2-5(b). The
responsible official, in consultation with the Director, OFA and
Assistant Administrator, OIA, shall obtain exemptions from the
Administrator for situations described in section 2-5(c). The
Department of State and the Council on Environmental Quality shall be
consulted as soon as possible on the utilization of such exemptions.
[[Page 53672]]
Sec. 6.406 Implementation.
(a) Oversight. OFA is responsible for overseeing the implementation
of these procedures and shall consult with OIA wherever appropriate.
OIA shall be utilized for making formal contacts with the Department of
State. OFA shall assist the responsible officials in carrying out their
responsibilities under these procedures.
(b) Information exchange. OFA with the aid of OIA, shall assist the
Department of State and the Council on Environmental Quality in
developing the informational exchange on environmental review
activities with foreign nations.
(c) Unidentified activities. The responsible official shall consult
with OFA and OIA to establish the type of environmental review or
document appropriate for any new EPA activities or requirements imposed
upon EPA by statute, international agreement or other agreements.
[FR Doc. E7-18053 Filed 9-18-07; 8:45 am]
BILLING CODE 6560-50-P