98-29019. Notice of Policy and Procedures for Voluntary Preparation of National Environmental Policy Act (NEPA) Documents

[Federal Register Volume 63, Number 209 (Thursday, October 29, 1998)]
[Notices]
[Pages 58045-58047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29019]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6181-5]


Notice of Policy and Procedures for Voluntary Preparation of 
National Environmental Policy Act (NEPA) Documents

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of new policy and repeal of existing policy.

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SUMMARY: EPA is today withdrawing its May 7, 1974 Statement of Policy 
for Voluntary Environmental Impact Statements (EIS) (39 FR 16186) and 
publishing a Statement of Policy for Voluntary Preparation of National 
Environmental Policy Act (NEPA) Documents. The new Statement of Policy 
updates Agency policy to make it more consistent with current practice. 
This policy change widens the scope of Agency activities for which a 
NEPA document may be prepared voluntarily and enables EPA to address 
actions for which a voluntary EIS would have been prepared previously 
with a voluntary Environmental Assessment (EA) if appropriate. 
Additionally, EPA is withdrawing the Procedures for the Voluntary 
Preparation (39 FR 37419, October 21, 1974) and instead will use 
procedures as set out at 40 CFR Part 6, Subparts A through D, as 
specified below.

DATES: This policy shall take effect October 29, 1998.

FOR FURTHER INFORMATION CONTACT: Joseph Montgomery at [phone]; 
Email: [e-mail]; or Marguerite Duffy at (202) 
564-7148; E-mail:[e-mail]; U.S. Environmental 
Protection Agency, Office of Federal Activities (2252-A), 401 M Street, 
SW, Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

I. Background

    In the November 28, 1997 Federal Register (62 FR 63334), EPA 
proposed changes in its Statement of Policy for Voluntary EISs, which 
it had adopted and published on May 7, 1974 in the Federal Register (39 
FR 16186). This revised policy updates EPA's 1974 policy to reflect how 
Congress and the Courts have defined EPA's NEPA obligations and to 
ensure that EPA's voluntary practices regarding NEPA compliance are 
consistent with practices provided in the NEPA regulations issued by 
the Council on Environmental Quality (CEQ) at 40 CFR Parts 1500 through 
1508. The revised policy also encourages expansion of the increased 
discretionary use of NEPA procedures voluntarily in circumstances where 
they can be particularly helpful for decision-making involving other 
federal agencies, cross-media issues, or other concerns such as 
environmental justice. The revised policy affects certain EPA standard-
setting and cancellation procedures.

II. Response to Comments

    A total of four comments were received in response to the November 
28, 1997 proposed changes. Three organizations were supportive of the 
proposed changes. One state government concurred with the proposed 
changes but requested that EPA consult with states regarding any 
actions which were previously reviewed through the EIS process but 
which EPA believes should be evaluated through environmental 
assessments in the future. The state also requested that EPA continue 
to prepare EISs in the case of site designations under the Marine 
Protection, Research and Sanctuaries

[[Page 58046]]

Act. EPA appreciates the support for its proposed change to the policy. 
In response to the first request, EPA supports early consultation with 
the states, particularly on specific actions which affect one or more 
states, and expects that there will be early coordination with affected 
states on these actions. EPA does not believe that there is a need to 
formalize this process in the policy statement and notes that, in 
addition to early consultation between EPA and the states, under the 
EPA NEPA implementing regulations at 40 CFR Part 6, which EPA will 
follow in its voluntary NEPA compliance, a 30-day public review is 
required for any proposed Finding of No Significant Impact. This allows 
an additional opportunity for state involvement in the decision on 
preparing a voluntary EIS. As to the second point, EPA believes that 
decisions on preparing EISs for proposed ocean disposal sites should be 
made on a case-by-case basis. States have been working closely with EPA 
Regional offices on this program for many years; the Agency does not 
envision significant changes to the decision making process or working 
relationship. EPA voluntarily will follow NEPA procedures in ocean 
disposal site designations under MPRSA and these procedures provide for 
consultation with the states. Therefore, states will have an 
opportunity to comment on the need for an EIS as discussed above.

III. Statement of Policy

    Section 102(2)(C) of the National Environmental Policy Act (NEPA) 
of 1969, as amended (Pub. L. 91-190, 42 U.S.C. 4321 et seq.) requires 
that federal agencies prepare detailed environmental impact statements 
(EISs) on proposals for legislation and other major Federal actions 
significantly affecting the quality of the human environment. 
Regulations promulgated in 1978 and amended in 1986 by CEQ at 40 CFR 
Parts 1500 through 1508 further provide for the preparation of 
Environmental Assessments (EAs) to provide sufficient evidence and 
analysis for determining whether to prepare an EIS or to prepare a 
Finding of No Significant Impact (FONSI). The objective of NEPA is to 
build into the agency decision-making process an appropriate and 
careful consideration of all environmental aspects of proposed actions.
    The Environmental Protection Agency (EPA) is legally required to 
comply with the procedural requirements of NEPA for its research and 
development activities, facilities construction, wastewater treatment 
construction grants under Title II of the Clean Water Act (CWA), EPA-
issued National Pollutant Discharge Elimination System (NPDES) permits 
for new sources, and for certain projects funded through EPA annual 
Appropriations Acts. Section 511(c) 1 of the CWA exempts 
other EPA actions under the CWA from the requirements of NEPA. Section 
7(c) of the Energy Supply and Environmental Coordination Act of 1974 
(15 U.S.C. 793(c)(1)) exempts actions under the Clean Air Act from the 
requirements of NEPA. EPA is also exempted from the procedural 
requirements of environmental laws, including NEPA, for Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) 
response actions. Courts also consistently have recognized that EPA 
procedures or environmental reviews under enabling legislation are 
functionally equivalent to the NEPA process and thus exempt from the 
procedural requirements in NEPA.
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    \1\ In its May 7, 1974 Statement of Policy, EPA construed CWA 
Sec. 511(c) as authorizing that ``environmental impact statements be 
prepared only'' in connection with the activities to which that 
section's exemptions did not apply. After the Policy's adoption, in 
language virtually identical to that in Sec. 511(c), Congress 
enacted an exemption for EPA Clean Air Act activities (15 U.S.C. 
Sec. 793(c)(1)). EPA did not construe the Clean Air Act exemption as 
precluding voluntary preparation of NEPA documents, and has, in 
fact, also prepared voluntary NEPA documents for activities exempted 
under CWA Sec. 511(c). This policy does not preclude voluntary 
preparation of EAs or EISs for any EPA programs, including Clean 
Water Act Programs.
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    Under the new policy, EPA may undertake voluntary preparation of 
EAs and EISs under programs where it is not legally required to prepare 
such documents, where such voluntary documents can be beneficial in 
addressing Agency actions. Voluntary NEPA documentation can be 
particularly useful in situations where other federal agencies are 
preparing NEPA documentation for related actions, where NEPA's well-
understood and long-standing procedures provide an opportunity for 
increased public understanding and involvement, and where the NEPA 
process can facilitate analysis of environmental impacts. Accordingly, 
the Agency has determined that, while it is not legally bound to do so 
by NEPA, EPA may voluntarily prepare EAs and, as appropriate, EISs in 
connection with certain EPA actions. The voluntary preparation of these 
documents in no way legally subjects the Agency to NEPA's requirements.

A. Applicability

    EPA will prepare an EA or, if appropriate, an EIS on a case-by-case 
basis in connection with Agency decisions where the Agency determines 
that such an analysis would be beneficial. Among the criteria that may 
be considered in making such a determination are: (a) the potential for 
improved coordination with other federal agencies taking related 
actions; (b) the potential for using an EA or EIS to comprehensively 
address large-scale ecological impacts, particularly cumulative 
effects; (c) the potential for using an EA or an EIS to facilitate 
analysis of environmental justice issues; (d) the potential for using 
an EA or EIS to expand public involvement and to address controversial 
issues; and (e) the potential of using an EA or EIS to address impacts 
on special resources or public health.
    For standard setting under the CAA; the Noise Control Act; and the 
Atomic Energy Act; criteria for ocean disposal under the Marine 
Protection, Research and Sanctuaries Act (MPRSA); and pesticide 
disposal regulations and pesticide cancellations under the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA); EPA will continue 
to fulfill its commitment to meeting the fundamental elements of NEPA 
through the Agency's Regulatory Development Process for rule-making, 
and through negotiated settlements with pesticide producers under 
FIFRA. The new policy will not preclude the voluntary preparation of an 
EA or EIS in an individual case should it be determined that an EA or 
EIS would be beneficial.

B. Procedures

    With respect to voluntary EAs and EISs prepared pursuant to this 
policy, the Agency will follow, as appropriate, procedures set out at 
40 CFR Part 6, Subparts A through D (which can be found on EPA's Web-
Site at www.epa.gov/oeca/ofa). In specific cases where following these 
procedures in the preparation of voluntary EAs or EISs would not be 
practicable or appropriate, the Director, Office of Federal Activities, 
Office of Enforcement and Compliance Assurance, may approve exemptions. 
The public shall be notified of any exemptions.

IV. Repeal of Current Policy

    Effective upon publication of this policy in the Federal Register 
the Statement of Policy for Voluntary EISs (39 FR 16186) and the 
Environmental Impact Statements Procedures for the Voluntary 
Preparation (39 FR 37419), are withdrawn and replaced by this policy.

[[Page 58047]]

V. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, does 
not apply because this action is not a rule for purposes of 5 U.S.C. 
804(3).

    Dated: October 23, 1998.
Carol M. Browner,
Administrator.
[FR Doc. 98-29019 Filed 10-28-98; 8:45 am]
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