[Federal Register Volume 62, Number 229 (Friday, November 28, 1997)]
[Notices]
[Pages 63334-63336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31251]
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ENVIRONMENTAL PROTECTION AGENCY
[ER-FRL-5486-6]
Notice of Proposed Changes to Voluntary Environmental Impact
Statement Policy
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of changes to existing policy and opportunity for public
comment.
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SUMMARY: EPA is proposing changes in its Statement of Policy for
Voluntary Environmental Impact Statements (EIS), which it adopted and
published in the Federal Register (Vol. 39, No. 89/Tuesday, May 7,
1974/Notices/16186-16187). The proposed changes would update the EPA
policy to reflect how Congress and the Courts have defined EPA's
National Environmental Policy Act (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). The proposed changes will also encourage
expansion of the increased discretionary use of voluntary EISs 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 proposed changes will
affect certain EPA standard-setting and cancellation procedures. EPA is
soliciting comments on these proposed changes.
DATES: Submit written comments on or before January 27, 1998. After
addressing any comments received, EPA will issue a final policy in the
Federal Register.
FOR FURTHER INFORMATION AND TO SUBMIT WRITTEN COMMENTS CONTACT:
Marguerite Duffy at (202) 564-7148; E-mail:
duffy.marguerite@epamail.epa.gov; or Joseph Montgomery at (202) 564-
7157; E-mail: montgomery.joseph@epamail.epa.gov; U.S. Environmental
Protection Agency, Office of Federal Activities (2252-A), 401 M Street,
SW, Washington, D.C. 20460.
SUPPLEMENTARY INFORMATION:
I. Background
Unless otherwise exempted, Section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (hereafter
``NEPA''), implemented by Executive Orders 11514 and 11991 and the
Council on Environmental Quality (CEQ) Regulations at 40 CFR parts
1500-1508, requires that Federal agencies prepare detailed
environmental statements on proposals for legislation and other major
Federal actions significantly affecting the quality of the human
environment. The objective of NEPA is to build into the Federal agency
decision-making process an appropriate and careful consideration of all
environmental impacts of proposed actions. Accordingly, under CEQ
regulations, where major Federal actions will have a significant effect
on the quality of the human environment, a detailed environmental
impact statement (EIS) is required; where it is believed that an action
will have no significant impact, or where the level of impact is
uncertain, agencies can prepare less detailed environmental assessments
(EAs) to determine the level of impact and/or document a finding of no
significant impact.
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, and EPA-issued National Pollutant Discharge
Elimination System (NPDES) permits for new sources. The Agency is
exempted by statute for actions taken under the Clean Air Act and for
most Clean Water Act programs. EPA is also exempted from the procedural
requirements of environmental laws, including NEPA, for Comprehensive
Environmental Response, Compensation, and Liability Act response
actions. For other programs, courts have consistently 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. However, as discussed below, it has
been long-standing Agency policy to prepare EISs voluntarily for some
actions.
EPA has long recognized the value of sound environmental analysis,
the importance of public participation, and the desirability of
integration of other environmental requirements across the range of its
activities. EPA issued a ``Statement of Policy'' (Policy) in the
Federal Register (Vol. 39, No. 89/Tuesday, May 7, 1974/Notices/16186-
16187) expressing the belief that preparation of environmental impact
statements would have beneficial effects for certain of its regulatory
actions. EPA decided that, while it was not legally bound to do so by
Section 102(2)(C) of NEPA, it would voluntarily prepare environmental
impact statements for specific regulatory actions relating to the Clean
Air Act (42 U.S.C. 1857 et seq.); Noise Control Act (42 U.S.C. 4901 et
seq.); Atomic Energy Act (42 U.S.C. 2011 et seq.); the Marine
Protection, Research, and Sanctuaries Act (33 U.S.C. 1401 et seq.);
and, Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7
U.S.C. 135 et seq., as amended by 7 U.S.C. 136 et seq.).
EPA believes that several aspects of the 1974 Voluntary EIS Policy
have become outdated since its publication. EPA issued this Policy four
years prior to CEQ promulgation of regulations implementing NEPA. CEQ's
regulations state that while an EIS is required to document significant
impacts, an EA will be adequate documentation to determine if an action
will have no significant impact. EPA has gained extensive experience
concerning what types of analysis will be useful to enhance
environmental decision-making under particular circumstances. In
addition, Congress, through statutory exemptions from NEPA
requirements, and the Courts, through finding that EPA statutes provide
an analysis functionally equivalent to what would be done under NEPA,
have explicitly defined the legal role of NEPA analysis in EPA
decision-making.
In October 1993, an EPA Workgroup on NEPA issued a report entitled
``The National Environmental Policy Act and Environmental Protection
Agency Programs.'' This Report recommended that EPA revise its
``voluntary EIS'' Policy to: (1) Make it a ``voluntary NEPA'' policy
under which EPA would
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prepare analyses that would be appropriate under CEQ regulations. This
revision would allow the Agency, as it could if it were governed by
NEPA, to prepare ``environmental assessments'' and subsequent findings
of no significant impact where warranted. Accordingly, as under NEPA,
only major Federal actions with potential for having a significant
effect on the quality of the human environment would require the more
extensive environmental impact statements. This revision would enable
the Agency to focus its efforts and limited resources on
environmentally significant actions and also would be in keeping with
the Administration's policy to streamline government by eliminating
unnecessary paperwork and analysis and to focus its efforts on
significant environmental problems. (2) The Report also recommended
expanding the Policy's scope by encouraging EPA program managers to use
voluntary EISs to address, among other things, issues involving multi-
media impacts, indirect effects, environmental justice, large-scale
ecological impacts, or where there is significant public controversy.
EPA Administrator Browner has explained that the policy changes would
``make EPA's existing voluntary EIS policy more flexible and encourage
the expanded use by EPA managers of voluntary EISs as a means of
involving the public, states, tribes, localities, and other Federal
agencies in EPA decision-making provided that such voluntary EISs are
not duplicative of existing procedures and do not significantly delay
actions.'' Such changes would enhance appropriate use of voluntary EISs
and also would be in keeping with the Administration's policy to
streamline government by providing managers with one process for
dealing with multiple issues and programs.
II. Proposed Changes to Existing Policy
Agency officials will be encouraged to consider, where appropriate
and on a case-by-case basis, the use of voluntary EISs or EAs where
they can provide additional benefits for public participation,
environmental analysis, or cooperation with other Federal, state or
local agencies, or tribal governments. For example, there are several
areas where NEPA documents may be appropriate in individual cases: (1)
Actions involving cumulative cross-media or ecosystem impacts; (2)
actions involving environmental justice issues; (3) actions which also
involve other Federal agencies which are addressing issues under the
NEPA process; (4) actions involving special resources, such as
endangered species or historic, archaeological, or cultural resources;
and (5) public health risk.
The policy will be changed to modify voluntary EIS requirements for
regulatory actions under the programs identified in the 1974 policy
statement: standard setting under the Clean Air Act, the Noise Control
Act, and the Atomic Energy Act; criteria and site designations under
the Marine Protection, Research and Sanctuaries Act; and pesticide
disposal regulations and pesticide cancellations under FIFRA. For these
actions 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. This change will not preclude the
voluntary preparation of an EIS in an individual case should it be
determined that it would be beneficial.
III. Basis for Proposed Change
This proposed change is based on the following: (1) The need to
update the Policy to parallel established procedures for implementation
of NEPA which allow for the preparation of an EA (and a Finding of No
Significant Impact) rather than requiring an EIS in all cases; (2) the
need to streamline EPA operations in order to ensure that Agency
resources are effectively used; (3) the need to foster increased
utilization of NEPA processes for decision-making and promote use of
the EA as a decision-making document for those actions that have less
than significant impacts but which can benefit from an environmental
analysis that leads to environmentally protective modifications of the
proposed action; and (4) recognize that procedures for environmental
impact analysis and public participation provided by the EPA regulatory
development process have significantly changed since 1974.
Under the proposed new Policy, instead of preparing EISs for the
regulatory actions listed in the 1974 Policy, EPA will routinely meet
the fundamental elements of NEPA for rule-making actions through the
Agency's Regulatory Development Process. This process, which has become
considerably more developed over the last twenty years, includes the
fundamental steps which would be carried out in a NEPA analysis:
identification of environmental impacts; consideration of alternatives;
compliance with other environmental statutes; and process for public
participation, including public review and comment on draft
regulations. The Agency also considers environmental justice impacts
and impacts on endangered species, and cultural, archaeological, and
historical resources in its regulation process. EPA's rule-makings
involve detailed examination of environmental effects and are oriented
towards achieving environmental protection in furtherance of EPA's
unique mission of implementing statutes that are environmentally
protective. The analysis and public participation provided in EPA's
regulatory development process would make separate NEPA documents,
i.e., preparation of EISs, redundant.
EPA rules, policy, and guidance are developed by the EPA program
office which has lead responsibility for the relevant statute. Where
appropriate, the lead program office also includes other interested
program and staff offices. In addition to following the substantive and
procedural regulatory requirements set out in the relevant statute, the
lead program office must follow requirements in Executive Orders and
legislation which prescribe the regulatory development process and must
analyze a number of factors, including those which would be considered
in an EIS analysis. These include: (1) Different regulatory
alternatives, including use of market-based incentives, as well as
different levels of environmental protection and technical feasibility;
(2) cross-media impacts; (3) coordination with state/local standards;
(4) applicable Federal laws or executive orders (such as the Endangered
Species Act and Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations''); (5) implementation and enforcement of the rule; and (6)
economic impacts and impacts on state, local, and tribal governments.
As with the preparation of an EIS document, public participation is
also a key part of the EPA regulatory development process. The
Administrative Procedure Act and a number of environmental statutes
require EPA to provide the members of the public with an opportunity to
participate in the development of regulations affecting them. The
Agency must provide an opportunity for public comment and must consider
the views expressed, providing a summary of significant comments and
what the Agency has done to address them. This includes publication of
the proposed rule in the Federal Register and offering the public the
opportunity to submit written comment, before Federal Register
publication of the final rule, policy, or guidance. The lead program
office involved in developing a
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regulation, policy, or guidance must select the forms of participation
best suited to the issues and audiences interested in that particular
regulation. These can include: written comments submitted in response
to notice of proposed rulemaking, policy, or guidance or an advance
notice of proposed rulemaking; comment from established Federal
Advisory Committee Act (FACA) groups that advise the Agency on policy
issues; public briefing sessions or meetings held to elicit views on
specific rules; and regulatory negotiation groups. Federal Executive
Orders 12866 (Regulatory Planning and Review) and 12875 (Enhancing
Intergovernmental Partnerships) as well as EPA policy require timely
and meaningful intergovernmental consultation with affected states,
localities and tribes. Planning for intergovernmental consultation
should consider what governmental entities will be affected, how they
may be affected, and what issues are likely to concern them. The lead
program office is required to develop consultation plans to set out
processes for public participation and intergovernmental consultation
that will be followed for a rule-making.
An additional level of review for significant regulations is
carried out by the Office of Management and Budget (OMB) under
Executive Order 12866 to ensure that guidance, regulations, and
policies are consistent with applicable law and the President's
priorities. This process assures that, in deciding whether and how to
regulate, agencies have assessed the costs and benefits of the various
approaches to regulation when appropriate, including the alternative of
not regulating (this corresponds to the ``no action'' alternative which
would be considered in a NEPA document). As appropriate, this process
also includes review of the regulation, policy or guidance by other
Federal agencies to assure consistency with their policies and any
planned actions and includes a process for resolution of Federal
interagency disputes.
Public Comments
EPA seeks comment on these proposed changes to the existing Policy.
To ensure full consideration, comments must be submitted within 60 days
of publication of this Notice to the Contacts listed above.
Date: November 21, 1997.
Richard E. Sanderson,
Director, Office of Federal Activities.
[FR Doc. 97-31251 Filed 11-26-97; 8:45 am]
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