Notice of Proposed Changes to Voluntary Environmental Impact Statement Policy

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:

[email protected]; or Joseph Montgomery at (202) 564-

7157; E-mail: [email protected]; 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

[[Page 63335]]

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

[[Page 63336]]

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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