Revision of HHS National Environmental Policy Act Compliance Procedures and Procedures for Environmental Protection

Federal RegisterJan 11, 1999

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Text

DATES: Written comments must be received on or before February 10,

1999.

SUMMARY: In accordance with the provisions of the National

Environmental Policy Act of 1969 (NEPA), as amended, and other related

environmental laws, executive orders, and regulations, the Department

of Health and Human Services published procedures in 1980 for

conducting environmental reviews, preparing necessary documentation and

making program decisions to ensure that environmental protection is an

integral part of HHS operations. These procedures have recently been

revised and updated. Comments from interested parties are solicited.

FOR FURTHER INFORMATION CONTACT: Dick Green, Office of Facilities

Services, Department of Health and Human Services, Hubert H. Humphrey

Building, Room 729D, 200 Independence Avenue, SW, Washington, DC,

20201. Telephone (202) 619-1994, FAX (202) 619-2692, E-mail Address:

[email protected]

Dated: December 23, 1998.

John J. Callahan,

Assistant Secretary for Management and Budget.

HHS Chapter 30--General Administration Manual; HHS Transmittal 98.2

PART 30--ENVIRONMENTAL PROTECTION

Contents

Chapter and Title

30-00 Environmental Protection

30-10 Policy

30-20 Administrative Requirements

30-30 General Environmental Review Procedures

30-40 Natural Asset Review

30-50 National Environmental Policy Act (NEPA) Review

30-60 Energency Planning and Community Right-To-Know Act of 1986

(EPCRA) Requirements

30-70 Pollution Prevention Act of 1990 (PPA) Requirements

30-80 Executive Order 12856, Federal Compliance with Right-To-Know

Laws and Pollution Prevention Requirements

30-90 Executive Order 13101, Greening the Government Through Waste

Prevention, Recycling, and Federal Acquisition

HHS Chapter 30-00--General Administration Manual; HHS Transmittal

98.2

Subject: Environmental Protection

30-00-00....................................... Purpose

10....................................... Chapter Organization

and Content

20....................................... Environmental Statutes

and Executive Orders

30....................................... Definitions

30-00-00 Purpose

This Chapter summarizes and provides guidance on many current

statutory, regulatory and Executive Order environmental authorities. It

does not create or confer any rights on any person and it is not

intended to be used as the sole source of information for any of the

referenced environmental compliance requirements. The Department

recognizes that any of the authorities described herein may be revised

after the issuance of the Chapter. The current specific environmental

statute, regulation or Executive Order should be reviewed when

questions arise. To the extent that any statement in this chapter

should conflict with a current applicable statutory, regulatory or

Executive Order requirement, that statutory, regulatory or Executive

Order requirement shall supersede any inconsistent provision of this

GAM Chapter. Additional questions should be referred to the OPDIV

environmental officer, the Departmental environmental program manager,

and/or the Office of the General Counsel.

Part 30 of the General Administration Manual establishes

Departmental policy and procedures with respect to protection of the

environment and the preservation of natural resources. Under Federal

statutes, regulations, and Executive Orders, all Federal Departments

and agencies are required to comply with all applicable Federal, State

and local environmental statutes, laws and regulations and must take

into account the environmental consequences of their activities. In

many cases, the activities of non-Federal organizations which operate

under the authority or with the support of Federal Departments or

agencies are also included.

This Part supersedes Part 30, Environmental Protection, 1980, with

the exception that Part 30, Chapter 30-40, Cultural Asset Review

(Historical Preservation) remains in effect until a separate revised

Chapter dealing with this subject is published.

30-00-10 Chapter Organization and Content

The chapters of Part 30 are organized as follows:

Chapter 30-00 provides a list and summary descriptions of

certain environmental laws and Executive Orders, and a list of

definitions.

Chapter 30-10 and 30-20 provide overall Departmental

policy with respect to environmental protection and a summary of

internal administrative procedures which Departmental organizations

must implement.

Chapter 30-30 provides a general summary of the

environmental review process for Departmental activities under the

National Environmental Policy Act and statutes and Executive Orders

that require protection and preservation of natural and cultural

assets.

Chapters 30-40 through 30-90 provide detailed requirements

for certain environmental statutes and Executive Orders covered by Part

30.

30-00-20 Environmental Statutes and Executive Orders

Federal agencies are potentially subject to more than 150 Federal

statutes and Executive Orders governing the environment. Many of these

laws are noted in Table 1.

Environmental laws and implementing regulations that significantly

impact the Department are summarized in the following subsections.

Detailed guidance is contained in other chapters of Part 30 for certain

environmental statutes and Executive Orders. Table 1, as follows,

indicated the location of statutes or Executive Orders that are

discussed in Part 30.

Table 1.--Statutes and Executive Orders

----------------------------------------------------------------------------------------------------------------

Environmental statute or executive order Citation Part 30 location

----------------------------------------------------------------------------------------------------------------

Acid Precipitation Act of 1980............... 42 U.S.C. Secs. 8901 to ......................................

8912.

Act to Prevent Pollution From Ships.......... 33 U.S.C. Secs. 1901 to ......................................

1912.

Agricultural Act of 1970..................... 16 U.S.C. Secs. 1501 to ......................................

1510.

American Indian Religious Freedom Act........ 42 U.S.C. Sec. 1996..... ......................................

[[Page 1657]]

Antarctic Protection Act of 1990............. 16 U.S.C. Secs. 2461 to ......................................

2466.

Antiquities Act of 1906...................... 16 U.S.C. Secs. 431 to 30-00-20K

433.

Archeological and Historic Preservation Act 16 U.S.C. Secs. 469 to 30-00-20K

of 1974. 469c-1.

Archeological Resources Protection Act of 16 U.S.C. Secs. 470aa to ......................................

1979. 470mm.

Asbestos Hazard Emergency Response Act of 15 U.S.C. Secs. 2641 to ......................................

1986. 2656.

Atomic Energy Act of 1954.................... 42 U.S.C. Secs. 2011 to ......................................

2297g-4.

Aviation Safety and Noise Abatement Act of 49 U.S.C. app. Secs. ......................................

1979. 2101 to 2125.

Clean Air Act................................ 42 U.S.C. Secs. 7401 to 30-00-20A

7671q.

Clean Vessel Act of 1992..................... 33 U.S.C. Sec. 1322 note ......................................

Clean Water Act [Federal Water Pollution 33 U.S.C. Secs. 1251 to 30-00-20B

Control Act]. 1387.

Coastal Barrier Resources Act................ 16 U.S.C. Secs. 3501 to ......................................

3510.

Coastal Wetlands Planning Protection, and 16 U.S.C. Secs. 3951 to ......................................

Restoration Act. 3956.

Coastal Zone Management Act of 1972.......... 16 U.S.C. Secs. 1451 to 30-00-20C; Ch. 30-40

1464.

Community Environmental Response Facilitation 42 U.S.C. Secs. 9620 ......................................

Act. note.

Comprehensive Environmental Response, 42 U.S.C. Secs. 9601 to 30-00-20D

Compensation, and Liability Act of 1980 9675.

[``Superfund''].

Emergency Planning and Community Right-to- 42 U.S.C. Secs. 11001 to 30-00-20E; Ch. 30-60

Know Act of 1986. 11050.

Emergency Wetlands Resources Act of 1986..... 16 U.S.C. Secs. 3901 to ......................................

3932.

Endangered Species Act of 1973............... 16 U.S.C. Secs. 1531 to 30-00-20F; Ch. 30-40

1544.

Energy Policy Act of 1992.................... 42 U.S.C. Secs. 13201 to 30-00-20G

13556.

Energy Policy and Conservation Act........... 42 U.S.C. Secs. 6201 to ......................................

6422.

Energy Reorganization Act of 1974............ 42 U.S.C. Secs. 5801 to ......................................

5891.

Energy Supply and Environmental Coordination 15 U.S.C. Secs. 791 to ......................................

Act of 1974. 798.

Environmental Programs Assistance Act of 1984 42 U.S.C. Sec. 4368a.... ......................................

Environmental Quality Improvement Act of 1970 42 U.S.C. Secs. 4371 to ......................................

4375.

Farmland Protection Policy Act............... 7 U.S.C. Secs. 4201 to ......................................

4209.

Federal Facility Compliance Act of 1992...... 42 U.S.C. Secs. 6903, ......................................

6908, 6924, 6927, 6939c,

6939d, 6961, 6965.

Federal Food, Drug, and Cosmetic Act......... 21 U.S.C. Secs. 301 to ......................................

397.

Federal Insecticide, Fungicide, and 7 U.S.C. Secs. 136 to 30-00-20H

Rodenticide Act. 136y.

Federal Land Policy and Management Act of 43 U.S.C. Secs. 1701 to ......................................

1976. 1784.

Federal Oil and Gas Royalty Management Act of 30 U.S.C. Secs. 1701 to ......................................

1982. 1757.

Fish and Wildlife Act of 1956................ 16 U.S.C. Secs. 742a to ......................................

742d, 742e to 742j-2.

Fish and Wildlife Coordination Act........... 16 U.S.C. Secs. 661 to 30-00-20I; Ch. 30-40

666c.

Flood Disaster Protection Act of 1973........ 42 U.S.C. Secs. 2414, ......................................

4001 to 4129.

Forest and Rangeland Renewable Resources 16 U.S.C. Secs. 1600 to ......................................

Planning Act of 1974. 1614.

Forest and Rangeland Renewable Resources 16 U.S.C. Secs. 1641 to ......................................

Research Act of 1978. 1649.

Forest Ecosystems and Atmospheric Pollution 16 U.S.C. Secs. 1642,

Research Act of 1988. 1642 note.

Geothermal Energy Research, Development and 30 U.S.C. Secs. 1101 to

Demonstration Act of 1974. 1164.

Global Change Research Act of 1990........... 15 U.S.C. Secs. 2921 to

2961.

Global Climate Protection Act of 1987........ 15 U.S.C. Sec. 2901 note

Hazardous Substance Response Revenue Act of 26 U.S.C. Secs. 4611-

1980. 4612, 4661-4662.

Historic Sites Act of 1935 [Historic Sites, 16 U.S.C. Secs. 461 to 30-00-20J

Buildings, and Antiquities Act]. 467.

Indian Environmental General Assistance 42 U.S.C. Sec. 4368b....

Program Act of 1992.

Lead-Based Paint Exposure Reduction Act...... 15 U.S.C. Secs. 2681 to

2692.

Lead-Based Paint Poisoning Prevention Act.... 42 U.S.C. Secs. 4821 to

4846.

Lead Contamination Control Act of 1988....... 42 U.S.C. Secs. 300j-21

to 300j-26.

Low-Level Radioactive Waste Policy Act....... 42 U.S.C. Secs. 2021b to

2021j.

Marine Mammal Protection Act of 1972......... 16 U.S.C. Secs. 1361 to

1421h.

Marine Protection, Research, and Sanctuaries 16 U.S.C. Secs. 1431 to 30-00-20K; Ch. 30-40

Act of 1972. 1445a; 33 U.S.C. Secs.

1401 to 1445.

Medical Waste Tracking Act of 1988........... 42 U.S.C. Secs. 6992 to

6992K.

Migratory Bird Treaty Act.................... 16 U.S.C. Secs. 703 to

712.

Mining and Mineral Resources Research 30 U.S.C. Secs. 1221 to

Institute Act of 1984. 1230a.

Multiple-Use Sustained-Yield Act of 1960..... 16 U.S.C. Secs. 528 to

531.

National Climate Program Act................. 15 U.S.C. Secs. 2901 to

2908.

National Contaminated Sediment Assessment and 33 U.S.C. Sec. 1271 note

Management Act.

National Environmental Policy Act of 1969.... 42 U.S.C. Secs. 4321 to 30-00-20L; Ch. 30-50

4370d.

National Forest Management Act of 1976....... 16 U.S.C. Secs. 472a,

521b, 1600, 1611 to 1614.

National Environmental Education Act......... 20 U.S.C. Secs. 5501 to

5510.

National Historic Preservation Act........... 16 U.S.C. Secs. 470 to 30-00-20J

470x-6.

Native American Graves Protection & 25 U.S.C. Secs. 3001 to ......................................

Repatriation Act. 3013.

Noise Control Act of 1972.................... 42 U.S.C. Secs. 4901 to ......................................

4918.

Nonindigenous Aquatic Nuisance Prevention and 16 U.S.C. Secs. 4701 to ......................................

Control Act of 1990. 4751.

Nuclear Waste Policy Act of 1982............. 42 U.S.C. Secs. 10101 to ......................................

10270.

Occupational Safety and Health Act of 1970... 29 U.S.C. Secs. 651 to 30-00-20M

678.

Ocean Dumping Ban Act of 1988................ 33 U.S.C. Secs. 1412a, ......................................

1414a to 1414c.

Oil Pollution Act of 1990.................... 33 U.S.C. Secs. 2701 to ......................................

2761.

Organotin Antifouling Paint Control Act of 33 U.S.C. Secs. 2401 to ......................................

1988. 2410.

[[Page 1658]]

Outer Continental Shelf Lands Act............ 43 U.S.C. Secs. 1331 to ......................................

1356.

Outer Continental Shelf Lands Act Amendments 43 U.S.C. Secs. 1344 to ......................................

of 1978. 1356, 1801 to 1866; 30

U.S.C. Sec. 237.

Pollution Prevention Act of 1990............. 42 U.S.C. Secs. 13101 to 30-00-20N; Ch. 30-70

13109.

Pollution Prosecution Act of 1990............ 42 U.S.C. Sec. 4321 note ......................................

Powerplant and Industrial Fuel Use Act of 42 U.S.C. Secs. 8301 to ......................................

1978. 8483.

Refuse Act of 1899........................... 33 U.S.C. Sec. 407...... ......................................

Renewable Resources Extension Act of 1978.... 16 U.S.C. Secs. 1671 to ......................................

1676.

Residential Lead-Based Paint Hazard Reduction 42 U.S.C. Secs. 4851 to ......................................

Act of 1992. 4856.

Resource Conservation and Recovery Act of 42 U.S.C. Secs. 6901 to 30-00-20O

1976 [Solid Waste Disposal Act]. 6991i.

Rivers and Harbors Appropriation Acts 33 U.S.C. Secs. 401 to

(Selected sections). 426p and 441 to 454.

Safe Drinking Water Act...................... 42 U.S.C. Secs. 300F to 30-00-20P; Ch. 30-40

300j-26.

Shore Protection Act of 1988................. 33 U.S.C. Secs. 2601 to ......................................

2609, 2621 to 2623.

Soil and Water Resources Conservation Act of 16 U.S.C. Secs. 2001 to ......................................

1977. 2009.

Surface Mining Control and Reclamation Act of 30 U.S.C. Secs. 1201 to

1977. 1328.

Toxic Substances Control Act................. 15 U.S.C. Secs. 2601 to 30-00-20Q

2692.

United States Public Vessel Medical Waste 33 U.S.C. Secs. 2501 to ......................................

Antidumping Act of 1988. 2504.

Uranium Mill Tailings Radiation Control Act 42 U.S.C. Secs. 7901 to ......................................

of 1978. 7942.

Water Resources Research Act of 1984......... 42 U.S.C. Secs. 10301 to ......................................

10309.

Wild and Scenic Rivers Act................... 16 U.S.C. Secs. 1271 to 30-00-20R; Ch. 30-40

1287.

Wild Bird Conservation Act of 1992........... 16 U.S.C. Secs. 4901 to ......................................

4916.

Wild Free-Roaming Horses and Burros Act...... 16 U.S.C. Secs. 1331 to ......................................

1340.

Wilderness Act............................... 16 U.S.C. Secs. 1131 to ......................................

1136.

Wood Residue Utilization Act of 1980......... 16 U.S.C. Secs. 1681 to ......................................

1687.

Executive Order 13007, Indian Sacred Sites... 61 FR 26771 (1996)....... ......................................

Executive Order 12902, Energy Efficiency and 59 FR 11463 (1994)....... ......................................

Water Conservation at Federal Facilities.

Executive Order 12898, Federal Actions To 59 FR 7629 (1994)........ 30-00-20S

Address Environmental Justice in Minority

Populations and Low-Income Populations.

Executive Order 13101, Greening the 63 FR 49644 (1998)....... 30-00-20N; Ch. 30-90

Government Through Waste Prevention,

Recycling, and Federal Acquisition.

Executive Order 12866, Regulatory Planning 58 FR 51735 (1993)....... ......................................

and Review.

Executive Order 12856, Federal Compliance 58 FR 41981 (1993)....... 30-00-20E; Ch. 30-80

With Right-to-Know Law and Pollution

Prevention Requirements.

Executive Order 12852, President's Council on 58 FR 35841 (1993), as ......................................

Sustainable Development. amended by E.O. 12855,

58 FR 39107 (1993); 42

U.S.C. Sec. 4321 note.

Executive Order 12845, Requiring Agencies To 58 FR 21887 (1993)....... ......................................

Purchase Energy-Efficient Computer Equipment.

Executive Order 12844, Federal Use of 58 FR 21885 (1993)....... ......................................

Alternative Fueled Vehicles.

Executive Order 12843, Procurement 58 FR 21881 (1993)....... ......................................

Requirements and Policies for Agencies for

Ozone-Depleting Substances.

Executive Order 12778, Civil Justice Reform.. 56 FR 55195 (1991); 28 ......................................

U.S.C. Sec. 519 note.

Executive Order 12777, Implementation of 56 FR 54757 (1991); 33 ......................................

Section 311 of the Federal Water Pollution U.S.C. Sec. 1321 note.

Control Act of October 18, 1972, As Amended,

and the Oil Pollution Act of 1990.

Executive Order 12761, Establishment of 56 FR 23645 (1991); 42 ......................................

President's Environment and Conservation U.S.C. Sec. 4321 note.

Challenge Awards.

Executive Order 12759, Federal Energy 56 FR 16256 (1991); 42 ......................................

Management. U.S.C. Sec. 6201 note.

Executive Order 12630, Governmental Actions 53 FR 8859 (1988); 5 ......................................

and Interference With Constitutionally U.S.C. Sec. 601 note.

Protected Property Rights.

Executive Order 12612, Federalism 54 FR 41685 (1987); 5 ......................................

Considerations in Policy Formulation and U.S.C. Sec. 601 note.

Implementation.

Executive Order 12580, Superfund 52 FR 2923 (1987), as 30-00-20D

Implementation. amended by E.O. 12777,

56 FR 54757 (1991); 42

U.S.C. Secs. 9615 note.

Executvie Order 12114, Environmental Affects 44 FR 1957 (1979); 42 30-00-20M; Ch. 30-50

Abroad of Major Federal Actions. U.S.C. Sec. 4321 note.

Executive Order 12088, Federal Compliance 43 FR 47707 (1978), as 30-00-20T

With Pollution Control Standards. amended by E.O. 12580,

52 FR 2923 (1987); 42

U.S.C. Sec. 4321 note.

Executive Order 11990, Protection of Wetlands 42 FR 26961 (1977), as 30-00-20L; Ch. 30-40

amended by E.O. 12608,

52 FR 34617 (1987); 42

U.S.C. Sec. 4321 note.

Executive Order 11988, Floodplain Management. 42 FR 26951 (1977), as 30-00-20L; Ch. 30-40

amended by E.O. 12148,

44 FR 43239 (1979); 42

U.S.C. Sec. 4321 note.

[[Page 1659]]

Executive Order 11987, Exotic Organisms...... 42 FR 26949 (1977); 42 30-00-20L

U.S.C. Sec. 4321 note.

Executive Order 11912, Delegation of 41 FR 15825 (1976), as ......................................

Authorities Relating to Energy Policy and amended by E.O. 12003,

Conservation. 42 FR 37523 (1977), E.O.

12038, 43 FR 4957

(1978), E.O. 12148, 44

FR 43239 (1979), E.O.

12375, 47 FR 34105

(1982); 42 U.S.C. Sec.

6201 note.

Executive Order 11738, Administration of the 38 FR 25161 (1973); 42

Clean Air Act and the Federal Water U.S.C. Sec. 7606 note.

Pollution Control Act with Respect to

Federal Contracts, Grants or Loans.

Executive Order 11644, Use of Off-Road 37 FR 2877 (1972), as

Vehicles on Public Lands. amended by E.O. 11989,

42 FR 26959 (1977), E.O.

12608, 52 FR 34617

(1987); 42 U.S.C. Sec.

4321 note.

Executive Order 11593, Protection and 36 FR 8921 (1971); 16 30-00-20J

Enhancement of the Cultural Environment. U.S.C. Sec. 470 note.

Executive Order 11514, Protection and 35 FR 4247 (1970), as 30-00-20L

Enhancement of Environmental Quality. amended by E.O. 11991,

42 FR 26967 (1977); 42

U.S.C. Sec. 4321 note.

----------------------------------------------------------------------------------------------------------------

A. Clean Air Act (CAA). The CAA of 1970, 42 U.S.C. Secs. 7401-

7671q, as amended, establishes five major programs that cover (1) The

attainment and maintenance of air quality standards; (2) reduction of

hazardous air pollutants; (3) development of emission standards for

motor vehicles and fuels; (4) protection of the stratospheric ozone;

and (5) reduction of acid rain deposition.

1. National Ambient Air Quality Standards Program (NAAQS). All new

and existing sources of air pollution are subject to ambient air

quality regulation. The Clean Air Act directs the Environmental

Protection Agency (EPA) Administrator to identify pollutants which

``may reasonably be anticipated to endanger public health and welfare''

and to issue air quality criteria for them. EPA is also required to

publish primary and secondary NAAQS for the identified pollutants.

Primary NAAQS are designed to protect public health with an adequate

margin of safety, and secondary NAAQS are designed to protect the

public welfare. In 40 CFR Part 50, EPA has promulgated NAAQS for six

pollutants: sulfur dioxide (SO2), particulate matter,

nitrogen dioxide (NO2), carbon monoxide, ozone, and lead.

Each State is given primary responsibility for assuring that air

quality within its borders is maintained at a level consistent with the

NAAQS. The NAAQs's are implemented through source-specific emission

limitations established by States in State Implementation Plans (SIPs).

SIPs must meet minimum criteria set forth in the Clean Air Act and are

reviewed by EPA. A SIP may be enforced by the State or EPA. EPA must

promulgate a Federal Implementation Plan (FIP) if a State fails to make

a required submission or if a SIP submission is disapproved and the

State does not remedy the deficiency within a specified period.

(a) Nonattainment Areas. SIPs must adopt, at a minimum, reasonably

available control technology (RACT) for existing sources and provide

for annual incremental reductions in emissions of nonattainment

pollutants. The CAA also contains additional requirements for SIPs in

areas that do not attain the NAAQS, including specific requirements for

certain pollutants.

(b) New Source Performance Standards (NSPS). New sources of

pollution are subject to more stringent control technology and

permitting requirements than existing sources. EPA is authorized to

establish new source performance standards, which impose Federal

technology-based requirements on emissions from new or modified major

stationary sources of pollution. The Clean Air Act directs EPA to

establish standards for new sources that reflect the degree of emission

limitation achievable through the application of the best system of

emission reduction which the EPA Administrator determines has been

adequately demonstrated to be the best. These standards may be

promulgated as design, equipment, work practice, or operational

standards where numerical emission limitations are not feasible. EPA

has developed NSPS standards for a number of industry categories which

are published at 40 CFR part 60. Each NSPS identifies the types of

facilities to which the standards apply.

(c) Prevention of Significant Deterioration Program (PSD). A permit

must be obtained under the PSD program before a ``major'' new source

may be constructed or ``major modification'' made to an existing major

source in an area that attains the NAAQS or is designed unclassifiable.

The CAA requires each SIP to ``contain emission limitations and such

other measures as may be necessary * * * to prevent significant

deterioration of air quality'' in each region of the state in which the

air quality exceeds national standards. EPA's PSD regulations are

codified at 40 CFR part 51.

(d) Nonattainment Program. Regions that have failed to meet the

NAAQS for one or more criteria pollutants are designated as

``nonattainment'' areas. New or modified major stationary sources

proposed for nonattainment areas are required to comply with stringent

permitting requirements, including a showing that the decrease in

emissions from existing sources in the area is sufficient to offset the

increase in emissions from the new or modified source and achievement

of the ``lowest achievable emission rate'' (LAER).

2. National Emission Standards for Hazardous Air Pollutants

(NESHAP). The 1970 Clean Air Act authorized EPA to establish health-

based national emission standards for hazardous air pollutants (NESHAP)

to protect the public from these pollutants. EPA has established

standards for seven hazardous substances. EPA's NESHAP regulations are

published at 40 CFR part 61. The 1990 CAA amendments directed EPA to

establish technology-based standards for 189 hazardous substances

[[Page 1660]]

based on the use of ``maximum achievable control technology'' (MACT).

3. Emission Standards for Mobile Sources and Fuel-Related Programs.

EPA is authorized to establish allowable levels of auto emissions and

to control fuels and fuel additives. The 1990 CAA amendments establish

lower emission standards for automobiles and other vehicles and provide

for the use of ``clean'' alternative fuels and ``clean fuel'' vehicles.

4. Stratospheric Ozone Protection. Title VI of the Act, added in

1990, addresses scientific concerns related to stratospheric ozone

depletion and global warming by providing for the phase-out of ozone-

depleting substances. Title VI calls for the phase-out of most ozone-

depleting substances by the year 2000 and the imposition of other

controls designed to minimize the emissions of such substances prior to

their elimination.

5. Acidic Deposition. The 1990 CAA amendments added Title IV of the

Act which authorizes EPA to establish an acid rain program to reduce

the adverse effects of acidic deposition. The program imposes sulphur

dioxide (SO2) and nitrogen oxide (NOX) controls

on existing and new electric utility plants.

6. Permits. The 1990 CAA amendments added Title V which establishes

an operating permit program for existing stationary sources. The permit

program is modeled on the Clean Water Act permit program (NPDES

program--see 30-00-20B). Each State must develop and implement a Clean

Air Act operating permit program. EPA is required to issue permit

program regulations that are to be followed by the States in

establishing their programs; approve each State's permit program; and

establish a Federal permit program if a State fails to implement an

approved program. EPA is also authorized to review each permit issued

by a State. EPA regulations addressing the minimum requirements for

State operating permit programs are contained in 40 CFR part 70.

7. Civil and Criminal Penalties. EPA is authorized to seek

compliance with the Act's provisions through administrative, civil, and

criminal enforcement sanctions. The maximum penalties that may be

imposed for violation of the CAA are contained in Table 2.

----------------------------------------------------------------------------------------------------------------

Violation Administrative penalty Civil penalty Criminal penalty

----------------------------------------------------------------------------------------------------------------

Violation of CAA requirement......... $25,000 per day $25,000 per violation.. Up to $250,000 per day

(maximum $200,000 may and/or up to 5 yrs.

be waived by EPA and imprisonment.

DOJ jointly). Corporations subject to

Alternative: recovery $500,000 per

of projected economic violation.

value of noncompliance. Penalty doubled after

first offense.

``Field citation'' for minor $5,000 per day

violations.

False statement or failure to file or ....................... ....................... Up to $250,000 and/or

maintain records or reports. up to 2 yrs.

imprisonment; $500,000

for corporation.

Penalty doubled after

first offense.

Knowing failure to pay fee........... ....................... ....................... Up to $250,000 and/or

up to 1 yr.

imprisonment; $1

million per day for

corporations. Penalty

doubled after first

offense.

Knowing release of HAP or ``extremely ....................... ....................... Up to $25,000 per day

hazardous substance'' placing and/or up to 15 yrs.

another in ``imminent danger of imprisonment; $1

death or serious bodily injury''. million per day for

corporations. Penalty

doubled after first

offense.

Negligent release of air toxic ....................... ....................... Up to $100,000 and/or

placing another in ``imminent danger up to 1 yr.

of death or serious bodily injury''. imprisonment;

corporations subject

to $200,000. Penalty

doubled after first

offense.

----------------------------------------------------------------------------------------------------------------

B. Clean Water Act (CWA). The Clean Water Act, 33 U.S.C. 1251-1387,

was originally enacted as the Federal Water Pollution Control Act of

1972. The Act was substantially amended in 1977 and became the Clean

Water Act. The objective of the CWA is to ``restore and maintain the

chemical, physical and biological integrity of the Nation's waters.''

The Act establishes as a national policy ``that the discharge of toxic

pollutants in toxic amounts be prohibited.'' Among the goals

established by the Act are achievement of a level of water quality

which ``provides for the protection and propagation of fish, shellfish

and wildlife * * * [and] * * * for recreation in and on the water'' and

elimination of the discharge of pollutants into navigable waters.

1. Water Quality Standards. A water quality standard defines the

water quality goals of a water body by designating the uses to be made

of the water and by setting criteria necessary to protect the uses.

States are responsible for establishing water quality standards. The

standards are designed to protect public health or welfare, enhance the

quality of water, and serve the other purposes of the Clean Water Act.

States are required to review their water quality standards at least

once every three years. EPA reviews and approves or disapproves State-

adopted water quality standards in accordance with regulations codified

at 40 CFR part 131.

(a) Water Uses. Each State must specify appropriate water uses to

be achieved and protected. The classification of the waters of the

State, must take into consideration the use and value of waters for

public water supplies, protection and propagation of fish, shellfish

and wildlife, recreation in and on the water, agricultural, industrial,

and other purposes including navigation. In no case shall a State adopt

waste transport or waste assimilation as a designated use for any

waters of the United States.

(b) Water Quality Criteria. States must adopt those water quality

criteria that protect the designated uses. Criteria are elements of

State water quality standards, expressed as constituent concentrations,

levels, or narrative statements, representing a quality of water that

supports a particular use.

(c) Toxic Pollutants. The Water Quality Act of 1987 amended the CWA

[[Page 1661]]

to require States to identify those waters that are adversely affected

by toxic, conventional, and nonconventional pollutants; to identify

where additional controls are needed; and to prepare individual control

strategies. States must review water quality data and information on

discharges to identify specific water bodies where toxic pollutants may

be adversely affecting water quality or the attainment of the

designated water use, or where the levels of toxic pollutants are at a

level to warrant concern, and must adopt criteria for such toxic

pollutants applicable to the water body sufficient to protect the

designated use.

2. Effluent Limitations. The CWA directs EPA to issue effluent

limitation guidelines, pretreatment standards, and new source

performance standards for industrial discharges. The EPA implementing

regulations are based principally on the degree of effluent reduction

attainable through the application of control technologies. To ensure

that effluent guidelines remain current with the state of the industry

and with available control technologies, EPA is required to revise the

effluent guidelines at least annually if appropriate.

(a) Direct Dischargers. The effluent guidelines promulgated by EPA

reflect the several levels of regulatory stringency specified in the

Act, and they also focus on different types of pollutants.

(i) Best Practicable Control Technology (BPT). The CWA directs the

achievement of effluent limitations requiring applications of Best

Practicable Control Technology (BPT). In general, effluent limitations

that are based on Best Practicable Control Technology (BPT) represent

the average of the best treatment performance for an industrial

category.

(ii) Conventional Pollutants--Best Conventional Pollutant Control

Practical Technology (BCT). For conventional pollutants listed in the

Act, the CWA directs the achievement of effluent limitations based on

the performance of best conventional pollutant control technology

(BCT).

(iii) Toxic Pollutants--Best Available Technology (BAT). For the

toxic pollutants listed in the CWA and for nonconventional pollutants,

the Act directs the achievement of effluent limitations requiring

application of Best Available Technology Economically Achievable (BAT).

Effluent limitations based on BAT are to represent at a minimum the

best control technology performance in the industrial category that is

technologically and economically achievable.

(iv) New Source Performance Standards (NSPS). In addition to

limitations for existing direct dischargers, EPA has established New

Source Performance Standards (NSPS) for new direct dischargers. NSPS

limitations must be as stringent, or more stringent, than BAT

limitations for existing sources within the industry category or

subcategory.

(v) National Pollutant Discharge Elimination (NPDES) Permit. The

limitations and standards for direct dischargers are implemented in

permits issued through the National Pollutant Discharge Elimination

System (NPDES).

(b) Indirect Dischargers

(I) Conventional Pollutants. In general, EPA does not develop

regulations to control conventional pollutants discharged by indirect

dischargers because the publicly-owned treatment works (POTWs)

receiving those wastes normally provide adequate treatment of these

types of pollutants or they can be adequately controlled through local

pretreatment limits.

(ii) Pretreatment Standards. Indirect dischargers are regulated by

the general pretreatment regulations (40 CFR Part 403), local discharge

limits developed pursuant to Part 403, and categorical pretreatment

standards for new and existing sources covering specific industrial

categories. These categorical standards apply to the discharge of

pollutants from non-domestic sources which interfere with or pass

through POTWs, and are enforced by POTWs or by State or Federal

authorities. The categorical pretreatment standards for existing

sources covering specific industries are generally analogous to the BAT

limitations imposed on direct dischargers. The standards for new

sources are generally analogous to NSPS.

3. National Pollutant Discharge Elimination System (NPDES) Permit.

(a) Requirement. The CWA states that a permit is required for the

discharge of pollutants from a point source into waters of the United

States. Under the NPDES, permits are required whenever a pollutant is:

(1) discharged (2) by a person (3) from a point source (4) into

navigable waters of the United States.

(b) Waters of the United States. The Clean Water Act applies to

``navigable water'', which are in turn defined as ``waters of the

United States, including the territorial seas.'' (33 U.S.C. 1362(7)).

Navigable waters are broadly defined and are not limited to

``navigability in fact''. Waters of the United States include

interstate waters and wetlands; all other waters such as intrastate

lakes, rivers, streams (including intermittent steams), mudflats,

sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa

lakes, or natural ponds, the use, degradation or destruction of which

could affect interstate or foreign commerce; all impoundments of

waters; tributaries; the territorial seas; and wetlands adjacent to

other waters of the United States. (33 CFR 328.3(a)).

(c) Storm Water Discharges. Section 402(p) of the CWA clarifies

that storm water discharges associated with industrial activity,

including construction activity, to waters of the United States must be

authorized by a NPDES permit. The CWA requires EPA to issue regulations

establishing general permit standards for industrial storm water

dischargers. Facility operators have to file notices of intent to be

covered by the general permit and are required to develop pollution

prevention plans to keep contaminants out of storm water. The general

permits also establish special requirements for facilities that are

subject to the Emergency Planning and Community Right-To-Know Act

(EPCRA) section 313 reporting (see Chapters 30-60 and 30-80). The

regulations are codified at 40 CFR 122.26.

(d) Recordkeeping and Monitoring. The NPDES permits require holders

to keep updated records and to install and maintain monitoring

equipment, to take samples of effluents, and to report their findings

to the EPA. The results must be in the form of a discharge monitoring

report, which is a uniform method devised by the EPA for the self-

monitoring of permitted facilities.

4. Spills of Oil and Hazardous Substances. Under section 311,

spills of listed hazardous substances in ``Reportable Quantities''

established by regulation must be reported to the National Response

Center and promptly cleaned up. See 40 CFR parts 116-117 for

designations of hazardous substances and reportable quantities. Spill

Prevention Control and Countermeasure (SPCC) Plans must be adopted so

as to prevent discharge of oil from onshore and offshore facilities

into the navigable waters or adjoining shores. Requirements are set

forth at 40 CFR part 112.

5. Civil and Criminal Penalties. Administrative, civil, or criminal

penalties may be imposed by EPA or a federal court for violation of the

Act.

C. Coastal Zone and Management Act (CZMA). The Coastal Zone

Management Act, 16 U.S.C. 1451 to 1464, requires that Federal

activities in coastal areas be consistent with approved State Coastal

Zone Management Programs, to the maximum extent possible. Procedures

for consistency determinations under the CZMA requirements are codified

at

[[Page 1662]]

15 CFR part 930 and are described in Chapter 30-40.

D. Comprehensive Environmental, Response, Compensation and

Liability Act (CERCLA). The Comprehensive Environmental, Response,

Compensation and Liability Act (``CERCLA''), 42 U.S.C. 9601 to 9675, is

popularly known as the ``Superfund'' Act. The statute provides for a

fund to address the problems of ``cleaning up'' abandoned or leaking

hazardous waste sites. The 1980 statute was substantially revised in

1986 by the Superfund Amendments and Reauthorization Act of 1986

(SARA). It is implemented for federal agencies by Executive Order

12580.

CERCLA authorizes the Environmental Protection Agency (EPA) to:

Utilize the Hazardous Substance Superfund (``Superfund'')

to study and clean up sites that are listed on the National Priorities

List (NPL);

To recover costs expended from parties responsible; and,

To order such parties to perform work.

1. Hazardous Substance Superfund. The Hazardous Substance Superfund

is established through the imposition of taxes on certain industries

and from general tax revenues. The Superfund is used to pay EPA's

clean-up and enforcement costs, natural resource damage, and claims of

private parties. Federal agencies are not eligible for funds from the

Superfund.

2. National Contingency Plan (NCP). The National Oil and Hazardous

Substances Pollution Contingency Plan (NCP) provides the organizational

structure and procedures for preparing for and responding to discharges

of oil and releases of hazardous substances, pollutants, and

contaminants. The NCP is required by CERCLA section 105 and section

311(c)(2) of the CWA. In Executive Order 12580, 52 FR 2923 (1987), the

President delegated to EPA the responsibility for the amendment of the

NCP.

National Priorities List (NPL). CERCLA requires that the NCP

include a list of national priorities among the known releases or

threatened releases of hazardous substances, pollutants, or

contaminants throughout the United States. The National Priorities List

(NPL) constitutes this list. The identification of a site for the NPL

is intended primarily to guide the Environmental Protection Agency

(EPA) in determining which sites warrant further investigation to

assess the nature and extent of public health and environmental risks

associated with the site and to determine what CERCLA-financed remedial

action(s), if any, may be appropriate. Pursuant to section 105(a)(8)(B)

of CERCLA, as amended by SARA, EPA has promulgated a list of national

priorities among the known or threatened releases of hazardous

substances, pollutants, or contaminants throughout the United States.

That list which is Appendix B of 40 CFR part 300, is the National

Priorities List (``NPL'').

The NPL includes two sections, one of sites that are evaluated and

cleaned up by EPA (the ``General Superfund Section''), and one of sites

being addressed by other Federal agencies (the ``Federal Facilities

Section'').

Federal Facilities. Under Executive Order 12580 (52 FR 2923,

January 29, 1987) and CERCLA section 120, each Federal agency is

responsible for carrying out most response actions at facilities under

its own jurisdiction, custody, or control, although EPA is responsible

for preparing a Hazard Ranking System (HRS) score and determining

whether the facility is placed on the NPL. The HRS is a screening tool

used by the EPA to evaluate risks associated with abandoned or

uncontrolled or hazardous waste sites. EPA is not the lead agency at

these sites, and its role at such sites is accordingly less extensive

than at other sites. The Federal Facilities Section includes those

facilities at which EPA is not the lead agency.

3. Response and Remediation. Sections 106 and 107 provide the

primary authority for EPA, States, and private parties to recover the

costs of cleanup or to abate an endangerment to public health, welfare,

or the environment. Section 106 authorizes EPA to seek judicial relief

requiring a responsible party to abate an imminent and substantial

endangerment to the public health or welfare or the environment because

of an actual or threatened release of a hazardous substance from a

facility. Section 107 imposes liability for cleanup and other response

costs [costs incurred in responding to a release or a threatened

release of a hazardous substance] upon (1) a ``responsible party'' for

the (2) release or ``threatened release'' of (3) a hazardous substance

from (4) a facility or vessel.

(a) Potentially Responsible Party. Section 107(a) of CERCLA, 42

U.S.C. 9607(a), sets forth four categories of parties that are

potentially subject to liability:

(1) Current owner or operator: owner or operator of a facility from

which there is a release of a hazardous substance, or is the operator

or owner when cleanup is performed or litigation initiated;

(2) fomer owner or operator: a person who operated or owned a

facility when the hazardous substance was disposed of at the facility;

(3) arranger: any person who ``arranged for disposal or treatment''

at a facility; and

(4) transporter: a person who accepted hazardous substances for

transport to a disposal or treatment facility or site that was selected

by the transporter ``from which there is a release or threatened

release.'' (107(a)(4)).

Note: A current owner or operator may be liable even if it did

not handle, dispose of, or treat hazardous wastes at the facility,

and without regard to whether hazardous substances were disposed of

at the facility during the period of ownership or operation.

(b) Release or ``Substantial Threat of Release.'' The term

``release'' is defined broadly in the Act. A ``release'' includes ``any

spilling, leaking, pumping, pouring, emitting, emptying, discharging,

injecting, escaping, leaching, dumping, or disposing into the

environment * * *'' The release of any quantity of a hazardous

substance qualifies as a release under CERCLA. Certain types of

releases are excluded from the definition: engine exhaust, nuclear

material and fertilizer application. 42 U.S.C. 9601(22).

(c) Hazardous Substance. ``Hazardous substances'' are defined in

CERCLA section 101(14). A list of these substances can be found at 40

CFR part 302. The definition of ``hazardous substances'' incorporates

lists of hazardous pollutants that have been developed under other

Federal environmental statues and wastes that exhibit characteristics

of a hazardous waste under the Resource Conservation and Recovery Act

(``RCRA''). Table 3, following, outlines hazardous pollutants

considered to be hazardous substances under CERCLA.

------------------------------------------------------------------------

Type of pollutant Statutory definition

------------------------------------------------------------------------

Hazardous Air Pollutants.................. CAA, Section 112

Hazardous Substances...................... CWA, Section 311

Toxic Pollutants.......................... CWA, Section 307

Substances which ``may present substantial CERCLA, Section 102

danger to public health or welfare or the

environment''.

Listed Hazardous Wastes; Characteristic RCRA, Section 3001

hazardous wastes.

[[Page 1663]]

Imminently Hazardous Chemical Substances TSCA, Section 7

or Mixtures.

------------------------------------------------------------------------

(1) Petroleum Exclusion. Petroleum, ``including crude oil or any

fraction thereof,'' is excluded from the definition of ``hazardous

substance.''

(2) Pollutants or Contaminants. EPA may clean up a site polluted by

either a ``hazardous substance'' or a ``pollutant or contaminant,'' but

CERCLA does not authorize EPA to recover its cleanup costs from private

parties or to issue an order directing the parties to perform a cleanup

when the substance involved is only a ``pollutant or contaminant.''

(d) Response Costs. CERCLA permits the recovery of ``response

costs'', which includes the costs of removal, remedial action, and

enforcement activities related thereto. In addition to liability for

costs and damages related to response actions stemming from a release

of a hazardous substance, liability may also be imposed for costs

associated with the loss of a contaminated area's natural resources.

(e) Application of Liability. The statute does not set forth

liability standards. The courts have consistently applied the following

standards.

(1) Strict liability;

(2) Joint and Several Liability; and

(3) Retroactive Liability.

(f) Defense to Liability. The statute permits liability to be

defended when the release was caused by:

(1) an act of God;

(2) an act of war; or

(3) the act or omission of a third party other than an employee or

agent or one in a contractual relationship with the party being sought

to be held liable.

4. Penalties. A party that refuses or fails to comply with a

Section 106 order from EPA may be assessed up to $25,000 per day of the

violation of the order. Additional penalties may also be imposed.

5. Executive Order 12580. Executive Order 12580, Superfund

Implementation, 52 FR 2923 (1987), as amended by Executive Order 12777,

56 FR 54757 (1991), 42 U.S.C. 9615 note, implements CERCLA by

delegating functions under the Act vested in the President to Federal

agencies.

E. Emergency Planning and Community Right-To-Know (EPCRA)

1. EPCRA. The Emergency Planning and Community Right-To-Know Act of

1986 (EPCRA), 42 U.S.C. 11001-11050, establishes a mechanism for

providing the public with important information on the hazardous and

toxic chemicals in their communities, and it creates emergency planning

and notification requirements to protect the public in the event of a

release of extremely hazardous substances. The Act requires owners and

operators of certain facilities to annually submit toxic chemical

release inventories to EPA, affected States, and Indian tribes. EPCRA

requirements are set forth in chapter 30-60. Because it was enacted as

Title III of the Superfund Amendments and Reauthorization Act of 1986

(SARA), the statue is sometimes referred to as ``SARA, Title III''.

2. Executive Order 12856. Executive Order 12856, Federal Compliance

With Right-to-Know Law and Pollution Prevention Requirements, 58 FR

41981 (1993), applies the requirements of EPCRA to Federal agencies.

The requirements of the Order are described in chapter 30-80.

F. Endangered Species Act (ESA). The Endangered Species Act, 16

U.S.C. 1531-1543, directs Federal agencies to conserve endangered and

threatened species and their critical habitats. Federal agencies must

insure, in consultation with the Secretary of the Interior or the

Secretary of Commerce, that any action authorized, funded, or carried

out by the agency is not likely to jeopardize the continued existence

of any endangered species or threatened species, or result in the

destruction or adverse modification of critical habitat unless the

agency has been granted an exemption under ESA. Environmental review

requirements under ESA are covered in chapter 30-40.

G. Energy Conservation

1. Energy Policy Act. The Energy Policy Act of 1992, 42 U.S.C.

13201 to 13556, requires the Secretary of Energy to work with other

Federal agencies to significantly reduce the use of energy and reduce

the related environmental impacts by promoting use of energy efficient

and renewable energy technologies.

2. Energy Policy and Conservation Act. The Energy Policy and

Conservation Act, 42 U.S.C. 6201-6422, authorizes the Secretary of

Energy to promote energy efficiency and encourage conservation.

3. Executive Order 12902. Executive Order 12902, Energy Efficiency

and Water Conservation at Federal Facilities, 59 FR 11463 (1994),

requires each federal agency to develop and implement a program with

the intent of reducing energy consumption by 30 percent by the year

2005. Each agency must develop and implement a program for its

industrial facilities with the intent of increasing energy efficiency

by at least 20 percent by the year 2005 and shall implement all cost-

effective water conservation projects.

The Order directs each agency responsible for managing Federal

facilities to develop and begin implementing a 10-year plan to conduct

or obtain comprehensive facility audits, based on prioritization

surveys on each of the facilities the agency manages. All agencies are

to develop and implement programs to reduce the use of petroleum in

their buildings and facilities by switching to a less-polluting and

nonpetroleum-based energy source, such as natural gas or solar and

other renewable energy sources. The head of each agency shall report

annually to the Secretary of Energy and OMB in achieving the goals of

this order. Each agency head shall designate a senior official, at the

Assistant Secretary level or above, to be responsible for achieving the

requirements of Executive Order 12902. The agency senior official must

coordinate implementation of the Order with the Federal Environmental

Executive and Agency Environmental Executives established under

Executive Order No. 12873 (see chapter 30-90).

H. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.

136 to 136y, requires the registration of a pesticide before it may be

sold and authorizes the EPA Administrator to limit the distribution,

sale or use of unregistered pesticides. EPA is prohibited from

registering a pesticide that will clause ``unreasonable adverse effects

on the environment.'' Regulations implementing FIFRA govern the use,

storage, and disposal of registered pesticides. Additionally, these

regulations govern the requirements for training and certification of

applicators, container labeling, and worker protection.

1. Fish and Wildlife Coordination Act. The Fish and Wildlife

Coordination Act, 16 U.S.C. 661-666c, requires Federal agencies to

protect fish and wildlife resources which may be affected by an agency

plan to control or modify a natural stream or body of water for any

purpose. The agency also must provide for the development and

improvement of wildlife resources that will be affected by its action.

Before taking action, the agency must consult with the United States

Fish and Wildlife Service, Department of the Interior, and with the

head of the State agency exercising administration over the wildlife

resources that will be affected to determine means and measures that

should be adopted to prevent the loss of or damage to such wildlife

resources, as well as to provide concurrently for the

[[Page 1664]]

development and improvement of such resources. Consultation

requirements under the Fish and Wildlife Coordination Act are described

in chapter 30-40.

J. Historic Preservation

1. Antiquities Act of 1906. The Antiquities Act of 1906, 16 U.S.C.

431-433, authorizes the President to declare historic landmarks,

historic and pre-historic structures, and other objects of historic and

scientific interest that are located on Federal lands to be national

monuments.

2. Archeological and Historic Preservation Act of 1974. The

Archaeological and Historic Preservation Act of 1974, 16 U.S.C. 469 to

469c-1, directs Federal agencies to preserve significant scientific,

prehistorical, historical and archaeological data.

3. Historic Sites Act of 1935. The Historic Sites Act of 1935, 16

U.S.C. 461 to 467, states that it is a national policy to preserve for

public use historic sites, buildings, and objects of national

significance for the inspiration and benefit of the public. The Act is

also popularly called ``The Historic Sites, Buildings, and Antiquities

Act.''

4. National Historic Preservation Act. The National Historic

Preservation Act, 16 U.S.C. 470 to 470x-6, directs heads of Federal

agencies to assume responsibility for the preservation of historic

properties which are owned or controlled by such agencies.

5. Executive Order 11593. Executive Order 11593, Protection and

Enhancement of the Cultural Environment, 36 FR 8921 (1971), 16 U.S.C.

470 note, requires Federal agencies to initiate measures and procedures

to provide for the maintenance, through preservation, rehabilitation,

or restoration of Federally-owned sites that are listed on the National

Register of Historic Places.

K. Marine Protection, Research and Sanctuaries Act. The Marine

Protection, Research and Sanctuaries Act of 1972, 16 U.S.C. 1431 to

1445a, 33 U.S.C. 1401 to 1445, provides for establishment of marine

sanctuaries and directs Federal agencies to ensure that their actions

are consistent with the intended use of such areas.

L. National Environmental Policy (NEPA).

1. NEPA. The National Environmental Policy Act of 1969 (NEPA), 42

U.S.C. 4321-4306d, establishes a comprehensive policy for protection

and enhancement of the environment by the Federal government; creates

the Council on Environmental Quality; and directs Federal agencies to

carry out the policies and procedures of the act. NEPA is covered in

chapter 30-50.

2. Executive Order 12114. Executive Order 12114, Environmental

Effects Abroad of Major Federal Actions, 44 FR 1957 (1979), enables

responsible officials of Federal agencies having ultimate

responsibility for authorizing and approving certain Federal activities

significantly affecting the environment of the global commons, or a

foreign nation, or certain major Federal actions outside the United

States which significantly affect natural or ecological resources of

global importance, to be informed of pertinent environmental

considerations and to take such considerations into account in making

decisions regarding such actions. Executive Order 12114 is implemented

for HHS in chapter 30-50.

3. Executive Order 11990. Executive Order 11990, Protection of

Wetlands, 42 FR 26961 (1977), as amended by Executive Order 12608, 52

FR 34617 (1987) 42 U.S.C. 4321 note, directs Federal agencies to avoid,

to the extent possible, the long and short term adverse impacts

associated with the destruction or modification of wetlands and direct

or indirect support of new construction in wetlands wherever there is a

practical alternative. Executive Order 11990 is covered in chapter 30-

40.

4. Executive Order 11988. Executive Order 11988, Floodplain

Management, 42 FR 26951 (1977), as amended by Executive Order 12148, 44

FR 43239 (1979), 42 U.S.C. 4321 note, directs Federal agencies to take

action to avoid, to the extent possible, the long and short term

adverse impacts associated with the occupancy and modification of

floodplains and to avoid direct or indirect support of floodplain

development whenever there is a practical alternative. Executive Order

11988 is implemented for HHS in chapter 30-40.

5. Executiver Order 11514. Executive Order 11514, Protection and

Enhancement of Environmental Quality, 35 FR 4247 (1970), as amended by

Executive Order 11991, 42 FR 26967 (1977), 42 U.S.C. note, requires

Federal agencies to initiate measures needed to direct their policies,

plans, and programs to meet national environmental goals. Federal

agencies must develop procedures to ensure the fullest practicable

provision of timely public information and understanding of Federal

plans and programs with environmental impact in order to obtain the

views of interested parties. In carrying out their responsibilities

under NEPA and Executive Order 11514, Federal agencies are to comply

with regulations issued by the Council on Environmental Quality, except

where compliance would be inconsistent with statutory requirements.

M. Occupational Safety and Health Act (OSHA). The Occupational

Safety and Health Act of 1970, 29 U.S.C. 651 to 658, regulates the use,

storage, and handling of hazardous materials in the workplace and

provides for the Department of Labor to establish standards governing

workplace safety and health requirements.

N. Pollution Prevention and Recycling

1. Pollution Prevention Act (PPA). The Pollution Prevention Act of

1990, 42 U.S.C. 13101-13109, requires the reporting of efforts to

reduce toxic chemical releases through source reduction and recycling.

The PPA establishes national policy that pollution is to be prevented

or reduced at the source, and the Act requires the Environmental

Protection Agency (EPA) to submit biennial reports to Congress that

analyze the source reduction and recycling date submitted to it and

provide other pollution prevention information that has been gathered

from private businesses and Federal agencies. The Act also requires the

Administrator of EPA to develop a strategy to promote source reduction;

to make matching grants to States to promote the use of source

reduction techniques by businesses; and to establish a Source Reduction

Clearinghouse. The requirements of the PPA are described in more detail

in chapter 30-70.

2. Executiver Order 13101. Executive Order 13101, Greening the

Government Through Waste Prevention, Recycling, and Federal

Acquisition, Sep 1998, requires Federal agencies to strive to increase

the procurement of productions that are environmentally preferable or

that are made wit recovered materials and to set annual goals to

maximize the number of recycled products purchased, relative to non-

recycled alternatives. Each agency is to establish goals for solid

waste prevention and for recycling to be achieved by the years 2000,

2005 and 2010 and to annually report progress in attaining the goals.

Executive Order 13101 is implemented for HHS in chapter 30-90.

O. Resource Conservation and Recovery Act (RCRA) The Resource

Conservation ad Recovery Act of 1976, 42 U.S.C. 6901 to 6991i, governs

the generation, storage, and disposal of hazardous waste, and amends

the Solid Waste Disposal Act.

P. Safe Drinking Water Act (SDWA). The Safe Drinking Water Act, 42

U.S.C. 300f to 33j-26, is intended to protect drinking water sources.

The statute

[[Page 1665]]

authorizes EPA to determine if an action which will have an

environmental effect on a sole or principal drinking water source would

also constitute a significant hazard to a human population and, if so,

to prohibit such an action.

Q. Toxic Substances Control Act (TSCA). The Toxic Substances

Control Act of 1976 (TSCA), 15 U.S.C. 2601 to 2692, provides controls

over the manufacture process, use, distribution and disposal of certain

toxic materials e.g., polychlorinated biphenyls, lead-based paint,

asbestos containing materials and radon.

R. Wild and Scenic Rivers Act. The Wild and Scenic Rivers Act, 16

U.S.C. 1271 to 1287, directs Federal agencies to consider and preserve

the values of wild and scenic areas in the use and development of water

and land resources.

S. Executive Orders

1. Executive Order 12898. Executive Order 12898, Federal Actions to

Address Environmental Justice in Minority Populations and Low-Income

Populations, 59 FR 7629 (1994), requires each Federal agency to make

achieving environmental justice part of its mission by identifying and

addressing, as appropriate, disproportionately high and adverse human

health or environmental effects of its programs, policies, and

activities on minority populations and low-income populations. Each

Federal agency must develop an agency-wide environmental justice

strategy that identifies and addresses disproportionately high and

adverse human health or environmental effects of its programs,

policies, and activities on minority populations and low-income

populations.

The environmental justice strategy must list programs, policies,

planning and public participation processes, enforcement, and/or

rulemakings related to human health or the environment that should be

revised to, at a minimum: (a) promote enforcement of all health and

environmental statutes in areas with minority populations and low-

income populations; (b) ensure greater public participation; (c)

improve research and data collection relating to the health of and

environment of minority populations and low-income populations; and (b)

identify differential patterns of consumption of natural resources

among minority populations and low-income populations. In addition, the

environmental justice strategy must include, where appropriate, a

timetable for undertaking identified revisions and consideration of

economic and social implications of the revisions.

2. Executive Order 12088. Executive Order 12088, Federal Compliance

with Pollution Control Standards, 43 FR 47707 (1978), as amended by

Executive Order 12580, 52 FR 2923 (1987), 42 U.S.C. 4321 note, makes

the head of each Federal agency responsible for ensuring that all

necessary actions are taken for the prevention, control, and abatement

of environmental pollution with respect to Federal facilities and

activities under the control of the agency.

3. Executive Order 11987. Executive Order 11987, Exotic Organisms,

42 FR 26949, 42 U.S.C. 4321 note, directs Federal agencies, to the

extent permitted by law, to restrict the introduction of exotic species

into the natural ecosystems on lands and waters which they own, lease,

or administer.

30-00-30 Definitions

The following terms are defined solely for the purpose of

implementing the supplemental procedures provided by this chapter and

are not necessarily applicable to any statutory or regulatory

requirements. To the extent that a definition of one of these terms

should conflict with a definition in an applicable statute, regulation

or Executive Order, that statute, regulation or Executive Order

definition shall supersede the GAM definition.

A. Action--a signed decision by a responsible Department official

resulting in:

1. Approval, award, modification, cancellation, termination, use or

commitment of Federal funds or property by means of a grant, contract,

purchase, loan, guarantee, deed, lease, license or by any other means;

2. Approval, amendment or revocation of any official policy,

procedures or regulations including the establishment or elimination of

a Department program; or

3. Submission to Congress of proposed legislation which, if

enacted, the Department would administer.

B. Asset--an entity, group of entities or specific environment as

defined in the individual related acts and which the individual related

acts seek to protect or preserve. Assets include cultural assets (e.g.,

historic properties) and natural assets (e.g., wild and scenic rivers,

and endangered species).

C. Environmental Acts--all authorities listed in Section 30-00-20

or authorities that might be designated under other statutes or

Executive Orders.

D. Environmental Assessment--a concise public document, as defined

in the regulations implementing NEPA, that serves to provide sufficient

evidence and analysis for determining whether to prepare an

environmental impact statement of a finding of no significant impact.

E. Environmental Effects--effects, as defined under NEPA, include

direct effects, which are caused by the action and occur at the same

time and place and indirect effects, which are caused by the action and

are later in time or farther removed in distance, but are still

reasonably foreseeable.

F. Environmental Impact Statement--a detailed written statement, as

required under NEPA, on: (i) the environmental impact of the proposed

action, ii) any adverse environmental effects which cannot be avoided

if the action is implemented, (iii) alternatives to the proposed

action, (iv) the relationship between local short-term uses of man's

environment and the maintenance and enhancement of long-term

productivity and (v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed action should it be

implemented.

G. Environmental Review--the process, including necessary

documentation, which a Departmental organization uses to determine

whether a proposed action will cause an environmental effect.

H. Finding of No Significant Impact--a document by a federal

agency, as required under NEPA, briefly presenting the reasons why an

action will not have a significant effect on the human environment and

for which an environmental impact statement therefore will not be

prepared.

I. Major Federal Action--includes actions, as defined by NEPA, with

effects that may be major and which are potentially subject to federal

control and responsibility.

J. OPDIV--HHS Operating Division. The following is a current

listing (which may change at some future date) of OPDIVs:

Administration on Aging (AoA), Administration for Children and Families

(ACF), Agency for Health Care Policy and Research (AHCPR), Centers for

Disease Control and Agency for Toxic Substances and Disease Registry

(CDC/ATSDR), Food and Drug Administration (FDA), Health Care Financing

Administration (HCFA), Health Resources and Services Administration

(HRSA), Indian Health Service (IHS), National Institutes of Health

(NIH), Office of the Secretary (OS), Program Support Center (PSC), and

Substance Abuse and Mental Health Services Administration (SAMHSA),

K. STAFFDIV--HHS Staff Division. The following is a current listing

(which

[[Page 1666]]

may change at some future date) of STAFFDIVs: Office of the Assistant

Secretary for Legislation (ASL), Office of the Assistant Secretary for

Management and Budget (ASMB), Office of the Assistant Secretary for

Planning and Evaluation (ASPE), Office of the Assistant Secretary for

Public Affairs (ASPA), Departmental Appeals Board (DAB), Office for

Civil Rights (OCR), Office of General Counsel (OGC), Office of

Inspector General (OIG), and Office of Public Health and Sciences

(OPHS).

L. Program Review--a review by OPDIVs/STAFFDIVs of all their

actions to determine:

1. Those categories of actions which normally do not individually

or cumulatively cause significant environmental effects and therefore

may be categorically excluded from further environmental review; and

2. Those categories of actions which require an environmental

review because they may cause significant environmental effects under

NEPA; and

3. Those categories of actions which require an environmental

review because they normally do cause significant environmental effects

under NEPA.

HHS Chapter 30-10--General Administration Manual; HHS Transmittal

98.2

Subject: Department of Health and Human Services Environmental Policy

30-10-00.... Policy Statement

10.... Vision Statement

20.... Goal and Objectives

30.... Strategy

30-10-00 Policy Statement

The Department of Health and Human Services is committed to

complying with all applicable Federal, state and local environmental

laws, statutes and regulations, protecting the environment, and

conserving our environmental resources by being proactive and cost

effective in our environmental stewardship. It is HHS policy that

pollution be prevented or reduced at the source. All HHS organizations

shall give first priority to avoiding or reducing the generation of

hazardous substances, pollutants, and contaminants at the source.

Pollution that cannot be prevented or recycled must be treated in an

environmentally safe manner to reduce volume, toxicity, and/or

mobility. Only as a last resort should disposal or other release into

the environment be employed, and such disposal or release must be

conducted in accordance with all applicable authorities and in an

environmentally safe manner. Managers and employees are expected to

execute their responsibilities in a way that is proactive and cost

effective in the protection and conservation of our environmental

resources and in a manner that complies with all applicable Federal,

state, and local environmental laws, statutes and regulations.

30-10-10 Vision Statement

All HHS managers and employees are guardians of the environment

when carrying out their responsibilities. Proactive efforts at all

organizational levels must be focused on managing environmental risks

to ensure that the environment is always protected and our

environmental resources are conserved.

OPDIVs/STAFFDIVs must give weight to preservation of the

environment and protection of historic or cultural assets in reaching

substantive program decisions. All HHS organizations shall assess

environmental costs and benefits as well as program goals and

objectives in determining a particular course of action. In conducting

this assessment, OPDIVs/STAFFDIVs should devote reasonable time,

effort, and resources to consideration of enviormental risks associated

with a program-related course of action.

30-10-20 Goal and Objectives

The goal of our environmental efforts is to prevent harm to the

environment, and enhance the quality of human health by conserving our

environmental resources.

This goal is satisfied by meeting the following objectives:

1. Compliance--To comply with all applicable Federal, State, and

local environmental laws, statutes and regulations;

2. Conservation--To protect and conserve our environmental

resources through pollution prevention, waste reduction and recycling;

3. Pollution Prevention--To protect and conserve our environmental

resources through source reduction in facility management and

acquisition, where practicable, as the primary means of achieving and

maintaining compliance with applicable Federal, State and local

environmental laws, statutes and regulations; and

4. Restoration--To restore, when possible, facilities, land, and

waters damaged through past practices.

30-10-30 Strategy

HHS has adopted and will adhere to a Code of Environmental

Management Principles (CEMP) to help achieve the goals of the HHS

environmental protection program. As part of the effort to implement

these principles throughout HHS, all OPDIVS/STAFFDIVS will integrate

the following principles into their environmental protection programs:

1. Management Commitment--Written top management commitment to

improve environmental performance by establishing policies which

emphasize pollution prevention and the need to ensure compliance with

environmental requirements.

2. Compliance Assurance and Pollution Prevention--Proactive

programs that aggressively identify and address potential compliance

problem areas and utilize pollution prevention approaches to correct

deficiencies and improve environmental performance.

3. Enabling Systems--Necessary systems to enable personnel to

perform their functions consistent with regulatory requirements, HHS

environmental policies, and the HHS overall mission.

4. Performance and Accountability--Measures to address employee

environmental performance and ensure full accountability of

environmental functions.

5. Measurement and Improvement--A program to assess progress toward

meeting organization environmental goals, and which uses the results of

that assessment to improve environmental performance.

HHS Chapter 30-20--General Administration Manual; HHS Transmittal

98.2

Subject: Administrative Requirements

30-20-00.... Background

10.... Responsibilities

20.... Approval Authority and Delegations of Authority

30.... Process for Establishing Categorical Exclusions

40.... Categories of Exclusion

50.... Environmental Review Procedures

30-20-00 Background

This chapter establishes an administrative framework in the

Department for environmentally-related activities. Specifically, this

chapter (1) describes the assignment of relative responsibilities in

the Department regarding environmental activities; (2) establishes

procedures for program reviews; and (3) establishes other on-going

administrative requirements.

30-20-10 Responsibilities

A. Office of the Secretary. The Secretary shall designate an

official as the Department Environmental Officer, who will be

responsible for:

1. Preparing Departmental guidelines and other policy documents for

issuance

[[Page 1667]]

by the Secretary or other appropriate Department official pertaining to

environmental protection and preservation of natural or cultural

assets;

2. Approving lead agency agreements having Department-wide

applicability;

3. Providing training to HHS program officials with respect to

carrying out the requirements of environmental statutes and Executive

Orders;

4. Maintaining liaison with the Council on Environmental Quality

(CEQ), Environmental Protection Agency (EPA), and other Federal

agencies charged with direct responsibility for administering

environmental statutes and Executive Orders;

5. Coordinating the review of environmental statements originating

from outside of HHS. This responsibility is delegated to the Centers

for Disease Control and Prevention, National Center for Environmental

Health (FR, Vol. 43 no. 164, Aug. 23, 1978); and

6. Reviewing and making recommendations to the Assistant Secretary

for Management and Budget with respect to determinations by OPDIVs/

STAFFDIVs that certain activities are categorically excluded from

environmental review.

B. OPDIVs/STAFFDIVs. Heads of OPDIVs/STAFFDIVs are responsible for

ensuring that organizational units under their authority comply with

all provisions of all applicable Federal, State, and local

environmental laws, statues, regulations and Executive Orders and with

the procedures of part 30. An OPDIV/STAFFDIV head may designate an

environmental officer, who may act in either a full-time capacity or in

addition to other duties, to assist in fulfilling these

responsibilities.

C. Regional Offices. Regional Directors are responsible for

complying with all provisions of all applicable Federal, State, and

local environmental laws, statutes, regulations and Executive Orders

and the policies in part 30 for those specific program responsibilities

delegated to them. In addition, the Regional Director shall:

1. Serve as principal HHS regional liaison official with other

Federal, State, and local agencies on matters pertaining to

environmental preservation or protecting environmental, cultural, or

natural assets;

2. Coordinate the timely review by regional program personnel of

environmental impact statements forwarded to HHS by other agencies; and

3. Periodically verify that their regional program staff are aware

of and are complying with the requirements of part 30.

30-20-20 Approval Authority and Delegations of Authority

A. Delegation of Authority. The OPDIV/STAFFDIV head and Regional

Director may redelegate all of their environmental responsibilities to

subordinate program managers except for the authority of an OPDIV/

STAFFDIV head to approve the designation of actions as categorically

excluded. OPDIV/STAFFDIV heads shall obtain concurrence from the

Assistant Secretary for Management and Budget with respect to

activities designated to be categorically excluded from environmental

reviews.

B. Excluded Material. The exclusion of material from environmental

impact statements on the basis of national security and trade secrets

requires approval by the HHS General Counsel. (See Section 30-30-40.)

C. Natural Assets. Proposed actions which will have an effect on

certain natural assets may require concurrence or approval from other

Federal agencies and/or entities prior to taking the action. (See

chapter 30-40.)

D. Floodplains/Wetlands. OPDIV/STAFFDIV heads shall sign

determinations pursuant to Executive Order 11988, Floodplain

Management, and Executive Order 11990, Protection of Wetlands, except:

1. The Secretary shall approve proposed actions requiring

environmental impact statements on projects affecting floodplains; and

2. The Secretary shall approve proposed actions requiring

environmental assessments or environmental impact statements for new

construction in wetlands.

30-20-30 Program Reviews

A. Actions Requiring Environmental Review. All HHS activities will

be evaluated to determine whether such activities are actions that

require environmental review.

In a program review, an OPDIV/STAFFDIV evaluates actions it will be

taking in order to determine the potential of these actions to cause an

environmental effect under an applicable environmental statute or

Executive Order. OPDIVs/STAFFDIVs should have already completed an

initial review. OPDIVs/STAFFDIVs may undertake additional program

reviews subsequently whenever they deem it appropriate.

As a result of program review, an OPDIV/STAFFDIV shall divide each

of its actions in one of three groups:

Group 1 (categorically excluded)--Those actions which do not

individually or cumulatively have a significant effect on the human

environment or affect a natural or cultural asset protected by an

environmental statute or Executive Order

Group 2--Those actions which require an environmental review

because they may cause a significant environmental effect under NEPA or

may affect a protected cultural or natural asset protected by an

environmental statute or Executive Order.

Group 3--Those actions which normally do cause a significant

environmental effect under NEPA or affect a cultural or natural asset

protected by an environmental statute or Executive Order.

In grouping each of its actions, OPDIVs/STAFFDIVs shall use the

exclusion categories described in Section 30-20-40. If an action falls

within one of these exclusion categories, then it may be included in

Group 1. Such actions do not require environmental reviews, except in

circumstances described in 30-20-40. If an action does not fall within

one of these exclusion categories, then an OPDIV/STAFFDIV must perform

an environmental review prior to taking the action. Chapters 30-30 and

30-50 describe the procedures for conducting an environmental review.

Each OPDIV/STAFFDIV shall maintain as part of its organizational

guidance documents lists of those actions which it has determined fall

under Groups 1, 2, and 3 or shall have regulations that address such

actions. These lists shall supplement other internal directives or

instructions relating to environment-related responsibilities.

B. Approval. A determination by an OPDIV/STAFFDIV that an action

falls within Group 1 (Categorically Excluded) is effective upon

approval by the OPDIV/STAFFDIV head or, as required, after the issuance

of a regulation. However, OPDIVs/STAFFDIVs must forward these

determinations to the Assistant Secretary for Management and Budget for

concurrence. Determination that an action falls within Group 1

(Categorically Excluded) is effective until rendered inapplicable

because of changes in the underlying program authority or regulation.

C. Publication of Additional Categorical Exclusions by OPDIVs/

STAFFDIVs. An OPDIV/STAFFDIV may establish additional categorical

exclusions that pertain to the actions of that OPDIV/STAFFDIV after

approval

[[Page 1668]]

by the Assistant Secretary for Management and Budget and publication

for public comment in the Federal Register, in accordance with the

procedures established by that OPDIV/STAFFDIV. All categorical

exclusions not covered by the general listing in Section 30-20-40(B)(2)

must be published in the Federal Register.

30-30-40 Categories of Exclusion

A. Application of Categorical Exclusions

1. Required Determinations. To find that a proposal is

categorically excluded, an OPDIV/STAFFDIV shall determine the

following:

(a) Falls Within Exclusion Category. The proposed action falls

within one of the four exclusion categories described in this section.

This determination may take place as the result of a program review of

an OPDIV's/STAFFDIV's actions, in which case the action is listed in

the OPDIV's/STAFFDIV's administrative issuance system as being

categorically excluded from further environmental reviews.

(b) Absence of Extraordinary Circumstances. There are no

extraordinary circumstances related to the proposal that may affect the

significance of the environmental effects of the proposal.

Extraordinary circumstances are unique situations presented by specific

proposals, such as scientific controversy about the environmental

effects of the proposal; uncertain effects or effects involving unique

or unknown risks; or unresolved conflicts concerning alternate uses of

available resources within the meaning of section 102(2)(E) of NEPA;

and where it is reasonable to anticipate a cumulatively significant

impact on the environment. See 40 CFR 1508.27 for examples.

2. All categorical exclusions in this Part may be applied by any

organizational element of HHS.

3. A class of actions includes activities foreseeably necessary to

proposals encompassed within the class of actions (such as associated

transportation activities and award of implementing grants and

contracts).

B. Categories of Actions Which May Be Excluded From Environmental

Review. Categories of actions which may be excluded from environmental

review include, but are not limited to the following:

1. Category No. 1--General Exclusions:

(a) When a law or regulation grants an exception, unless precluded

by an OPDIV/STAFFDIV regulation.

(b) When the courts have found that the action does not require

environmental review; and

(c) When an action implements actions outside the territorial

jurisdiction of the United States and such actions are excluded from

review by Executive Order 12114.

2. Category No. 2--Functional Exclusions:

(a) Routine administrative and management support, including legal

counsel, public affairs, program evaluation, monitoring and individual

personnel actions;

(b) Appellate reviews when HHS was the plaintiff in the lower court

decision (e.g., a case involving failure by a nursing home to comply

with fire and safety regulations);

(c) Data processing and systems analysis;

(d) Education and training grants and contracts (e.g., grants for

remedial training programs or teacher training) except projects

involving construction, renovation, or changes in land use;

(e) Grants for administrative overhead support (e.g., regional

health or income maintenance program administration);

(f) Grants for social services (e.g., support for Head Start,

senior citizen programs or drug treatment programs) except projects

involving construction, renovation, or changes in land use;

(g) Liaison functions (e.g., serving on task forces, ad hoc

committees or representing HHS interests in specific functional areas

in relationship with other governmental and non-governmental entities);

(h) Maintenance (e.g., undertaking repairs necessary to ensure the

functioning of an existing facility), except for properties on or

eligible for listing on the National Register of Historic Places;

(i) Statistics and information collection and dissemination (e.g.,

collection of health and demographic data and publication of

compilations and summaries);

(j) Technical assistance by HHS program personnel, e.g., providing

assistance in methods for reducing error rates in State public

assistance programs or in determining the cause of a disease outbreak);

and

(k) Adoption of regulations and guidelines pertaining to the above

activities (except technical assistance and those resulting in

population changes).

3. Category 3--Program Exclusions. These exclusions, when

applicable, result from a substantive review and determination by an

OPDIV/STAFFDIV that certain programs or certain activities within a

program will not normally (a) significantly affect the human

environment (as defined by NEPA) or (b) affect an asset (as defined in

an applicable environmental statute or Executive Order) regardless of

the location or magnitude of the action. For example, an OPDIV/

STAFFDIV, following its review, might determine that the following are

unlikely to cause an environmental effect: assigning a member of the

Health Service Corps to a locality to supplemental existing medical

personnel or providing funds to support expansion of emergency medical

services in existing hospitals.

30-20-50 Environmental Review Procedures

An OPDIV/STAFFDIV must conduct environmental reviews with respect

to all proposed actions that are subject to an environmental statute or

Executive Order which do not fall under categorical exclusions 1, 2, or

3. Chapters 30-30 and 30-50 discuss the process for conducting an

environmental review with respect to a specific proposed action and for

fulfilling documentation and other requirements. Each OPDIV/STAFFDIV

shall ensure that its programs have appropriate procedures for

conducting environmental reviews, for completing required

documentation, and for ensuring public involvement and

intergovernmental consultation. These procedures must be in writing and

be included in the internal organizational guidance documents or

regulations. These procedures must, at a minimum, address the

following:

A. A list of those actions which the OPDIV/STAFFDIV has

categorically excluded from further environmental review requirements.

B. A list of those actions or circumstances when actions require an

environmental review prior to taking the action.

C. Designation of officials responsible for environment-related

activities including determinations as to whether to prepare an

environmental impact statement or an environmental assessment, if one

is required.

D. Procedures for preparing and circulating environmental

statements (including data required by the applicable environmental

statute or Executive Order for the type of action covered).

E. Procedures for ensuring the coordination of environmental review

with program decision-making, including concurrent development and

circulation of environmental documents with program documents and the

identification of key decision-making points.

[[Page 1669]]

F. Procedures for consulting with other Federal agencies

responsible for the environmental statutes or Executive Orders, if

necessary.

G. Procedures for developing lead agency agreements (as described

in 30-30-20B and 30-50).

H. A prohibition against precluding or prejudicing selection of

alternatives in an environmental impact statement without regard to

environmental risks.

I. Procedures for establishing a reviewable record, including

making environmental statements and related decision-making materials

part of the record of formal rule-making and adjudicatory proceedings.

J. Provisions for early consultation and assistance to potential

applicants and non-Federal entities in planning actions and developing

information necessary for later Federal involvement (as described in

30-30-20C and 30-50).

K. Descriptions of circumstances which preclude completion of

environmental reviews within reasonable time frames because of public

health and safety considerations and procedures for after-the-fact

completion.

L. Provision for ensuring that applications and other materials

from potential grantees or other recipients of Departmental funds, on a

program-by-program basis, include information necessary to conduct an

environmental review. Such information shall include the identification

of any properties which may be eligible for listing on the National

Register of Historic Places.

M. Provision for identifying cultural assets which a program

controls through leases or Federal ownership, and for nominating such

historic properties to the National Register of Historic Places.

HHS Chapter 30-30--General Administration Manual; HHS Transmittal

98.2

Subject: General Environmental Review Procedures

30-30-00.... Overview

10.... Summary Description

20.... Environmental Review

30.... Environmental Statements

40.... Intergovernmental Consultation and Document Review.

30-30-00 Overview

Certain environmental statutes and Executive orders require an

environmental review of proposed Federal actions to determine whether

such actions will have environmental effects.

The purpose of this chapter is to describe overall the steps which

Department officials must take in conducting environmental reviews of

specific proposed actions. Within these general steps, the individual

environmental acts differ significantly with respect to public

involvement, intergovernmental consultation, and documentation

required. The chapters at 30-40 and 30-50 following (entitled Natural

Asset Review and NEPA Review) discuss these specific requirements in

greater detail.

Note: The procedures and requirements in chapters 30-40 and 30-

50 take precedence over the general statements in this chapter and

must be consulted before determining the steps that must be taken

with regard to a specific action. The discussion in this chapter

generally does not apply to chapters 30-60 to 30-90.

30-30-10 Summary Description

The following is a summary description of the general types and

sequence of activities which Departmental officials should carry out in

reviewing specific proposed actions under this Part.

A. Determine that a proposed activity constitutes an action as

defined under Section 30-00-30 (Definitions) that is subject to an

environmental statute or Executive Order.

B. Determine whether the proposed action is categorically excluded

from all environmental review requirements. If it is excluded, no

further environmental review is necessary.

C. For proposed actions not categorically excluded, conduct an

environmental review in accordance with applicable program

environmental review procedures to determine whether the proposed

action will cause an environmental effect under one or more of the

environmental statutes or Executive Orders.

D. Determine whether it is necessary to prepare an environmental

document, e.g., an environmental assessment, and if necessary, an

environmental impact statement under NEPA. Circulate the environmental

document among the public, Federal, State and local agencies, and other

interested parties, as appropriate.

E. Carry out the requirements for public involvement and

intergovernmental consultation as required under the applicable

environmental statutes or Executive Orders, including any necessary

approvals.

F. Prepare the necessary environmental documentation and proceed

with the program decision-making process.

30-30-20 Environmental Review

A. General. OPDIVs/STAFFDIVs must perform an environmental review

for each proposed action not categorically excluded in accordance with

the OPDIV's/STAFFDIV's environmental procedures. The purpose of an

environmental review is to answer the following general questions:

(Individual environmental acts differ with respect to the specific

scope and methodology required in conducting an environmental review.)

1. Which environmental statutes or Executive Orders apply to the

proposed action?

2. Will a proposed action have an environmental effect under any of

the environmental statutes or Executive Orders, as defined in

regulation or by court interpretation?

3. Should the HHS OPDIV/STAFFDIV prepare an environmental

assessment or an environmental impact statement, given the

environmental statutes and Executive Orders involved and the kinds and

degree of environmental effects anticipated?

B. Agreements with Other Agencies. When two or more agencies are

engaged in the same action, a lead agency agreement provides one agency

with the authority to conduct the environmental review. These

agreements determine the content and type of statement and specify

which Federal agency will prepare it. The agreement includes a schedule

for the preparation and circulation of the document, as well as an

assignment of important tasks among the agencies involved. Lead agency

agreements may be signed with other agencies for individual actions or

for a particular type of action.

C. Non-Federal Agencies. Whenever an HHS program requests or

permits a non-Federal agency to perform an environmental review, the

program shall outline the type of information required, perform an

independent evaluation, and assume responsibility for the scope and

content of the material.

30-30-30 Environmental Documents

A. On the basis of the environmental review, OPDIVs/STAFFDIVs shall

determine what type of environmental document to prepare. Under NEPA,

either an environmental assessment and finding of no significant impact

or an environmental impact statement would generally be required.

Environmental impact statements are prepared in two stages: draft and

final. A final statement includes a consideration of comments submitted

by persons or organizations reviewing the draft statement. Under some

laws covered by this Part, an environmental assessment may also have to

be prepared in draft for review and comment before being finalized.

[[Page 1670]]

The chapters at 30-40 and 30-50 following (Natural Asset Review and

NEPA Review) discuss these different requirements in greater detail and

must be consulted to ascertain the specific requirements of NEPA and

each of the related statutes and Executive Orders.

B. Description

1. Environmental Impact Statements. An environmental impact

statement is a detailed written statement on (i) The environmental

impact of the proposed action, (ii) any adverse environmental effects

which cannot be avoided, (iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's

environment and the maintenance and enhancement of long-term

productivity and (v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed action should it be

implemented. Draft environmental impact statements shall not exhibit

biases in favor of the proposed action. A final statement may include a

recommendation with a rationale for a preferred action (see chapter 30-

50 for correct NEPA terminology and process).

2. Environmental Assessments. An environmental assessment is

generally a concise document which provides sufficient evidence and

analysis for determining whether to prepare an environmental impact

statement or a finding of no significant impact. It shall include, in

detail, the environmental impact of reasonable alternatives. OPDIVs/

STAFFDIVs generally can use an environmental assessment in order to

satisfy any review, consultation, and public notice requirements of the

applicable environmental statutes and Executive Orders and to otherwise

inform individuals and organizations who may be interested in or

affected by the proposed action (see chapter 30-50 for correct NEPA

terminology and process).

C. Alternatives. Environmental impact statements must explore and

evaluate reasonable alternatives to the proposed action in terms of

their environmental consequences, benefits and costs, and contribution

to the underlying purpose or goal. Discussion of alternatives must be

sufficiently in-depth to permit a meaningful comparison of alternative

courses of action.

Environmental impact statements shall consider the following

categories of alternatives, as appropriate:

1. No Action by Any Organization. This alternative serves as a

baseline against which to measure the environmental consequences,

costs, and benefits of the proposed action and other alternatives.

2. Action Alternatives. One or more alternative courses of action

directed at achieving the underlying purpose or goal. The environmental

impact statement cannot automatically exclude actions.

Outside the expertise or jurisdiction of Departmental

organizations, e.g., examining the possible use of other real

properties other than that proposed for transfer by HHS; or

Which only partially achieve an underlying goal or

objective, e.g., funding a health care facility at a lower capacity for

patient care. However, action alternatives considered must be

reasonably available, practicable, and be related to the underlying

purpose or goal. An environmental impact statement must include all

reasonable alternatives.

3. Alternative Safeguards. These are alternative actions which

could mitigate the adverse environmental consequences of one or more of

the action alternatives.

4. Delayed Action Alternative. This alternative is to postpone or

delay a proposed action in order to conduct more research or for other

reasons.

5. Alternative Uses. When a proposed action would affect a scarce

or valuable resource (e.g., prime agricultural farmland), the potential

alternative uses of the resource must be identified so that they may be

compared with the value of the proposed action.

30-30-40 Intergovernmental Consultation and Document Review

OPDIVs/STAFFDIVs are responsible for meeting the various

requirements under environmental statutes and Executive Orders for

intergovernmental consultation and public involvement. These

requirements differ significantly. OPDIVs/STAFFDIVs must refer to the

more detailed descriptions in 30-40 and 30-50 and should consult an

environmental officer for guidance.

As required, OPDIVs/STAFFDIVs shall circulate draft environmental

impact statements for review and comment, and otherwise make then

available to the public upon request to the extent such statements are

not protected from disclosure by existing law applicable to the

agency's operation. Statements should be circulated to the Federal

agency responsible for administering the applicable environmental act,

involved non-Federal agencies at the State or local level, and

interested public persons or groups within the geographic area of the

environment affected. The review period is generally no less than 30

days for a draft environmental assessment and no less than 60 days for

a draft environmental impact statement. Whenever a draft environmental

impact statement is significantly revised because of comments received

or because the nature or scope of the proposed action changes

significantly, OPDIVs/STAFFDIVs shall prepare a new draft environmental

impact statement for circulation. Circulation of certain portions of

the document is not necessary when it involves the following:

A. National Security. Circulation of classified sections of

environmental documents is subject to regulations pertaining to matters

of national security.

B. Trade Secrets. Circulation of sections of environmental

documents that disclose a trade secret is subject to 18 U.S.C. 1905 or

21 U.S.C. 331(j) governing the protection and disclosure of trade

secrets.

HHS Chapter 30-40--General Administration Manual; HHS Transmittal

98.2

Subject: Natural Asset Review

30-40-00.... Applicability of Consultation Requirements

05.... Integration with NEPA Review Process

10.... Coastal Zone Management Act of 1972

20.... Endangered Species Act of 1973

30.... Fish and Wildlife Coordination Act

40.... Floodplain Management

50.... Marine Protection, Research, and Sanctuaries Act of 1972

60.... Safe Drinking Water Act (Sole Source Aquifers)

70.... Wetlands Protection

80.... Wild and Scenic Rivers Act

30-40-00 Applicability of Consultation Requirements

The environmental statutes and Executive Orders described in this

chapter require consideration of the effects of a proposed action on

specific types of places or species. Generally, they prohibit further

action until the Federal agency proposing to take action has consulted

with the Federal or State agency responsible for administering the law.

The species requiring consideration are listed by the Department of the

Interior. The places requiring consideration are:

A. Coastal Zones (as identified in a State coastal zone management

plan);

B. Habitats of Endangered Species (as identified by the Department

of the Interior);

C. Streams and other bodies of water;

[[Page 1671]]

D. Floodplains (as identified on HUD floodplain maps);

E. Marine Sanctuaries (as identified by the Secretary of Commerce);

F. Sole Source Aquifers (as identified by the Environmental

Protection Agency);

G. Wetlands (all); and

H. Wild and Scenic Rivers (as identified by the Departments of the

Interior and Agriculture).

Tables 1 indicates whether the administering agency has published

regulations implementing the consultation requirement. OPDIVs/STAFFDIVs

are responsible for consulting with the appropriate Federal or State

agency before taking action in accordance with the procedures in this

chapter and in the applicable statute, Executive Order, or implementing

regulation.

Table 1.--Agency Consultation Procedures

------------------------------------------------------------------------

Natural asset statute or Consultation

executive order Citation procedures

------------------------------------------------------------------------

Coastal Zone Management Act 16 U.S.C. Secs. 15 CFR Part 930.

of 1972. 1451-1464.

Endangered Species Act of 16 U.S.C. Secs. 50 CFR Part 402.

1973. 1531-1544.

Fish and Wildlife 16 U.S.C. Secs. 661- 16 U.S.C. Sec. 662.

Coordination Act. 666c.

Executive Order 11988, 42 FR 26951 (1977), Floodplain

Floodplain Management. as amended by E.O. Management

12148, 44 FR 43239 Guidelines, U.S.

(1979); 16 U.S.C. Water Resources

Sec. 4321 note. Council, 43 FR 6030

(1978).

Marine Protection, Research, 16 U.S.C. Secs. ....................

and Sanctuaries Act of 1972. 1431-1445a, 33

U.S.C. Secs. 1401-

1445..

Safe Drinking Water Act..... 42 U.S.C. Secs. 42 U.S.C. Sec. 300h-

300F-300J-26. 3, 40 CFR Part 149.

Executive Order 11990, 42 FR 26961 (1977), ....................

Protection of Wetlands. as amended by E.O.

12608, 52 FR 34617

(1987), 42 U.S.C.

Sec. 4321 note.

Wild and Scenic Rivers Act.. 16 U.S.C. Secs. 36 CFR Part 297.

1271-1287.

------------------------------------------------------------------------

30-40-05 Integration With NEPA Review Process

OPDIVs/STAFFDIVs are responsible for reviewing all proposed actions

to determine whether they will affect places and species described in

this chapter. OPDIVs/STAFFDIVs are to evaluate the potential effects of

a proposed action in accordance with the procedures for National

Environmental Policy Act (NEPA) review in chapter 30-50. If an

environmental assessment (EA) or environmental impact statement (EIS)

is required to be prepared for the proposed action, the documentation

required by the applicable statute or Executive Order and the

administrating agency regulations are to be included in the EA or EIS.

In addition, the consultation procedures required by the environmental

statute or Executive Orders shall be followed.

30-40-10 Coastal Zone Management Act of 1972

A. Purpose. The Coastal Zone Management Act of 1972 (CZMA), 16

U.S.C 1451-1464, declares that it is the national policy ``to preserve,

protect, develop, and where possible, to restore or enhance, the

resources of the Nation's coastal zone...'' In furtherance of this

policy, the Act provides Federal assistance to State for developing and

implementing coastal zone management programs. Section 307(c)(1)(A) of

the CZMA (16 U.S.C. 1456(c)(1)(A)) provides that ``[e]ach Federal

agency activity within or outside the coastal zone that affects any

land or water use or natural resource of the coastal zone shall be

carried out in a manner which is consistent to the maximum extent

practicable with the enforceable policies of approved State management

programs.''

National Oceanic and Atmospheric Administration (NOAA) regulations

codified at 15 CFR Part 930, Subpart C--Consistency for Federal

Activities, implements section 307 of the CZMA. These ``consistency''

regulations are designed to assure that all Federally conducted or

supported activities, including development projects, directly

affecting the coastal zone are undertaken in a manner consistent to the

maximum extent practicable with approved State coastal management

programs.

B. Definitions

1. Federal activity. The term ``Federal activity'' means any

functions performed by or on behalf of a Federal agency in the exercise

of its statutory responsibilities. The term ``Federal activity'' does

not include the issuance of a Federal license or permit to an applicant

or person or the granting of Federal assistance to an applicant agency.

2. Federal development project. The term ``Federal development

project'' means a Federal activity involving the planning,

construction, modification, or removal of public works, facilities, or

other structures, and the acquisition, utilization, or disposal of land

or water resources.

3. Coastal Zone. The CZMA defines the term ``coastal zone'' as

``the coastal waters (including the lands therein and thereunder) and

the adjacent shorelands (including the waters therein and thereunder),

strongly influenced by each other and in proximity to the shorelines of

the several coastal states, and includes islands, transitional and

intertidal areas, salt marshes, wetlands, and beaches.'' Zone

boundaries are described in 16 U.S.C. 1453(1). The CZMA excludes from

the definition of coastal zone lands the use of which is by law subject

solely to the discretion of or which is held in trust by the Federal

Government, its officers, or agents (e.g., nonterminated California

Indian rancherias).

4. ``Consistent to the maximum extent practicable.'' The term

``consistent to the maximum extent practicable'' describes the

requirement for Federal activities, including development projects,

directly affecting the coastal zone of States with approved management

programs to be fully consistent with such programs unless compliance is

prohibited based upon the requirements of existing law applicable to

the Federal agency's operations.

C. Requirement. An OPDIV/STAFFDIV undertaking any development

project in the coastal zone of a State shall ensure that the project

is, to the maximum extent practicable, consistent with the enforceable

policies of approved State management programs.

OPDIVs/STAFFDIVs shall determine which of their activities directly

affect the coastal zone of States with approved management programs.

OPDIVs/STAFFDIVs shall consider all development projects within the

coastal

[[Page 1672]]

zone to be activities directly affecting the coastal zone. All other

types of activities within the coastal zone are subject to OPDIV/

STAFFDIV review to determine whether they directly affect the coastal

zone. Federal activities outside of the coastal zone are subject to

OPDIV/STAFFDIV review to determine whether they directly affect the

coastal zone.

D. Integration with NEPA. OPDIVs/STAFFDIVs are to evaluate the

potential effects of a proposed action affecting a coastal zone in

accordance with the procedures for National Environmental Policy Act

(NEPA) review in Chapter 30-50. If an environmental assessment (EA) or

environmental impact statement (EIS) is required to be prepared for the

proposed action, a consistency determination, described in 30-40-10E,

shall be included in the EA or EIS.

E. Consistency Determination. OPDIVs/STAFFDIVs shall provide State

agencies with consistency determinations for all Federal activities

directly affecting the coastal zone. OPDIVs/STAFFDIVs are encouraged to

consult with State agencies during their efforts to assess whether an

action will be consistent to the maximum extent practicable with a

State management program.

A consistency determination should be prepared following

development of sufficient information to determine reasonably the

consistency of the activity with the State's management program, but

before the OPDIV/STAFFDIV reaches a significant point of decision-

making in its review process. An OPDIV/STAFFDIV shall provide a

consistency determination to the relevant State agency designated under

section 306(d)(6) of the CZMA (16 U.S.C. 1455(d)(6)) at the earliest

practicable time in the planning or reassessment of the activity, but

in no case later than 90 days before final approval of the Federal

activity, unless both the OPDIV/STAFFDIV and the State agency agree to

a different schedule.

OPDIVs/STAFFDIVs must ensure that their activities are consistent

to the maximum extent practicable with the enforceable, mandatory

policies of the management program. However, OPDIVs/STAFFDIVs need only

give adequate consideration to management program provisions which are

in the nature of recommendations. Finally, OPDIVs/STAFFDIVs do not have

to evaluate coastal zone effects for which the management program does

not contain mandatory or recommended policies because, in the absence

of such provisions, there is no basis for making a consistency

determination with respect to such effects.

F. Negative Determination. If a OPDIV/STAFFDIV asserts that

compliance with the management program is prohibited, it must clearly

describe to the State agency the statutory provisions, legislative

history, or other legal authority which limits the OPDIV's/STAFFDIV's

discretion to comply with the provisions of the management program.

If a OPDIV/STAFFDIV decides that a consistency determination is not

required for a Federal activity (1) identified by a State agency on its

list or through case-by-case monitoring, (2) which is the same as or

similar to activities for which consistency determinations have been

prepared in the past, or (3) for which the OPDIV/STAFFDIV undertook a

thorough consistency assessment and developed initial findings on the

effects of the activity on the coastal zone, the OPDIV/STAFFDIV shall

provide the State agency with a notification, at the earliest

practicable time in the planning of the activity, briefly setting forth

the reasons for its negative determination. A negative determination

shall be provided to the State agency at least 90 days before final

approval of the activity, unless both the OPDIV/STAFFDIV and the State

agency agree to an alternative notification schedule.

G. Content of a consistency determination. The consistency

determination shall include a brief statement indicating whether or not

the proposed activity will be undertaken in a manner consistent to the

maximum extent practicable with the management program. The statement

must be based upon an evaluation of the relevant provisions of the

management program. The consistency determination shall also include a

detailed description of the activity, its associated facilities, and

their coastal zone effects, and comprehensive data and information

sufficient to support the consistency statement. The amount of detail

in the statement evaluation, activity description, and supporting

information shall be commensurate with the expected effects of the

activity on the coastal zone.

If HHS standards are more restrictive than standards or

requirements contained in the State's management program, the State

should be informed in the consistency determination of the statutory,

regulatory, or other basis for the application of the stricter

standards.

If an OPDIV/STAFFDIV asserts that compliance with the management

program is prohibited, it must clearly describe to the State agency the

statutory provisions, legislative history, or other legal authority

which limits the OPDIV's/STAFFDIV's discretion to comply with the

provisions of the management program.

H. State Review Period. A state agency is required to inform the

OPDIV/STAFFDIV of its agreement or disagreement with the consistency

determination at the earliest practicable time. OPDIVs/STAFFDIVs may

presume State agency agreement if the State agency fails to provide a

response within 45 days from receipt of the consistency determination.

State agency agreements shall not be presumed in cases where the State

agency, within the 45 day period, requests an extension of time to

review the matter.

OPDIVs/STAFFDIVs shall approve one request for an extension period

of 15 days or less. In considering whether a longer or additional

extension period is appropriate, consideration should be given by the

OPDIV/STAFFDIV to the magnitude and complexity of the information

contained in the consistency determination.

1. Final Action. An OPDIV/STAFFDIV shall not undertake final

action sooner than 90 days from the issuance of the consistency or

negative determination to the State agency unless both the OPDIV/

STAFFDIV and the State agency agree to an alternative period.

J. Mediation by Secretary of Commerce. In the event of a serious

disagreement between an OPDIV/STAFFDIV and a State agency regarding a

determination related to whether a proposed activity directly affects

the coastal zone, either party may seek the Secretarial mediation

services provided for in Subpart G of 15 CFR Part 930.

K. Licenses, permits. OPDIVs/STAFFDIVs shall follow the procedures

in 15 CFR part 930 when the action involves an applicant for a

Departmental license or permit.

L. Excluded Actions. The requirements in this section shall not

apply to those types of actions which are specifically excluded by the

approved CZM plan.

30-40-20 Endangered Species Act of 1973

A. Purpose. The Endangered Species Act of 1973, 16 U.S.C. 1531-

1544, directs Federal agencies, in consultation with either the

Secretary of the Interior or of Commerce, as appropriate, to carry out

conservation programs for endangered or threatened species of fish,

wildlife, or plants (``listed species'') and habitat of such species

that has been designated as critical (``critical habitat'').

[[Page 1673]]

Such affirmative conservation programs must comply with applicable

permit requirements for listed species and should be coordinated with

the appropriate Secretary.

Section 7(a)(2) of the Act (16 U.S.C. 1536(a)(2)) requires every

Federal agency, in consultation with the assistance of the appropriate

Secretary, to ensure that any action it authorizes, funds, or carries

out, is not likely to jeopardize the continued existence of any listed

species or result in the destruction or adverse modification of

critical habitat. The Act also requires Federal agencies to confer with

the Secretary of the Interior or of Commerce on any action that is

likely to jeopardize the continued existence of a proposed species or

result in the destruction or adverse modification of a proposed

critical habitat. The Act prohibits Federal agencies from making any

irreversible or irretrievable commitment of resources which has the

effect of foreclosing the formulation or implementation of reasonable

and prudent alternatives which would avoid jeopardizing the continued

existence of listed species or the destruction or adverse modification

of critical habitat. The U.S. Fish and Wildlife Service (FWS) and the

National Marine Fisheries Service (NMFS) share responsibilities for

administering the Act.

B. Governing Regulations and Organization Responsible for

Consultation. Interagency consultation procedures under the Endangered

Species Act are codified at 50 CFR part 402. The Lists of Endangered

and Threatened Wildlife and Plants are found in 50 CFR 17.11 and 17.12.

The designated critical habitats are found in 50 CFR 17.95 and 17.96

and 50 CFR part 226. Endangered or threatened species under the

jurisdiction of the NMFS are located in 50 CFR 222.23(a) and 227.4. If

the subject species is cited in 50 CFR 222.23(a) or 227.4, an OPDIV/

STAFFDIV shall contact the NMFS. For all other listed species, an

OPDIV/STAFFDIV shall contact the FWS.

C. Definitions. The regulations governing interagency cooperation

and consultation under the ESA in 50 CFR part 402 define many of the

terms and phrases that are used in the regulations and this section.

1. Biological Assessment. A biological assessment is a document,

prepared by or under the direction of a Federal agency, concerning

listed and proposed species and designated and proposed critical

habitat that may be present in the action area and the evaluation of

potential effects of the action on such species and habitat.

2. Biological Opinion. A biological opinion is the document that

states the Service's opinion as to whether or not a proposed Federal

agency action is likely to jeopardize the continued existence of listed

species or result in the destruction or adverse modification of

critical habitat. The Service may issue one of two types of opinions:

(a) Jeopardy Biological Opinion. An opinion by the Service that the

proposed Federal agency action is likely to jeopardize the continued

existence of a listed species or result in the destruction or adverse

modification of critical habitat is called a ``jeopardy biological

opinion''.

(b) No Jeopardy Biological Opinion. An opinion by the Service that

the proposed Federal agency action is not likely to jeopardize the

continued existence of a listed species or result in the destruction or

adverse modification of critical habitat is called a ``no jeopardy''

biological opinion.

3. Director. The term ``Director'' refers to, as appropriate, the:

(a) Assistant Administrator for Fisheries for the National Oceanic

and Atmospheric Administration or an authorized representative; or

(b) Fish and Wildlife Service Regional Director, or authorized

representative, for the region where the action would be carried out.

4. Listed Species. Listed species means any species of fish,

wildlife, or plant which has been determined to be endangered or

threatened under Section 4 of the Act. Listed species are found in 50

CFR 17.11-17.12.

5. Service. The term ``Service'' means the U.S. Fish and Wildlife

Service or the National Marine Fisheries Service, as appropriate.

D. Integration with NEPA. The consultation, conference, and

biological assessment procedures required by section 7 of ESA that are

summarized in this section may be consolidated with interagency

cooperation procedures required by other statutes, such as the National

Environmental Policy Act (NEPA) (Chapter 30-50) or the Fish and

Wildlife Coordination Act (FWCA) (Chapter 30-40). Satisfying the

requirements of these other statutes, however, does not in itself

relieve an OPDIV/STAFFDIV of its obligations to comply with the

procedures set forth in 50 CFR part 402 or the substantive requirements

of section 7 of ESA. Where the consultation or conference has been

consolidated with the interagency cooperation procedures required by

other statutes such as NEPA or FWCA, the results should be included in

the documents required by those statutes.

E. Conference Regarding Proposed Species or Critical Habitat. An

OPDIV/STAFFDIV shall confer with the Director of the Service on any

action which is likely to jeopardize the continued existence of any

proposed species or result in the destruction or adverse modification

of proposed critical habitat. The conference is an informal process

that is designed to assist in identifying and resolving potential

conflicts at an early stage in the planning process and can result in

advisory recommendations from the Service regarding ways to minimize or

avoid adverse effects from the proposed action. If the proposed species

is subsequently listed or the proposed critical habitat is designated

prior to completion of an HHS action, the responsible OPDIV/STAFFDIV

shall review the action to determine whether formal consultation is

required. An OPDIV/STAFFDIV may request that a conference be conducted

in accordance with the formal consultation procedures in 50 CFR 402.14.

The conclusions reached during a conference and any recommendations

will be documented by the Service and provided to the OPDIV/STAFFDIV.

The results of the conference shall be included in the HHS

organization's appropriate documentation if the proposed action is

being reviewed in accordance with NEPA procedures in Chapter 30-50.

F. Biological Assessment.

1. Purpose. An OPDIV/STAFFDIV shall use the biological assessment

in determining whether a conference is required with the Service. If

the biological assessment indicates that the action is not likely to

jeopardize the continued existence of proposed species or result in the

destruction or adverse modification of proposed critical habitat, and

the Director concurs, then a conference is not required. The Director

may use the results of the biological assessment in (1) determining

whether to request the OPDIV/STAFFDIV to initiate a conference, (2)

formulating a biological opinion, or (3) formulating a preliminary

biological opinion.

2. Requirement. A biological assessment shall be prepared for all

major construction activities. The biological assessment shall be

completed before any contract for construction is entered into and

before construction is begun.

3. Request for information. The OPDIV/STAFFDIV shall convey to the

Director either (1) a written request for a list of any listed or

proposed species or designated or proposed critical habitat that may be

present in the action

[[Page 1674]]

area; or (2) a written notification of the species and critical habitat

that are being included in the biological assessment. Within 30 days of

receipt of the notification of, or the request for, a species list, the

Director shall either concur with or revise the list. If the Director

advises that no listed species or critical habitat may be present, a

biological assessment and further consultation is not required. If only

proposed species or proposed critical habitat may be present in the

action area, the OPDIV/STAFFDIV must confer with the Service if

required under 50 CFR 402.10, but preparation of a biological

assessment is not required unless the proposed listing and/or

designation becomes final.

4. Contents. The contents of a biological assessment are at the

discretion of the submitter and will depend on the nature of the

Federal action. The following may be considered for inclusion:

(a) The results of an on-site inspection of the area affected by

the action to determine if listed or proposed species are present or

occur seasonally;

(b) The views of recognized experts on the species at issue;

(c) A review of the literature and other information;

(d) An analysis of the effects of the action on the species and

habitat, including consideration of cumulative effects, and the results

of any related studies;

(e) An analysis of alternate actions considered by the Federal

agency for the proposed action.

5. Submission of Biological Assessment. The OPDIV/STAFFDIV shall

submit the completed biological assessment to the Director for review

within 180 days after its initiation. The Director will respond in

writing within 30 days as to whether or not the Director concurs with

the findings of the biological assessment. An OPDIV/STAFFDIV, at its

option, may request that formal consultation be initiated concurrently

with the submission of the assessment.

G. Formal Consultation Process for Listed Species and Critical

Habitat.

1. Consultation Requirement. An OPDIV/STAFFDIV shall review its

actions at the earliest possible time to determine whether any action

may affect listed species or critical habitat. If such a determination

is made, formal consultation is required, except as noted in this

subsection. An OPDIV/STAFFDIV need not initiate formal consultation if,

as a result of the preparation of a biological assessment under 50 CFR

402.12 or as a result of information consultation with the Service

under 50 CFR 402.13, the OPDIV/STAFFDIV determines, with the written

concurrence of the Director of the Service, that the proposed action is

not likely to adversely affect any listed species or critical habitat.

Formal consultation shall not be initiated by an OPDIV/STAFFDIV until

any required biological assessment has been completed and submitted to

the Director in accordance with 50 CFR 402.12.

2. Contents of Request. A written request to initiate formal

consultation shall be submitted to the Director of the Service and

shall include:

(a) A description of the action to be considered;

(b) A description of the specific area that may be affected by the

action;

(c) A description of any listed species or critical habitat that

may be affected by the action;

(d) A description of the manner in which the action may affect any

listed species or critical habitat and an analysis of any cumulative

effects;

(e) Relevant reports, including any environmental impact statement,

environmental assessment, or biological assessment prepared; and

(f) Any other relevant available information on the action, the

affected listed species, or critical habitat.

An OPDIV/STAFFDIV that requests formal consultation shall provide

the Service with the best scientific and commercial data available or

which can be obtained during the consultation for an adequate review of

the effects that an action may have upon listed species or critical

habitat.

H. Irreversible or Irretrievable Commitment of Resources. After

initiation or reinitiation of consultation required under ESA, an

OPDIV/STAFFDIV shall make no irreversible or irretrievable commitment

of resources with respect to the proposed action which has the effect

of foreclosing the formulation or implementation of any reasonable and

prudent alternatives which would avoid violating ESA. This prohibition

remains in force during the consultation process and continues until

the requirements of section 7(a)(2) of ESA are satisfied.

Note: The prohibition in this subsection does not apply to the

conference requirement for proposed species or proposed critical

habitat under Section 7(a)(4) of the Act.

I. Duration and Extension of Formal Consultation. Formal

consultation concludes within 90 days after its initiation unless

extended in accordance with 50 CFR 402.14(e). If the Service does not

respond within 90 days, the Department may reach its own conclusion

with respect to whether the proposed action will jeopardize the

continued existence of a species or result in the destruction or

adverse modification of a critical habitat.

J. Issuance of Biological Opinion. The Service will provide a

biological opinion to the OPDIV/STAFFDIV at the end of the consultation

process as to whether the proposed action, taken together with

cumulative effects, would be likely to jeopardize the continued

existence of a listed species or result in the destruction or adverse

modification of a critical habitat. A ``jeopardy'' biological opinion

by the Service will include reasonable and prudent alternatives, if

any, to the proposed agency action that can be taken by the OPDIV/

STAFFDIV to avoid violation of ESA. If the Service is unable to develop

such alternatives, it will indicate that to the best of its knowledge,

there are no reasonable and prudent alternatives. The Service may also

formulate discretionary conservation recommendations, if any, which

will assist the OPDIV/STAFFDIV in reducing or eliminating the impacts

that its proposed action may have on listed species or critical

habitat.

The Service's ``no jeopardy'' or ``jeopardy'' biological opinion

shall be included in any documentation required under NEPA procedures

if the proposed action is being assessed in accordance with NEPA and

the procedures in Chapter 30-50.

K. Termination of Consultation Process. Formal consultation is

terminated with the issuance of the biological opinion or if, during

any stage of consultation, an OPDIV/STAFFDIV determines, with the

concurrence of the Director, that its proposed action is not likely to

adversely affect any listed species or critical habitat. If an OPDIV/

STAFFDIV determines that its proposed action is not likely to occur, it

may terminate the consultation process by written notice to the

Service.

L. Responsibilities After Issuance of Biological Opinion. Following

the issuance of a biological opinion, an OPDIV/STAFFDIV shall determine

whether and in what manner to proceed with the action in light of its

ESA Section 7 obligations and the Service's biological opinion.

If a jeopardy biological opinion is issued, the OPDIV/STAFFDIV

shall notify the Service of its final decision on the action. If the

OPDIV/STAFFDIV determines that it cannot comply with the requirements

of section 7(a)(2) of ESA after consultation with the Service, it may

apply for an exemption. Procedures for exemption applications by

Federal agencies and others are found in 50 CFR part 451. No action

[[Page 1675]]

shall occur unless or until the OPDIV/STAFFDIV has received approval

of the exemption.

M. Emergencies. The interagency cooperation regulation in 50 CFR

part 402 provides that where emergency circumstances mandate the need

to consult in an expedited manner, consultation may be conducted

informally through alternative procedures that the Director determines

to be consistent with the requirements of sections 7(a)-(d) of the Act.

This provision applies to situations involving acts of God, disasters,

casualties, national defense or security emergencies. An OPDIV/STAFFDIV

may request expedited consultation by submitting information on the

nature of the emergency action(s), the justification for the expedited

consultation, and the impacts to endangered or threatened species and

their habitats. Formal consultation is to be initiated as soon as

practicable after the emergency is under control.

N. Exemptions. ESA provides procedures for granting exemptions from

the requirements of section 7(a)(2). Regulations governing the

submission of exemption applications are found at 50 CFR part 451, and

regulations governing the exemption process are found at 50 CFR parts

450, 452, and 453.

O. Applicant Procedures. ESA and the implementing procedures in 50

CFR part 402 provide for participation in the conference and

consultation processes by any person (as defined in Section 3 (13) of

the Act) who requires formal approval or authorization from HHS as a

prerequisite to conducting the action.

30-40-30 Fish and Wildlife Coordination Act

A. Purpose. The Fish and Wildlife Coordination Act, 16 U.S.C. 661-

666c, provides for equal consideration of wildlife with other features

of water resource development programs with a view toward conservation

of wildlife resources. The Act requires Federal agencies involved in

actions that will result in the control or modification of any natural

stream or body of water, for any purpose, to take action to protect the

fish and wildlife resources which may be affected by the action and to

affirmatively provide development and improvement of the wildlife

resources in connection with the proposed action.

B. Responsibilities and Consultation Requirements.

1. An OPDIV/STAFFDIV shall consult, in accordance with 16 U.S.C.

662, with the United States Fish and Wildlife Service, Department of

the Interior, and with the head of the State agency exercising

administration over wildlife resources, before taking or approving an

action that would control or modify any natural stream or other body of

water for any purpose.

2. As part of the consultative process, OPDIVs/STAFFDIVs shall

submit to the United States Fish and Wildlife Service and the State

wildlife agency the appropriate environmental documentation, if needed

for the consultation, that describes the possible effects of the

proposed action on a natural stream or body of water.

3. An OPDIV/STAFFDIV shall determine, through the consultative

process, the means and measures necessary to conserve wildlife

resources by preventing loss of and damage to such resources, as well

as providing for the development and improvement of the wildlife

resources in connection with the proposed action.

4. OPDIVs/STAFFDIVs shall give full consideration to the report and

recommendations of the U.S. Fish and Wildlife Service and to any report

of the State agency on the wildlife aspects of a proposed action. Any

plans for the proposed action shall include such justifiable means and

measures for wildlife purposes as the OPDIV/STAFFDIV finds should be

adopted to obtain maximum overall project benefits. All reports and

recommendations of the U.S. Fish and Wildlife Service wildlife agencies

shall constitute an integral part of any environmental report prepared

pursuant to the action.

5. Reports and recommendations of the Secretary of Interior or

State wildlife agencies shall be incorporated into any environmental

documents that may be associated with the proposed action. 16 U.S.C.

662(b).

6. No further action shall take place pending receipt of a report

from the U.S. Fish and Wildlife Service and State wildlife agency.

30-40-40 Floodplains Management

A. Purpose. Executive Order 11988, Floodplain Management, 42 FR

26951 (1977), as amended by Executive Order 12148, 44 FR 43239 (1979),

42 U.S.C. 4321 note, directs each Federal agency to avoid the long and

short term adverse impacts associated with the occupancy and

modification of floodplains, including the direct and indirect support

of floodplain development, whenever there is a practicable alternative.

Floodplains are those areas identified as such according to a Federal

Emergency Management Agency (FEMA) floodplain map. Guidance for

implementation of Executive Order 11988 is provided in the U.S. Water

Resources Council Floodplain Management Guidelines, 43 FR 6030. See

also FEMA's ``Further Advice on Executive Order 11988 Floodplain

Management'' (GPO 1987).

B. Definitions

1. Base Flood. ``Base Flood'' means that flood which has a one

percent of greater chance of occurrence in any given year.

2. Floodplain. ``Floodplain'' means the lowland and relatively flat

areas adjoining inland and coastal waters, including flood-prone areas

of offshore islands, including at a minimum, that area subject to a one

percent or greater chance of flooding in any given year.

3. Critical Action. ``Critical Action'' means any activity for

which even a slight chance of flooding is too great, e.g. elderly

housing proposals.

C. Responsibilities. Each OPDIV/STAFFDIV has the responsibility

under Executive Order 11988 to take action to reduce the risk of flood

loss, to minimize the impact of floods on human safety, health, and

welfare, and to restore and preserve the natural and beneficial values

served by floodplains in carrying out its responsibilities for:

1. Acquiring, managing, and disposing of Federal lands and

facilities;

2. Providing Federally undertaken, financed, or assisted

construction and improvements; and

3. Conducting Federal activities and programs affected land use,

including but not limited to, water and related land resources

planning, regulating, and licensing activities.

Each OPDIV/STAFFDIV shall evaluate the potential effects of any

actions it may take in a floodplain in accordance with the procedures

in this section. It must also ensure that its planning programs and

budget requests reflect consideration of flood hazards and floodplain

management.

D. Floodplain Determination. Before taking an action, each OPDIV/

STAFFDIV shall determine whether the proposed action will occur in a

floodplain. OPDIVs/STAFFDIVs shall utilize the Flood Insurance Rate

Maps (FIRMs) or the Flood Hazard Boundary Maps (FHBMs) prepared by the

Federal Insurance Administration of FEMA to determine if a proposed

action is located in a base or critical action floodplain. When a

proposed action would be located in an area of predominantly Federal or

State land holdings, and FIRM or FHBM maps are not available, OPDIVs/

STAFFDIVs shall obtain information from the land administering agency

(e.g., Bureau of Land Management or Soil Conservation Service) or from

agencies with floodplain analysis expertise.

[[Page 1676]]

E. Integration with NEPA. OPDIVs/STAFFDIVs are to evaluate the

potential effects of a proposed action in a floodplain in accordance

with the procedures for National Environmental Policy Act (NEPA) review

in Chapter 30-50. If an environmental assessment (EA) or environmental

impact statement (EIS) is required to be prepared for the proposed

action, a floodplain assessment, described in 30-40-40D, shall be

included in the EA or EIS.

F. Floodplain Assessment (Executive Order 11988).

1. Proposed Action. The floodplain assessment shall describe the

nature and purpose of the proposed action and the reasons for locating

the action in the floodplain.

2. Floodplain Map. A map of the affected floodplain indicating the

location of the proposed action shall be included in the assessment.

3. High Hazard Areas. High hazard areas in the floodplain shall be

delineated and the nature and extent of the proposed hazard shall be

discussed.

4. Floodplain Effects. The effects of the proposed action on the

floodplain shall be discussed in the assessment. The discussion shall

include an evaluation of the long- and short-term effects of the

proposed action on people, property, natural and beneficial floodplain

values, and any other relevant direct or indirect effects.

5. Alternatives and Mitigation Measures. The floodplain assessment

shall discuss alternatives to the proposed action that may avoid

adverse effects and incompatible development in the floodplain,

including the alternatives of no action or location at an alternate

site. The assessment shall also discuss measures that mitigate the

adverse effects of the proposed action.

6. Conformity to Applicable State or Local Standards. The

floodplain assessment shall include a statement indicating whether the

proposed action conforms to applicable State or local floodplain

protection standards.

7. Flood Insurance Program Standards. An action taken in a

floodplain must incorporate design features consistent with the

standards in the Flood Insurance Program of the Federal Insurance

Administration to minimize substantial harm to the floodplain.

G. Public Review. Circulation of draft environmental impact

statements shall include the public and other interested individuals,

including concerned Federal, non-Federal and private organizations.

Interested parties shall have a period of 60 days for review and

comment on draft environmental impact statements.

H. Secretarial Approval. No action shall take place without a

finding by the HHS Secretary that the only practicable alternative

consistent with the law and with the policy set forth in Executive

Order 11988 requires siting in a floodplain. The action proposed for

Secretarial approval shall be designed to minimize potential harm to or

within the floodplain. The Secretary shall approve proposed actions

requiring environmental impact statements on projects affecting

floodplains.

I. Notice of Finding.

1. Contents. After Secretarial approval and prior to taking action,

an OPDIV/STAFFDIV shall prepare and circulate a notice of finding

containing an explanation of why the action is proposed to be located

in a floodplain. The notice shall not exceed three pages and shall

include a location map. The notice shall include (a) the reasons why

the action is proposed to be located in a floodplain; (b) a statement

indicating whether the action conforms to applicable State or local

floodplain protection standards; and (c) a list of the alternatives

considered.

2. Public Review. For programs subject to Executive Order 12372,

the notice of finding shall be sent to the appropriate state and local

reviewing agencies the geographic areas affected. A public review

period of 30 days after the issuance of notice of finding shall be

allotted before any action is taken.

J. Licenses, permits, loans, or grants. Each OPDIV/STAFFDIV shall

take floodplain management into account when formulating or evaluating

any water and land use plans and shall require land and water resources

use appropriate to the degree of hazard involved. Adequate provision

shall be made for the evaluation and consideration of flood hazards in

the regulations and operating procedures for the licenses, permits,

loan, or grant-in-aid programs that an OPDIV/STAFFDIV administers.

OPDIVs/STAFFDIVs shall also encourage and provide appropriate guidance

to applicants to evaluate the effects of their proposal in floodplains

prior to submitting applications for Federal licenses, permits, loans,

or grants.

K. Authorization or Appropriation Requests. OPDIVs/STAFFDIVs shall

indicate in any requests for new authorizations or appropriations

whether the proposed action is in accord with Executive Order 11988 if

the proposed action will be located in a floodplain.

30-40-50 Marine Protection, Research, and Sanctuaries Act of 1972

A. Purpose. Title III of the Marine Protection, Research and

Sanctuaries Act prohibits Federal Departments from taking actions which

will affect a Marine Sanctuary unless the Secretary of Commerce

certifies that the activity is consistent with the purposes of the Act.

Listings of sanctuaries are designated by the Secretary of Commerce and

maps of sanctuaries appear in the Federal Register.

B. Responsibilities and Consultation Requirements.

1. If the proposed action will create an environmental effect on a

marine sanctuary, OPDIVs/STAFFDIVs shall prepare an appropriate

environmental document and forward it to the Secretary of Commerce.

2. No further action shall take place unless and until the

Secretary certifies that the action is consistent with the purposes of

the Act.

30-40-60 Safe Drinking Water Act (Sole Source Aquifers)

A. Requirement. Section 1424(e) of the Safe Drinking Water Act (42

U.S.C. 300h-3(e)), provides for the protection of those aquifers which

have been designated by the Administrator of the EPA as the sole or

principal source of drinking water for an area. No commitment for

Federal financial assistance (through a grant, contract, loan

guarantee, or otherwise) may be entered into for any project which the

Administrator determines may contaminate such aquifer through a

recharge zone so as to create a significant hazard to public health. A

commitment for Federal financial assistance may, if authorized under

another provision of law, be entered into to plan or design the project

to assure that it will not so contaminate the aquifer.

B. Responsibilities and Consultation Requirements.

1. OPDIVs/STAFFDIVs shall determine if a proposed action will

directly or indirectly affect a sole or principal source aquifer

designated by the Administrator of EPA in accordance with section

1424(e) of the Safe Drinking Water Act (42 U.S.C. 300h-3(e)).

2. If the action will affect a designated aquifer, OPDIVs/STAFFDIVs

shall send the appropriate environmental document to the EPA Regional

Administrator for a determination as to whether the proposed action may

potentially contaminate the aquifer through its recharge zone so as to

create a significant hazard to public health.

[[Page 1677]]

3. The action shall not proceed unless and until the Administrator

of the Environmental Protection Agency determines that the proposed

action will not contaminate the designated aquifer so as to create a

significant hazard to public health.

30-40-70 Wetlands Protection

A. Purpose. Executive Order 11990, Protection of Wetlands, 42 FR

26961 (1977), as amended by Executive Order 12608, 52 F 34617 (1987),

42 U.S.C. 4321 note, directs each Federal agency to minimize the

destruction, loss, or degradation of wetlands and to preserve and

enhance such wetlands in carrying out their program responsibilities.

Consideration must include a variety of factors, such as water supply,

erosion and flood prevention, maintenance of natural systems, and

potential scientific benefits.

B. Definitions

Wetlands. The term ``wetlands'' means those areas that are

inundated or saturated by surface or ground water at a frequency and

duration sufficient to support, and that under normal circumstances do

support, a prevalence of vegetation or aquatic life that requires

saturated or seasonally saturated soil conditions for growth and

reproduction. Wetlands generally include swamps, marshes, bogs, and

similar areas.

C. Wetlands Determination. OPDIVs/STAFFDIVs shall utilize

information available from the following sources when appropriate to

determine the applicability of the wetlands protection requirements of

this section:

1. U.S. Department of Agriculture Soil Conservation Service Local

Identification Maps;

2. U.S. Fish and Wildlife Service National Wetlands Inventory;

3. U.S. Geological Survey Topographic Maps;

4. State wetlands inventories; and

5. Regional or local government-sponsored wetland or land use

inventories.

D. Responsibilities. OPDIVs/STAFFDIVs are to evaluate the potential

effects of a proposed action in wetlands in accordance with the

procedures for National Environmental Policy Act (NEPA) review in

Chapter 30-50. If an environmental assessment (EA) or environmental

impact statement (EIS) is required to be prepared for the proposed

action, a wetlands assessment, described in 30-40-70E, shall be

included in the EA or EIS.

E. Wetlands Assessment (Executive Order 11990)

1. Proposed Action. The wetlands assessment shall describe the

nature and purpose of the proposed action and the reasons for locating

the action in the wetlands.

2. Wetlands Map. A map of the affected wetlands indicating the

location of the proposed action shall be included in the assessment.

3. Wetlands Effects. The effects of the proposed action on the

wetlands shall be discussed in the assessment. The discussion shall

include an evaluation of the long- and short-term effects of the

proposed action on the survival, quality, and natural and beneficial

values of the wetlands, and any other relevant direct or indirect

effects.

4. Alternatives and Mitigation Measures. The wetlands assessment

shall discuss alternatives to the proposed action that may avoid

adverse effects and incompatible development in the wetlands, including

the alternatives of no action or location at an alternate site. The

assessment shall also discuss measures that mitigate the adverse

effects of the proposed action. No further action shall take place

until the OPDIV/STAFFDIV makes a decision that the proposed action

includes all reasonable measures to minimize harm to the wetlands as a

result of the proposed action.

5. Conformity to Applicable State or Local Standards. The wetlands

assessment shall include a statement indicating whether the proposed

action conforms to applicable State or local wetlands protection

standards.

F. Public Review. Circulation of draft environmental impact

statements shall include the public and other interested individuals,

including concerned Federal, non-Federal and private organizations.

Interested parties shall have a period of 60 days for review and

comment on daft environmental impact statements.

G. Secretarial Review. No further action shall take place until the

Secretary of HHS determines that there is no practicable alternative to

construction in wetlands and that the proposed action includes all

practicable measures to minimize harm to the wetlands. The Secretary

shall approve proposed actions requiring environmental impact

statements for new construction in wetlands.

H. Licenses and Permits. These requirements do not apply to the

issuance to individuals of permits and licenses and the allocation of

funds made to individuals.

30-40-80 Wild and Scenic Rivers Act

A. Purpose. The purpose of the Act is to preserve selected free-

flowing rivers, along with their immediate environments, for the

benefit of immediate and future generations. These include river

components and potential components of the National Wild and Scenic

River System and study areas designated by the Secretaries of

Agriculture and Interior. (Environmental officers keep a list of these

rivers and related

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Revision of HHS National Environmental Policy Act Compliance Procedures and Procedures for Environmental Protection · 64 FR 1656 | Frix