[Federal Register Volume 62, Number 229 (Friday, November 28, 1997)]
[Notices]
[Pages 63334-63336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31251]


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ENVIRONMENTAL PROTECTION AGENCY

[ER-FRL-5486-6]


Notice of Proposed Changes to Voluntary Environmental Impact 
Statement Policy

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of changes to existing policy and opportunity for public 
comment.

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SUMMARY: EPA is proposing changes in its Statement of Policy for 
Voluntary Environmental Impact Statements (EIS), which it adopted and 
published in the Federal Register (Vol. 39, No. 89/Tuesday, May 7, 
1974/Notices/16186-16187). The proposed changes would update the EPA 
policy to reflect how Congress and the Courts have defined EPA's 
National Environmental Policy Act (NEPA) obligations and to ensure that 
EPA's voluntary practices regarding NEPA compliance are consistent with 
practices provided in the NEPA regulations issued by the Council on 
Environmental Quality (CEQ). The proposed changes will also encourage 
expansion of the increased discretionary use of voluntary EISs in 
circumstances where they can be particularly helpful for decision-
making involving other federal agencies, cross-media issues, or other 
concerns such as environmental justice. The proposed changes will 
affect certain EPA standard-setting and cancellation procedures. EPA is 
soliciting comments on these proposed changes.

DATES: Submit written comments on or before January 27, 1998. After 
addressing any comments received, EPA will issue a final policy in the 
Federal Register.

FOR FURTHER INFORMATION AND TO SUBMIT WRITTEN COMMENTS CONTACT: 
Marguerite Duffy at (202) 564-7148; E-mail: 
[email protected]; or Joseph Montgomery at (202) 564-
7157; E-mail: [email protected]; U.S. Environmental 
Protection Agency, Office of Federal Activities (2252-A), 401 M Street, 
SW, Washington, D.C. 20460.

SUPPLEMENTARY INFORMATION:

I. Background

    Unless otherwise exempted, Section 102(2)(C) of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) (hereafter 
``NEPA''), implemented by Executive Orders 11514 and 11991 and the 
Council on Environmental Quality (CEQ) Regulations at 40 CFR parts 
1500-1508, requires that Federal agencies prepare detailed 
environmental statements on proposals for legislation and other major 
Federal actions significantly affecting the quality of the human 
environment. The objective of NEPA is to build into the Federal agency 
decision-making process an appropriate and careful consideration of all 
environmental impacts of proposed actions. Accordingly, under CEQ 
regulations, where major Federal actions will have a significant effect 
on the quality of the human environment, a detailed environmental 
impact statement (EIS) is required; where it is believed that an action 
will have no significant impact, or where the level of impact is 
uncertain, agencies can prepare less detailed environmental assessments 
(EAs) to determine the level of impact and/or document a finding of no 
significant impact.
    EPA is legally required to comply with the procedural requirements 
of NEPA for its research and development activities, facilities 
construction, wastewater treatment construction grants under Title II 
of the Clean Water Act, and EPA-issued National Pollutant Discharge 
Elimination System (NPDES) permits for new sources. The Agency is 
exempted by statute for actions taken under the Clean Air Act and for 
most Clean Water Act programs. EPA is also exempted from the procedural 
requirements of environmental laws, including NEPA, for Comprehensive 
Environmental Response, Compensation, and Liability Act response 
actions. For other programs, courts have consistently recognized that 
EPA procedures or environmental reviews under enabling legislation are 
functionally equivalent to the NEPA process and thus exempt from the 
procedural requirements in NEPA. However, as discussed below, it has 
been long-standing Agency policy to prepare EISs voluntarily for some 
actions.
    EPA has long recognized the value of sound environmental analysis, 
the importance of public participation, and the desirability of 
integration of other environmental requirements across the range of its 
activities. EPA issued a ``Statement of Policy'' (Policy) in the 
Federal Register (Vol. 39, No. 89/Tuesday, May 7, 1974/Notices/16186-
16187) expressing the belief that preparation of environmental impact 
statements would have beneficial effects for certain of its regulatory 
actions. EPA decided that, while it was not legally bound to do so by 
Section 102(2)(C) of NEPA, it would voluntarily prepare environmental 
impact statements for specific regulatory actions relating to the Clean 
Air Act (42 U.S.C. 1857 et seq.); Noise Control Act (42 U.S.C. 4901 et 
seq.); Atomic Energy Act (42 U.S.C. 2011 et seq.); the Marine 
Protection, Research, and Sanctuaries Act (33 U.S.C. 1401 et seq.); 
and, Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 
U.S.C. 135 et seq., as amended by 7 U.S.C. 136 et seq.).
    EPA believes that several aspects of the 1974 Voluntary EIS Policy 
have become outdated since its publication. EPA issued this Policy four 
years prior to CEQ promulgation of regulations implementing NEPA. CEQ's 
regulations state that while an EIS is required to document significant 
impacts, an EA will be adequate documentation to determine if an action 
will have no significant impact. EPA has gained extensive experience 
concerning what types of analysis will be useful to enhance 
environmental decision-making under particular circumstances. In 
addition, Congress, through statutory exemptions from NEPA 
requirements, and the Courts, through finding that EPA statutes provide 
an analysis functionally equivalent to what would be done under NEPA, 
have explicitly defined the legal role of NEPA analysis in EPA 
decision-making.
    In October 1993, an EPA Workgroup on NEPA issued a report entitled 
``The National Environmental Policy Act and Environmental Protection 
Agency Programs.'' This Report recommended that EPA revise its 
``voluntary EIS'' Policy to: (1) Make it a ``voluntary NEPA'' policy 
under which EPA would

[[Page 63335]]

prepare analyses that would be appropriate under CEQ regulations. This 
revision would allow the Agency, as it could if it were governed by 
NEPA, to prepare ``environmental assessments'' and subsequent findings 
of no significant impact where warranted. Accordingly, as under NEPA, 
only major Federal actions with potential for having a significant 
effect on the quality of the human environment would require the more 
extensive environmental impact statements. This revision would enable 
the Agency to focus its efforts and limited resources on 
environmentally significant actions and also would be in keeping with 
the Administration's policy to streamline government by eliminating 
unnecessary paperwork and analysis and to focus its efforts on 
significant environmental problems. (2) The Report also recommended 
expanding the Policy's scope by encouraging EPA program managers to use 
voluntary EISs to address, among other things, issues involving multi-
media impacts, indirect effects, environmental justice, large-scale 
ecological impacts, or where there is significant public controversy. 
EPA Administrator Browner has explained that the policy changes would 
``make EPA's existing voluntary EIS policy more flexible and encourage 
the expanded use by EPA managers of voluntary EISs as a means of 
involving the public, states, tribes, localities, and other Federal 
agencies in EPA decision-making provided that such voluntary EISs are 
not duplicative of existing procedures and do not significantly delay 
actions.'' Such changes would enhance appropriate use of voluntary EISs 
and also would be in keeping with the Administration's policy to 
streamline government by providing managers with one process for 
dealing with multiple issues and programs.

II. Proposed Changes to Existing Policy

    Agency officials will be encouraged to consider, where appropriate 
and on a case-by-case basis, the use of voluntary EISs or EAs where 
they can provide additional benefits for public participation, 
environmental analysis, or cooperation with other Federal, state or 
local agencies, or tribal governments. For example, there are several 
areas where NEPA documents may be appropriate in individual cases: (1) 
Actions involving cumulative cross-media or ecosystem impacts; (2) 
actions involving environmental justice issues; (3) actions which also 
involve other Federal agencies which are addressing issues under the 
NEPA process; (4) actions involving special resources, such as 
endangered species or historic, archaeological, or cultural resources; 
and (5) public health risk.
    The policy will be changed to modify voluntary EIS requirements for 
regulatory actions under the programs identified in the 1974 policy 
statement: standard setting under the Clean Air Act, the Noise Control 
Act, and the Atomic Energy Act; criteria and site designations under 
the Marine Protection, Research and Sanctuaries Act; and pesticide 
disposal regulations and pesticide cancellations under FIFRA. For these 
actions EPA will continue to fulfill its commitment to meeting the 
fundamental elements of NEPA through the Agency's Regulatory 
Development Process for rule-making, and through negotiated settlements 
with pesticide producers under FIFRA. This change will not preclude the 
voluntary preparation of an EIS in an individual case should it be 
determined that it would be beneficial.

III. Basis for Proposed Change

    This proposed change is based on the following: (1) The need to 
update the Policy to parallel established procedures for implementation 
of NEPA which allow for the preparation of an EA (and a Finding of No 
Significant Impact) rather than requiring an EIS in all cases; (2) the 
need to streamline EPA operations in order to ensure that Agency 
resources are effectively used; (3) the need to foster increased 
utilization of NEPA processes for decision-making and promote use of 
the EA as a decision-making document for those actions that have less 
than significant impacts but which can benefit from an environmental 
analysis that leads to environmentally protective modifications of the 
proposed action; and (4) recognize that procedures for environmental 
impact analysis and public participation provided by the EPA regulatory 
development process have significantly changed since 1974.
    Under the proposed new Policy, instead of preparing EISs for the 
regulatory actions listed in the 1974 Policy, EPA will routinely meet 
the fundamental elements of NEPA for rule-making actions through the 
Agency's Regulatory Development Process. This process, which has become 
considerably more developed over the last twenty years, includes the 
fundamental steps which would be carried out in a NEPA analysis: 
identification of environmental impacts; consideration of alternatives; 
compliance with other environmental statutes; and process for public 
participation, including public review and comment on draft 
regulations. The Agency also considers environmental justice impacts 
and impacts on endangered species, and cultural, archaeological, and 
historical resources in its regulation process. EPA's rule-makings 
involve detailed examination of environmental effects and are oriented 
towards achieving environmental protection in furtherance of EPA's 
unique mission of implementing statutes that are environmentally 
protective. The analysis and public participation provided in EPA's 
regulatory development process would make separate NEPA documents, 
i.e., preparation of EISs, redundant.
    EPA rules, policy, and guidance are developed by the EPA program 
office which has lead responsibility for the relevant statute. Where 
appropriate, the lead program office also includes other interested 
program and staff offices. In addition to following the substantive and 
procedural regulatory requirements set out in the relevant statute, the 
lead program office must follow requirements in Executive Orders and 
legislation which prescribe the regulatory development process and must 
analyze a number of factors, including those which would be considered 
in an EIS analysis. These include: (1) Different regulatory 
alternatives, including use of market-based incentives, as well as 
different levels of environmental protection and technical feasibility; 
(2) cross-media impacts; (3) coordination with state/local standards; 
(4) applicable Federal laws or executive orders (such as the Endangered 
Species Act and Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations''); (5) implementation and enforcement of the rule; and (6) 
economic impacts and impacts on state, local, and tribal governments.
    As with the preparation of an EIS document, public participation is 
also a key part of the EPA regulatory development process. The 
Administrative Procedure Act and a number of environmental statutes 
require EPA to provide the members of the public with an opportunity to 
participate in the development of regulations affecting them. The 
Agency must provide an opportunity for public comment and must consider 
the views expressed, providing a summary of significant comments and 
what the Agency has done to address them. This includes publication of 
the proposed rule in the Federal Register and offering the public the 
opportunity to submit written comment, before Federal Register 
publication of the final rule, policy, or guidance. The lead program 
office involved in developing a

[[Page 63336]]

regulation, policy, or guidance must select the forms of participation 
best suited to the issues and audiences interested in that particular 
regulation. These can include: written comments submitted in response 
to notice of proposed rulemaking, policy, or guidance or an advance 
notice of proposed rulemaking; comment from established Federal 
Advisory Committee Act (FACA) groups that advise the Agency on policy 
issues; public briefing sessions or meetings held to elicit views on 
specific rules; and regulatory negotiation groups. Federal Executive 
Orders 12866 (Regulatory Planning and Review) and 12875 (Enhancing 
Intergovernmental Partnerships) as well as EPA policy require timely 
and meaningful intergovernmental consultation with affected states, 
localities and tribes. Planning for intergovernmental consultation 
should consider what governmental entities will be affected, how they 
may be affected, and what issues are likely to concern them. The lead 
program office is required to develop consultation plans to set out 
processes for public participation and intergovernmental consultation 
that will be followed for a rule-making.
    An additional level of review for significant regulations is 
carried out by the Office of Management and Budget (OMB) under 
Executive Order 12866 to ensure that guidance, regulations, and 
policies are consistent with applicable law and the President's 
priorities. This process assures that, in deciding whether and how to 
regulate, agencies have assessed the costs and benefits of the various 
approaches to regulation when appropriate, including the alternative of 
not regulating (this corresponds to the ``no action'' alternative which 
would be considered in a NEPA document). As appropriate, this process 
also includes review of the regulation, policy or guidance by other 
Federal agencies to assure consistency with their policies and any 
planned actions and includes a process for resolution of Federal 
interagency disputes.

Public Comments

    EPA seeks comment on these proposed changes to the existing Policy. 
To ensure full consideration, comments must be submitted within 60 days 
of publication of this Notice to the Contacts listed above.

    Date: November 21, 1997.
Richard E. Sanderson,
Director, Office of Federal Activities.
[FR Doc. 97-31251 Filed 11-26-97; 8:45 am]
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