[Federal Register Volume 65, Number 38 (Friday, February 25, 2000)]
[Notices]
[Pages 10230-10284]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3631]



[[Page 10229]]

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Part III





Department of Health and Human Services





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

  Federal Register / Vol. 65, No. 38 / Friday, February 25, 2000 / 
Notices  

[[Page 10230]]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES


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

AGENCY: Department of Health and Human Services, Office of the 
Secretary.

ACTION: Final Notice of Revision of HHS NEPA Procedures.

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EFFECTIVE DATE: February 25, 2000.
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 been revised and 
updated. The revised procedures were published in the January 11, 1999, 
Federal Register for comment. Changes recommended by EPA and the 
Council on Environmental Quality have been included in the final 
document.

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-main Address: 
[email protected].

    Dated: January 31, 2000.
John J. Callahan,
Assistant Secretary for Management and Budget.

Revised General Administration Manual, HHS Part 30, Environmental 
Protection

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  Emergency 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

Subject: Environmental Protection

30-00-00  Purpose
30-00-10  Chapter Organization and Content
30-00-20  Environmental Statutes and Executive Orders
30-00-30  Definitions

30-00-00 Purpose

    This Part 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 
reference environmental compliance requirements. The Department 
recognizes that any of the authorities described herein may be revised 
after the issuance of this Part. The current specific environmental 
statute, regulation or Executive Order should be reviewed when 
questions or conflicts arise. To the extent that any statement in this 
Part should contradict or 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 Part. Additional questions should be referred to 
the OPDIV environmental officer, the Departmental environmental program 
manger, 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.
    Consistent with the 1994 Presidential Memorandum on Government-to-
Government Relations with Native American Tribal Governments, and 
Executive Order 13084 on Consultation and Coordination with Indian 
Tribal Governments, consultation and cooperation with Tribal 
Governemtns must be done where appropriate. Additionally, in certain 
programs. ``Eligible Tribes'' can be treated in the same manner as 
States. Some of these programs include certain Clean Air Act programs, 
Emergency Planning and Community Right-To-Know Act, Safe Drinking Water 
Act, Clean Water Act, Toxic Substances Control Act, and certain roles 
and responsibilities under the Comprehensive Environmental Response, 
Compensation and Liability Act.
    This part supersedes HHS 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.
     Chapters 30-10 and 30-20 provide overall Departmental 
policy with respect to environmental protection and a summary of 
internal administrative procedures with 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 Order

    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, 
indicates the location of statutes or Executive Orders that are 
discussed in Part 30.

[[Page 10231]]



                                     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........
Antarctic Protection Act of 1990.......  16 U.S.C. Secs.  2461 to
                                          2466.
Antiquities Act of 1906................  16 U.S.C. Secs.  431 to 433.  30-00-20K
Archeological and Historic Preservation  16 U.S.C. Secs.  469 to 469c- 30-00-20K
 Act of 1974.                             1.
Archeological Resources Protection Act   16 U.S.C. Secs.  470aa to
 of 1979.                                 470mm.
Asbestos Hazard Emergency Response Act   15 U.S.C. Secs.  2641 to
 of 1986.                                 2656.
Atomic Energy Act of 1954..............  42 U.S.C. Secs.  2011 to
                                          2297g-4.
Aviation Safety and Noise Abatement Act  49 U.S.C. app. Secs.  2101
 of 1979.                                 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,          33 U.S.C. Secs.  1251 to      30-00-20B
 Pollution Control Act].                  1387.
Coastal Barrier Resources Act..........  16 U.S.C. Secs.  3501 to
                                          3510.
Coastal Wetlands Planning, Protection,   16 U.S.C. Secs.  3951 to
 and 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         42 U.S.C. Sec.  9620 note...
 Facilitation Act.
Comprehensive Environmental Response,    42 U.S.C. Secs.  9601 to      30-00-20D
 Compensation, and Liability Act of       9675.
 1980 [``Superfund''].
Emergency Planning and Community Right-  42 U.S.C. Secs.  11001 to     300-20E; Ch. 30-60
 to-Know Act of 1986.                     11050.
Emergency Wetlands Resources Act of      16 U.S.C. Secs.  3901 to
 1986.                                    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          15 U.S.C. Secs.  791 to 798.  .........................................
 Coordination Act of 1974.
Environmental Programs Assistance Act    42 U.S.C. Sec.  4368a.......  .........................................
 of 1984.
Environmental Quality Improvement Act    42 U.S.C. Secs.  4371 to      .........................................
 of 1970.                                 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 136y.  30-00-20H
 Rodenticide Act.
Federal Land Policy and Management Act   43 U.S.C. Secs.  1701 to      .........................................
 of 1976.                                 1784.
Federal Oil and Gas Royalty Management   30 U.S.C. Secs.  1701 to      .........................................
 Act of 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 666c  30-00-201; Ch. 30-40
Flood Disaster Protection Act of 1973..  42 U.S.C. Secs.  2414 to      .........................................
                                          4001 to 4129.
Forest and Rangeland Renewable           16 U.S.C. Secs.  1600 to      .........................................
 Resources Planning Act of 1974.          1614.
Forest and Rangeland Renewable           16 U.S.C. Secs.  1641 to      .........................................
 Resources Research Act of 1978.          1649.
Forest Ecosystems and Atmospheric        16 U.S.C. Secs.  1642, 1642   .........................................
 Pollution Research Act of 1988.          note.
Geothermal Energy Research, Development  30 U.S.C. Secs.  1101 to      .........................................
 and 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     26 U.S.C. Secs.  4611-4612,
 Act of 1980.                             4661-4662.
Historic Sites Act of 1935 [Historic     16 U.S.C. Secs.  461 to 267.  30-00-20J
 Sites, Buildings, and Antiquities Act].
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    42 U.S.C. Secs.  4821 to
 Act.                                     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         16 U.S.C. Secs.  1431 to      30-00-20K; Ch. 30-40
 Sanctuaries 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      16 U.S.C. Secs.  528 to 531.
 1960.
National Climate Program Act...........  15 U.S.C. Secs.  2901 to
                                          2908.
National Contaminated Sediment           33 U.S.C. Sec.  1271 note...
 Assessment and Management Act.
National Environmental Policy Act of     42 U.S.C. Sec.  Sec.  4321    30-00-20L; Ch. 30-50
 1969.                                    to 4370d.
National Forest Management Act of 1976.  16 U.S.C. Sec.  Sec.  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 470X- 30-00-20J
                                          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.

[[Page 10232]]

 
Nonindigenous Aquatic Nuisance           16 U.S.C. Sec.  Sec.  4701
 Prevention and Control Act of 1990.      to 4751.
Nuclear Waste Policy Act of 1982.......  42 U.S.C. Secs.  10101 to
                                          10270.
Occupational Safety and Health Act of    29 U.S.C. Secs.  651 to 678.  30-00-20M
 1970.
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  33 U.S.C. Secs.  2401 to
 of 1988.                                 2410.
Outer Continental Shelf Lands Act......  43 U.S.C. Secs.  1331 to
                                          1356.
Outer Continental Shelf Lands Act        43U.S.C. Secs.  1344 to
 Amendments 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...
Power Plant and Industrial Fuel Use Act  42 U.S.C. Secs.  8301 to
 of 1978.                                 8483.
Refuse Act of 1899.....................  33 U.S.C. Sec.  407.........
Renewable Resources Extension Act of     16 U.S.C. Secs.  1671 to
 1978.                                    1676.
Residential Lead-Based Paint Hazard      42 U.S.C. Secs.  4851 to
 Reduction Act of 1992.                   4856.
Resource Conservation and Recovery Act   42 U.S.C. Secs.  6901 to      30-00-20O
 of 1976 [Solid Waste Disposal Act].      6991i.
Rivers and Harbors Appropriation Acts    33 U.S.C. Secs.  401 to 426p
 (Selected sections).                     and 441 to 454.
Safe Drinking Water Act................  42 U.S.C. Secs.  300f and     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    16 U.S.C. Secs.  2001 to
 Act of 1977.                             2009.
Surface Mining Control and Reclamation   30 U.S.C. Secs.  1201 to
 Act of 1977.                             1328.
Toxic Substances Control Act...........  15 U.S.C. Secs.  2601 to      30-00-20Q
                                          2692.
United States Public Vessel Medical      33 U.S.C. Secs.  2501 to
 Waste Antidumping Act of 1988.           2504.
Uranium Mill Tailings Radiation Control  42 U.S.C. Secs.  7901 to
 Act 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.....  15 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     61 FR 26771 (1996)..........
 Sites.
Executive Order 12902, Energy            59 FR 11463 (1994)..........
 Efficiency and Water Conservation at
 Federal Facilities.
Executive Order 12898, Federal Actions   59 FR 7629 (1994)...........  30-00-20S
 to Address Environmental Justice in
 Minority Populations and Low-Income
 Populations.
Executive Order 13101, Greeting the      58 FR 54911 (1993)..........  30-00-20N; Ch. 30-90
 Government Through Waste Prevention,
 Recycling, and Federal Acquisition.
Executive Order 12866, Regulatory        58 FR 51735 (1993)..........
 Planning and Review.
Executive Order 12856, Federal           58 FR 41981 (1993)..........  30-00-20E; Ch. 30-80
 Compliance With Right-to-Know Laws and
 Pollution Prevention Requirements.
Executive Order 12852, President's       58 FR 35841 (1993), as
 Council on Sustainable Development.      amended by E.O. 12855, 58
                                          FR 39107 (1993); 42 U.S.C.
                                          Sec.  4321 note.
Executive Order 12845, Requiring         58 FR 21887 (1993)..........
 Agencies to 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     56 FR 55195 (1991); 28        .........................................
 Reform.                                  U.S.C. Sec.  519 note.
Executive Order 12777, Implementation    56 FR 54757 (1991); 33        .........................................
 of Section 311 of the Federal Water      U.S.C. Sec.  1321 note.
 Pollution 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 Environmental and            U.S.C. Sec.  4321 note.
 Conservation Challenge Awards.
Executive Order 12759, Federal Energy    56 FR 16256 (1991); 42        .........................................
 Management.                              U.S.C. Sec.  6201 note.
Executive Order 12630, Governmental      53 FR 8859 (1988); 5 U.S.C.
 Actions and Interference With            Sec.  601 note.
 Constitutionally Protected Property
 Rights.
Executive Order 12612, Federalism        54 41685 (1987); 5 U.S.C.
 Considerations in Policy Formulation     Sec.  601 note.
 and Implementation.
Executive Order 12580, Superfund         52 FR 2923 (1987), as         .........................................
 Implementation.                          amended by E.O. 12777, 56
                                          FR 54757 (1991); 42 U.S.C.
                                          Secs.  9615 note.
Executive Order 12114, Environmental     44 FR 1957 (1979); 42 U.S.C.  30-00-20M; Ch. 30-50
 Affects Abroad of Major Federal          Sec.  4321 note.
 Actions.
Executive Order 12088, Federal           43 FR 47707 (1978), as        30-00-20T
 Compliance With Pollution Control        amended by E.O. 12580, 52
 Standards.                               FR 2923 (1987); 42 U.S.C.
                                          Sec.  4321 note.

[[Page 10233]]

 
Executive Order 11990, Protection of     42 FR 26961 (1997), as        30-00-20L; Ch. 30-40
 Wetlands.                                amended by E.O. 12608, 52
                                          FR 34617 (1987); 42 U.S.C.
                                          Sec.  4321 note.
Executive Order 11988, Floodplain        42 FR 26951 (1977), as        30-00-20L; Ch. 30-40
 Management.                              amended by E.O. 12148, 44
                                          FR 43239 (1979); 42 U.S.C.
                                          Sec.  4321 note.
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    amended by E.O. 12003, 42
 and Conservation.                        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    38 FR 25161 (1973); 42
 of the Clean Air Act and the Federal     U.S.C. Sec.  7606 note.
 Water 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 U.S.C.  30-00-20J
 Enhancement of the Cultural              Sec.  470 note.
 Environment.
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 Clean Air Act of 1970, 42 U.S.C. 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 national ambient air quality standards 
(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 and eligible tribe is given primary responsibility for 
assuring that air quality within its borders is maintained at a level 
consistent with the NAAQS. The NAAQS 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 SIPs 
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 new 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 designated 
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

[[Page 10234]]

public from these pollutants. EPA has established standards for seven 
hazardous substances. EPA's NESHAP regulations are published at 40 CFR 
part 651. The 1990 CAA amendments direct EPA to establish technology-
based standards for 189 hazardous substances 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'' alternatives 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.

              Table.--Maximum Penalties for Violation of Clean Air Act 42 U.S.C. Sec.  7413(b)-(d).
----------------------------------------------------------------------------------------------------------------
            Violation                Administrative penalty         Civil penalty           Criminal penalty
----------------------------------------------------------------------------------------------------------------
Violation of CAA requirement.....  $25,000 per day (maximum   $25,000 per violation...  Up to $250,000 per day
                                    $200,000 may be waived                               and/or up to 5 yrs.
                                    by EPA and DOJ jointly).                             imprisonment.
                                    Alternative: recovery of                             Corporation subject to
                                    projected economic value                             $500,000 per violation.
                                    of noncompliance.                                    Penalty doubled after
                                                                                         first offense.
``Field citation'' for minor       $5,000 per day...........  ........................  ........................
 violations.
False statement or failure to      .........................  ........................  Up to $250,000 and/or up
 file or maintain records or                                                             to 2 yrs. imprisonment;
 reports.                                                                                $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          .........................  ........................  Up to $25,000 per day
 ``extremely hazardous                                                                   and/or up to 15 yrs.
 substance'' placing another in                                                          imprisonment; $1
 ``imminent danger of death or                                                           million per day for
 serious bodily injury''.                                                                corporations. Penalty
                                                                                         doubled after first
                                                                                         offense.
Negligent release of air toxic     .........................  ........................  Up to $100,000 and/or up
 placing another in ``imminent                                                           to 1 yr. imprisonment;
 danger or death of serious                                                              corporations subject to
 bodily injury''.                                                                        $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.
    The CWA prohibits ``the discharge of any pollutant by any person * 
* *'' from a point source to waters of the United States, except in 
accordance with the Act's permit requirements, effluent limitations, 
and other provisions.
    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, by setting criteria necessary to protect the uses, and by 
setting anti-degradation policy. States and eligible tribes 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 and 
eligible tribes are required to review their water quality standards at 
least once every three years. EPA reviews and approves or disapproves 
State/Tribe-adopted water quality standards in accordance with 
regulations codified at 40 CFR part 131.
    (a) Water Uses. Each State and eligible tribe must specify 
appropriate water uses to be achieved and protected. The

[[Page 10235]]

classification of the waters of the State must take into consideration 
the use and value of water 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 and eligible tribes must adopt 
those water quality criteria that protect the designated use. 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 
to require States and eligible tribes 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 dischargers. The EPA implementing 
regulations are based principally on the degree of effluent reduction 
attainable through the application of control technologies.
    (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 application 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 technology 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). Where there are no effluent guidelines or standards, 
technology-based limitations reflecting BPT/BCT/BAT are developed on a 
case-by-case basis using the permit writer's best professional 
judgement. Any NPDES permit issued must contain limitations 
sufficiently stringent to assure compliance with water quality 
standards.
    (b) Indirect Dischargers.
    (l) 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 streams), 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)). Section 401(a)(1) 
of the CAA requires that prior to the issuance of any Federal license 
or permit for an activity which may result in a discharge to navigable 
waters, the applicant must obtain certification (from the State in 
which the discharge will occur) that the licensee will assure 
compliance with applicable portions of the CAA.
    (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. This section also regulates storm water 
discharges from municipal separate storm sewer systems serving a 
population greater than 100,000, and those storm water discharges 
designated for permitting a ``significant contributor of pollution.'' 
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

[[Page 10236]]

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 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. Sole Source Aquifer Designation. This designation is intended 
under 42 U.S.C. 300h-3 to protect underground drinking water sources. 
Proposed Federal financially-assisted projects that have the potential 
to contaminate the designated sole source aquifer are subject to EPA 
review.
    6. 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 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 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 Untied 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 promulgate a list of national 
priorities among the known or threatened releases of hazardous 
substances, pollutants, or contaminants throughout the Untied 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 heath, 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) Former 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).



[[Page 10237]]


    Note: A current owner or operator may be liable even if it did 
not handle, dispose of, or tread 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'' 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 statutes 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.

  Table 3.--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.
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 applie 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 Act (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 statute is sometimes referred to as ``SARA, Title III''
    2. Executive Order 12856. Executive Order 12856, Federal Compliance 
With Right-to-Know Laws 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 
our 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 energy 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

[[Page 10238]]

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 cause ``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.
    I. 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 national 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 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. he 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. Archaeological 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 Act (NEPA).
    1. NEPA. The National Environmental Policy Act of 1969 (NEPA), 42 
U.S.C. 4321-4370d, 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. Executive 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. 4321 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.

[[Page 10239]]

    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 data 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. Executive 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 products that are environmentally preferable or that 
are made with 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 and 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 Waster Act (SDWA). The Safe Drinking Water Act, 42 
U.S.C. 300f to 33j-26, is intended to protect drinking water sources. 
The statute 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. The SDWA protects the quality of drinking 
water by establishing regulations (1) governing the quality of water 
delivered by public water systems and (2) preventing the endangerment 
of drinking water sources from underground injection. The SDWA also 
allows EPA to take any action necessary to protect the health of 
persons where contamination of a drinking water source poses an 
imminent and substantial endangerment to health.
    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. Federal 
agencies which conduct activities that substantially affect human 
health or the environment should have implemented an agency-wide 
environmental justice strategy which 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 includes a listing of programs, 
policies, planning and public participation processes, enforcement, 
and/or rulemakings, related to human health or the environment and 
should, 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 (d) 
identify differential patterns of consumption of natural resources 
among minority populations and low-income populations. In addition, the 
environmental justice strategy includes, where appropriate, a timetable 
for undertaking identified revisions and consideration of economic and 
social implications of the revisions. To assist in identifying the need 
for ensuring protection of populations with differential consumption 
patterns, agencies whenever practicable and appropriate, must collect, 
maintain, and analyze information on the consumption patterns of 
populations who rely principally on fish and/or wildlife for 
subsistence.
    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 25949, 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).

[[Page 10240]]

    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 or a finding of no significant impact.
     Environmental Effects--effects, as defined under NEPA, include 
direct effects, which are caused by the action and occur at the same 
time and place, indirect effects, which are caused by the action and 
are later in time or farther removed in distance, but are still 
reasonably foreseeable, and cumulative effects, which are caused by the 
incremental impact of the action when added to other past, present, and 
reasonably foreseeable future actions.
    F. Environmental Impact Statement--a detailed written statement, as 
required under NEPA, on: (1) 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 affect.
    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 
court and responsibility.
    J. HHS Operating Division (OPDIV) The following is a current 
listing (which may change at some future date) of OPDIVs: 
Administration of Aging (AoA), Administration for Children and Families 
(ACF) Agency for Health Care Research and Quality (AHCRQ), Centers for 
Disease Control and Prevention (CDC), Agency for Toxic Substances and 
Disease Registry (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. HHS Staff Division (STAFFDIV) The following is a current listing 
(which 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.

Subject: Department of Health and Human Services Environmental 
Policy

30-10-00 Policy Statement
30-10-10 Vision statement
30-10-20 Goals and Objectives
30-10-30 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 environmental risks 
associated with a program-related course of action.

30-10-20  Goals and Objectives

    The goals of our environmental efforts are to prevent harm to the 
environment, and enhance the quality of human health by conserving our 
environmental resources.
    This goal are 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

[[Page 10241]]

    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 
improved 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.

Subject:  Administrative Requirements

30-20-00  Background
30-20-10  Responsibilities
30-20-20  Approval Authority and Delegations of Authority
30-20-30  Process for Establishing Categorical Exclusions
30-20-40  Categories of Exclusion
30-20-50  Environmental Review Procedures

30-20-00  Background

    This chapter establishes an administrative framework in the 
Department of 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 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, including 
regional, comply with all provisions of all applicable Federal, State, 
and local environmental laws, statutes, 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.

30-20-20  Approval Authority and Delegations of Authority

    A. Delegation of Authority. The OPDIV/STAFFDIV head 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 exclus8ion of material from environmental 
impact statements on the basis of national security and trade secrets 
requires approval by the HHS Office of the 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.

[[Page 10242]]

     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 these actions which it has determined fall 
under Groups 1, 2, and 3 or shall have procedures that address such 
actions. These lists shall supplement other internal directives or 
instructions concerning 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 specific guidance. However, OPDIVs/STAFFDIVs must report these 
determinations to the Assistant Secretary for Management and Budget. 
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 
review 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 Federal Register.

30-20-40  Categories of Exclusion

    A. Application of Categorical Exclusions
    1. Required Determinations. To find that an action is categorically 
excluded, an OPDIV/STAFFDIV shall determine the following:
    (a) Falls Within Exclusion Category. The proposed action falls 
within one of the three 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) Information technology management;
    (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).
    (e) 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, and OPDIV/
STAFFDIV, following its review, might determine that the following are 
unlikely to cause an environmental effect: assigning a member of the 
commissioned Corps to a locality to supplement existing medical 
personnel or providing funds to support expansion of emergency medical 
services in existing hospitals.

[[Page 10243]]

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. 
Note that for any particular action, there still must be absence of 
extraordinary circumstances as noted in 30-20-40, A.1.(b).
    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.
    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.

Subject: General Environmental Review Procedures

30-30-00  Overview
30-30-10  Summary Description
30-30-20  Environmental Review
30-30-30  Environmental Statements
30-30-40  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

[[Page 10244]]

Orders, as defined in regulation or by court interpretation?
    3. Should this 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.
    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) and 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 3-50 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 them 
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

[[Page 10245]]

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.

Subject: Natural Asset Review

30-40-00  Applicability of Consultation Requirements
30-40-05  Integration with NEPA Review Process
30-40-10  Coastal Zone Management Act of 1972
30-40-20  Endangered Species Act of 1973
30-40-30  Fish and Wildlife Coordination Act
30-40-40  Floodplain Management
30-40-50  Marine Protection, Research, and Sanctuaries Act of 1972
30-40-60  Safe Drinking Water Act (Sole Source Aquifers)
30-40-70  Wetlands Protection
30-40-80  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;
    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).
    Table 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 executive order                Citation                   Consultation procedures
----------------------------------------------------------------------------------------------------------------
Coastal Zone Management Act of 1972........  16 U.S.C. Secs.  1451-1464.......  15 CFR Part 930.
Endangered Species Act of 1973.............  16 U.S.C. Secs.  1531-1544.......  50 CFR Part 402.
Fish and Wildlife Coordination Act.........  16 U.S.C. Secs.  661-666c........  16 U.S.C. Sec.  662.
Executive Order 11988, Floodplain            42 FR 26951 (1977), as amended by  Floodplain Management
 Management.                                  E.O. 12148, 44 FR 43239 (1979);    Guidelines, U.S. Water
                                              16 U.S.C. Sec.  4321 note.         Resources Council, 43 FR 6030
                                                                                 (1978).
Marine Protection, Research, and             16 U.S.C. Secs.  1431-1445a; 33
 Sanctuaries Act of 1972.                     U.S.C. Secs.  1401-1445.
Safe Drinking Water Act....................  42 U.S.C. Secs.  300f-300j-26....  42 U.S.C. Sec.  300h-3; 40 CFR
                                                                                 Part 149.
Executive Order 11990, Protection of         42 FR 26961 (1977), as amended by
 Wetlands.                                    E.O. 12608, 52 FR 34617 (1987);
                                              42 U.S.C. Sec.  4321 note.
Wild and Scenic Rivers Act.................  16 U.S.C. Secs.  1271-1287.......  36 CFR Part 297.
----------------------------------------------------------------------------------------------------------------

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 
administering agency regulations are to be included in the EA or EIS. 
In addition, the consultation procedures required by the environmental 
statute or Executive Order 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 States 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 
``[each 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

[[Page 10246]]

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 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.
    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

[[Page 10247]]

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.
    I. 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''). 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. Section 9 of the Act prohibits any unauthorized 
``take'' of listed species. 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 opinion or the FWS or the NMFS 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 FWS or the NMFS, 
as appropriate, 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

[[Page 10248]]

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/STAFFFDIV 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 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 view 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, and 
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

[[Page 10249]]

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 
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 procedure 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  Floodplain Management

    A. Purpose. Executive Order 11988, Floodplain Management, 42 FR 
26951 (1977), as amended by Executive Order 12148, 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

[[Page 10250]]

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.
    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. Authorizaiton 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.

[[Page 10251]]

    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.
    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 draft environment 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 study areas). Designations used to describe these 
components, or parts thereof, include the following: (1) Wild; (2) 
scenic; and (3) recreational.
    B. Requirement. Section 7 of the Wild and Scenic Rivers Act (16 
U.S.C. 1278), provides for the protection of the free-flowing, scenic, 
and natural values of rivers designated as components or potential 
components of the National Wild and Scenic Rivers Systems from the 
effects of construction of any water resources project. The Wild and 
Scenic Rivers Act provides that no license,

[[Page 10252]]

permit, or other authorization can be issued for a Federally assisted 
water resources project on any portion of a Wild and Scenic River or 
Study River (nor can appropriations be requested to begin construction 
of such projects) without prior notice to the Secretary of Agriculture 
and the Secretary of the Interior, and a determination in accordance 
with section 7 of the Act. The Secretary of Agriculture and the 
Secretary of the Interior have issued Federal agency consultation 
procedures that are codified at 36 CFR part 297.
    C. Definitions.
    1. Free-flowing. ``Free-flowing'' is defined by section 16(b) of 
the Act as ``existing or flowing in natural condition without 
impoundment, diversion, straightening, riprapping, or other 
modification of the waterway'' (16 U.S.C. 1286(b)).
    2. Study Period. ``Study period'' means the time during which a 
river is being studied as a potential component of the Wild and Scenic 
Rivers System and such additional time as provided in section 7(b)(ii) 
of the Act not to exceed 3 additional years during which a report 
recommending designation is before Congress, or such additional time as 
may be provided by statute.
    3. Study River. ``Study river'' means a river and the adjacent area 
within one quarter mile of the banks of the river which is designated 
for study as a potential addition to the National Wild and Scenic 
Rivers System pursuant to section 5(a) of the Act.
    4. Water Resources Project. ``Water resources project'' means any 
dam, water conduit, reservoir, powerhouse, transmission line, or other 
project works under the Federal Power Act (41 Stat. 1063) as amended, 
or other construction of developments which would affect the free-
flowing characteristics of a Wild and Scenic River or Study River.
    5. Wild and Scenic River. ``Wild and scenic river'' means a river 
and the adjacent area within the boundaries of a component of the 
National Wild and Scenic Rivers System pursuant to section 3(a) or 
2(a)(ii) of the Act.
    D. Responsibilities and Consultation Requirements. When a proposed 
action will have an effect upon an environment within or including a 
portion of a component, potential component, or study area, program 
personnel shall send a notice to the Secretary of the Interior for 
review.
    E. Contents of Notice. The notice shall include the following 
information:
    1. Name and location of affected river;
    2. Location of the project;
    3. Nature of the permit or other authorization proposed for 
issuance;
    4. A description of the proposed activity; and
    5. Any relevant information, such as plans, maps, and environmental 
studies, assessments, or environmental impact statements.
    6. The notice shall also provide any additional factual information 
that will assist the Secretary in determining whether:
    (a) the water resources project will have a direct and adverse 
effect on the values for which a Wild and Scenic River or Study River 
was designated, when any portion of the project is within the 
boundaries of said river; or,
    (b) the effects of the water resources project will invade or 
unreasonably diminish the scenic, recreational, and fish and wildlife 
values of a Wild and Scenic River, when any portion of the project is 
located above, below, or outside the Wild and Scenic River; or,
    (c) whether the effects of the water resources project will invade 
or diminish the scenic, recreational, and fish and wildlife values of a 
Study River when the project is located above, below, or outside the 
Study River during the study period.
    F. Examples. The following are examples of circumstances which can 
affect a river component or study area:
    1. Destruction or alteration to all or part of the free-flowing 
nature of the river;
    2. Introduction of visual, audible, or other sensory intrusions 
which are out of character with the river or alter its setting;
    3. Deterioration of water quality; or
    4. Transfer or sale of property adjacent to an inventoried river 
without adequate conditions or restrictions for protecting the river 
and its surrounding environment.
    G. Response. If the Department of the Interior does not respond 
within 30 calendar days or states that the proposed action will not 
directly or adversely affect the area, the Department is in compliance 
with the review requirements of the Act. However, in those instances 
where the Department of the Interior does not respond, programs shall 
take care to always avoid or mitigate adverse effects on river 
components and study areas.
    If the Department of the Interior determines that the proposed 
action will directly and adversely affect the area, no further action 
shall take place whenever the proposed action involves the construction 
of a water resources project.
    The above requirements do not apply to types of actions excluded 
from the review process by appropriate Department of Interior or 
Agriculture regulations.
    H. Integration with NEPA. The determination of the effects of a 
proposed water resources project shall be made in compliance with the 
National Environmental Policy Act (NEPA). To the extent possible, 
OPDIVs/STAFFDIVs should ensure that any environmental studies, 
assessments, or environmental impact statements prepared for a water 
resources project adequately address the environmental effects on 
resources protected by the Wild and Scenic Rivers Act, and that the 
Department of Agriculture is apprised of ongoing analyses so as to 
facilitate coordination and identification of Wild and Scenic River 
related issues.
    To the extent practicable, impacts on Wild and Scenic River values 
will be considered in the context of other review procedures as 
provided by law. OPDIVs/STAFFDIVs are encouraged to consult with the 
Forest Service in order to identify measures which could eliminate any 
direct and adverse effects, thereby increasing the likelihood of 
securing consent.

Subject: National Environmental Policy Act (NEPA) Review

30-50-00  Background
30-50-05  Definitions and Acronyms
30-50-10  Applicability
30-50-15  Responsibilities
30-50-20  Purpose, Content, and Availability of Environmental 
Documents
30-50-25  Actions That Are Excluded from the Requirement to Prepare 
an Environmental Assessment
30-50-30  Actions Requiring Preparation of an Environmental 
Assessment
30-50-35  Categories of Actions Requiring Preparation of an 
Environmental Impact Statement
30-50-40  Environmental Assessments
30-50-45  Findings of No Significant Impact
30-50-50  Public Availability of Environmental Assessments and 
Findings of No Significant Impact
30-50-55  Notice of Intent and Scoping
30-50-60  Environmental Impact Statements
30-50-65  Contents of an Environmental Impact Statement
30-50-70  Public Involvement and Circulation of Environmental Impact 
Statements
30-50-75  Environmental Effects Abroad of Major Agency Actions
30-50-80  Reviewing External Environmental Impact Statements

30-50-00  Background

    The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 
4321-4370d, establishes policy and requirements governing all Federal 
Departments and agencies with respect to protecting the environment. 
This

[[Page 10253]]

chapter supplements specific requirements established by NEPA and by 
the associated implementing regulations promulgated by the Council on 
Environmental Quality (CEQ) (40 CFR parts 1500-1508). This chapter also 
establishes Department policy and procedures with respect to the 
implementation of NEPA and provides guidance to HHS Staff Divisions 
(STAFFDIVs) and Operating Divisions (OPDIVs) in establishing additional 
regulations for implementing NEPA that are unique to each OPDIV/
STAFFDIV.
    NEPA requires all Federal Departments and agencies to assess, as an 
integral part of their decision making process, the potential 
environmental impacts of their actions prior to initiation of those 
actions. NEPA establishes environmental policy, set goals (Section 
101), and provides procedures (Section 102) for carrying out the 
policy. Specifically, Section 102(2)(C) of NEPA requires all agencies 
of the Federal Government to include an environmental statement ``in 
every recommendation or report on proposals for legislation and other 
major Federal actions significantly affecting the quality of the human 
environment * * *'' The purpose of this and other requirements is to 
ensure that environmental information is available to public officials 
and citizens before Federal agencies make decisions to take actions 
which could significantly affect the quality of the human environment.

30-50-05  Definitions and Acronyms

    A. CEQ Regulations Definitions. Definitions that apply to the terms 
used in this chapter are set forth in the CEQ regulations under 40 CFR 
part 1508. The terms and the sections of 40 CFR part 1508 in which they 
are defined follow:

Categorical Exclusion (40 CFR 1508.4)
Cooperating Agency (40 CFR 1508.5)
Cumulative Impact (40 CFR 1508.7)
Effects (40 CFR 1508.8)
Environmental Assessment (EA) (40 CFR 1508.9)
Environmental Document (40 CFR 1508.10)
Environmental Impact Statement (EIS) (40 CFR 1508.11)
Federal Agency (40 CFR 1508.12)
Finding of No Significant Impact (FONSI) (40 CFR 1508.13)
Human Environment (40 CFR 1508.14)
Jurisdiction by Law (40 CFR 1508.15)
Lead Agency (40 CFR 1508.16)
Legislation (40 CFR 1508.17)
Major Federal Action (40 CFR 1508.18)
Mitigation (40 CFR 1508.20)
NEPA Process (40 CFR 1508.21)
Notice of Intent (40 CFR 1508.22)
Proposal (40 CFR 1508.23)
Scope (40 CFR 1508.25)
Significantly (40 CFR 1508.27)

    B. Chapter 30-50  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 
other 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.
    ``Department'' means the U.S. Department of Health and Human 
Services (HHS).
    ``Pollution Prevention'' includes, but is not limited to, reducing 
or eliminating hazardous or other polluting inputs, which can 
contribute to both point and non-point source pollution; modifying 
manufacturing, maintenance, or other industrial practices; modifying 
product designs; recycling (especially in-process, closed loop 
recycling); preventing the disposal and transfer of pollution from one 
media to another; and increasing energy efficiency and conservation. 
Pollution prevention can be implemented at any stage--input, use or 
generation, and treatment--and may involve any technique--process 
modification, waste stream segregation, inventory control, good 
housekeeping or best management practices, employee training, 
recycling, and substitution. Any reasonable mechanism which 
successfully avoids, prevents, or reduces pollutant discharges or 
emissions other than by the traditional method of treating pollution at 
the discharge end of a pipe or stack should, for purposes of this 
chapter, be considered pollution prevention. (This definition of 
``pollution prevention'' has been adopted by CEQ. See Council on 
Environmental Quality, ``Memorandum to Heads of Federal Departments and 
Agencies Regarding Pollution Prevention and the National Environmental 
Policy Act,'' 58 FR 6478 (1993).)

    Note: A definition of ``pollution prevention'' that has been 
developed by the U.S. Environmental Protection Agency is used in 
Chapters 30-60 through 30-90.

    ``Responsible official'' means the Secretary, the Departmental 
decision-maker designated by the Secretary of Health and Human Services 
or the Secretary's designated representative, or the Head of an OPDIV/
STAFF, or an official designated by the Head of an OPDIV/STAFFDIV, or 
the Federal agency official who makes the decision to irreversibly and 
irretrievably commit the agency's resources to execute the proposed 
action.
    C. Acronyms. The following acronyms are used in this chapter:

CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
EA--Environmental Assessment
EIS--Environmental Impact Statement
EPA--Environmental Protection Agency
FONSI--Finding of No Significant Impact
HHS--U.S. Department of Health and Human Services
NEPA--National Environmental Policy Act of 1969
NOI--Notice of Intent
OPDIV--HHS Operating Division
ROD--Record of Decision
STAFFDIV--HHS Staff Division
U.S.C.--United States Code

30-50-10  Applicability

    This chapter applies to all organizational elements of HHS. This 
chapter applies to any HHS action affecting the quality of the 
environment of the United States, its territories, or possessions. HHS 
actions having environmental effects outside of the United States, its 
territories or possessions are subject to the provisions of Executive 
Order 12114, Environmental Effects Abroad of Major Federal Actions, 44 
FR 1957 (1979), 42 U.S.C. 4321 note. HHS guidelines implementing 
Executive Order 12114 are located at Section 30-50-75.

30-50-15  Responsibilities

    All HHS policies and programs will be planned, developed, and 
implemented so as to achieve the policies declared by NEPA and required 
by the CEQ regulations to ensure responsible stewardship of the 
environment for present and future generations.
    Environmental impact consideration is an integral part of HHS's 
planning and decision-making process. For actions initiated by the 
Department or one of its OPDIVs/STAFFDIVs, the process begins when an 
issue is identified that requires action under the statutes it 
administers. The identifying organization also may issue a public call 
for environmental data or otherwise consult with affected individuals 
or groups when a contemplated action in which it is or may be involved 
poses potentially significant environmental impacts.
    Assessment of environmental factors continues throughout planning 
and is integrated with other program planning at the earliest possible 
time. Assessment of environmental factors includes the identification 
of the parts of the environment that may be affected by the action, the 
evaluation of pertinent

[[Page 10254]]

environmental data, and the consideration of alternatives consistent 
with 40 CFR 1502.14.
    NEPA and the CEQ regulations establish a mechanism for building 
environmental considerations into federal agency decision-making. This 
mechanism will be used to incorporate pollution prevention into the 
early planning stages of a proposal.
    OPDIVs/STAFFDIVs shall determine, utilizing the procedures in the 
CEQ regulations and this chapter, whether any HHS proposal:
    1. Is categorically excluded from preparation of an EIS or an EA 
(30-50-25; 30-20-40);
    2. Requires preparation of an EA (30-50-30);
    3. Requires preparation of an EIS (30-50-35).
    OPDIVs/STAFFDIVs may choose to prepare a NEPA document for any HHS 
action at any time to further the purposes of NEPA.
    OPDIVs/STAFFDIVs shall determine for each major federal action 
(hereinafter ``action'') not categorically excluded, the data needed 
for an environmental assessment and a system for acquiring such data. 
OPDIVs/STAFFDIVs shall prepare an environmental assessment for each 
proposed action not categorically excluded and, as a result of its 
findings prepare a Finding of No Significant Impact (FONSI) or an 
Environmental Impact Statement (EIS).

30-50-20 Purpose, Content, and Availability of Environmental Documents

    Sections 30-50-40 through 30-50-65 describe the environmental 
documents that may be required during the process of considering the 
environmental aspects of an action. These sections describe the various 
types of NEPA documents including their purposes and contents. OPDIVs/
STAFFDIVs may publish in the Federal Register additional requirements 
for the preparation of environmental documents under their 
responsibility. Data and information that are protected from disclosure 
by 18 U.S.C. 1905 or 21 U.S.C. 331(j) or 360j(c) or other applicable 
laws shall not be included in environmental documents prepared under 
this chapter. When such data and information are pertinent to the 
environmental review of a proposed action, an applicant or petitioner 
shall submit such data and information separately as a confidential 
section of the application or petition, but shall summarize the 
confidential data and information in the environmental document to the 
extent possible.

30-50-25 Actions That May Be Excluded From the Requirement To Prepare 
an Environmental Assessment or an Environmental Impact Statement

    Categorical Exclusions. Actions within a class that individually or 
cumulatively have been determined under Section 30-20-40 not to 
significantly affect the quality of the human environment ordinarily 
are excluded from the preparation of an EA or EIS. To find that a 
proposed action is categorically excluded, OPDIVs/STAFFDIVs shall 
determine if:
    1. The proposal fits within a class of actions described in 30-20-
40 or a categorical exclusion developed by the OPDIV/STAFFDIV in 
accordance with 30-20-30; and
    2. No extraordinary circumstances are related to the proposed 
action that may affect the significance of the environmental effects of 
the proposal.

30-50-30 Other Actions Requiring Preparation of an Environmental 
Assessment (EA) or an Environmental Impact Statement (EIS)

    Any proposed action of a type specified in this section ordinarily 
requires the preparation of an EA, unless it qualifies for exclusion 
under Section 30-20-40. Such actions include:
    1. Major recommendations or reports made to Congress on proposals 
for legislation in instances where the Department or OPDIV/STAFFDIV has 
primary responsibility for the subject matter involved; and
    2. Actions Involving Extraordinary Circumstances. As provided by 40 
CFR 1508.4, and EA or an EIS will be required for any specific action 
that ordinarily is excluded if the OPDIV/STAFFDIV has sufficient 
evidence to establish that the specific proposed action may 
significantly affect the quality of the human environment. OPDIVs/
STAFFDIVs shall prepare an EA when there are extraordinary 
circumstances in which a normally excluded action may have a 
significant environmental effect. Extraordinary circumstances include 
the following:
    (a) Unique situations presented by specific proposals, such as 
scientific controversy about the environmental effects of the proposal;
    (b) Uncertain effects or effects involving unique or unknown risks; 
or
    (c) Unresolved conflicts concerning alternate uses of available 
resources within the meaning of Section 102(2)(E) of NEPA.
    3. Actions Involving Cumulative Impacts. The CEQ regulations 
require consideration of three types of actions when determining the 
scope of environmental impact statements. These actions are: (1) 
Connected actions; (2) cumulative actions; and (3) similar actions. An 
action may have three types of impacts: (1) Direct; (2) indirect; or 
(3) cumulative. A determination that an action is categorically 
excluded will be precluded if the action is connected to another action 
that may require an environmental impact statement or when viewed with 
other proposed actions may have cumulatively significant impacts. CEQ 
defines ``connected actions'' and ``cumulative actions'', at 40 CFR 
1508.25, as follows:
    (a) Connected Actions. ``Connected'' actions means actions that are 
closely related and therefore should be discussed in the same impact 
statement. Actions are connected if they:
    (i) Automatically trigger other actions which may require 
environmental impact statements;
    (ii) Cannot or will not proceed unless other actions are taken 
previously or simultaneously; or
    (iii) Are interdependent parts of a larger action and depend on the 
larger action for their justification.
    (b) Cumulative Actions. ``Cumulative actions'' are actions which, 
when viewed with other proposed actions, have cumulatively significant 
impacts and should therefore be discussed in the same impact statement.

30-50-35  Categories of Actions Requiring Preparation of an 
Environmental Impact Statement (EIS)

    EIS's are prepared for HHS organization actions when:
    1. Evaluation of data in an Environmental Assessment (EA) leads to 
a finding by the responsible official that a proposed action may 
significantly affect the quality of the human environment under the 
criteria in 40 CFR 1508.14 and 1508.27; or
    2. Initial evaluation by the responsible official of any action, 
including any action for which an EA would otherwise be required, 
establishes that significant environmental effects may be associated 
with one or more of the probable courses of action being considered.

30-50-40  Environmental Assessments

    A. Purpose. As defined by CEQ in 40 CFR 1508.9, an Environmental 
Assessment (EA) is the public document in which environmental and other 
pertinent information on a proposed action are presented, providing a 
basis for a determination whether to prepare an Environmental Impact 
Statement (EIS) or a Finding or Significant Impact (FONSI).
    An EA shall be prepared for each action not excluded pursuant to 
Section

[[Page 10255]]

30-20-40. The EA shall be a complete, objective, and well-balanced 
document that allows the public to understand the HHS organization's 
decision.
    B. Contents. The EA shall:
    1. Briefly provide sufficient evidence and analysis for determining 
whether to prepare an EIS or FONSI;
    2. Briefly discuss the need for the proposed action;
    3. Describe the potential environmental impacts of the proposed 
action;
    4. Describe measures, including suitable pollution prevention 
techniques, which would be taken to avoid or mitigate potential 
environmental impacts associated with the proposed action;
    5. Describe in detail the environmental impact of reasonable 
alternatives to the proposed action (including no action), particularly 
those that will enhance the quality of the environment and avoid some 
or all of the adverse environmental effects of the proposed action;
    6. Include a comparative analysis of environmental benefits and 
risks of the proposed action and alternatives, identifying the 
preferred action based on environmental factors;
    7. Include, if appropriate, a floodplain/wetlands assessment 
prepared under Sections 30-40-40 or 30-40-70 and analyses needed for 
other environmental determinations;
    8. List those persons preparing the assessment and their areas of 
expertise and persons and agencies consulted; and
    9. List complete citations for all referenced documents and include 
copies of referenced articles that are not generally available.
    Consistent with 40 CFR 1500.4(j) and 1502.21, EAs may incorporate 
by reference information presented in other documents that are 
reasonably available to HHS and to the public within the time to 
comment.
    OPDIVs/STAFFDIVs may specify formats and additional content of EAs 
that are required to be prepared for proposed actions within their 
responsibility. A notice of the availability of OPDIV/STAFFDIV formats 
and instructions for preparation of environmental assessments shall be 
published in the Federal Register.
    C. Criteria. In determining whether a proposed action will or will 
not ``significantly affect the quality of the human environment.'' 
OPDIVs/STAFFDIVs should evaluate the expected environmental 
consequences of a proposed action by means of the following steps, 
utilizing the guidance provided in 40 CFR 1508.27:
    Step One--Identify those things that will happen as a result of the 
proposed action. An action normally produces a number of consequences. 
For example, a grant to construct a hospital may terminate human 
services; will involve destruction and construction; will provide a 
service. Actions may be connected, cumulative, or similar (see 40 CFR 
1508.25(a)).
    Step Two--Identify the ``human environments'' that the proposed 
action will affect. In accordance with 40 CFR 1508.27, the significance 
of an action must be analyzed in several contexts, such as society as a 
whole (human, national), the affected region, the affected interests, 
and the locality. The significance of an action will vary with the 
setting of the proposed action. Environments may include terrestrial, 
aquatic, subterranean, and aerial environments, such as islands, 
cities, rivers or parts thereof.
    Step Three--Identify the kinds of effects that the proposed action 
will cause on these ``human environments.'' A change occurs when a 
proposed action causes the ``human environment'' to be different in the 
future than it would have been, absent the proposed action. These 
changes involve the introduction of various ``resources'' (including 
those often characterized as waste).

    Example: A decrease in the amount of soil entering a stream; the 
introduction of a new chemical compound to natural environments.

    In addition to organisms, substances, and compounds, the term 
``resources'' include energy (in various forms), elements, structures, 
and systems (such as a trash collection service in a city). Present 
environmental impacts and reasonably foreseeable future environmental 
impacts must be considered.
    In identifying changes caused by the proposed action, OPDIVs/
STAFFDIVs should identify the magnitude of the changes likely to be 
caused within smaller and larger ``human environments'' affected (e.g., 
part of a city, the whole city, the metropolitan area).
    The impacts resulting from the proposed action may be direct, 
indirect, or cumulative (see 40 CFR 1508.25(c)).
    Step Four--Identify whether these changes are significant. The 
following points should be considered in conjunction with 40 CFR 1508.8 
(effects), 40 CFR 1508.14 (human environment), and 40 CFR 1508.27 
(``significantly'') in making a decision concerning significance:
     A change in the characterization of an environment is 
significant (e.g., from terrestrial to aquatic);
     The establishment of a species in or removal of a species 
from an environment may be significant;
     The more dependent an environment becomes on external 
resources, the larger the magnitude of change (and the more likely it 
is to be significant);
     The larger the environment under consideration, the lower 
the amount of change needed before the change may be significant.
    The CEQ regulations in 40 CFR 1508.27 describe a number of factors 
that should be considered in evaluating severity (intensity) of an 
impact. OPDIVs/STAFFDIVs should consider the cumulative effect of the 
proposed action. An action may be individually insignificant but 
cumulatively significant when the action is related to other actions. 
Significance exists if it is reasonable to anticipate a cumulatively 
significant impact on the environment. Significance cannot be avoided 
by terming an action temporary or by breaking it down into small 
component parts.
    Step Five--Consider alternatives to the proposed action. 
Alternatives to the proposed action include:
     No action alternative;
     Other reasonable courses of action; and
     Mitigation measures.

30-50-45  Findings of No Significant Impact

    A. Purpose. A Finding of No Significant Impact (FONSI) is a 
document prepared by an OPDIV/STAFF that briefly presents the reasons 
why an action, not otherwise excluded (see 30-20-40), will not have a 
significant effect on the human environment and for which, therefore, 
an EIS will not be prepared (40 CFR 1508.13).
    B. Responsibilities. The responsible official will evaluate the 
information contained in the EA to determine whether it is accurate and 
objective, whether the proposed action may significantly affect the 
quality of the human environment, and whether an EIS will be prepared. 
The responsible official will examine the environmental effects of the 
proposed action and the alternative courses of action, select a course 
of action, and ensure that any necessary mitigating measures are 
implemented as a condition for approving the selected course of action. 
When the responsible official has determined that the proposed action 
will not have a significant effect on the

[[Page 10256]]

human environment, the responsible official will sign the FONSI, 
thereby establishing that the official approves the conclusion not to 
prepare an EIS for the action under consideration.
    A FONSI shall be prepared only if the related EA supports the 
finding that the proposed action will not have a significant effect on 
the quality of the human environment. The environmental assessment (or 
a summary of the EA) shall be included as a part of the FONSI.
    If significant effects requiring the preparation of an EIS are 
identified, a Notice of Intent (NOI) to prepare an EIS will be 
published in the Federal Register in accordance with Sec. 30-50-55. If 
an EA does not support a FONSI, an EIS shall be prepared and a Record 
of Decision (ROD) issued before action is taken on the proposal 
addressed by the EA, except as permitted under 40 CFR 1506.1.
    C. Contents. The FONSI shall include the following:
    1. The supporting EA or a summary of it (including a brief 
description of the proposed action and alternatives considered in the 
EA, environmental factors considered, projected impacts);
    2. References to any other related environmental documents (40 CFR 
1501.7(a)(5));
    3. Any mitigation measures that will render the impacts of the 
proposed action not significant;
    4. Any findings required by Sections 30-40-40 or 30-40-70 in 
conneciton with floodplain or wetlands environmental reviews;
    5. The date of issuance; and
    6. The signature of the approving official.
    If the assessment is included, the FONSI need not repeat any of the 
discussion in the assessment but may incorporate it by reference.
    D. Proposed Action. An OPDIV/STAFFDIV may proceed with the proposed 
action after the FONSI is issued, subject to any mitigation measures 
identified in the FONSI that are essential to render the impacts of the 
proposed action not significant.

30-50-50  Public Availability of Environmental Assessments and Findings 
of No Significant Impact

    A. Public Availability of FONSI and EA. OPDIVs/STAFFDIVs shall make 
a FONSI and its related EA available to the public as provided in the 
CEQ regulations at 40 CFR 1500.6, 1501.4(e)(1) and 1506.6, including 
making copies available for inspection in public reading rooms or other 
appropriate locations for a reasonable time.
    B. Public Availability of FONSI. For a limited number of actions, 
the proposed FONSI and its related EA will be made available for public 
review (including review by state and area-wide information 
clearinghouses) for 30 days before a final determination is made 
whether to prepare an EIS and before the action may begin. This 
procedure will be followed when the proposed action is, or is closely 
similar to, one that normally requires an EIS or when the proposed 
action is one without precedent (40 CFR 1501.4(e)). OPDIVs/STAFFDIVs 
may issue a proposed FONSI for public review and comment in other 
situations as well.
    C. Revised FONSI. If a FONSI is revised, it is subject to the 
public availability requirements of this section.

30-50-55  Notice of Intent and Scoping

    A. Purpose. The Notice of Intent (NOI) notifies the public that an 
EIS will be prepared and considered (40 CFR 1508.22). This 
determination may be based on information contained in an EA or on 
other available information which indicates that potentially 
significant effects may be associated with a proposed action.
    B. Responsibilities. When an environmental assessment indicates 
that a significant environmental impact may occur and significant 
adverse impacts can not be eliminated by making changes in the project, 
an NOI shall be published in the Federal Register as soon as 
practicable after the responsible official has made a decision to 
prepare an EIS and before the scoping process. When the responsible 
official finds that there will be a lengthy period between the decision 
to prepare an EIS and the time of actual preparation, the NOI may be 
published at a reasonable time in advance of preparation of the draft 
EIS.
    C. Contents. As required by 40 CFR 1508.22, the NOI will:
    1. Describe the proposed action and possible alternatives;
    2. Describe the proposed scoping process, which may include a 
request for information or suggestions regarding the scope of the EIS;
    3. State whether a public scoping meeting will be held, and the 
location, date, and time of such meeting; and
    4. State the identification of persons within the HHS organization 
to contract for information about the proposed action and the EIS.
    D. Scoping. Publication of the NOI in the Federal Register begins 
the scoping process. Scoping is an early and open process for 
determining the scope of issues to be addressed and for identifying the 
significant issues related to a proposed action (40 CFR 1501.7). The 
scoping process for an EIS shall be undertaken in accordance with the 
procedures in 40 CFR 1501.7. An NOI shall be made available to the 
public in accordance with 40 CFR 1500.6 and 1506.6. OPDIVs/STAFFDIVs 
shall allow a minimum of 30 days for the receipt of public comments 
during the scoping process.
    E. Public Scoping Meetings. A public scoping meeting normally will 
be conducted whenever an NOI has been published, except that a public 
scoping process is optional for supplemental EISs (40 CFR 
1502.9(c)(4)). Public scoping meetings shall not be held until at least 
15 days after public notification. 40 CFR 1506.6(c)(2).
    F. Scoping Issues. Pollution prevention should be considered an 
issue in the scoping process because it will encourage those outside 
the HHS organization to provide insights into pollution prevention 
technologies that might be available for use in connection with the 
proposal or its possible alternatives.

30-50-60  Environmental Impact Statements

    A. General. An OPDIV/STAFFDIV responsible for carrying out a 
specific action is responsible for preparation of an EIS, if one is 
required. The final text of an EIS will be prepared by the responsible 
official after comments on the draft statement have been addressed and 
received full consideration in the OPDIV/STAFFDIV's decision-making 
process.
    B. Cooperation With Other Federal Agencies. In cases in which HHS 
participates with other Federal agencies in a proposed action, one 
agency will be the lead agency and will supervise preparation of an EIS 
if one is required. A Memorandum of Understanding among all involved 
agencies may be useful in summarizing the relative responsibilities of 
all involved agencies. Lead agency responsibility should be determined 
in accordance with 40 CFR 1501.5.
    HHS will act as a cooperating agency if requested. HHS may request 
to be designated as a cooperating agency if proposed actions may affect 
areas of HHS responsibility. As a cooperating agency, HHS will comply 
with the procedures in 40 CFR 1501.6(b) to the extent possible, 
depending on program commitments and the availability of funds and 
personnel.
    Within the Department, lead or cooperating agency responsibility 
will be exercised by the OPDIV/STAFFDIV that is responsible for the 
subject matter of the proposed action. If a proposed action affects 
more than one OPDIV/

[[Page 10257]]

STAFFDIV, the Secretary will designate one of the OPDIVs/STAFFDIVs to 
be responsible for coordinating the preparation of required 
environmental documentation.
    C. Cooperation With States. In cases in which an OPDIV/STAFFDIV 
participates with state and local governments in a proposed action, the 
OPDIV/STAFFDIV is responsible for preparing an EIS. However, a state 
agency may jointly prepare the statement if it has state-wide 
jurisdiction and HHS participates in its preparation, including 
soliciting the views or other state or Federal agencies affected by the 
statement.
    D. Proposals for Legislation. A legislative EIS must be prepared 
for any legislative proposal developed by HHS which would significantly 
affect the quality of the human environment. A legislative EIS shall be 
submitted to Congress at the time the legislation is proposed to 
Congress or up to 30 days afterwards. Except as provided in 40 CFR 
1506.8, a draft EIS shall accompany a legislative proposal. A scoping 
process is not required for a legislative EIS.
    E. Responsibilities. Except for proposals for legislation, OPDIVs/
STAFFDIVs shall prepare EISs in two stages: Draft and final. The 
responsible official will ensure that:
    1. All reasonable alternatives (including no action) are rigorously 
explored and objectively evaluated,
    2. There is balancing of environmental impacts with the OPDIV's/
STAFFDIV's objective in choosing an appropriate course of action;
    3. Appropriate mitigation measures are included in the proposed 
action or alternatives;
    4. Diligent efforts are made to provide an opportunity for the 
public to participate in the environmental review process;
    5. Comments on a draft EIS are carefully assessed and considered; 
and
    6. The preferred alternative is the alternative which the OPDIV/
STAFFDIV believes would fulfill its statutory mission and 
responsibilities giving consideration to economic, environmental, 
technical and other factors.
    F. OPDIV/STAFFDIV Action. Except as provided at 40 CFR 1506.1 and 
1506.10(b) and this section, no HHS OPDIV/STAFFDIV decision on the 
proposed action shall be made or recorded until at least 30 days after 
the publication by EPA of notice that the particular EIS has been filed 
with EPA. If the subject of a final statement is also the subject of a 
regulation published in the Federal Register, this requirement may be 
met by simultaneous publication of the regulation and of a Notice of 
Availability of the final statement and the Record of Decision, 
provided that the regulation becomes effective no sooner than 30 days 
after the date of publication, unless such regulation is subject to 
formal internal appeal. For regulations subject to formal internal 
appeal, the period for formal appeal of the decision and the 30 day 
period may run concurrently.
    G. Record of Decision. A Record of Decision (ROD) shall be prepared 
by the responsible official when an HHS organization decides to take 
action on a proposal covered by an EIS. See 40 CFR 1505.2. No action 
shall be taken until the decision has been made public, except as 
provided at 40 CFR 1500.6 and 1506.1. The contents of a ROD are 
specified in 30-50-65. (See further discussion in 30-50-65)
    H. Emergency Actions. There are certain HHS organization actions 
which, because of their immediate importance to the public health, make 
adherence to the requirements of the CEQ regulations and this section 
concerning minimum periods of public review impractical. Compliance 
with the requirements for environmental analysis under NEPA is 
impossible where emergency circumstances require immediate action to 
safeguard the public health. For such actions, the responsible official 
shall consult with the CEQ about alternative arrangements before the 
action is taken, or after the action is taken if time does not permit 
prior consultation with CEQ. OPDIVs/STAFFDIVs shall, in accordance with 
40 CFR 1506.11, limit such arrangements to actions necessary to control 
the immediate impacts of the emergency. Other actions remain subject to 
NEPA review. An OPDIV/STAFFDIV shall document, including publishing a 
notice in the Federal Register, an emergency action covered by this 
paragraph within 30 days after such action occurs. The documentation 
shall identify any adverse impacts from the actions taken; any further 
mitigation that is necessary; and any NEPA documents that may be 
required.
    I. Monitoring. As described in 40 CFR 1505.3, an OPDIVISTAFFDIV may 
provide for monitoring to ensure that its decisions, any mitigating 
measures, and other conditions are carried out.

30-50-65  Contents of an EIS

    A. Format. The format used for an EIS shall encourage good analysis 
and clear presentation of the proposed action, alternatives to the 
proposed action, their environmental effects and, when there is an 
interrelationship between economic or social and natural or physical 
environmental effects, their economic, and social impacts. See 40 CFR 
1508.14. The CEQ regulations (40 CFR part 1502) provide detailed 
requirements for the preparation of an EIS.
    The following CEQ recommended standard format for EIS's (40 CFR 
1502.10) shall be used unless the responsible official determines that 
there is a compelling reason to do otherwise:
    1. Cover Sheet;
    2. Summary;
    3. Table of Contents;
    4. Purpose of and need for action;
    5. Alternatives including proposed action;
    6. Affected environment;
    7. Environmental consequences;
    8. List of preparers;
    9. List of agencies, organizations, and persons to whom copies of 
the EIS are sent;
    10. Index; and
    11. Appendices (if any).
    If a different format is used, it shall include paragraphs 1-3, 8-
10, and shall include the substance of paragraphs 4-7 and 11, in any 
appropriate format.
    B. Cultural or Natural Assets. If a proposed action will also 
affect a cultural or natural asset, the EIS shall incorporate the 
material required by the applicable statute or Executive Order.
    C. Pollution Prevention. Pollution prevention should be an 
important component of mitigation of the adverse impacts of a Federal 
action. To the extent practicable, pollution prevention considerations 
should be included in the proposed action and in the reasonable 
alternatives to the proposal, and should be addressed in the 
environmental consequences section of the EIS (40 CFR 1502.14(f), 
1502.16(h), and 1508.20).
    D. Draft EIS. Draft environmental impact statements shall be 
prepared in accordance with the scope decided upon in the scoping 
process and shall satisfy to the fullest extent possible the 
requirements established for final EISs. All substantive comments 
received during the comment period held as part of the public scoping 
process shall be considered in determining the scope of the EIS. The 
draft statement should discuss all major points of view on the 
environmental impacts of the alternatives, including the proposed 
action.
    E. Final EIS. A final EIS shall be prepared following the public 
comment period and hearing on the draft EIS. The HHS organization's 
responses to comments shall be made in accordance with 40 CFR 1503.4. A 
final EIS shall contain any additional relevant

[[Page 10258]]

information gathered after the publication of the draft EIS, a copy of 
or a summary of oral and written comments received during the public 
review of the draft EIS, and the HHS organization's responses to the 
comments. Any responsible opposing view that was not adequately 
discussed in the draft statement shall be addressed in the final EIS. A 
final EIS shall also include any mitigation measures necessary to make 
the recommendation alternative environmentally acceptable and any 
findings required by Sections 30-40-40 or 30-40-70 in connection with 
floodplain or wetlands environmental reviews.
    F. Consideration of Comments on the Draft EIS. Comments received on 
the draft EIS shall be carefully assessed and considered. The final EIS 
shall respond to oral and written comments received during public 
review of the draft EIS, as provided by 40 CFR 1503.4.
    G. Supplemental Statement. OPDIVs/STAFFDIVs shall prepare 
supplements to either draft or final statements if there are 
substantial changes in the proposed action which are relevant to 
environmental concerns bearing on the proposed action, if significant 
new information becomes available, or new circumstances occur. 
Preparation and circulation of supplements is the same as that for 
draft and final EISs.
    H. Record of Decision. When an OPDIV/STAFFDIV reaches a decision on 
a proposed action after preparing an EIS, the responsible official 
shall prepare a concise public record of decision which includes:
    1. The decision;
    2. All alternatives considered, specifying the alternative or 
alternatives which were considered to be environmentally preferable;
    3. A discussion of factors which were involved in the decision, 
including any essential considerations of national policy which were 
balanced by the organization in making its decision and a statement of 
how those considerations entered into its decision;
    4. A statement of whether all practicable means to avoid or 
minimize potential environmental harm from the alternative selected 
have been adopted, and if not, why they were not;
    5. A description of mitigation measures that will be undertaken to 
make the selected alternative environmentally acceptable;
    6. A discussion of the extent to which pollution prevention is 
included in the decision and how pollution prevention measures will be 
implemented; and
    7. A summary of any monitoring and enforcement program adopted for 
any mitigation measures.

30-50-70  Public Involvement and Circulation of Environmental Impact 
Statements

    A. Public Notice. The public has the opportunity to offer comments 
and otherwise participate in the NEPA process as set forth in 40 CFR 
1506.6 from the time the decision is made to prepare an EIS. A Notice 
of Intent (30-50-55) to prepare an EIS is published in the Federal 
Register and serves as the first public notification that an EIS will 
be prepared. The scoping process (30-50-55), as announced in the Notice 
of Intent, allows the public, Indian tribes, Federal agencies, States, 
and local governments to participate in determining the issues to be 
considered in the EIS.
    OPDIVs/STAFFDIVS shall make diligent efforts to involve the public 
in the environmental review process by providing public notice of NEPA-
related hearings, public meetings, and the availability of 
environmental documents so as to inform those persons and agencies who 
may be interested or affected. The responsible official shall ensure 
that public notice is provided for in accordance with 40 CFR 1500.6 and 
1506.6(b). Notice shall be made through direct mail, the Federal 
Register, local media, or other means appropriate to the scope, issues, 
and extent of public concern. In all cases, notice shall be given to 
those who have requested it on an individual action. Public notice 
shall include the name and location of a contact official through whom 
additional material may be obtained. EPA will publish in the Federal 
Register a Notice of Availability of HHS draft and final EISs.
    OPDIVs/STAFFDIVs must give public notice in the following 
instances:
    1. Prior to preparing a draft statement in order to solicit public 
participation; and
    2. Prior to any public hearings.
    B. Public Hearings. OPDIVs/STAFFDIVs shall hold public hearings as 
part of the NEPA environmental review process when hearings will assist 
substantially in forming environmental judgments. The hearings shall be 
conducted in a manner that is consistent with OPDIV/STAFFDIV program 
requirements. The responsible official shall conduct a public hearing 
on a draft EIS and shall ensure that the draft EIS is made available to 
the public and the hearing announced at least 15 days in advance of the 
hearing. The announcement shall identify the subject of the draft EIS 
and include the location, data, and time of the public hearing.
    C. Availability of Draft EIS. Draft EISs will be prepared, 
forwarded to EPA for filing, and made available to the public early 
enough in the consideration of the proposed action to permit meaningful 
review of the environmental issues involved. A draft EIS will be sent 
to any party having an interest in the document, and will be available 
to the public upon request for the purpose of receiving substantive 
comment, corrections, and additional information on the issues covered 
by the statement. Copies of draft statements shall be provided to:
    1. U.S. Environmental Protection Agency;
    2. Council on Environmental Quality;
    3. Other Federal agencies having related special expertise or 
jurisdiction by law;
    4. Appropriate local and national organizations;
    5. Appropriate State and local agencies, including those authorized 
to develop and enforce environmental standards;
    6. Indian tribes, as appropriate, and
    7. Others requesting a copy of the draft statement.
    D. Comments on Draft EIS. After preparing a draft EIS and before 
preparing a final EIS, the responsible official shall obtain the 
comments of Federal agencies, Indian tribes, State and local government 
agencies, and the public in accordance with 40 CFR 1503.1. The 
responsible official shall respond to comments in the final EIS in 
accordance with 40 CFR 1503.4. There shall be a 45-day minimum comment 
period for a draft EIS after EPA publishes a Notice of Availability of 
the document in the Federal Register (40 CFR 1506.10(c)). Procedures 
for the preparation and circulation of a supplemental statement are 
contained in 30-50-65G.
    E. Proposed Rulemaking. If the subject of a draft EIS is also the 
subject of a notice of proposed rulemaking, the Federal Register notice 
of proposed rulemaking will state that the draft EIS is available upon 
request, and will solicit comments from all interested persons.
    F. Final EIS. Copies of final statements shall be provided in 
accordance with the list subsection C and to all agencies, persons, or 
organizations who submitted comments regarding the draft statement. 
Copies of each final EIS will be available upon request, and the 
responsible HHS organization will make copies of the final statement 
available for public inspection in public reading room(s).
    G. Record of Decision. The responsible official shall publish the 
ROD in the Federal Register and disseminate the ROD to the public as

[[Page 10259]]

provided in 40 CFR 1506.6, except as provided in 40 CFR 1507.3(c).

30-50-75  Environmental Effects Abroad of Major Agency Actions

    A. Consideration of Environmental Effects. In accordance with 
Executive Order 12114, Environmental Effects Abroad of Major Federal 
Actions, 44 FR 1957 (1979), 42 U.S.C. 4321 note, the responsible 
official shall consider the environmental effects abroad of a major 
action by the Department or one of its OPDIVs/STAFFDIVs, including 
whether the action involves:
    1. Potential environmental effects on the global commons and areas 
outside the jurisdiction of any nation, e.g., oceans, Antarctica, and 
the upper atmosphere;
    2. Potential environmental effects on a foreign nation not 
participating with or otherwise involved with the United States and not 
otherwise involved in an HHS organization activity;
    3. The export of products (or emissions or effluent) that in the 
United States are prohibited or strictly regulated because their 
effects on the environment create a serious public health risk; or
    4. Potential environmental effects on natural and ecological 
resources of global importance designated under the Executive Order.
    Before deciding on any action falling into the categories specified 
in subsection A of this section, the responsible official shall 
determine in accordance with Section 2-3 of the Executive Order whether 
such actions may have a significant environmental effect abroad.
    B. Type of Environmental Review. If the responsible official 
determines that an action may have a significant environmental effect 
abroad, the responsible official shall determine in accordance with 
Section 2-4(a) and (b) of the Executive Order whether the subject 
action calls for:
    1. An EIS;
    2. A bilateral or multilateral environmental study; or
    3. A concise environmental review.
    C. Preparation of Environmental Documents. In preparing 
environmental documents under this section, the responsible official 
shall:
    1. Determine, as provided in Section 2-5 of the Executive Order, 
whether proposed actions are subject to the exemptions, exclusions, and 
modification in contents, timing, and availability of documents; and
    2. Coordinate all communications with foreign governments 
concerning environmental agreements and other arrangements in 
implementing the Executive Order.

30-50-80  Reviewing External Environmental Impact Statements

    HHS has a responsibility under section 102(2)C of NEPA to review 
and comment on draft EISs developed by other Federal agencies. In 
accordance with 40 CFR 1503.2, HHS must comment on each EIS on issues 
for which it has ``jurisdiction by law or special expertise.''
    A. Jurisdiction by Law. An OPDIV/STAFFDIV reviewing a draft EIS 
should review each alternative action discussed in an EIS in terms of 
the Departments statutory responsibilities. For example, the reviewer 
should examine:
    1. Potential effects on the delivery or quality of health, social, 
or welfare services;
    2. Potential effects associated with the manufacture, 
transportation, use, storage, and disposal of chemicals or other 
hazardous or radioactive materials;
    3. Potential changes in plant or animal populations (This includes 
examination of the potential effects the proposed action may have on 
human health. Changes in natural predator populations may upset the 
ecological balance to the extent that an increased incidence of 
morbidity or mortality will occur unless offsetting safeguards are 
instituted); and
    4. Potential changes in the physical environment that could affect 
human health or welfare (e.g., air pollution, change in land use). 
(This shall also include an examination of the availability and quality 
of water, sewage, and solid waste disposal facilities.)
    B. Jurisdiction by Special Expertise. Individuals reviewing EISs 
may comment, in addition, in areas beyond their immediate job 
responsibilities when they have special expertise which may be 
appropriate. For example, a veterinarian employed in a disease 
prevention program can comment on an EIS discussion about the effects 
of a forestry project on animal populations.
    C. Types of Comments. Comments on an EIS or on a proposed action 
shall be as specific as possible and may address either the adequacy of 
the statement or the merits of the alternatives discussed or both. A 
reviewer's comment on an external EIS can address one or more of the 
following:
    1. That data are missing or inaccurate;
    2. That the organization of the EIS precludes a valid review;
    3. That the projections or descriptions of effects are not complete 
or are inaccurate;
    4. That the reviewer does not concur with the projections (stating 
reasons);
    5. That certain safeguards will lessen the extent of an effect or 
the magnitude of an impact;
    6. A preference for an action alternative (or no action); or
    7. An objection to a federal agency's preferred alternative (if one 
is identified in the draft EIS) and recommend adoption of new or 
existing alternatives.
    Objections to a federal agency's alternative should be lodged on 
the basis of the direct or indirect effects on HHS programs or mission. 
When an objection or reservation about the proposal is made on grounds 
of environmental impacts, an OPDIV/STAFFDIV shall specify the 
mitigation measures it considers necessary to allow it to grant or 
approve applicable permit, license, or related requirements or 
concurrences (40 CFR 1503.3).
    If a lead federal agency's predictive methodology is criticized, 
the OPDIV/STAFFDIV should describe the alternative methodology which it 
prefers and the rationale for its preference. An OPDIV/STAFFDIV shall 
specify in its comments whether it needs additional information to 
fulfill other applicable environmental reviews or consultation 
requirements and what information it needs. In particular, an OPDIV/
STAFFDIV shall specify any additional information it needs to comment 
adequately on the draft statements analysis of significant site-
specific effects associated with the granting or approving of necessary 
Federal permits, licenses, or entitlements.
    D. Resolution of Comments. If an OPDIV/STAFFDIV objects to all or 
part of a Federal agency's proposed action and, after consultation with 
the agency, is unable to resolve its differences, it shall determine if 
the proposed action meets the criteria for referral in 40 CFR 1504.2. 
If the criteria are met, the OPDIV/STAFFDIV head shall refer the 
objection to CEQ within 25 days of the date that the final EIS is made 
available to EPA in accordance with 40 CFR 1504.3.

Subject: Emergency Planning and Community Right-to-Know Act of 1986 
(EPCRA) Requirements

30-60-00  Background
30-60-05  Applicability
30-60-10  Responsibilities
30-60-20  Emergency Planning
30-60-30  Notification of Release of Extremely Hazardous Substance
30-60-40  Material Safety Data Sheet Reporting
30-60-50  Emergency and Hazardous Chemical Inventory Reporting
30-60-60  Treatment of Mixtures in MSDS

[[Page 10260]]

and Inventory Reporting
30-60-70  Toxic Chemical Release Inventory Reporting
30-60-80  Public Availability of Information; Withholding and 
Disclosure of Trade Secrets
30-60-90  Compliance
30-60-100  Civil and Criminal Penalties

30-60-00  Background

    EPCRA was enacted in 1986 as Title III of the Superfund Amendments 
and Reauthorization Act (SARA), Pub. L. No. 99-499, 100 Stat. 1729 
(codified at 42 U.S.C. 11001-11050 (1988)). Although they are sometimes 
connected by their emergency notification and reporting requirements, 
EPCRA is a separate act from the ``Superfund'' law or, as it is 
officially titled, the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (CERCLA).
    EPCRA's provisions form two primary programs: (1) emergency 
planning, and (2) community right-to-know. EPCRA 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 law 
requires local communities to prepare plans for dealing with 
emergencies relating to the release of extremely hazardous substances 
from facilities within those communities. EPCRA also provides the 
public and local and state governments with the right to obtain 
information concerning the types, amount, location, storage, use, 
disposition, and possible health effects from the release of hazardous 
and extremely hazardous substances from facilities that are in their 
communities.
    Facilities that are subject to EPCRA are required to provide 
information and reports to EPA and state and local groups. Five 
distinct reporting requirements are contained in EPCRA:
    1. Emergency planning (30-60-20);
    2. Notification of release (30-60-30);
    3. Material safety data sheet submission (30-60-40);
    4. Emergency and hazardous chemical inventory reporting (30-60-50), 
and
    5. Toxic chemical release reports (30-60-70).
    Each of these reporting requirements and other facility 
responsibilities are described in the following sections.

30-60-05  Applicability

    A. Executive Order 12856. EPCRA applies to ``persons''. The term 
``person'' is defined in the act to include individuals, partnerships, 
corporations, states, and municipalities. The definition does not cover 
most United States government agencies. EPCRA is made applicable to 
federal agencies by Executive Order 12856. E.O. 12856 incorporates by 
reference all definitions found in EPCRA and EPA implementing 
regulations, except that it modifies the term ``person'' to include 
Federal executive agencies as defined in 5 U.S.C. 105 (1988). Executive 
agencies are Executive Departments, government corporations, and 
independent establishments of the United States. HHS is an executive 
Department and is subject to EPCRA because of Executive Order 12856.
    B. Agency Facilities. Executive Order 12856 provides that EPCRA 
applies to all Federal executive agencies that either own or operate a 
``facility'' as that term is defined in EPCRA, if such facility meets 
the statute's threshold requirements for compliance. The statutory 
definition of facility is:

All buildings, equipment, structures, and other stationary items 
which are located on a single site or on contiguous or adjacent 
sites and which are owned or operated by the same person (or by any 
person which controls, is controlled by, or under common control 
with, such person). For purposes of [emergency release 
notification], the term includes motor vehicles, rolling stock, and 
aircraft (42 U.S.C. 11049(4)).

EPA regulations revise the statutory definition of facility to include 
``manmade structures in which chemicals are purposefully placed or 
removed through human means such that it functions as a containment 
structure for human use.'' (40 CFR 355.20, 370.2). The purpose of the 
revision was to clarify that the definition applies to certain 
subsurface structures.
    C. Covered Facilities. Each Federal agency must apply all of the 
provisions of Executive Order 12856 to each of its covered facilities, 
including those facilities which are subject, independent of the 
Executive order, to the provisions of EPCRA (e.g., certain Government-
owned/contractor-operated facilities (GOCO's) for chemicals meeting 
EPCRA thresholds). Executive Order 12856 does not apply to Federal 
agency facilities outside the customs territory of the United States, 
such as United States diplomatic and consular missions abroad. EPA may 
be consulted to determine the applicability of Executive Order 12586 to 
particular OPDIV/STAFFDIV facilities.
    D. Preliminary List of Covered Facilities. The Secretary was 
required by Executive Order 12856 to provide the EPA Administrator by 
December 31, 1993, with a preliminary list of facilities that 
potentially meet the requirements for reporting under the threshold 
provisions of EPCRA.

30-60-10  Responsibilities

    A. HHS. Executive Order 12856 makes the Secretary responsible for 
ensuring HHS compliance with emergency planning and community right-to-
know provisions established pursuant to all implementing regulations 
issued pursuant to EPCRA. The Order requires Federal agencies to report 
in a public manner toxic chemicals entering any waste stream from their 
facilities, including any releases to the environment, and to improve 
local emergency planning, response, and accident notification. The 
objective of Executive Order 12856 is to make the Federal Government a 
good neighbor to local communities by becoming a leader in providing 
information to the public concerning toxic and hazardous chemicals and 
extremely hazardous substances at Federal facilities, and in planning 
for and preventing harm to the public through the planned or unplanned 
releases of chemicals.
    B. OPDIVs/STAFFDIVs. The head of each OPDIV/STAFFDIV is responsible 
for compliance with the provisions of EPCRA as described in this 
chapter and Executive Order 12856. An OPDIV/STAFFDIV must comply with 
provisions set forth in sections 301 through 312 of EPCRA, all 
implementing regulations, and future amendments to these authorities, 
in light of any applicable guidance as provided by EPA. Dates for 
compliance with individual sections of EPCRA vary and are set forth in 
the appropriate sections below. Executive Order 12856 provides that the 
compliance dates are not intended to delay implementation of earlier 
timetables already agreed to by Federal agencies and are inapplicable 
to the extent they interfere with those timetables. Compliance with 
EPCRA means compliance with the same substantive, procedural, and other 
statutory and regulatory requirements that would apply to a private 
person.
    C. Agency Contractors. Executive Order 12856 requires each Federal 
agency to provide, in all appropriate future contracts, for the 
contractor to supply all information the Federal agency deems necessary 
for it to comply with the order. To the extent that compliance with the 
Executive Order is made more difficult due to lack of information from 
existing contractors, OPDIVs/STAFFDIVs must take practical steps to 
obtain the information needed to comply with the Executive Order from 
such contractors. Nothing in Executive Order 12856 alters the

[[Page 10261]]

obligations which GOCO's and Government corporation facilities have 
under EPCRA independent of the Executive Order or subjects such 
facilities to EPCRA if they are otherwise excluded. However, each 
OPDIV/STAFFDIV shall include the releases and transfers from all such 
facilities when meeting all of the organization's responsibilities 
under Executive Order 12856.

30-60-20  Emergency Planning (EPCRA Sections 301-30; 42 U.S.C. 11001-
30)

    A. Basic Requirement. Facilities that are covered by EPCRA must 
notify the State emergency response commission that they are subject to 
the Act's emergency planning provisions. A local emergency planning 
committee, comprised of state and local officials, community 
organizations, and facility representatives, must prepare an emergency 
plan for responding to the release of extremely hazardous substances in 
the local community. A covered facility must provide any information 
that is necessary for developing the local emergency plan. The facility 
must also notify the local committee of relevant changes at the 
facility that may affect the emergency plan and designate an emergency 
planning coordinator who will participate in the emergency planning 
process. EPA regulations governing emergency planning and notification 
under EPCRA are contained in 40 CFR part 355.
    B. Applicability of Requirement. A facility is subject to the EPCRA 
emergency planning requirements if an amount of any extremely hazardous 
substance equal to or in excess of the threshold planning quantity 
(TPQ) established for that substance is present at the facility. An 
``amount of any extremely hazardous substance'' means the total amount 
of an extremely hazardous substance present at any one time at a 
facility at concentrations greater than one percent by weight, 
regardless of location, number of containers, or method of storage.
    E.O. 12856 makes the EPCRA emergency planning requirements in 
Sections 302 and 303 of the Act applicable to Federal agencies. A 
Governor or a State commission may designate additional facilities in 
the State which shall be subject to the EPCRA emergency planning 
requirements. The authority of a Governor or a State commission to 
designate additional facilities does not extend to Federal executive 
agencies (except government corporations).
    C. Extremely Hazardous Substances and Threshold Planning 
Quantities. An ``extremely hazardous substance'' is defined in EPA 
regulations to mean a substance that is listed in Appendices A (in 
alphabetical order) and B (by CAS number) of 40 CFR part 355. The 
Appendices contain tables which indicate the threshold planning 
quantity (TPQ) for each extremely hazardous substance.
    EPCRA authorizes EPA to modify the list and TPQ of extremely 
hazardous substances from time to time based on the toxicity, 
reactivity, volatility, dispersability, combustibility, and 
flammability of a substance. Because extremely hazardous substances are 
periodically removed or added to the list, and threshold quantities may 
be revised, facilities must be sure that the list of extremely 
hazardous substances they consult is current. EPA regulations in 40 CFR 
355.30(e) (1992) set forth the rules and techniques for calculating the 
TPQ of extremely hazardous substances that are solids or present in 
mixtures, solutions, and molten materials.
    D. State and Local Planning Groups. EPCRA requires the Governor of 
each State or Chief Executive Officer of an Indian Tribe to appoint an 
Emergency Response Commission (``commission''). The commission must 
designate emergency planning districts in order to facilitate 
preparation and implementation of an emergency plan. The commission 
must also appoint local emergency planning committees (``committee'') 
in each emergency planning district and supervise and coordinate the 
activities of such committees.
    Local committees include, at a minimum, representatives from each 
of the following groups or organizations: elected State and local 
officials; law enforcement, civil defense, firefighting, first aid, 
health, local environmental, hospital, and transportation personnel; 
broadcast and print media; community groups; and owners and operators 
of facilities subject to EPCRA.
    E. Local Emergency Plan. Each local emergency planning committee 
was to have completed preparation of a local emergency plan no later 
than October 17, 1988. The committee must review such plan once a year, 
or more frequently as changed circumstances in the community or at any 
facility may require. The rules of the committee must include 
provisions for public notification of committee activities, public 
meetings to discuss the emergency plan developed by the committee, 
public comments on the emergency plan and response to such comments by 
the committee, and distribution of the emergency plan. EPCRA requires 
that each local emergency plan prepared by a local committee shall 
include (but is not limited to) each of the following:
    1. Identification of facilities subject to the EPCRA's requirements 
that are within the emergency planning district, identification of 
routes likely to be used for the transportation of substances on the 
list of extremely hazardous substances, and identification of 
additional facilities contributing or subjected to additional risk due 
to their proximity to facilities subject to EPCRA requirements, such as 
hospitals or natural gas facilities;
    2. Methods and procedures to be followed by facility owners and 
operators and local emergency and medical personnel to respond to any 
release of such substances;
    3. Designation of a community emergency coordinator and facility 
emergency coordinators, who shall make determinations necessary to 
implement the plan;
    4. Procedures providing reliable, effective, and timely 
notification by the facility emergency coordinators and the community 
emergency coordinator to persons designated in the emergency plan, and 
to the public, that a release has occurred (consistent with the 
emergency notification requirements of EPCRA Section 11004);
    5. Methods for determining the occurrence of a release, and the 
area or population likely to be affected by such release;
    6. A description of emergency equipment and facilities in the 
community and at each facility in the community subject to EPCRA 
requirements, and an identification of the persons responsible for such 
equipment and facilities;
    7. Evacuation plans, including provisions for a precautionary 
evacuation and alternative traffic routes;
    8. Training programs, including schedules for training of local 
emergency response and medical personnel; and
    9. Methods and schedules for exercising the emergency plan.
    F. Review of Emergency Plans. After completion of an emergency plan 
for an emergency planning district, the local emergency planning 
committee must submit a copy of the plan to the State emergency 
response commission of each State in which such district is located. 
The commission must review the plan and make recommendations to the 
committee on revisions of the plan that may be necessary to ensure 
coordination of such plan with emergency response

[[Page 10262]]

plans of other emergency planning districts.
    Regional response teams, as established pursuant to CERCLA's 
National Contingency Plan (42 U.S.C. 9605), may review and comment upon 
an emergency plan or other issues related to preparation, 
implementation, or exercise of such a plan upon request of a local 
emergency planning committee. Such review may not delay implementation 
of the plan. The national response team must publish guidance documents 
for preparation and implementation of emergency plans.
    G. Emergency Planning Notification. Each covered facility shall 
notify the commission for the state in which the facility is located 
that the facility is subject to EPCRA emergency planning requirements.
    Thereafter, if a substance on the list of extremely hazardous 
substances first becomes present at the facility in excess of the TPQ 
established for such substance, or if there is a revision of the list 
of extremely hazardous substances and the facility has present a 
substance on the revised list in excess of the TPQ established for such 
substance, the covered facility shall notify the state emergency 
response commission and the local emergency planning committee within 
60 days after such acquisition or revision that the facility is subject 
to the EPCRA emergency planning requirements. (EPCRA, 302(c)).
    H. Facility Emergency Response Coordinator. A facility 
representative shall be designated for each facility who will 
participate in the local emergency planning process as a facility 
emergency response coordinator. The name of the facility emergency 
response coordinator shall be provided to the local emergency planning 
committee of the State (or the Governor if there is no committee) in 
which the facility is located.
    I. Provision of Information and Technical Assistance.
    1. Provision of Information. Upon request of the local committee, 
the facility must promptly provide to the committee any information 
necessary for development or implementation of the local emergency 
plan. Executive Order 12856 provides that all information necessary for 
the applicable local committee to prepare or revise the local emergency 
plan must also be provided. A covered facility shall inform the local 
emergency planning committee of any changes occurring at the facility 
which may be relevant to emergency planning.
    EPCRA section 322 (42 U.S.C. 11042) provides for the withholding of 
certain trade secret information, provided the claim of trade secrecy 
is substantiated in accordance with EPA regulations. Withholding and 
disclosure of trade secret information is discussed in section 30-60-
80.
    2. Technical Assistance. OPDIVs/STAFFDIVs, to the extent 
practicable, shall provide technical assistance, if requested, to local 
emergency planning committees in the development of emergency plans and 
in fulfillment of their community right-to-know and risk reduction 
responsibilities.

30-60-30 Notification of Release of Extremely Hazardous Substance 
(EPCRA Section 304; 42 U.S.C. 11004)

    A. Basic Requirement. A facility must immediately notify the local 
committee for any area likely to be affected, and the commission of any 
state likely to be affected, or off-site spills or any releases from 
the facility of a ``reportable quantity'' (RQ) of an EPCRA ``extremely 
hazardous substance'' or a CERCLA ``hazardous substance''. The initial 
report must be made by such means as telephone, radio, or in person. A 
follow-up written report must be furnished to the committee and 
commission. EPA regulations governing notification of release of an 
extremely hazardous substance are contained in 40 CFR Part 355.
    B. Applicability. The EPCRA emergency release notification 
requirements apply to any facility:
    1. At which a hazardous chemical is produced, used, or stored; and
    2. At which there is release of a reportable quantity of any 
extremely hazardous substance or CERCLA hazardous substance.
    Executive Order 12856 provides that the release notification 
requirements in EPCRA section 304 (42 U.S.C. 11004) shall be effective 
beginning January 1, 1994.
    OPDIVs/STAFFDIVs should be aware that the release notification 
requirements of EPCRA section 304 covers more facilities than the 
emergency planning requirements of EPCRA sections 301-303. An OPDIV/
STAFFDIV facility must notify the local emergency planning committee of 
a release under section 304 even if a section 302(b) ``threshold 
planning quantity'' of a substance is not present. Furthermore, section 
304 is the only section of EPCRA that applies to ``transportation 
facilities.''
    C. Reportable Quantities. EPA regulations in 40 CFR part 355 
establish the list of extremely hazardous substances, threshold 
planning quantities, and facility notification responsibilities 
necessary for the development and implementation of state and local 
emergency response plans. The reportable quantities for extremely 
hazardous substances are set out in 40 CFR part 355, Appendices A 
(alphabetical order) and B (by CAS number).
    D. CERCLA Release Reporting. The EPCRA notification of release 
requirements are in addition to the release reporting requirements 
imposed by CERCLA section 103(42 U.S.C. 9603). Under CERCLA section 
103(a), the person in charge of a vessel or facility from which a 
hazardous substance has been released in a quantity that equals or 
exceeds its reportable quantity must immediately notify the National 
Response Center of the release. The purpose of the CERCLA notification 
requirement is to inform the government of a release so that Federal 
personnel can evaluate the need for a Federal removal or remedial 
action and undertake any necessary action in a timely manner. Under 
section 104 of CERCLA, the Federal government may respond whenever 
there is a release or substantial threat of a release of a hazardous 
substance into the environment. Response activities are to be taken, to 
the extent practicable, accordance with the National Oil and Hazardous 
Substances Pollution Contingency Plan (40 CFR part 300).
    Releases of CERCLA hazardous substances are subject to the release 
reporting requirements that are codified at 40 CFR part 302. The list 
of CERCLA hazardous substances and their reportable quantities is found 
at 40 CFR 302.4. The National Response Center telephone number for 
release reporting is (800) 424-8802.

    Note: Currently, only releases of those extremely hazardous 
substances that are also CERCLA hazardous substances are required to 
be reported to the National Response Center under CERCLA section 
103. Discrepancies exist between the substances on the list of EPCRA 
extremely hazardous substances and those on the list of CERCLA 
hazardous substances. Moreover, the reportable quantity of the same 
substance may differ between lists. EPA has published a proposed 
rule to designate 226 non-CERCLA extremely hazardous substances as 
CERCLA hazardous substances (54 FR 3388 (1989). The purpose of the 
proposed rule is to eliminate potential confusion concerning the 
different EPCRA (notification to state and local officials only) and 
CERCLA (notification to the National Response Center in addition to 
notification to state and local officials) requirements. EPA has 
also published a proposed rule to adjust the reportable quantities 
for 225 substances on the EPCRA extremely hazardous substances list, 
which EPA has proposed for designation as CERCLA hazardous 
substances, and 19 substances that are CERCLA hazardous substances 
(54 FR 35988 (1989)).


[[Page 10263]]


    E. Comparison of EPCRA and CERCLA Release Reporting Requirements. 
Table 1 indicates the differences in reporting a release of a 
reportable quantity of a CERCLA hazardous substance or an EPCRA 
extremely hazardous substance.

    Note: A petroleum release that contains a reportable quantity of 
an extremely hazardous substance as a constituent is exempt under 
CERCLA but not under EPCRA section 304. The petroleum exclusion 
under CERCLA does not apply to EPCRA (52 FR 13378, 13385 (1987)).


                    Table 1. Comparison of CERCLA and EPCRA Release Notification Requirements
----------------------------------------------------------------------------------------------------------------
                                        Substance only on      Substance only on EPCRA
                                         CERCLA list of      list of extremely hazardous    Substance on CERCLA
       Reporting requirement          hazardous substances     substances (40 CFR Part        and EPCRA lists
                                      (40 CFR Sec.  302.4)         355, Appx A & B)
----------------------------------------------------------------------------------------------------------------
Notify State and Local Officials     Yes...................  Yes (unless release results  Yes
                                                              in exposure only to
                                                              persons solely within the
                                                              boundaries of the
                                                              facility).
Notify National Response Center      Yes...................  No.........................  Yes
Does the petroleum exclusion apply?  Yes...................  No.........................  Yes--CERCLA Report;
                                                                                           No--EPCRA Report
----------------------------------------------------------------------------------------------------------------

    F. Notice Requirements. A facility shall immediately notify the 
community emergency coordinator for the local emergency planning 
committee of any area likely to be affected by the release and the 
state emergency response commission of any state likely to be affected 
by the release. If there is no local emergency planning committee, 
notification shall be provided to relevant local emergency response 
personnel.
    Emergency release notice requirements for a transportation-related 
release may be satisfied by providing the information indicated in 
subsection G. Notice Contents by telephone to the 911 operator, or in 
the absence of a 911 emergency telephone number, to the operator. A 
``transportation-related release'' means a release during 
transportation, or storage incident to transportation if the stored 
substance is moving under active shipping papers and has not reached 
the ultimate consignee.
    G. Notice Contents. The emergency release notice shall include the 
following to the extent known at the time of notice and so long as no 
delay in notice or emergency response results:
    1. The chemical name or identity of any substance involved in the 
release.
    2. An indication of whether the substance is an extremely hazardous 
substance.
    3. An estimate of the quantity of any such substance that was 
released into the environment.
    4. The time and duration of the release.
    5. The medium or media into which the release occurred.
    6. Any known or anticipated acute or chronic health risks 
associated with the emergency and, where appropriate, advice regarding 
medical attention necessary for exposed individuals.
    7. Proper precautions to take as a result of the release, including 
evacuation (unless such information is readily available to the 
community emergency coordinator pursuant to the emergency plan).
    8. The names and telephone number of the person or persons to be 
contacted for further information.
    H. Following Emergency Notice. As soon as practicable after a 
release which requires notice under subsection F. Notice Requirements, 
a written follow-up emergency notice (or notices, as more information 
becomes available) setting forth and updating the information required 
in subsection G. Notice Contents and including additional information 
with respect to:
    1. Actions taken to respond to and contain the release;
    2. Any known or anticipated acute or chronic health risks 
associated with the release; and
    3. Where appropriate, advice regarding medical attention necessary 
for exposed individuals.
    I. Transportation Exemption Not Applicable. EPCRA generally exempts 
from its requirements the transportation, including the storage 
incident to such transportation, of any substance or chemical subject 
to EPCRA. This transportation exemption does not apply to this section 
(30-60-30) or EPCRA's requirements for notification of the release of 
an extremely hazardous substance (EPCRA section 304; 42 U.S.C. 11004).
    Refer to subsection F. Notice Requirements for requirements 
pertaining to transportation-related releases.
    J. Exempted Releases. The notification requirements of this section 
(30-60-30) do not apply to:
    1. Any release which results in exposure to persons solely within 
the boundaries of the facility (note: CERCLA does not contain a similar 
exemption);
    2. Any release which is a ``Federally permitted release'' as 
defined in section 101 (10) of CERCLA (42 U.S.C. 9601 (10));
    3. Any release that is continuous and stable in quantity and rate 
under the definitions in 40 CFR 302.8(b).* Exemption from notification 
under this subsection does not include exemption from:
---------------------------------------------------------------------------

    *The referenced definitions that apply to the notification of a 
continuous release state: ``A continuous release is a release that 
occurs without interruption or abatement or that is routine, 
anticipated, and intermittent and incidental to normal operations or 
treatment processes. * * * A routine release is a release that 
occurs during normal operating procedures or processes. * * * A 
release that is stable in quantity and rate is a release that is 
predictable and regular in amount and rate of emission.'' (40 CFR 
302.8(b)).
---------------------------------------------------------------------------

    (a) Initial telephone or written notifications of a continuous 
release as defined in 40 CFR 302.8(d) and (e);
    (b) Notification of a ``statistically significant increase,'' 
defined in 40 CFR 302.8(b) as any increase above the upper bound of the 
reported normal range, which is to be submitted to the community 
emergency coordinator for the local emergency planning committee for 
any area likely to be affected by the release and to the State 
emergency response commission of any State likely to be affected by the 
release;
    (c) Notification of a ``new release'', defined in 40 CFR 
302.8(g)(1) as any change in the composition or source(s) of the 
release; or
    (d) Notification of a change in the normal range of the release as 
required under 40 CFR 302.8(g)(2).**
---------------------------------------------------------------------------

    **``The normal range of a release is all releases (in pounds or 
kilograms) of a hazardous substance reported or occurring over any 
24-hour period under normal operating conditions during the 
preceding year. Only releases that are both continuous and stable in 
quantity and rate may be included in the normal range.'' (40 CFR 
302.8(b)).

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

[[Page 10264]]

    4. Any release of a pesticide product exempt from CERCLA section 
103(a) (42 U.S.C. 9603(a)) reporting under CERCLA section 103(e) (42 
U.S.C. 9603(e)) (CERCLA exempts from its notification requirements the 
application of a pesticide product registered under FIFRA or the 
handling and storage of such a pesticide product by an agricultural 
producer);
    5. Any release not meeting the definition of release under section 
101 (22) of CERCLA (42 U.S.C. 9601(22)), and therefore exempt from 
CERCLA section 103(a) reporting (42 U.S.C. 9603(a)) (e.g., engine 
exhaust emissions, certain nuclear material releases, the normal 
application of fertilizer); and
    6. Any radionuclide release which occurs:
    (a) Naturally in soil from land holdings such as parks, golf 
courses, or other large tracts of land;
    (b) Naturally from the disturbance of land for purposes other than 
mining, such as for agricultural or construction activities;
    (c) From the dumping of coal and coal ash at utility and industrial 
facilities with coal-fired boilers; and
    (d) From coal and coal ash piles at utility and industrial 
facilities with coal-fired boilers.

30-60-40  Material Safety Data Sheet Reporting (EPCRA 311; 42 U.S.C. 
11021)

    A. Basic Requirement. A material safety data sheet (MSDS) or a list 
of hazardous chemicals shall be provided to the local emergency 
planning committee, the State emergency planning commission, and the 
fire department with jurisdiction over the facility for each hazardous 
chemical present at the facility according to the minimum threshold 
schedule provided in 40 CFR 370.20(b) (see subsection D. Minimum 
Thresholds for Reporting). An MSDS must include such information as the 
hazardous chemical's common and chemical names, physical and chemical 
characteristics, physical and health hazards, primary routes of entry, 
exposure limits, possible carcinogenic effects, safe handling and use 
precautions, control measures, and emergency and first aid procedures. 
(29 CFR 1910.1200(g)(2)). EPA regulations governing MSDS reporting are 
contained in 40 CFR part 370.

    Note: Requirements for the reporting of mixtures is contained in 
section 30-60-60.

    B. Applicability. The requirement in section 311 of EPCRA to submit 
a MSDS or list of hazardous chemicals applies to each facility that is 
required to prepare or have available a MSDS for a hazardous chemical 
under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et 
seq.) and regulations promulgated under that Act (see 29 CFR 
1910.1200(g)). The Act requires a facility to have a MSDS for each 
hazardous chemical it uses, produces, or imports (29 CFR 
1910.1200(g)(1)).
    C. Alternative Reporting. In lieu of the submission of an MSDS for 
each hazardous chemical, the following may be submitted:
    1. A list of the hazardous chemicals for which an MSDS is required, 
grouped by hazard category as defined by 40 CFR 370.2 (e.g., 
``immediate (acute) health hazard'' or ``delayed (chronic) health 
hazard'');
    2. The chemical or common name of each hazardous chemical as 
provided on the MSDS; and
    3. Except for reporting of mixtures under 40 CFR 370.28(a)(2) (see 
section 30-60-60, subsection A.2.), any hazardous component of each 
hazardous chemical as provided on the MSDS.
    D. Minimum Threshold Levels for MSDS Reporting. Except in response 
to certain requests for submission of an MSDS, an MSDS shall be 
submitted:
    1. For all hazardous chemicals present at the facility at any one 
time in amounts equal to or greater than 10,000 pounds (or 4,540 kgs.); 
and
    2. For all extremely hazardous substances present at the facility 
in an amount greater than or equal to 500 pounds (or 227 kgs. 
approximately 55 gallons) or the TPQ, whichever is lower.
    The minimum threshold for reporting in response to a request for 
submission of an MSDS by a local emergency planning committee (see 
subsection H. Submission of MSDS Upon Committee Request) shall be zero.
    E. Definition of ``Hazardous Chemical''. The term ``hazardous 
chemical'', as defined in 29 CFR 1910.1200(c), means any chemical which 
is a physical hazard or a health hazard, except that such term does not 
include the following substances:
    1. Any food, food additive, color additive, drug, or cosmetic 
regulated by the Food and Drug Administration;
    2. Any substance present as a solid in any manufactured item to the 
extent exposure to the substance does not occur under normal conditions 
of use;
    3. Any substance to the extent it is used for personal, family, or 
household purposes, or is present in the same form and concentration as 
a product packaged for distribution and use by the general public;
    4. Any substance to the extent it is used in a research laboratory 
or a hospital or other medical facility under the direct supervision of 
a technically qualified individual; and
    5. Any substance to the extent it is used in routine agricultural 
operations or is a fertilizer held for sale by a retailer to the 
ultimate customer.

    Note:  The definition of ``hazardous chemical'' in this section 
(30-60-40) is broader than ``hazardous substance'' under CERCLA or 
``extremely hazardous substance'' under EPCRA (see sections 30-60-
20, 30-60-30).

    F. Reporting Period. Executive Order 12856 provides that to the 
extent that a facility is required to maintain MSDSs under any 
provisions of law or Executive order, information required under 
section 311 of EPCRA shall be submitted no later than August 3, 1994. 
Thereafter, a facility shall submit an MSDS for a hazardous chemical or 
a list within three months after a hazardous chemical requiring an MSDS 
becomes present in an amount exceeding the threshold established in 40 
CFR 370.20(b) (see subsection D. Minimum Threshold Levels for 
Reporting).
    G. Supplemental Reporting. A revised MSDS shall be provided to the 
local emergency planning committee, the State emergency planning 
commission, and the fire department with jurisdiction over the facility 
within three months after discovery of significant new information 
concerning the hazardous chemical for which the MSDS was submitted.
    H. Submission of MSDS Upon Committee Request. A facility that has 
not submitted the MSDS for a hazardous chemical present at the facility 
shall submit the MSDS for any such hazardous chemical to the local 
emergency planning committee upon its request. The MSDS shall be 
submitted within 30 days of the receipt of such request. The minimum 
threshold for reporting in response to a request for submission of an 
MSDS by a local committee shall be zero.
    I. Public Request for MSDS Information. EPA regulations permit any 
person to obtain an MSDS with respect to a specific facility by 
submitting a written request to the local emergency planning committee. 
If the committee does not have the MSDS in its possession, the EPA 
regulations authorize the committee to request a submission of the MSDS 
from the owner or operator of the facility that is the subject of the 
request and make the sheet available to the requester.
    J. Withholding of Trade Secret Information. EPCRA section 322 (42 
U.S.C. 11042) provides that any person

[[Page 10265]]

may withhold from the submittal of an MSDS the specific chemical 
identity (including the chemical name and other specific 
identification) of a hazardous chemical when such information is a 
trade secret and the claim of trade secrecy is substantiated in 
accordance with EPA regulations. Withholding and disclosure of trade 
secret information is discussed in section 30-60-80.

30-60-50  Emergency and Hazardous Chemical Inventory Reporting (EPCRA 
312; 42 U.S.C. 1022)

    A. Basic Requirement. A facility shall submit annually an Emergency 
and Hazardous Chemical Inventory Reporting Inventory Form (Tier I form) 
to the local emergency planning committee, the State emergency response 
commission, and the fire department with jurisdiction over the facility 
for hazardous chemicals present at the facility during the preceding 
calendar year that are above the minimum threshold levels established 
for those chemicals (see subsection D. Minimum Threshold Levels for 
Tier I or Tier II Form Reporting). The Tier I form provides aggregate 
information on the categories, amounts, and general location of the 
hazardous chemicals at the facility. EPA regulations governing annual 
inventory reporting are contained in 40 CFR part 360.


    Note: Requirements for the reporting of mixtures is contained in 
section 30-60-60.


    B. Alternative Reporting. With respect to any specific hazardous 
chemical at the facility, a Tier II form (see subsection G. Contents of 
Tier II Form) may be submitted in lieu of the Tier I information.
    C. Applicability of the Requirement. The requirement in section 312 
of EPCRA to submit an emergency and hazardous chemical inventory form 
applies to each facility that is required to prepare or have available 
an MSDS for a hazardous chemical under OSHA and regulations promulgated 
under that Act. OSHA requires facilities that use, distribute, produce, 
or import chemicals to have a material safety data sheet for each 
hazardous chemical which they use (29 CFR 1910.1200(g)(1)).
    D. Minimum Threshold Levels for Tier I or Tier II Form Reporting. 
Except in response to certain requests for submission of a Tier II 
form, a Tier I (or Tier II) form shall be submitted covering:
    1. All hazardous chemicals present at the facility at any one time 
during the preceding calendar year in amounts equal to or greater than 
10,000 pounds (or 4,540 kgs.); and
    2. Extremely hazardous substances present at the facility in an 
amount greater than or equal to 500 pounds (or 227 kgs.--approximately 
55 gallons) or the TPQ, whichever is lower.
    The minimum threshold for reporting in response to a request for 
submission of a Tier II form by a State emergency response commission, 
local emergency planning committee, or fire department having 
jurisdiction over the facility (see subsection H. Submission of Tier II 
Information to State Commissions, Local Committees, or Fire 
Departments) shall be zero.
    E. Annual Reporting Period. An inventory form containing Tier I (or 
Tier II) information on hazardous chemicals present at the facility 
during the preceding calendar year above the threshold levels 
established in 40 CFR 370.20(b) (see subsection D. Minimum Threshold 
Levels for Tier I or Tier II Form Reporting shall be submitted on or 
before March 1 each year. Executive Order 12856 provides that the first 
year of compliance with this reporting requirement for federal agencies 
shall be no later than the 1994 calendar year, with reports due on or 
before March 1, 1995.
    F. Content of Tier I Form. The Tier I Emergency and Hazardous 
Chemical Inventory Form (with instructions) is set out in 40 CFR 
370.40(b). In lieu of the form, a facility may submit a State or local 
form that contains identical content. The Tier I Inventory Form 
requires a facility to provide the following information in aggregate 
terms for hazardous chemicals in categories of health and physical 
hazards as set forth under OSHA and regulations promulgated under that 
Act.
    1. An estimate (in ranges) of the maximum amount of hazardous 
chemicals in each category present at the facility at any time during 
the preceding calendar year.
    2. An estimate (in ranges) of the average daily amount of hazardous 
chemicals in each category present at the facility during the preceding 
calendar year.
    3. The general location of hazardous chemicals in each category.
    The EPA regulations consolidate 23 hazard categories defined in the 
OSHA Hazard Communication Standard, 29 CFR 1910.1200, into two health 
hazard and three physical hazard categories. The five Tier I Form 
hazard categories are: fire hazards; sudden release of pressure 
hazards; reactivity hazards; immediate (acute) health hazards; and 
delayed (chronic) health hazards.
    G. Contents of Tier II Form. Tier II Emergency and Hazardous 
Chemical Inventory Forms (with instructions) is set out in 40 CFR 
370.41(b). In lieu of the form contained in the EPA regulations, a 
facility may submit a state or local form that contains identical 
content. The Tier II Inventory Form requires the following additional 
information for each hazardous chemical present at the facility:
    1. The chemical name or the common name of the chemical as provided 
on the MSDS.
    2. An estimate (in ranges) of the maximum amount of the hazardous 
chemical present at the facility at any time during the preceding 
calendar year.
    3. An estimate (in ranges) of the average daily amount of the 
hazardous chemical present at the facility during the preceding 
calendar year.
    4. A brief description of the manner of storage of the hazardous 
chemical.
    5. The location at the facility of the hazardous chemical.
    6. An indication of whether the facility elects to withhold 
information regarding the location of the hazardous chemical from 
disclosure to the public under 42 U.S.C. 11044 (see subsection L. 
Withholding Certain Information From Public Disclosure.
    H. Submission of Tier II information to State Commissioners, Local 
Committees, or Fire Departments. Upon request by a State emergency 
response commission, a local emergency planning committee, or a fire 
department with jurisdiction over the facility, a facility shall 
provide Tier II information to the person making the request. Any such 
request shall be with respect to a specific facility. The Tier II Form 
shall be submitted within 30 days of the receipt of each request. The 
minimum threshold for reporting in response to a request for submission 
of a Tier II form by a State commission, local committee, or fire 
department shall be zero.
    I. Availability of Tier II Information to Other State and Local 
Officials. A State or local official acting in his or her official 
capacity may have access to Tier II information by submitting a request 
to the State emergency response commission or the local emergency 
planning committee. Upon receipt of a request for Tier II information, 
the State commission or local committee is authorized by EPA 
regulations to request the facility for the Tier II information and 
make available such information to the official.
    J. Availability of Tier II Information to General Public. Any 
person may request Tier II information with respect to a specific 
facility by submitting a written request to the State commission or 
local committee in accordance with EPA requirements in 40 CFR 
370.30(b). If the

[[Page 10266]]

committee or commission does not have the Tier II information in its 
possession, EPA regulations authorize it to request a submission of the 
Tier II form from the facility that is the subject of the request, 
provided that the request is limited to hazardous chemicals stored at 
the facility in an amount in excess of 10,000 pounds. If the request is 
for Tier II information on chemicals present at a facility in an amount 
less than 10,000 pounds, the requestor must include a general statement 
of need in the request. The location of any chemical shall be withheld 
by the State commission or local committee upon request of the facility 
(see subsection L. Withholding Certain Information From Public 
Disclosure).
    EPCRA requires a State commission or local committee to respond to 
a request for Tier II information no later than 45 days after the date 
of receipt of the request.
    K. Fire Department Inspection. A facility that has submitted an 
inventory form shall allow on-site inspection by the fire department 
having jurisdiction over the facility upon request of the department, 
and shall provide to the department specific location information on 
hazardous chemicals at the facility.
    L. Withholding Certain Information From Public Disclosure.
    1. Physical Location of Hazardous Chemical. All information 
obtained from a facility in response to a public request to a State 
commission or local committee for a Tier II form must be made available 
to the person submitting the request, provided, upon request of the 
facility, the commission or committee shall withhold from disclosure 
the location of any specific chemical identified in the Tier II form.
    2. Trade Secret Information. EPCRA section 322(42 U.S.C. 11042) 
provides that any person may withhold from a submittal of an emergency 
and hazardous chemical inventory reporting form the specific chemical 
identify (including the chemical name and other specific 
identification) of a hazardous chemical when such information is a 
trade secret and the claim of trade secrecy is substantiated in 
accordance with EPA regulations. Withholding and disclosure of trade 
secret information is discussed in section 30-60-80.

30-60-60  Treatment of Mixtures in MSDS and Inventory Reporting

    A. Basic Reporting. A facility may meet the MSDS reporting 
requirements of 40 CFR 370.21 (see 30-60-40) and the inventory 
reporting requirements of 40 CFR 370.25 (see 30-60-50) for a hazardous 
chemical that is a mixture of hazardous chemicals by:
    1. Providing the required information on each component in the 
mixture which is a hazardous chemical*; or
    2. Providing the required information on the mixture itself.


    *Note: If more than one mixture has the same component, only 
MSDS or listing on the inventory form for the component is 
necessary.


    B. Same Manner of Reporting. Where practicable, the reporting of 
mixtures by a facility shall be in the same manner of MSDS (see 30-60-
40) and inventory (see 30-60-50) reporting.
    C. Calculation of the Quantity. If the reporting is on each 
component of the mixture which is a hazardous chemical, then the 
concentration of the hazardous chemical, in weight percent (greater 
than 1% or 0.1% if carcinogenic) shall be multiplied by the mass (in 
pounds) of the mixture to determine the quantity of the hazardous 
chemical in the mixture. If the reporting is on the mixture itself, the 
total quantity of the mixture shall be reported.
    D. Aggregation of Extremely Hazardous Substances. To determine 
whether the reporting threshold for an extremely hazardous substance 
has been equaled or exceeded, the owner or operator of a facility shall 
aggregate the following:
    1. The quantity of the extremely hazardous substance present as a 
component in all mixtures at the facility, and
    2. All other quantities of the extremely hazardous substance 
present at the facility.
    If the aggregate quantity of an extremely hazardous substance 
equals or exceeds the reporting threshold, the substance shall be 
reported.
    If extremely hazardous substances are being reported and are 
components of a mixture at a facility, the owner or operator of a 
facility may report either:
    1. The mixture, as a whole, even if the total quantity of the 
mixture is below its reporting threshold; or
    2. The extremely hazardous substance component(s) of the mixture.

30-60-70  Toxic Chemical Release Inventory Reporting (EPCRA 313; 42 
U.S.C. 11023)

    A. Basic Requirement. A facility that is subject to the EPCRA 
section 313 reporting requirement shall submit annually a Toxic 
Chemical Release Inventory Reporting Form (Form R) to EPA and to 
affected States and Indian tribes. The purpose of this reporting is to 
inform the general public and the communities surrounding covered 
facilities about releases of toxic chemicals, to assist research, and 
to aid in the development of regulations, guidelines, and standards.
    A completed Form R must be submitted for each toxic chemical 
manufactured, processed, or otherwise used at the facility in excess of 
the threshold quantity established for that chemical. The facility must 
report the activities and uses of the toxic chemical at the facility, 
quantity released to the environment (air, water, or land), maximum 
amount on-site during the calendar year, and amount contained in wastes 
transferred off-site. The facility must also provide certain treatment 
and pollution prevention data. Mandatory source reduction and recycling 
data reporting requirements were added to Form R after enactment of the 
Pollution Prevention Act of 1990 (42 U.S.C. 13101-13109). Reporting of 
source reduction and recycling data is discussed in chapter 30-80.
    Suppliers must also notify persons to whom they distribute mixtures 
or trade name products containing toxic chemicals that they contain 
such chemicals.
    EPA regulations governing annual toxic chemical release inventory 
reporting and supplier notification are contained in 40 CFR part 372.
    B. Applicability of the Reporting Requirement. Section 313 of EPCRA 
requires that toxic chemical release inventory (TRI) reports be filed 
by facilities that meet all three of the following criteria during a 
calendar year.
    1. The facility has ten or more full-time employees;
    2. The facility is included in Standard Industrial Classification 
(SIC) Codes 20 through 39 (Note: Executive Order 12856 requires Federal 
facilities to comply with section 313 without regard to standard 
industrial classification); and
    3. The facility manufactured (including imported), processed, or 
otherwise used any listed toxic chemical in excess of the established 
threshold quantity of that chemical (see subsection D. Reporting 
Threshold).
    Executive Order 12856 provides that the head of each Federal agency 
shall comply with the provisions set forth in section 313 of EPCRA, all 
implementing regulations, and future amendments to these authorities, 
in light of applicable guidance as provided by EPA. The head of each 
Federal agency shall comply with these provisions without regard to the 
Standard Industrial Classification (SIC) delineations that apply to the 
Federal agency's facilities, and such reports shall be for all 
releases,

[[Page 10267]]

transfers, and wastes at such Federal agency's facility without regard 
to the SIC code of the activity leading to the release, transfer, or 
waste. All other existing statutory or regulatory limitations or 
exemptions on the application of EPCRA section 313 shall apply to the 
reporting requirements set forth in section 3-304(a) of the Order.
    40 CFR 372.38(f) addresses reporting where two or more 
organizations operate establishments within a single facility on leased 
property without common ownership or control.


    Note: The TRI reporting requirement is different from the 
reporting requirements in the preceding sections, because a section 
313 report is not triggered by the release of a certain amount of a 
toxic chemical. The criteria for reporting under section 313 is 
based on the amount of a toxic chemical that a facility uses in a 
year. If a facility uses more than a certain amount of a listed 
toxic chemical in a year, all releases of that chemical must be 
reported (unless the use of release is exempted).


    C. Information Required To Be Reported.
    1. Toxic Chemical Release Inventory. Information elements that are 
reportable on EPA Form R or equivalent magnetic media format (see 
subsection I. Form R Availability) include the following:
    (a) Name and CAS number (if applicable) of the chemical reported. 
The toxic chemicals that are subject to EPCRA section 313 reporting are 
listed in 40 CFR 372.65. The EPA regulations contain three listings of 
the toxic chemicals: (a) An alphabetical order listing of those 
chemicals that have an associated Chemical Abstracts Service (CAS) 
Registry number; (b) a CAS number order list of the same chemicals; and 
(c) an alphabetical listing of the chemical categories for which 
reporting is required.
    (b) An indication of the activities and uses the chemical at the 
facility.
    (c) An indication of the maximum amount of the chemical on site at 
any point in time during the reporting year.
    (d) An estimate of total releases in pounds per year from the 
facility plus an indication of the basis of estimate for the following:
    (1) Fugitive or non-point air emissions.
    (2) Stack or point air emissions.
    (3) Discharges to receiving streams or water bodies including an 
indication of the percent of releases due to stormwater (and the 
name(s) of receiving stream(s) or water body to which the chemical is 
released).
    (4) Underground injection on site.
    (5) Releases to land on site.
    (e) Information on transfers of the chemical in wastes to off-site 
locations.
    (f) Information relative to waste treatment.
    (g) If the chemical identity is claimed trade secret, a generic 
name for the chemical.
    (h) A mixture component identity if the chemical identity is not 
known.
    Within the ``Instructions for Completing EPA Form R'', EPA warns 
that because a complete Form R consists of at least nine unique pages, 
any submission containing less than nine unique pages will not be 
considered a valid submission. A complete report for any listed toxic 
chemical that is not claimed as a trade secret consists of the 
following completed parts:
    Part I with an original signature on the certification statement 
(section 2); and Part 11 (section 8 is now mandatory).
    The instructions to Form R contain guidance for voluntary revision 
of a previously-submitted Form R.


    Note:
    Reporting requirements for a current calender year may differ 
from previous years. Changes from the previous year are described in 
the instructions for Form R and should be carefully noted. 
Significant changes to the reporting requirements may occur because 
chemicals are added to the toxic chemical list for the current 
reporting year or have been delisted and are not covered for the 
reporting year. See the Form R Reporting Instructions for the names 
and CAS number of chemicals that have been delisted from, or added 
to, the toxic chemical list.


    2. Source Reduction and Recycling Data. Section 8 of EPA Form R 
asks for data related to source reduction and recycling. Reporting 
requirements for source reduction and recycling data are described in 
chapter 30-80.
    3. Facility Identifying Information. Certain identifying 
information about the facility must be reported on Form R, including 
facility name and address; main business activity; all facility 
identifiers (I.D.) (e.g., EPA RCRA I.D. Number, NPDES permit number; 
Underground Injection Well Code (UIC) I.D., TRI facility I.D.); name 
and telephone number for both a technical contact and a public contact; 
and latitude and longitude coordinates for the facility.
    4. Certification by Senior Management Official. A senior management 
official of the facility shall sign the Form R and make the following 
certification: ``I hereby certify that I have reviewed the attached 
documents and, to the best of my knowledge and belief , the submitted 
information is true and complete and that amounts and values in this 
report are accurate based upon reasonable estimates using data 
available to the preparer of the report.''
    D. Reporting Threshold. 40 CFR 372.25 contains threshold amounts 
for reporting chemicals. If more than 25,000 pounds of a listed toxic 
chemical is manufactured (including imported) or processed at a 
facility in a calendar year, the chemical must be reported. If more 
than 10,000 pounds of a listed toxic chemical is not manufactured or 
processed but is otherwise used at a facility in a given calendar year, 
the chemical must be reported. When more than one threshold applies to 
an activity at a facility, the facility must report if it exceeds any 
applicable threshold and must report on all activities at the facility 
involving the chemical, unless exempted (see subsection F. Exemptions 
from Reporting).
    When a facility manufactures, processes, or otherwise uses more 
than one member of a chemical category listed in 40 CFR 372.65(c), the 
facility must report if it exceeds any applicable threshold for the 
total volume of all the members of the category involved in the 
applicable activity. Any such report must cover all activities at the 
facility involving members of the category.
    A facility may process or otherwise use a toxic chemical in a 
recycle/reuse operation. To determine whether the facility has 
processed or used more than an applicable threshold of the chemical, 
the facility shall count the amount of the chemical added to the 
recycle/reuse operation during the calendar year. In particular, if the 
facility starts up such an operation during a calendar year, or in the 
event that the contents of the whole recycle/reuse operation are 
replaced in a calendar year, the facility shall also count the amount 
of the chemical replaced into the system at these times.
    If a toxic chemical is listed in 40 CFR 372.65 with the notation 
that only persons who manufacture the chemical, or manufacture it by a 
certain method, are required to report, a facility that solely 
processes or uses such a chemical is not required to report for that 
chemical. Only a facility that manufactures that chemical in excess of 
the threshold applicable to such manufacture is required to report. In 
completing the reporting form, the manufacturing facility is only 
required to account for the quantity of the chemical so manufactured 
and releases associated with such manufacturing, but not releases 
associated with subsequent processing or use of the chemical at that 
facility.
    E. Toxic Chemical Components of a Mixture or Trade Name Product. A 
report is required on a toxic chemical that is known to be present as a 
component of a mixture or trade name

[[Page 10268]]

product which is received from another person, if that chemical is 
imported, processed, or otherwise used by the receiving facility in 
excess of an applicable threshold quantity as part of that mixture or 
trade name product. For purposes of EPA regulations, knowledge that a 
toxic chemical is present as a component of a mixture or trade name 
product exists if the operator of the facility:
    1. Knows or has been told the chemical identity or Chemical 
Abstracts Service Registry Number of the chemical and the identity or 
Number corresponds to an identity or Number in 40 CFR 372.65, or
    2. Has been told by the supplier of the mixture or trade name 
product that the mixture or trade name product contains a toxic 
chemical subject to EPCRA section 313.
    Guidance in determining whether a toxic chemical which is a 
component of a mixture or trade name product has been imported, 
processed, or otherwise used in excess of an applicable threshold at 
the facility can be found at 40 CFR 372.30(b)(3).
    F. Exemptions from Reporting.
    1. Laboratory Activities. Toxic chemicals manufactured, processed, 
or used in a laboratory at a covered facility under the supervision of 
a technically qualified individual as defined in 40 CFR 720.3(ee)* do 
not have to be considered in determining whether a threshold has been 
met unless the laboratory is engaged in:
    (a) Specialty chemical production;
    (b) Manufacture, processing, or use of toxic chemicals in pilot 
plant-scale operations; or
    (c) Activities conducted outside the laboratory.
    * 40 CFR 720.3(ee) defines ``technically qualified individual'' as 
``a person or persons (1) who, because of education, training, or 
experience, or a combination of these factors, is capable of 
understanding the health and environmental risks associated with the 
chemical substance which is used under his or her supervision; (2) who 
is responsible for enforcing appropriate methods of conducting 
scientific experimentation, analysis, or chemical research to minimize 
such risks; and (3) who is responsible for the safety assessments and 
clearances related to the procurement, storage, use, and disposal of 
the chemical substance as may be appropriate or required within the 
scope of conducting a research and development activity.''
    2. Other Uses. If a toxic chemical is used at a covered facility 
for one of the following purposes, the facility is not required to 
consider the quantity of the toxic chemical used for such purpose when 
determining whether an applicable threshold has been met or determining 
the amount of releases to be reported:
    (a) Use as a structural component of the facility;
    (b) Use of products for routine janitorial or facility grounds 
maintenance (e.g., use of janitorial cleaning supplies, fertilizers, 
and pesticides similar in type or concentration to consumer products);
    (c) Personal use by employees or other persons at the facility of 
foods, drugs, cosmetics, or other personal items containing toxic 
chemicals, including supplies of such products within the facility such 
as in a facility operated cafeteria, store, or infirmary;
    (d) Use of products containing toxic chemicals for the purpose of 
maintaining motor vehicles operated by the facility;
    (e) Use of toxic chemicals present in process water and non-contact 
cooling water as drawn from the environment or from municipal sources, 
or toxic chemicals present in air used either as compressed air or as 
part of combustion.


    Note:
    If the toxic chemical is also manufactured (including imported), 
processed, or otherwise used at the covered facility other than as 
described in this subsection, in excess of an applicable threshold 
quantity, the facility is required to report under 40 CFR 372.30.


    3. De Minimis Concentrations of a Toxic Chemical in a Mixture. A 
facility is not required to consider the quantity of a toxic chemical 
present in a mixture of chemicals when determining whether an 
applicable threshold has been met or determining the amount of release 
to be reported if the toxic chemical is in a concentration in the 
mixture which is:
    (a) Below 1 percent of the mixture; or
    (b) Below 0.1 percent of the mixture in the case of a toxic 
chemical which is a carcinogen as defined in 29 CFR 1910.1200(d)(4).
    This exemption applies whether the facility received the mixture 
from another person or the facility produced the mixture, either by 
mixing the chemicals involved or by causing a chemical reaction which 
resulted in the creation of the toxic chemical in the mixture.


    Note:
    If the toxic chemical is also manufactured (including imported), 
processed, or otherwise used at the covered facility other than as 
part of the mixture or in a mixture at higher concentrations, in 
excess of an applicable threshold quantity, the facility is required 
to submit a Form R.


    4. Articles. The quantity of a toxic chemical present in an article 
at a covered facility need not be considered when determining whether 
an applicable threshold has been met or determining the amount of 
release to be reported. ``Article'' means a manufactured item which:
    (a) Is formed to a specific shape or design during manufacture;
    (b) Has end-use functions dependent in whole or in part upon its 
shape or design during end-use; and
    (c) Does not release a toxic chemical under normal conditions of 
processing or use of that item at the facility or establishments.
    This exemption applies whether the facility received the article 
from another person or the facility produced the article. However, this 
exemption applies only to the quantity of the toxic chemical present in 
the article. If the toxic chemical is manufactured (including 
imported), processed, or otherwise used at the covered facility other 
than as part of the article, in excess of an applicable threshold 
quantity, the facility is required to submit a Form R. If a release \*\ 
of a toxic chemical occurs as a result of the processing or use of an 
item at the facility, that item does not meet the definition of 
``article''.
---------------------------------------------------------------------------

    \*\ ``Release'' means ``any spilling, leaking, pumping, pouring, 
emitting, emptying, discharging, injecting, escaping, leaching, 
dumping, or disposing into the environment (including the 
abandonment or discarding of barrels, containers, and other closed 
receptacles) of any toxic chemical.'' (40 CFR 372.3)
---------------------------------------------------------------------------

    5. Ownership of Leased Real Estate. EPA regulations provide that 
the owner of a covered facility ``is not subject to TRI reporting if 
such owner's only interest in the facility is ownership of the real 
estate upon which the facility is operated.'' (40 CFR 372.38(e)). This 
exemption applies to owners of facilities, such as industrial parks, 
all or part of which are leased to persons who operate establishments 
within SIC code through 39 where the owner has no other business 
interest in the operation of the covered facility.
    G. Annual Reporting Period. Reports are due annually and contain 
data on releases during the previous calendar year. The report for any 
calendar year must be submitted on or before July 1 of the following 
year. Executive Order 12856 provides that the first year of compliance 
for Federal agencies with the reporting in EPCRA Section 313 shall be 
no later than for the 1994 calendar year, with reports due on or before 
July 1, 1995.
    H. Reporting for Establishments Within a Facility. For purposes of 
submitting a Form R, a ``covered facility'' may consist of more than 
one

[[Page 10269]]

establishment. A separate Form R may be submitted for each 
establishment or for each group of establishments within the facility, 
provided that activities involving the toxic chemical at all the 
establishments within the covered facility are reported. If each 
establishment or group of establishments files separate reports, then 
separate reports must be submitted for all other chemicals subject to 
reporting at that facility. An establishment or group of establishments 
does not have to submit a report for a chemical that is not 
manufactured (including imported), processed, otherwise used, or 
released at that establishment or group of establishments.
    I. Form R Availability. Reports under 313 of EPCRA are made on EPA 
Form R (EPA Form 9350-1), the Toxic Chemical Release Inventory (TRI) 
Reporting Form. Form R is submitted to EPA, affected States, and Indian 
tribes. A completed Form R must be submitted for each toxic chemical 
manufactured, processed, or otherwise used at each covered facility in 
excess of an applicable threshold.
    EPA encourages facilities to submit the required information to EPA 
by using magnetic media (computer disk or tape) in lieu of Form R. 
Instructions for submitting and using magnetic media may also be 
obtained from the address given in this subsection.
    The most current version of EPA Form R, including instructions for 
Form R, and related documents may be obtained from: Section 313 
Document Distribution Center, P.O. Box 12505, Cincinnati, OH 45212.
    EPA Form R and instructions also may be obtained by calling the 
EPCRA Information Hotline. Questions about completing Form R may be 
directed to the EPCRA Information Hotline at the following address or 
telephone numbers: Emergency Planning and Community Right-to-Know 
(EPCRA) Information Hotline, Environmental Protection Agency, 401 M 
Street, SW (OS-120), Washington, DC 20460, 800-535-2002 or 703-920-9877 
from 8:30 a.m. to 7:30 p.m. Eastern Time, (Mon-Fri, except Federal 
holidays.)
    The toll-free number is accessible throughout the United States, 
including Washington, DC, and Alaska. EPA Regional Staff may also be of 
assistance.
    EPA has developed a package called the Toxic Chemical Release 
Inventory Reporting System. The diskette comes with complete 
instructions for use. It also provides prompts and messages to help 
report according to EPA instructions. For copies of the diskette, call 
the EPCRA Hotline.
    J. Where Reports Are To Be Sent. Reports are to be sent to EPA and 
to the State-designated Sec. 313 contact for the State in which the 
facility is located or the designated official of an Indian tribe if it 
is located on Indian land.
    Send reports to EPA by mail to: EPCRA Reporting Center, P.O. Box 
23779, Washington, DC 20026-3779, Attn: Toxic Chemical Release 
Inventory.
    To submit a Form R via hand delivery or certified mail, the EPCRA 
Information Hotline may be called to obtain the street address of the 
EPCRA Reporting Center. The Form R instructions include appropriate 
State submission addresses. Note that ``state'' also includes the 
District of Columbia, the Commonwealth of Puerto Rico, Guam, American 
Samoa, the U.S.-Virgin Islands, the Northern Mariana Islands, and any 
other territory or possession over which the United States has 
jurisdiction. The Form R instructions also include information on 
sending copies to the applicable Indian tribe and submission of reports 
in magnetic media and computer-generated facsimile forms.
    K. Supplied Notification Requirement.
    1. Basic Requirement. EPA regulations provide that a facility that 
manufactures (including imports) or processes a toxic chemical and 
sells or otherwise distributes a mixture or trade name product 
containing the toxic chemical to a facility in Standard Industrial 
Classification Codes 20 through 39 that employs ten or more people, or 
to a person who in turn may sell or otherwise distribute such mixture 
or trade name product to such a facility, must provide a notification 
to each person to whom the mixture or trade name product is sold or 
otherwise distributed from the facility.

    Note: 40 CFR 372.45 states that only those facilities that are 
in Standard Industrial Classification (SIC) codes 20 through 39 (see 
40 CFR 372.22(b)) must provide a supplier notification. However, 
Executive Order 12856 states that each Federal agency is to comply 
with the provisions set forth in section 313 of EPCRA and all 
implementing regulations without regard to the SIC delineations that 
apply to the Federal agency's facilities.
    40 CFR 372.45(h) addresses operation of separate establishments 
within a single facility by two organizations that do not have 
common ownership or control.

    2. Notification Contents. The notification shall be in writing and 
shall include:
    (a) A statement that the mixture or trade name product contains a 
toxic chemical or chemicals subject to the reporting requirements of 
EPCRA section 313 and 40 CFR part 372.
    (b) The name of each toxic chemical, and the associated Chemical 
Abstracts Service registry number of each chemical if applicable, as 
set forth in 40 CFR 372.65.
    (c) The percent by weight of each toxic chemical in the mixture or 
trade name product.
    3. Notification Procedure. The written notice shall be provided to 
each recipient of the mixture or trade name product with at least the 
first shipment of each mixture or trade name product in each calendar 
year, beginning with the chemical's applicable effective date (see 40 
CFR 372.65 for effective dates).
    If an MSDS is required to be prepared and distributed for the 
mixture or trade name product in accordance with 29 CFR 1910.1200, the 
notification must be attached to or otherwise incorporated into the 
MSDS. When the notification is attached to the MSDS, the notice must 
contain clear instructions that the notifications must not be detached 
from the MSDS and that any copying and redistribution of the MSDS shall 
include copying and redistribution of the notice attached to copies of 
the MSDS subsequently redistributed.
    4. Exemption from Notification. Notifications are not required in 
the following instances:
    (a) If a mixture or trade name product contains no toxic chemical 
in excess of the applicable de minimis concentration (see subsection F. 
Exemptions from Reporting).
    (b) If a mixture or trade name product is one of the following:
    (1) an ``article'' (see subsection F. Exemptions from Reporting);.
    (2) foods, drugs, cosmetics, alcoholic beverages, tobacco, or 
tobacco products packaged for distribution to the general public.
    (3) any consumer product as the term is defined in the Consumer 
Product Safety Act (15 U.S.C. 1251 et seq.) packaged for distribution 
to the general public.


    Note: EPA regulations also state that a person is not subject to 
the supplier notification requirement to the extent the person does 
not know that the facility or establishment(s) is selling or 
otherwise distributing a toxic chemical to another person in a 
mixture or trade name product. However * * * a person has such 
knowledge if the person receives a notice * * * from supplier of a 
mixture or trade name product and the person in turn sells or 
otherwise distributes that mixture or trade name product to another 
person.'' (40 CFR 372.45(g))


    5. Change in Mixture or Trade Name Product. If a facility changes a 
mixture or trade name product for which notification was previously 
provided by

[[Page 10270]]

adding a toxic chemical, removing a toxic chemical, or changing the 
percent by weight of a toxic chemical in the mixture or trade name 
product, the facility shall provide each recipient of the changed 
mixture or trade name product a revised notification reflecting the 
change with the first shipment of the changed mixture or trade name 
product to the recipient.
    If a facility discovers:
    (a) That a mixture or trade name product previously sold or 
otherwise distributed to another person during the calendar year 
contains one or more toxic chemicals, and
    (b) That any notification provided to such other person in that 
calendar year either did not properly identify any of the toxic 
chemicals or did not accurately present the percent by weight of any of 
the toxic chemicals in the mixture or trade name product,

    The facility shall provide a new notification to the recipient 
within 30 days of the discovery and identify the prior shipments of the 
mixture or product to which the new notification applies.
    6. Trade Secret. If the specific identity of a toxic chemical in a 
mixture or trade name product is considered to be a trade secret under 
provisions of 29 CFR 1910.1200, the notice shall contain a generic 
chemical name that is descriptive of that toxic chemical.
    If the specific percent by weight composition of a toxic chemical 
in the mixture or trade name product is considered to be a trade secret 
under applicable state law or under the Restatement of Torts section 
757, comment b, the notice must contain a statement that the chemicals 
is present at a concentration that does not exceed a specified upper 
bound concentration value. For example, a mixture contains 12 percent 
of a toxic chemical. However, the supplier considers the specific 
concentration of the toxic chemical in the product to be a trade 
secret. The notice would indicate that the toxic chemical is present in 
the mixture in a concentration of no more than 15 percent by weight. 
The upper bound value chosen must be no larger than necessary to 
adequately protect the trade secret.
    L. Recordkeeping.
    1. Retention of Form R Materials and Documentation. Each facility 
subject to the reporting requirements of this chapter (30-60) must 
retain the following records for a period of 3 years from the date of 
the submission of a Form R.
    (a) A copy of each Form R submitted by the facility;
    (b) All supporting materials and documentation used to make the 
compliance determination that the facility is a covered facility;
    (c) Documentation supporting a submitted Form R, including:
    (1) Documentation supporting any determination that a claimed 
allowable exemption from reporting applies.
    (2) Data supporting the determination of whether a threshold 
applies for each toxic chemical.
    (3) Documentation supporting the calculations of the quantity of 
each toxic chemical released to the environment or transferred to an 
off-site location.
    (4) Documentation supporting the use indications and quantity on 
site reporting for each toxic chemical, including dates of 
manufacturing, processing, or use.
    (5) Documentation supporting the basis of estimate used in 
developing any release or off-site transfer estimates for each toxic 
chemical.
    (6) Receipts or manifests associated with the transfer of each 
toxic chemical in waste to off-site locations.
    (7) Documentation supporting reported waste treatment methods, 
estimates of treatment efficiencies, ranges of influent concentration 
to such treatment, the sequential nature of treatment steps, if 
applicable, and the actual operating data, if applicable, to support 
the waste treatment efficiency estimate for each toxic chemical.
    2. Retention of Supplier Notification Materials and Documentation. 
Each facility subject to the supplier notification requirement (see 
subsection K. Supplier Notification Requirement) must retain the 
following records for a period of 3 years from the date of the 
submission of a notification:
    (a) A copy of each notice.
    (b) All supporting materials and documentation used to make the 
compliance determination that the facility is a covered facility.
    (c) All supporting materials and documentation used by the facility 
to determine whether a supplier notification is required.
    (d) All supporting materials and documentation used in developing 
each required notice.
    3. Availability of Records. Records must be maintained at the 
facility to which the Form R report applies or from which a 
notification was provided. Such records must be readily available for 
purposes of inspection by EPA. According to the Form R instructions, in 
the event of a problem with data elements on a facility's Form R, EPA 
may request documentation that supports the information reported from 
the facility. EPA may conduct data quality reviews of past Form R 
submissions. An essential component of this process would be to review 
a facility's records for accuracy and reliability. The Form R 
instructions include a list of records that a facility should maintain 
in addition to those that are required to be maintained.

30-60-80  Public Availability of Information; Withholding and 
Disclosure of Trade Secrets

    A. Availability of Information to Public. EPCRA section 324 (42 
U.S.C. 11044) provides that each emergency response plan MSDS, list of 
hazardous chemicals, inventory form, toxic chemical release form, and 
follow-up emergency notice shall be made available to the general 
public, subject to trade secret limitations, at locations designated by 
the Administrator of EPA, Governor, State emergency response 
commission, or local emergency planning committee. Each local emergency 
planning committee must annually publish a notice in local newspapers 
indicating where members of the public may review documents that have 
been submitted pursuant to EPCRA. EPA also maintains a national toxic 
chemical inventory, based on TRI reports, in a computer data base that 
is available to the public on a cost-reimbursable basis.
    The Administrator of EPA, in any case in which the identity of a 
toxic chemical is claimed as a trade secret, must identify the adverse 
health and environmental effects associated with the toxic chemical and 
assure that such information is included in the TRI computer database 
and is provided to any person requesting information about such toxic 
chemical. The appropriate Governor or state commission must identify 
the adverse health effects associated with a hazardous chemical or 
extremely hazardous substance, when its identity is claimed as a trade 
secret, and provide such health effects information to any person 
requesting information about the hazardous chemical or extremely 
hazardous substance.
    Section 5-508 of Executive Order 12856 also provides that the 
public shall be afforded ready access to all strategies, plans, and 
reports required to be prepared by Federal agencies under the order by 
the agency preparing the strategy, plan, or report (to the extent 
permitted by law). When the reports are submitted to EPA, EPA is to 
compile the strategies, plans, and reports and make them publicly 
available as well. Federal agencies are encouraged by the Executive 
Order to provide such strategies, plans and reports to the State

[[Page 10271]]

and local authorities where their facilities are located for an 
additional point of access to the public. Section 6-601 of Executive 
Order 12856 authorizes an agency to withhold certain information. (See 
30-90)
    B. Trade Secret Procedures. EPCRA section 322 (42 U.S.C. 11042) 
provides that a claim of trade secrecy may be made for the specific 
chemical identity of an extremely hazardous substance, a hazardous 
chemical, or a toxic chemical. Detailed information on how to submit a 
trade secrecy claim for information submitted pursuant to an EPCRA 
reporting requirement is contained in 40 CFR part 350. A trade secrecy 
claim may be submitted only to EPA and must be substantiated by 
providing specific answers to questions on an EPA form entitled 
``Substantiation to Accompany Claims of Trade Secrecy'' (see 40 CFR 
350.27). The submitter shall include with its EPCRA report both a 
sanitized and unsanitized trade secret substantiation form. The 
unsanitized version must contain all of the information claimed as 
trade secret or business confidential, properly marked in accordance 
with EPA regulations. The sanitized version is identical to the 
unsanitized version in all respects except that all of the information 
claimed as trade secret or business confidential is deleted, and a 
generic class or category to describe the trade secret chemical is 
included. This sanitized version is the one that is submitted to state 
or local authorities, as appropriate.
    C. Public Petition for Disclosure of Trade Secret Information. The 
public may request the disclosure of a chemical identity claimed as 
trade secret by submitting a written petition to EPCRA Reporting 
Center, Environmental Protection Agency, P.O. Box 3348, Merrifield, Va. 
22116-3348. The required contents of the petition are described in 40 
CFR 350.15. This public petition process covers only requests for 
public disclosure of a chemical identify claimed as trade secret. 
Requests for disclosure of other types of information must be submitted 
under EPA's Freedom of Information Act regulations at 40 CFR part 2.
    D. Access by Federal Representatives or State Employees.
    1. Authorized Federal Representative Access. Under EPCRA section 
322(f) (42 U.S.C. 11042(f)), EPA possesses the authority to disclose 
information to any authorized representative of the United States 
concerned with carrying out the requirements of EPCRA, even though the 
information might otherwise be entitled to trade secret or confidential 
treatment under EPA regulations. Such authority will be exercised by 
EPA only in accordance with 40 CFR 350.23.
    2. State Employee Access. Any State may request access to trade 
secrecy claims, substantiations, supplemental substantiations, and 
additional information submitted to EPA in accordance with 40 CFR 
350.19. EPA must release this information, even if claimed 
confidential, to any State in response to its written request if the 
request is from the Governor of the State and the State agrees to 
safeguard the information with procedures equivalent to those which EPA 
uses to safeguard the information. The Governor may disclose such 
information only to State employees.
    E. Access by Health Professionals. EPCRA section 323 (42 U.S.C. 
11043) allows health professionals to gain access to chemical 
identities, including those claimed as trade secret, in the following 
circumstances:
     for non-emergency treatment and diagnosis of an exposed 
individual;
     by health professionals employed by a local government to 
conduct preventive research studies and to render medical treatment; or
     for emergency diagnosis and treatment.
    1. Non-emergency Access. In all circumstances but the medical 
emergency, the health professional must submit a written request and a 
statement of need, as well as a confidentiality agreement, to the 
facility holding the trade secret. The statement of need verifies that 
the health professional will be using the trade secret information only 
for the needs permitted in the statute, and the confidentiality 
agreement ensures that the health professional will not make any 
unauthorized disclosures of the trade secret. The required contents of 
the written request for access, including a certification signed by the 
health professional stating that the information contained in the 
statement of need is true, and the confidentiality statement are 
contained in 40 CFR 350.40. Following receipt of a written request, the 
facility to which such request is made shall provide the requested 
information to the health professional promptly.
    2. Emergency Access. In the event of medical emergency,* a facility 
which is subject to the EPCRA reporting requirements must provide a 
copy of a MSDS, an inventory form, or a toxic chemical release form, 
including the specific chemical identity, if known, of a hazardous 
chemical, extremely hazardous substance, or a toxic chemical, to any 
treating physician or nurse who requests such information. The treating 
physician or nurse must have first determined that:
---------------------------------------------------------------------------

    * ``Medical emergency'' means ``any unforeseen condition which a 
health professional would judge to require urgent and unscheduled 
medical attention. Such a condition is one which results in sudden 
and/or serious symptom(s) constituting a threat to a person's 
physical or psychological well-being and which requires immediate 
medical attention to prevent possible deterioration, disability, or 
death.'' (40 CFR 350.40(a)).
---------------------------------------------------------------------------

    (a) A medical emergency exists as to the individual or individuals 
being diagnosed or treated;
    (b) The specific chemical identity of the chemical concerned is 
necessary for or will assist in emergency or first-aid diagnosis or 
treatment; and
    (c) The individual or individuals being diagnosed or treated have 
been exposed to the chemical concerned.
    The specific chemical identity must be provided to the requesting 
treating physician or nurse immediately following the request, without 
requiring a written statement of need or a confidentiality agreement in 
advance. A written statement of need and confidentiality agreement may 
be required from the treating physician or nurse as soon as 
circumstances permit. The required contents of the statement of need 
and confidentiality agreement are specified in 40 CFR 350.40.

30-60-90  Compliance

    A. Internal Reviews. OPDIVs/STAFFDIVs shall conduct internal 
reviews and audits and take such other steps as may be necessary to 
monitor compliance with the requirements of this chapter (30-60) and 
Executive Order 12856. Compliance with EPCRA means compliance with the 
same substantive, procedural, and other statutory and regulatory 
requirements that would apply to a private person.
    B. Annual Progress Report. The Secretary will submit annual 
progress reports to the EPA Administrator beginning on October 1, 1995, 
regarding the progress that has been made in complying with all aspects 
of Executive Order 12856. This report and OPDIV/STAFFDIV 
responsibilities are described in chapter 30-09.
    C. Technical Assistance from EPA. OPDIVs/STAFFDIVs are encouraged 
to request technical advice and assistance from EPA in order to foster 
full compliance with Executive Order 12856 and this chapter (30-60).
    D. EPA Monitoring. Executive Order 12856 provides that the 
Administrator of EPA, in consultation with the Secretary, may conduct 
such reviews and inspections as may be necessary to monitor compliance 
with the agency's EPCRA responsibilities contained in

[[Page 10272]]

sections 30-60-20 through 30-60-70 of this chapter. OPDIVs/STAFFDIVs 
are to cooperate fully with the efforts of the Administrator to ensure 
compliance with Executive Order 12856. Should the Administrator notify 
an OPDIV/STAFFDIV that it is not in compliance with an applicable 
provision of Executive Order 12856, the OPDIV/STAFFDIV shall achieve 
compliance as promptly as is practicable.
    E. State and Local Right-to-Know Requirements. OPDIVs/STAFFDIVs are 
encouraged to comply with all state and local right-to-know 
requirements to the extent that compliance with such laws and 
requirements is not otherwise already mandated.
    F. Prior Agreements for Application of EPCRA. The compliance dates 
for application of EPCRA set forth in Executive Order 12856 are not 
intended to delay implementation of earlier timetables already agreed 
to by an OPDIV/STAFFDIV and are inapplicable to the extent they 
interfere with those timetables.

30-60-100  Civil and Criminal Penalties

    EPCRA section 325 (42 U.S.C. 11045) establishes administrative, 
civil, and criminal penalties for violation of the Act. Table 2, 
following, indicates penalties that apply for specific violations. 
Certain section 325 penalties do not apply to government entities. 
Moreover, Executive Order 12856 does not make the provisions of section 
325 applicable to any Federal agency or facility, except to the extent 
that such Federal agency or facility would independently be subject to 
such provision.

                                      Table 2.--Summary of EPCRA Penalties
----------------------------------------------------------------------------------------------------------------
             Requirement                Administrative penalty       Civil penalty           Criminal penalty
----------------------------------------------------------------------------------------------------------------
Emergency Planning (42 U.S.C. Sec.       .....................  $25,000 per day........
 11002(c); Sec.  11003(d))
Emergency Release Notification (42     $25,000 per day. Second  $25,000 per day. Second  $25,000 or two (2)
 U.S.C. Sec.  11004)                    violation: $75,000 per   violation: $75,000 per   years imprisonment or
                                        day.                     day.                     both. Second
                                                                                          conviction: $50,000 or
                                                                                          five (5) years
                                                                                          imprisonment or both.
MSDS Reporting (42 U.S.C. Sec.         $10,000 per day........  $10,000 per day........
 11021) 1
Inventory Reporting (42 U.S.C. Sec.    $25,000 per day........  $25,000 per day........
 11022) 1
TRI Reporting (42 U.S.C. Sec.  11023)  $25,000 per day........  $25,000 per day........
 1
Provision of Information to Health     $10,000 per day........  $10,000 per day........
 Professionals (42 U.S.C. Sec.
 11043(b)) 1
Failure to Substantiate Trade Secret   $10,000 per day........  $10,000 per day........
 Claim (42 U.S.C. Sec.  11042(a)(2))
Frivolous Trade Secret Claim           $25,000 per claim......  $25,000 per claim......
Disclosure of Trade Secret               .....................    .....................  $20,000 or one year
 Information (42 U.S.C. Sec.  11042)                                                      imprisonment or both.
----------------------------------------------------------------------------------------------------------------
1 Penalty does not apply to a ``government entity.''

Subject: Pollution Prevention Act of 1990 (PPA) Requirements

30-70-00 Background
05 Applicability
10 Responsibilities
20 Pollution Prevention Policy
30 Definitions
40 Toxic Chemical Source Reduction and Recycling Reporting
50 Public Availability of Source Reduction Information
60 Compliance
70 Civil and Criminal Penalties

30-70-00 Background

    The Pollution Prevention Act of 1990, 42 U.S.C. 13101-13109, 
establishes national policy that pollution is to be prevented or 
reduced at the source. The Act also requires the reporting of efforts 
to reduce toxic chemical releases through source reduction and 
recycling. This reporting requirement affects all facilities required 
to submit Form R under section 313 of the Emergency Planning and 
Community Right-to-Know Act of 1986 (EPCRA) (see 30-60).
    The Administrator of EPA is required by the PPA to develop a 
strategy to promote source reduction and to submit a biennial report to 
Congress that describes the actions taken to implement the strategy and 
analyzes the source reduction and recycling data submitted on Form R. 
EPA must also promote source reduction practices in other federal 
agencies; review EPA regulations to determine their effect on source 
reduction; make matching grants to states to promote the use of source 
reduction techniques by businesses; and establish a Source Reduction 
Clearinghouse.

30-70-05 Applicability

    A. Agency Facilities. Executive Order 12856 provides that EPCRA and 
the PPA apply to all Federal executive agencies that either own or 
operate a ``facility'' as that term is defined in EPCRA, if such 
facility meets the EPCRA's threshold requirements for compliance. The 
statutory definition of facility is:

all buildings, equipment, structures, and other stationary items 
which are located on a single site or on contiguous or adjacent 
sites and which are owned or operated by the same person (or by any 
person which controls, is controlled by, or under common control 
with, such person). For purposes of emergency release notification, 
the term includes motor vehicles, rolling stock, and aircraft (42 
U.S.C. 11049(4)).

    EPA regulations revise the statutory definition of facility to 
include ``manmade structures in which chemicals are purposefully placed 
or removed through human means such that it functions as a containment 
structure for human use.'' (40 CFR 355.20, 370.2). The purpose of the 
revision was to clarify that the definition applies to certain 
subsurface structures.
    Executive Order 12856 modifies the statutory definition of facility 
in one respect. Each OPDIV/STAFFDIV must comply with the reporting 
provisions of the PPA without regard to the Standard Industrial 
Classification (SIC) delineations that apply to the organization's 
facilities, and such reports shall be for all releases, transfers, and 
wastes at such facilities without regard to the SIC code of the 
activity leading to the release, transfer, or waste. All other existing 
statutory or regulatory limitations or exemptions on the applications 
on the application of EPCRA section 313 shall apply to the

[[Page 10273]]

PPA reporting requirements in this chapter (see 30-60-70).
    B. Covered Facilities. The reporting requirements of this chapter 
apply to facilities that must submit a Toxic Chemical Release Inventory 
Report (Form R) under section 313 of EPCRA. A completed Form R must be 
submitted for each toxic chemical manufactured, processed, or otherwise 
used at a covered facility in excess of the threshold quantity 
established for that chemical (see 30-60-70). Each OPDIV/STAFFDIV must 
apply all of the provisions of this chapter to each of its covered 
facilities, except for a federal agency facility outside the customs 
territory of the United States.
    C. GOCO'S. Executive Order 12856 does not alter the obligations 
which government-owned, contractor-operated facilities (GOCOS) have 
under EPCRA and the PPA independent of that order or subjects such 
facilities to EPCRA or PPA if they are otherwise excluded. However, 
each OPDIV/STAFFDIV shall include the releases and transfers from all 
such facilities when meeting all of its responsibilities under this 
chapter.
    D. Preliminary List of Covered Facilities. The Secretary was 
required by Executive Order 12856 to provide the Administrator of EPA 
by December 31, 1993, with a preliminary list of facilities that 
potentially meet the requirements for reporting under the threshold 
provisions EPCRA, PPA, and Executive Order 12856.

30-70-10  Responsibilities

    A. HHS. An objective of Executive Order 12856 (see 30-80) is to 
ensure that all Federal agencies, conduct their facility management and 
acquisition activities so that, to the maximum extent practicable, the 
quantity of toxic chemicals entering any wastestream, including any 
releases to the environment, is reduced as expeditiously as possible 
through source reduction; that waste that is generated is recycled to 
the maximum extent practicable; and that any wastes remaining are 
stored, treated, or disposed of in a manner protective of public health 
and the environment. Executive Order 12856 requires the Secretary to 
comply with the reporting provisions set forth in section 6607 of the 
PPA (42 U.S.C. 13106), all implementing regulations, and future 
amendments to these authorities, in light of applicable guidance as 
provided by EPA.
    B. OPDIVs/STAFFDIVs. The head of each OPDIV/STAFFDIV is responsible 
for ensuring that the OPDIV/STAFFDIV takes all necessary actions to 
prevent pollution in accordance with Executive Order 12856, and for 
that organization's compliance with the provisions of the PPA. 
Compliance with the PPA means compliance with the same substantive, 
procedural, and other statutory and regulatory requirements that would 
apply to a private person. An OPDIV/STAFFDIV should consult with EPA 
when a question arises as to the applicability of Executive Order 12856 
to a particular facility.

30-70-20  Pollution Prevention Policy

    A. Pollution Prevention Act. Section 6602(b) (42 U.S.C. 13101(b)) 
of the PPA states that it is the national policy of the United States 
that:

pollution should be prevented or reduced at the source whenever 
feasible; pollution that cannot be prevented should be recycled in 
an environmentally safe manner whenever feasible; pollution that 
cannot be prevented or recycled should be treated in an 
environmentally safe manner whenever feasible; and disposal or other 
release into the environment should be employed only as a last 
resort and should be conducted in an environmentally safe manner.

    OPDIVs/STAFFDIVs are to incorporate the environmental management 
hierarchy stated in this policy into their environmental management 
practices and procedures.
    Source reduction is fundamentally different and more desirable than 
waste management and pollution control. Preventing pollution before it 
is created is preferable to trying to manage, treat, or dispose of 
pollution after it is generated. OPDIVs/STAFFDIVs are encouraged to 
take advantage of opportunities to reduce or prevent pollution at the 
source through cost-effective changes in production, operation, and raw 
materials use. Such changes can result in substantial savings in 
reduced raw material, pollution control, and liability costs as well as 
help protect the environment and reduce risks to worker health and 
safety.
    B. Executive Order 12856. Executive Order 12856 indicates that the 
Federal government should become a leader in the field of pollution 
prevention through the management of its facilities, its acquisition 
practices, and in supporting the development of innovative pollution 
prevention programs and technologies. Additional policies and 
requirements that apply to pollution prevention are contained in 
chapter 30-80.

30-70-30  Definitions

    A. Pollution Prevention. Executive Order 12856 defines ``pollution 
prevention'' in section 2-203 to mean ``source reduction,'' as defined 
in the PPA, and other practices that reduce or eliminate the creation 
of pollutants through:
     Increased efficiency in the use of raw materials, energy, 
water, or other resources; or
     Protection of natural resources by conservation.
    EPA has issued a Statement of Definition of Pollution Prevention 
that is identical to the definition in section 2-203 of Executive Order 
12856 (Memorandum from F. Henry Habicht II, Deputy Administrator, 
Environmental Protection Agency, Subject: EPA Definition of ``Pollution 
Prevention``, to All EPA Personnel (May 28, 1992)). The Statement of 
Definition explains that recycling, energy recovery, treatment, and 
disposal are not included within EPA's definition of pollution 
prevention. In distinguishing between prevention of pollution and 
recycling, EPA includes ``in-process recycling`` within the definition 
of ``pollution prevention.'' ``Out-of-process recycling`` is part of 
recycling and is not part of the definition. The Statement of 
Definition also comments that recycling that is conducted in an 
environmentally sound manner shares many of the advantages of 
prevention--it can reduce the need for treatment or disposal, and 
conserve energy and resources.


    Note: A different definition of pollution prevention is used in 
guidance from the Council on Environmental Quality in NEPA matters 
(see 30-50-50).


    B. Source Reduction. ``Source reduction'' is defined in PPA section 
6603(6) (42 U.S.C. 13102(5)) to mean any practice that:
     Reduces the amount of any hazardous substance, pollutant, 
or contaminant entering any waste stream or otherwise released into the 
environment (including fugitive emissions) prior to recycling, 
treatment or disposal; and
     Reduces the hazards to public health and the environment 
associated with the release of such substances, pollutants, or 
contaminants.
    The term includes equipment or technology modifications, process or 
procedure modifications, reformulation or redesign of products, 
substitution of raw materials, and improvements in housekeeping, 
maintenance, training, or inventory control.
    The term ``source reduction'' does not include any practice that 
alters the physical, chemical, or biological characteristics or the 
volume of a hazardous substance, pollutant, or contaminant through a 
process or activity that is not integral to and

[[Page 10274]]

necessary for producing a product or providing a service.

30-70-40  Toxic Chemical Source Reduction and Recycling Reporting

    A. Requirement. Section 6607 of the PPA (42 U.S.C 13106) directs 
each facility that is required to file an annual toxic chemical release 
form (Form R) under Sec. 313 of EPCRA to include a toxic chemical 
source reduction and recycling report with its toxic chemical release 
filing. The report must cover each toxic chemical required to be 
reported on Form R. Form R is discussed in 30-60-70. Reporting 
requirements under the PPA cover releases of toxic chemicals to all 
media (air, water, and land).
    B. Reporting Period. A facility that is subject to the EPCRA 
section 313 and PPA section 6607 reporting requirements shall submit 
annually a Toxic Chemical Release Inventory Reporting Form (Form R) to 
EPA and to affected States and Indian tribes (see 30-60-70). Executive 
Order 12856 provides that the first year of compliance for Federal 
agencies with the PPA's reporting requirements shall be no later than 
for the 1994 calendar year, with reports due on or before July 1, 1995.
    C. Toxic Chemicals to be Reported. The toxic chemicals that are 
subject to EPCRA section 313 and PPA section 6607 reporting are listed 
in 40 CFR 372.65. Additions to, or deletions from, the list are 
described each year in the EPA Toxic Chemical Release Inventory 
Reporting Form R and Instructions published in the Federal Register and 
available in booklet form from EPA. A completed Form R must be 
submitted for each toxic chemical manufactured, processed, or otherwise 
used at a covered facility in excess of the threshold quantity 
established for that chemical (see 30-60-70). Form R now includes data 
elements mandated by section 6607 of the PPA. A facility must provide 
information about source reduction and recycling activities related to 
each toxic chemical reported on Form R.
    D. Information to be Reported based on the ``Instructions for 
Completing EPA Form R''
    1. Chemical Quantities. Facilities must provide the following 
quantity information (in pounds) for each toxic chemical reported on 
Form R for the current reporting year, the prior year, and quantities 
anticipated in both the first year immediately following the reporting 
year and the second year following the reporting year (future 
estimates):
    (a) Quantity of the toxic chemical (prior to recycling, treatment 
or disposal but not including one-time events) entering any waste 
stream or otherwise released * into the environment.
---------------------------------------------------------------------------

    * Reportable releases include ``any spilling, leaking, pumping, 
pouring, emitting, emptying, discharging, injecting, escaping, 
leaching, dumping, or disposing into the environment (including the 
abandonment of barrels, containers, and other closed receptacles).'' 
(EPCRA section 329(8); 42 U.S.C. 11049(8)).
---------------------------------------------------------------------------

    (b) Quantity of the toxic chemical or a mixture containing a toxic 
chemical that is used for energy recovery on-site or is sent off-site 
for energy recovery, unless it is a commercially available fuel;


    Note: Reportable on-site and off-site energy recovery is the 
combustion of a residual material containing a TRI toxic chemical 
when (I) the combustion unit is integrated into an energy recovery 
system (i.e., industrial furnaces, industrial kilns, and boilers); 
and (ii) the toxic chemical is combustible and has a heating value 
high enough to sustain combustion.


    (c) Quantity of the toxic chemical or a mixture containing a toxic 
chemical that is recycled on-site or is sent off-site for recycling;
    (d) Quantity of the toxic chemical or a mixture containing a toxic 
chemical that is treated on-site or is sent to an off-site location for 
waste treatment; and
    (e) Total quantity of toxic chemical released directly into the 
environment or sent off-site for recycling, waste treatment, energy 
recovery, or disposal during the reporting year due to any of the 
following events:
    (1) Remedial actions,
    (2) Catastrophic events, such as earthquakes, fires, or floods; or
    (3) One-time events not associated with normal or routine 
production processes.


    Note: The PPA separates the reporting of quantities of toxic 
chemicals recycled, used for energy recovery, treated, or disposed 
that are associated with normal or routine production operations 
from those that are not. Other sections of Form R dealing with 
releases to the environment and off-site transfers must include all 
releases and transfers as appropriate, regardless of whether they 
arise from catastrophic, remedial, or routine process operations.


    Information available at the facility that may be used to estimate 
the prior year's quantities include the prior year's Form R submission, 
supporting documentation, and recycling, energy recovery, or treatment 
operating logs or invoices. However, for the first year of reporting 
these data elements, prior year quantities are required only to the 
extent such information is available. EPA expects reasonable future 
quantity estimates using a logical basis. Reporting facilities should 
take into account protections available for trade secrets as provided 
in EPCRA section 322 (42 U.S.C. 11042) (see 30-60-80).
    2. Production Ratio or Activity Index. The facility must report a 
ratio of reporting year production to prior year production, or an 
``activity index'' based on a variable other than production that is 
the primary influence on the quantity of the reported toxic chemical 
recycled, used for energy recovery, treated, or disposed.
    3. Source Reduction Activities. If a facility engaged in any source 
reduction activity for the reported toxic chemical during the reporting 
year, the facility shall report the activity that was implemented. The 
information is to be reported only if a source reduction activity was 
newly implemented specifically (in whole or in part) for the reported 
toxic chemical during the reporting year. ``Source reduction 
activities'' are those actions that are taken to reduce or eliminate 
the amount of the reported toxic chemical released, used for energy 
recovery, recycled, or treated. Actions taken to recycle, threat, or 
dispose of the toxic chemical are not considered source reduction 
activities. Form R provides for the reporting of source reduction 
activities by category. The categories include:
     Good Operating Practices
     Inventory Control
     Spill and Leak Prevention
     Raw Material Modifications
     Process Modifications
     Cleaning and Degreasing
     Modified Containment Procedures for Cleaning Units
     Surface Preparation and Finishing
     Product Modifications
    4. Source Reduction Techniques. If a facility engaged in any source 
reduction activity for the reported toxic chemical during the reporting 
year, the facility must also report the method used to identify the 
opportunity for the activity implemented. Methods to identify source 
reduction opportunities include:
     Internal or external pollution prevention opportunity 
audit(s)
     Materials balance audits
     Participative team management
     Employee recommendations (under a formal OPDIV/STAFFDIV 
Program or independent of a formal program)
     Federal or state government technical assistance program
     Trade association/industry technical assistance program
     Vendor assistance
    5. Additional Source Reduction, Recycling, or Pollution Control 
Information. Form R provides an opportunity for a reporting facility to

[[Page 10275]]

indicate any additional information on source reduction, recycling, or 
pollution control activities implemented at the facility in the 
reporting year or in prior years for the reported toxic chemical.
    E. Relationship to RCRA Reporting. The reporting categories for 
quantities recycled, treated, used for energy recovery, and disposed 
apply to completing the source reduction section as well as to the rest 
of Form R. According to EPA, these categories are to be used only for 
TRI reporting. They are not intended for use in determining, under the 
Resource Conservation and Recovery Act (RCRA) Subtitle C regulations, 
whether a secondary material is a waste when recycled. These categories 
(and their definitions) also do not apply to the information that may 
be submitted in a Hazardous Waste Report by hazardous waste generators 
and treatment, storage, and disposal (TSD) facilities to EPA or an 
authorized state under RCRA sections 3002 and 3004 (42 U.S.C. 6922, 
6924). Differences in terminology and reporting requirements for toxic 
chemicals reported on Form R and for hazardous wastes regulated under 
RCRA occur because EPCRA and the PPA focus on specific chemicals, while 
the RCRA regulations and the Hazardous Waste Report focus on wastes, 
including mixtures.
    F. Form R. Availability. Reports under EPCRA section 313 and PPA 
section 6607 are made on EPA Form R (EPA Form 9350-1), the Toxic 
Chemical Release Inventory (TRI) Reporting Form. EPA encourages 
facilities to submit the required information to EPA by using magnetic 
media (computer disk or tape) in lieu of Form R. More complete guidance 
on obtaining Form R and sources of information regarding, the submitted 
of Form R is contained in section 30-60-70.
    G. Where Reports Are to be Sent. Form R is submitted to EPA, 
affected States, and affected Indian tribes.
    Send reports to EPA by mail to: EPCRA Reporting Center, P.O. Box 
23779, Washington, DC 20026-3779, Attn: Toxic Chemical Release 
Inventory.
    To submit a Form R via hand delivery or certified mail, the EPCRA 
Hotline (800-535-2002) may be called to obtain the street address of 
the EPCRA Reporting Center.
    Additional information on submitting a Form R is contained in 
section 30-60-70.
    H. Trade Secrets. The provisions of EPCRA section 322 (42 U.S.C. 
11042) dealing with the protection of trade secrets apply to the 
reporting requirements of this section in the same manner as to the 
reports required under section 313 of EPCRA (see 30-60-80).

30-70-50  Public Availability of Source Reduction Information

    A. OPDIVs/STAFFDIVs. Unless such documentation is withheld pursuant 
to a statutory requirement of Executive Order, the public shall be 
afforded ready access to all reports required to be prepared by an 
OPDIV/STAFFDIV under this chapter. OPDIVs/STAFFDIVs are encouraged to 
provide such reports to the state and local authorities where their 
facilities are located for an additional point of access to the public. 
Public availability of information submitted on Form R is also 
discussed in section 30-60-80.
    B. EPA. The PPA and Executive Order 12856 require the Administrator 
of EPA to make available to the public the source reduction information 
gathered pursuant to the PPA and such other pertinent information and 
analysis regarding source reduction as may be available to the 
Administrator. Subject to the trade secret provisions of EPCRA, EPA 
must make the data collected on Form R, pursuant to section 6607 of the 
PPA, publicly available in the same manner as the data collected under 
EPCRA section 313. The Administrator has also established, in 
accordance with PPA section 6606 (42 U.S.C. 13105), a Source Reduction 
Clearinghouse to compile information, including a computer data base 
that contains information on management, technical, and operational 
approaches to source reduction. The data base permits entry and 
retrieval of information by any person.

30-70-60  Compliance

    A. Internal Reviews. OPDIVs/STAFFDIVs shall conduct internal 
reviews and audits, and take such other steps, as may be necessary to 
monitor compliance with the requirements of this chapter and Executive 
Order 12856.
    B. Annual Progress Report. The Secretary will submit annual 
progress reports to the EPA Administrator beginning on October 1, 1995, 
regarding the progress that has been made in complying with all aspects 
of Executive Order 12856, including the pollution reduction 
requirements. This report and OPDIV/STAFFDIV responsibilities are 
described in Chapter 30-80.
    C. Technical Assistance from EPA. OPDIVs/STAFFDIVs are encouraged 
to request technical advice and assistance from EPA in order to foster 
full compliance with Executive Order 12856 and this chapter.
    D. EPA Monitoring. Executive Order 12856 provides that the 
Administrator of EPA, in consultation with the Secretary, may conduct 
such reviews and inspections as may be necessary to monitor compliance 
with the PPA responsibilities contained in this chapter. OPDIVs/
STAFFDIVs are to cooperate fully with the efforts of the Administrator 
to ensure compliance with Executive Order 12856. Should the 
Administrator notify an OPDIV/STAFFDIV that it is not in compliance 
with an applicable provision of Executive Order 12856, the OPDIV/
STAFFDIV shall achieve compliance as promptly as is practicable.
    E. State and Local Pollution Prevention Requirements. OPDIVs/
STAFFDIVs are encouraged to comply with all State and local pollution 
prevention requirements to the extent that compliance with such laws 
and requirements is not otherwise already mandated.
    F. Funding Pollution Prevention Programs. In accordance with 
Executive Order 12856, OPDIVs/STAFFDIVs shall place high priority on 
obtaining funding and resources needed for implementing pollution 
prevention strategies, plans, and assessments by identifying, 
requesting, and allocating funds through line-item or direct funding 
requests. Funding requests shall be made in accordance with the Federal 
Agency Pollution Prevention and Abatement Planning Process and through 
budget requests as outlined in Office of Management and Budget (OMB) 
Circulars A-106 and A-11, respectively.
    G. Life Cycle Analysis and Total Cost Accounting. OPDIVs/STAFFDIVs 
should apply, to the maximum extent practicable, life cycle analysis 
and total cost accounting principles to all projects needed to meet the 
requirements of this chapter.
    H. Contractors. All OPDIVs/STAFFDIVs shall provide, in all future 
contracts between the organization and its relevant contractors, for 
the contractor to supply all information the OPDIV/STAFFDIV deems 
necessary for it to comply with this chapter. In addition, to the 
extent that compliance with this chapter and Executive Order 12856 is 
made more difficult due to lack of information from existing 
contractors, an OPDIV/STAFFDIV shall take practical steps to obtain the 
information from such contractors that is needed to comply.
    I. Prior Agreements for Application of EPCRA and PPA. The 
compliance dates for application of EPCRA and PPA set forth in 
Executive Order 12856 are not intended to delay implementation of 
earlier timetables already agreed to by a Federal agency and are 
inapplicable to

[[Page 10276]]

the extent they interfere with those timetables.

30-70-70  Civil and Criminal Penalties

    EPCRA section 325(c) (42 U.S.C. 11045(c)), which provides civil and 
administrative penalties for failure to report TRI information, also 
applies to the PPA's requirement to report toxic chemical source 
reduction and recycling information on Form R. The penalty for failure 
to file a Form R is $25,000 for each day of violation of the law.
    EPCRA section 325(c) penalties do not apply to a governmental 
entity. Moreover, Executive Order 12856 does not make the provisions of 
section 325 applicable to any Federal agency or facility, except to the 
extent that such Federal agency or facility would independently be 
subject to such provisions.

Subject: Executive Order 12856, Federal Compliance With Right-to-
Know Laws and Pollution Prevention Requirements

30-80-00  Background
30-80-05  Applicability
30-80-10  Responsibilities
30-80-15  Definitions
30-80-20  Pollution Prevention Strategy
30-80-30  Toxic Chemical Reduction Goals
30-80-40  Pollution Prevention Plan
30-80-50  Acquisition and Procurement Plans and Goals
30-80-60  EPCRA and Pollution Prevention Act Responsibilities
30-80-70  Compliance
30-80-80  Public Availability of Information
30-80-90  Funding and Resources

30-80-00  Background

    The objective of Executive Order 12856, August 3, 1993 (58 FR 
41981), is to foster the Federal government as a good neighbor to local 
communities by becoming a leader in providing information to the public 
concerning toxic and hazardous chemicals and extremely hazardous 
substances at Federal facilities, and in planning for and preventing 
harm to the public through the planned or unplanned releases of 
chemicals. The Order also encourages the Federal government to be a 
leader in the field of pollution prevention through the management of 
its facilities, its acquisition practices, and in supporting the 
development of innovative pollution prevention programs and 
technologies. Executive Order 12856 seeks to ensure that all Federal 
agencies conduct their facility management and acquisition activities 
so that, to the maximum extent practicable:
     The quantity of toxic chemicals entering any wastestream, 
including any releases to the environment, is reduced as expeditiously 
as possible through source reduction;
     Waste that is generated is recycled to the maximum extent 
practicable; and
     Any wastes remaining are stored, treated, or disposed of 
in a manner protective of public health and the environment.
    Executive Order 12856 requires Federal agencies to comply with the 
requirements of the Emergency Planning and Community Right-to-Know Act 
of 1986 (EPCRA) (42 U.S.C. 11001-11050) and the Pollution Prevention 
Act of 1990 (PPA) (42 U.S.C. 13101-13109). EPCRA establishes programs 
to provide the public with important information on the hazardous and 
toxic chemicals in their communities and emergency planning and 
notification requirements to protect the public in the event of release 
of extremely hazardous substances. The order requires Federal agencies 
to report in a public manner toxic chemicals entering any wastestream 
from their facilities, including any releases to the environment, and 
to improve local emergency planning, response, and accident 
notification. Facilities that are subject to EPCRA are required to 
provide information and reports to EPA and state and local groups. Five 
distinct reporting requirements are contained in EPCRA. Each of these 
reporting requirements and other facility responsibilities under EPCRA 
and Executive Order 12856 are described in chapter 30-60.
    The PPA establishes national policy that pollution is to be 
prevented or reduced at the source. The Act also requires the reporting 
of efforts to reduce toxic chemical releases through source reduction 
and recycling. The PPA reporting requirement and other facility 
responsibilities under the PPA and Executive Order 12856 are described 
in chapter 30-70.
    Executive Order 12856 also places other responsibilities on federal 
agencies that are not contained in EPCRA or PPA. It requires Federal 
agencies to develop voluntary goals to reduce total releases of toxic 
chemicals to the environment and off-site transfers of such toxic 
chemicals for treatment and disposal; a pollution prevention strategy 
and plan; a plan and goals for eliminating or reducing the unnecessary 
acquisition of products containing extremely hazardous substances or 
toxic chemicals; and a plan and goals for voluntarily reducing agency 
manufacturing, processing, and use of extremely hazardous substances 
and toxic chemicals. These additional responsibilities under Executive 
Order 12856 are described in this chapter.

30-80-05 Applicability

    A. Covered Facilities. Executive Order 12856 is applicable to all 
OPDIVs/STAFFDIVs that either own or operate a ``facility'' as that term 
is defined in EPCRA section 329(4) (42 U.S.C. 11049(4)), if such 
facility meets EPCRA's threshold requirements for compliance. Each of 
the threshold requirements for EPCRA compliance are discussed in 
chapter 30-60. The statutory definition of ``facilities:

all buildings, equipment, structures, and other stationary items 
which are located on a single site or on contiguous or adjacent 
sites and which are owned or operated by the same person (or by any 
person which controls, is controlled by, or under common control 
with, such person). For purposes of emergency release notification, 
the term includes motor vehicles, rolling stock, and aircraft.

    EPA regulations revise the statutory definition of facility to 
include ``manmade structures in which chemicals are purposefully placed 
or removed through human means such that it functions as a containment 
structure for human use.'' (40 CFR 355.20, 370.2). The purpose of the 
revision was to clarify that the definition applies to certain 
subsurface structures.
    Each OPDIV/STAFFDIV must apply all of the provisions of Executive 
Order 12856 to each of its covered facilities, including those 
facilities which are subject, independent of the Executive Order, to 
the provisions of EPCRA (e.g., certain government-owned/contractor-
operated facilities (GOCOS)).
    Executive Order 12856 does not apply to Federal agency facilities 
outside the customs territory of the United States. EPA may be 
consulted to determine the applicability of Executive Order 12586 to 
particular OPDIV/STAFFDIV facilities.
    B. Preliminary List of Covered Facilities. The Secretary was 
required by Executive Order 12856 to provide the EPA Administrator by 
December 31, 1993, with a preliminary list of facilities that 
potentially meet the requirements for reporting under the threshold 
provisions of EPCRA, PPA, and Executive Order 12856.

30-80-10 Responsibilities

    The head of each OPDIV/STAFFDIV is responsible for ensuring that 
all necessary actions are taken for the prevention of pollution with 
respect to that organization's activities and facilities, and for 
ensuring compliance with the appropriate pollution prevention and 
emergency planning and community right-to-know provisions of the PPA 
and EPCRA. To the maximum

[[Page 10277]]

extent practicable, the head of each OPDIV/STAFFDIV shall strive to 
comply with the purposes, goals, and implementation steps set forth in 
Executive Order 12856.
    HHS Headquarters has developed the Pollution Prevention Strategy. 
The head of each OPDIV/STAFFDIV with facilities covered by the 
Executive Order must ensure that the organization develops, consistent 
with the HHS Pollution Prevention Strategy:
    1. Voluntary goals to reduce the organization's total releases of 
toxic chemicals to the environment and off-site transfers of such toxic 
chemicals for treatment and disposal from facilities covered by 
Executive Order 12856;
    2. A written pollution prevention plan;
    3. A plan and goals for eliminating or reducing the unnecessary 
acquisition of products containing extremely hazardous substances or 
toxic chemicals;
    4. A plan and goals for voluntarily reducing manufacturing, 
processing, and use of extremely hazardous substances and toxic 
chemicals.
    The OPDIV/STAFFDIV shall submit progress reports, conduct internal 
reviews and audits, and take such other steps as may be necessary to 
monitor compliance with the requirements of this chapter and Executive 
Order 12856. The head of each OPDIV/STAFFDIV with facilities covered by 
the Executive Order shall also place high priority on obtaining funding 
and resources needed for implementing all aspects of this chapter and 
Executive Order 12856.

30-80-15 Definitions

    Executive Order 12856 incorporates by reference all definitions 
found in EPCRA and PPA and implementing regulations (except the term 
``person'', as defined in section 329(7) (42 U.S.C. 11049(7)) of EPCRA, 
also includes Federal agencies). The following definitions are used in 
this chapter and chapters 30-60 and 30-70:
    A. Extremely Hazardous Substance. An ``extremely hazardous 
substance'' is defined in EPCRA section 329(3) (42 U.S.C. 11049(3)) and 
EPA regulations in 40 CFR 355.20 to mean a substance that is listed in 
Appendices A (in alphabetical order) and B (by CAS number) of 40 CFR 
part 355.
    B. Pollution Prevention. Pollution prevention is defined in section 
2-203 of Executive Order 12856 to mean ``source reduction,'' as defined 
in the PPA, and other practices that reduce or eliminate the creation 
of pollutants through:
     Increased efficiency in the use of raw materials, energy, 
water, or other resources; or
     Protection of natural resources by conservation.
    EPA has issued a Statement of Definition of Pollution Prevention 
that is identical to the definition in Executive Order 12856 
(Memorandum from F. Henry Habicht II, Deputy Administrator, 
Environmental Protection Agency, Subject: EPA Definition of ``Pollution 
Prevention'', to All EPA Personnel (May 28, 1992)). The Statement of 
Definition explains that recycling, energy recovery, treatment, and 
disposal are not included within EPA's definition of pollution 
prevention. In distinguishing between prevention of pollution and 
recycling, EPA includes ``in-process recycling'' within the definition 
of ``pollution prevention.'' ``Out-of-process recycling'' is part of 
recycling and is not part of the definition. The Statement of 
Definition also comments that recycling that is conducted in an 
environmentally sound manner shares many of the advantages of 
prevention--it can reduce the need for treatment of disposal, and 
conserve energy and resources.

    Note: A different definition of pollution prevention is used in 
guidance from the Council on Environmental Quality in NEPA matters 
(see 30-50-50).

    C. Source Reduction. ``Source reduction'' is defined in PPA section 
6603(5) (42 U.S.C. 13102(5)) to mean any practice that:
     Reduces the amount of any hazardous substance, pollutant 
or contaminant entering any waste stream or otherwise released into the 
environment (including fugitive emissions) prior to recycling, 
treatment, or disposal; and
     Reduces the hazards to public health and the environment 
associated with the release of such substances, pollutants, or 
contaminants.
    The term includes equipment or technology modifications, process or 
procedure modifications, reformulation or redesign of products, 
substitution of raw materials, and improvements in housekeeping, 
maintenance, training, or inventory control.
    The term ``source reduction'' does not include any practice that 
alters the physical, chemical, or biological characteristics or the 
volume of a hazardous substance, pollutant, or contaminant through a 
process or activity that is not integral to and necessary for producing 
a product or providing a service.
    D. Toxic Chemical. Toxic chemical means a substance on the list 
described in section 313(c) of EPCRA (42 U.S.C. 11023(c)) and contained 
in 40 CFR 372.65 (see 30-60-70).
    E. Toxic Pollutants. Under the provisions of section 313 of EPCRA 
as of December 1, 1993 (see 30-60-70), OPDIVs/STAFFDIVs may choose to 
include releases and transfers of other chemicals, such as:
     An ``extremely hazardous substance'' as defined in section 
329(3) of EPCRA (42 U.S.C. 11049(3)) and listed in 40 CFR part 355, 
Appendices A & B (see 30-60-20 and -30);
     A ``hazardous waste'' under section 3001 of RCRA (42 
U.S.C. 6921) as defined in 40 CFR 261.3 (see section 30-00-30); or
     A ``hazardous air pollutant'' listed under section 112(b) 
of the Clean Air Act (42 U.S.C. 7412(b)) (see 30-00-30).
    For the purposes of establishing the OPDIV/STAFFDIV baseline under 
subsection C of section 30-80-30, such ``other chemicals'' are in 
addition to (not instead of the EPCRA section 313 chemicals. The term 
``toxic pollutants'' does not include hazardous waste subject to 
remedial action generated prior to August 3, 1993.

30-80-20 Pollution Prevention Strategy

    A. Achievement of Executive Order 12856 Requirements. The HHS 
Pollution Prevention Strategy was developed to achieve the following 
requirements specified in sections 3-302 through 3-305 of Executive 
Order 12856:
    1. Toxic Chemical Release Reduction Goals. Voluntary goals to 
reduce the Department's total releases of toxic chemicals or toxic 
pollutants to the environment and off-site transfers of such toxic 
chemicals or toxic pollutants for treatment and disposal from 
facilities covered under Executive Order 12856 by 50 percent December 
31, 1999, utilizing, to the maximum extent practicable, source 
reduction practices.
    2. Acquisition and Procurement Goals and Plans. Plans and goals for 
eliminating or reducing the unnecessary acquisition of products 
containing extremely hazardous substances of toxic chemicals and a plan 
and goal for voluntarily reducing manufacturing, processing, and use of 
extremely hazardous substances and toxic chemicals.
    3. Toxic Chemical Release Inventory and Pollution Prevention Act 
Reporting. Compliance with the provisions of EPCRA section 313 (42 
U.S.C. 11023) and PPA section 6607 (42 U.S.C. 13106) and all 
implementing regulations.
    4. Emergency Planning and Community Right-to-Know Reporting 
Responsibilities. Compliance with the

[[Page 10278]]

provisions set forth in sections 301 through 312 of EPCRA (42 U.S.C. 
11001-11022) and all implementing regulations.
    B. Strategy Contents. The Pollution Prevention Strategy includes 
the following elements:
    1. Pollution Prevention Policy Statement. The HHS Pollution 
Prevention Strategy contains a Pollution Prevention Policy Statement 
that reflects the Department's commitment to incorporate pollution 
prevention through source reduction in facility management and 
acquisition. The statement designates principal responsibilities for 
development, implementation, and evaluation of the strategy. The 
statement also identifies an individual responsible for coordinating 
the Department's efforts in pollution prevention.
    2. Source Reduction Commitment. The Pollution Prevent Strategy 
commits the Department to utilize pollution prevention through source 
reduction, where practicable, as the primary means of achieving and 
maintaining compliance with all applicable federal, state, and local 
environmental requirements.
    3. Executive Order 12856 Achievement Plan. The strategy contains 
plans for achieving the requirements specified in sections 3-302 
through 3-305 of Executive Order 12856, as summarized in subsection A 
of this section.

30-80-30 Toxic Chemical Reduction Goals

    A. OPDIV/STAFFDIV Toxic Chemical Release Reduction Goals. Each 
OPDIV/STAFFDIV having facilities covered by Executive Order 12856 shall 
develop voluntary goals to reduce total releases of toxic chemicals to 
the environment and off-site transfers of such toxic chemicals for 
treatment and disposal by 50 percent by December 31, 1999. To the 
maximum extent practicable, such reductions shall be achieved by 
implementation of source reduction practices.
    B. Baseline Measurement. The baseline for measuring reductions for 
purposes of achieving the 50 percent reduction goal in subsection A of 
this section for each OPDIV/STAFFDIV is the first year in which 
releases of toxic chemicals to the environment and off-site transfers 
of such chemicals for treatment and disposal are publicly reported. The 
baseline amount to which the 50 percent reduction goal applies is the 
aggregate amount of toxic chemicals reported in the baseline year for 
all that OPDIV/STAFFDIV's covered facilities. In no event shall the 
baseline be later than the 1994 reporting year.
    C. Alternate Toxic Pollutants Reduction Goal. As an alternative to 
a 50 percent reduction goal for toxic chemicals, an OPDIV/STAFFDIV may 
choose to achieve a 50 percent reduction goal for toxic pollutants. In 
such event, the OPDIV/STAFFDIV shall delineate the scope of its 
reduction program in the written pollution prevention plan that is 
required by section 30-80-40. The baseline for measuring reductions for 
purposes of achieving the 50 percent reduction requirement for each 
OPDIV/STAFFDIV shall be the first year in which releases of toxic 
pollutants to the environment and off-site transfers of such chemicals 
for treatment and disposal are publicly reported for each of that 
OPDIV/STAFFDIV's facilities encompassed by its pollution prevention 
plan. In no event shall the baseline year be later than the 1994 
reporting year. The baseline amount as to which the 50 percent 
reduction goal applies shall be the aggregate amount of toxic 
pollutants reported by the OPDIV/STAFFDIV in the baseline year. For any 
toxic pollutants included by the OPDIV/STAFFDIV in determining its 
baseline under this section, in addition to toxic chemicals under 
EPCRA, the OPDIV/STAFFDIV shall report on such toxic pollutants 
annually as part of its toxic chemical release inventory report (see 
30-60-70), if practicable, or through a report that is made available 
to the public.

30-80-40 Pollution Prevention Plan

    A. Pollution Prevention Plan. The head of each OPDIV/STAFFDIV shall 
ensure that each of its covered facilities developed a written 
Pollution Prevention Plan. Each facility plan shall set forth the 
facility's contribution to the OPDIV's/STAFFDIV's toxic chemical 
reduction goals (see 30-90-30).
    B. Facility Assessments. OPDIVs/STAFFDIVs shall conduct assessments 
of their facilities as necessary to ensure development of facility 
pollution prevention plans and pollution prevention programs.

30-80-50 Acquisition and Procurement Plans and Goals

    A. Plans and Goals
    1. Toxic Chemical Acquisition Reduction Plan and Goals. Each OPDIV/
STAFFDIV shall establish a plan and goals for eliminating or reducing 
the unnecessary acquisition of products containing extremely hazardous 
substances or toxic chemicals.
    2. Toxic Chemical Use Reduction Plan and Goal. Each OPDIV/STAFFDIV 
shall establish a plan and goal for voluntarily reducing its own 
manufacturing, processing, and use of extremely hazardous substances 
and toxic chemicals.
    B. Specifications and Standards Review. OPDIVs/STAFFDIVs shall also 
review (in coordination with GSA, EPA, and other Federal agencies where 
appropriate) their standardized documents, including specifications and 
standards, and identify opportunities to eliminate or reduce the use of 
extremely hazardous substances and toxic chemicals, consistent with the 
safety and reliability requirements of their missions. All appropriate 
revisions to these specifications and standards shall be made by 1999.
    C. Coordination with EPA. Each OPDIV/STAFFDIV shall establish 
priorities for implementing this section in coordination with EPA.
    D. Innovative Pollution Prevention Technologies. OPDIVs/STAFFDIVs 
are encouraged to develop and test innovative pollution prevention 
technologies at their facilities in order to encourage the development 
of strong markets for such technologies. Partnerships should be 
encouraged between industry, Federal agencies, Government laboratories, 
academia, and others to assess and deploy, innovative environmental 
technologies for domestic use and for markets abroad.

30-80-60  EPCRA and Pollution Prevention Act Responsibilities

    A. Emergency Planning and Community Right-to-Know Responsibilities. 
The head of each OPDIV/STAFFDIV is responsible for assuring compliance 
with the provisions set forth in sections 301 through 312 of EPCRA (42 
U.S.C. 11001-11022). Procedures for complying with these requirements 
are contained in chapter 30-60.
    B. Toxic Chemical Release Inventory and Pollution Prevention Act 
Reporting. The head of each OPDIV/STAFFDIV is responsible for assuring 
compliance with the reporting requirements set forth in EPCRA section 
313 (42 U.S.C. 11023) and PPA section 6607 (42 U.S.C. 13106). 
Procedures for complying with these reporting requirements are 
contained in chapters 30-60 and 30-70. In accordance with Executive 
Order 12856, each OPDIV/STAFFDIV shall comply with these reporting 
requirements without regard to the Standard Industrial Classification 
(SIC) delineations that apply to the organization's facilities, and 
such reports shall be for all releases, transfers, and wastes at such 
facilities without regard to the SIC code of the

[[Page 10279]]

activity leading to the release, transfer, or waste.

30-80-70  Compliance

    A. Scope of Compliance. Executive Order 12856 provides that 
compliance with EPCRA and PPA means compliance with the same 
substantive, procedural, and other statutory and regulatory 
requirements that would apply to a private person.
    B. Internal Reviews. OPDIVs/STAFFDIVs shall conduct internal 
reviews and audits, and take such other steps as may be necessary, to 
monitor compliance with the requirements of this chapter and Executive 
Order 12856, including conducting assessments of their facilities to 
ensure development of facility pollution prevention plans and pollution 
prevention programs.
    C. Annual Progress Reports
    1. HHS Annual Report to EPA. The Secretary will submit annual 
progress reports to the EPA Administrator beginning on October 1, 1995. 
These reports will include a description of the progress that has been 
made in complying with all aspects of Executive Order 12856, including 
pollution reduction requirements. This reporting requirement expires 
after the report due on October 1, 2001. All OPDIVs/STAFFDIVs must 
institute procedures that will permit timely progress reporting by 
OPDIV/STAFFDIV facilities and the gathering of information for the 
Secretary's report.
    2. EPA Annual Report to President. Executive Order 12856 requires 
EPA to submit an annual report to the President on Federal agency 
compliance with toxic chemical release inventory reporting under EPCRA 
section 313 and toxic chemical source reduction and recycling reporting 
under PPA section 6607 (see chapters 30-60 and 30-70). All OPDIVs/
STAFFDIVs must institute procedures that will permit timely progress 
reporting to EPA for its report to the President.
    D. Contractor Reporting Responsibilities. To facilitate compliance 
with Executive Order 12856, OPDIVs/STAFFDIVs shall provide, in all 
future contracts between the organization and its relevant contractors, 
for the contractor to supply to the OPDIV/STAFFDIV all information that 
the OPDIV/STAFFDIV deems necessary for it to comply with the order. In 
addition, to the extent that compliance with Executive Order 12856 is 
made more difficult due to lack of information from existing 
contractors, OPDIVs/STAFFDIVs shall take practical steps to obtain the 
information needed to comply with the order from such contractors. 
Although Executive Order 12856 does not alter the obligations which 
GOCOs have under EPCRA and PPA independent of the order or subjects 
such facilities to EPCRA or PPA if they are otherwise excluded, the 
releases and transfers from all such facilities are to be included when 
meeting all of the OPDIV's/STAFFDIV's responsibilities under Executive 
Order 12856.
    E. Technical Assistance from EPA. OPDIVs/STAFFDIVs are encouraged 
to request technical advice and assistance from EPA in order to foster 
full compliance with Executive Order 12856 and this chapter.
    F. Technical Assistance to Local Emergency Planning Committees. 
OPDIVs/STAFFDIVs shall provide technical assistance, if requested, to 
local emergency planning committees in their development of emergency 
response plans and in fulfillment of their community right-to-know and 
risk reduction responsibilities (see 30-60).
    G. EPA Review. Executive Order 12856 provides that the 
Administrator of EPA, in consultation with the Secretary, may conduct 
such reviews and inspections as may be necessary to monitor compliance 
with HHS responsibilities under EPCRA (see 30-60) and the PPA (see 30-
70). OPDIVs/STAFFDIVs are to cooperate fully with the efforts of the 
Administrator to ensure compliance with Executive Order 12856. Should 
the Administrator notify on OPDIV/STAFFDIV that it is not in compliance 
with an application provision of Executive Order 12856, the OPDIV/
STAFFDIV shall achieve compliance as promptly as is practicable.
    H. State and Local Right-to-Know Requirements. OPDIVs/STAFFDIVs are 
encouraged to comply with all State and local right-to-know and 
pollution prevention requirements to the extent that compliance with 
such laws and requirements is not otherwise already mandated.
    I. Exemption for Particular Federal Facilities. Section 6-601 of 
Executive Order 12856 provides that the head of a Federal agency may 
request from the President in the interest of national security, an 
exemption from complying with the provision of any or all aspects of 
the order for particular Federal agency facilities, provided that the 
procedures set forth in CERCLA section 1200)(1) (42 U.S.C. 9620(j)(1)) 
are followed.

30-80-80  Public Availability of Information

    To the extent permitted by law, and unless such documentation is 
withheld pursuant to section 6-601 of Executive Order 12856, the public 
shall be provided ready access to all strategies, plans, and reports 
required to be prepared by the Department or an OPDIV/STAFFDIV under 
Executive Order 12856. OPDIVs/STAFFDIVs are encouraged to provide such 
strategies, plans, and reports to the State and local authorities where 
their facilities are located for an additional point of access to the 
public.

30-80-90  Funding and Resources

    Each OPDIV/STAFFDIV shall place high priority on obtaining funding 
and resources needed for implementing all aspects of this chapter and 
Executive Order 12856, including the pollution prevention strategies, 
plans, and assessments required by Executive Order 12856, by 
identifying, requesting, and allocating funds through line-item or 
direct funding requests. OPDIVs/STAFFDIVs are to make such budget 
requests as required in the Federal Agency Pollution Prevention and 
Abatement Planning Process and through budget requests as outlined in 
Office of Management and Budget (OMB) Circular A-11. OPDIVs/STAFFDIVs 
should apply, to the maximum extent practicable, a life cycle analysis 
and total cost accounting principles to all projects needed to meet the 
requirements of this chapter and Executive Order 12856.

Subject: Greening the Government Through Waste Prevention, 
Recycling, and Federal Acquisition

30-90-00  Background
30-90-05  Applicability
30-90-10  Responsibilities
30-90-15  Definitions
30-90-20  Roles of the Federal Environmental Executive and Agency 
Environmental Executives
30-90-30  Acquisition Planning and Affirmative Procurement Programs
30-90-40  Agency Goals and Reporting Requirements
30-90-50  Standards, Specifications and Designation of Items
30-90-60  Recycling and Recycling Awareness Programs
30-90-70  Real Property Acquisition and Management
30-90-80  Training
30-90-90  Compliance

30-90-00  Background

    A. Executive Order 13101. Executive Order 13101 requires Federal 
agencies to strive to increase the procurement of products that are 
environmentally preferable or that are made with recovered materials 
and to set goals to maximize the number of recycled products purchased, 
relative non-recycled alternatives. Each agency is to establish either 
a goal for solid waste

[[Page 10280]]

prevention and for recycling or a goal for solid waste diversion. It is 
the national policy to prefer pollution prevention, whenever feasible.
    Each Executive agency is to initiate a program, compatible with 
State and local requirements, to promote cost-effective waste 
prevention and recycling of reusable materials in all of its 
facilities. Federal agencies are also to consider cooperative ventures 
with State and local governments to promote recycling, and waste 
reduction in the community. The order directs that in acquisition 
planning and in the evaluation and award contracts, agencies are to 
consider, among other factors, use of recovered materials, life cycle 
costs, and recyclability. Each Executive department and major procuring 
agency must establish model facility demonstration programs that 
include comprehensive waste prevention and recycling programs and 
emphasize the procurement of recycled and environmentally preferable 
products and services. A government-wide award will be presented 
annually by the White House to the best, most innovative program 
implementing the objectives of Executive Order 13101 to give greater 
visibility to these efforts so that they can be incorporated 
government-wide.
    The Executive Order creates a Federal Environmental Executive and 
establishes high-level Environmental Executive positions within each 
agency to be responsible for expediting the implementation of the order 
and statutes that pertain to the Order.
    Executive Order 13101 was effective immediately upon its issuance 
by the President of September 14, 1998. Executive Order 13101 revokes 
Executive Order 12873, dated October 20, 1993.
    B. Resource Conservation and Recovery Act of 1976 (RCRA). Executive 
Order 13101 requires Federal agencies to comply with the sections of 
RCRA that cover Federal procurement of recycled products. Section 
6002(c)(1) of RCRA (42 U.S.C. 6962(c)(1)) imposes a duty on Federal 
agencies to procure items ``composed of the highest percentage of 
recovered materials practicable * * * consistent with maintaining a 
satisfactory level of competition. * * *'' The Administrator of the 
Environmental Protection Agency (EPA) is required by Section 6002 to 
develop guidelines that designate those items which are or can be 
produced with recovered materials and set forth recommended practices 
with respected to the procurement of recovered materials and items 
containing such materials. To assist procuring agencies in complying 
with the requirements of section 6002, EPA has issued guidelines for 
the Federal procurement of building insulation products containing 
recovered materials, cement and concrete containing fly ash, paper and 
paper products containing recovered materials, lubricating oils 
containing re-refined oil, and retread tires (see 40 CFR part 247).
    RCRA 6002 also requires each procuring agency to develop an 
affirmative procurement program which will assure that items composed 
of recovered materials will be purchased to the maximum extent 
practicable and which is consistent with applicable provisions of 
Federal procurement law.
    C. OFPP Policy Letter 92-4. RCRA section 6002 (42 U.S.C 6962) 
requires the Office of Federal Procurement Policy (OFPP) to issue 
coordinated policies to maximize Federal use of recovered material. 
Executive Order 13101 requires Federal agencies, consistent with 
policies established by OFPP Policy Letter 92-4 (57 FR 53362 (1992)), 
to comply with executive branch policies for the acquisition and use of 
environmentally preferable products and services and to implement cost-
effective procurement preference programs favoring the purchase of 
these products and services. OFPP Policy Letter 92-4, establishes 
Executive branch policies for the acquisition and use of 
environmentally-sound, energy-efficient products and services. The OFPP 
Policy Letter also provides guidance to be followed by Executive 
agencies in implementing section 6002 of RCRA.
    OFPP Policy Letter requires the implementation of cost-effective 
procurement preference programs for the purchase of environmentally-
sound, energy-efficient products and services. It applies to Federal 
executive agencies that use appropriated Federal funds for procurement 
purposes. The Policy Letter provides direction for developing 
affirmative procurement programs and for the procurement of paper 
containing post-consumer waste. The letter also implements the Energy 
Policy and Conservation Act, 42 U.S.C. 6201-6422, and two Executive 
Orders.
    Policy Letter 92-4 directs executive agencies to consider energy 
conservation and efficiency factors in the procurement of property and 
services. It also requires Federal agencies to give preference in their 
procurement programs to practices and products that conserve natural 
resources and protect the environment. Energy conservation and 
efficiency data are to be considered, along with estimated cost and 
other relevant factors, in the development of purchase requests, 
invitations for bids and solicitations for offers. In addition, with 
respect to the procurement of consumer products, as defined under Part 
B, Title III of the Energy Policy and Conservation Act, agencies shall 
consider energy use/efficiency labels (42 U.S.C. 6294) and prescribed 
energy efficiency standards (42 U.S.C. 6295) in making purchasing 
decisions.
    The Policy Letter is intended to apply to all products and 
services. There are differing requirements for the guideline items than 
for other items.

30-90-05  Applicability

    A. OPDIVs/STAFFDIVs. Consistent with the demands of efficiency and 
cost effectiveness, the head of each OPDIV/STAFFDIV shall incorporate 
waste prevention and recycling in the organization's daily operations 
and work to increase and expand markets for recovered materials through 
greater Federal Government preference and demand for such products. 
Consistent with policies established by Office of Federal Procurement 
Policy (``OFPP'') Policy Letter 92-4, OPDIVs/STAFFDIVs shall comply 
with executive branch policies for the acquisition and use of 
environmentally preferable products and services and implement cost-
effective procurement preference programs favoring the purchase of 
these products and services.
    B. Contractor Operated Facilities. Contracts that provide for 
contractor operation of a government-owned or leased facility and/or 
contracts, awarded after the effective date of Executive Order 13101, 
shall include provisions that obligate the contractor to comply with 
the requirements of the order within the scope of its operations. In 
addition, to the extent permitted by law and where economically 
feasible, existing contracts should be modified to include provisions 
that obligate the contractor to comply with the requirements of 
Executive Order 13101.
    C. Real Property Acquisition and Management. Within 90 days after 
the date of this order, and to the extent permitted by law and where 
economically feasible, OPDIVs/STAFFDIVs shall ensure compliance with 
the provisions of this order in the acquisition and management of 
Federally owned and leased space. Agencies shall also include 
environmental and recycling provisions in the acquisition and 
management of all leased space and in the construction of new Federal 
buildings.
    D. Retention of Funds. The Administrator of General Services shall 
continue with the program that retains

[[Page 10281]]

for the agencies the proceeds from the sale of materials recovered 
through recycling or waste prevention programs and specifying the 
eligibility requirements for the materials being recycled.
    E. Agencies in non-GSA Managed Facilities. OPDIVs/STAFFDIVs, to the 
extent permitted by law, should develop a plan to retain the proceeds 
from the sale of materials recovered through recycling or waste 
prevention programs.
    F. Model Facility Programs. Each executive agency shall establish a 
model demonstration program incorporating some or all of the following 
elements as appropriate. Agencies are encouraged to demonstrate and 
test new and innovative approaches such as incorporating 
environmentally preferable and biobased products; increasing the 
quantity and types of products containing recovered materials; 
expanding collection programs; implementing source reduction programs; 
composting organic materials when feasible; and exploring public/
private partnerships to develop markets for recovered materials.
    G. Recycling Programs. Each OPDIV/STAFFDIV shall designate a 
recycling coordinator for each facility or installation. The recycling 
coordinator shall implement or maintain waste prevention and recycling 
programs in the agencies' action plans. Agencies shall also consider 
cooperative ventures with State and local governments to promote 
recycling and waste reduction in the community.

30-90-10  Responsibilities

    The head of each OPDIV/STAFFDIV shall develop and implement to the 
maximum extent practicable affirmative procurement programs in 
accordance with RCRA section 6002 (42 U.S.C. 6962) and Executive Order 
13101.
    The head of each OPDIV/STAFFDIV shall ensure that the organization 
meets or exceeds minimum materials content standards when purchasing or 
causing the purchase of printing and writing paper.

30-90-15  Definitions

    A. ``Acquisition'' means the acquiring by contract with 
appropriated funds for supplies or services (including construction) by 
and for the use of the Federal Government through purchase or lease, 
whether the supplies or services are already in existence or must be 
created, developed, demonstrated, and evaluated. Acquisition begins at 
the point when HHS organization needs are established and includes the 
description of requirements to satisfy organization needs, solicitation 
and selection of sources, award of contracts, contract financing, 
contract performance, contract administration, and those technical and 
management functions directly related to the process of fulfilling 
organization needs by contract.
    B. ``Environmentally preferable'' means products or services that 
have a lesser or reduced effect on human health and the environment 
when compared with competing products or services that serve the same 
purpose. This comparison may consider raw materials acquisition, 
production, manufacturing, packaging, distribution, reuse, operation, 
maintenance, or disposal of the product or service.
    C. ``Life Cycle Cost'' means the amortized annual cost of a 
product, including capital costs, installation costs, operating costs, 
maintenance costs, and disposal costs discounted over the lifetime of 
the product.
    D. ``Life Cycle Assessment'' means the comprehensive examination of 
a products environmental and economic effects throughout its lifetime 
including new material extraction, transportation, manufacturing, use, 
and disposal.
    E. ``Postconsumer material'' means a material or finished product 
that has served its intended use and has been discarded for disposal or 
recovery, having completed its life as a consumer item. ``Post-consumer 
material'' is a part of the broader category of ``recovered material''.
    F. ``Recovered materials'' means waste materials and by-products 
which have been recovered or diverted from solid waste, but such term 
does not include those materials and by-products generated from, and 
commonly reused within, an original manufacturing process (42 U.S.C. 
6903(19)).
    Manufacturing, forest residues, and other wastes also fit within 
the definition of ``recovered materials''. Such wastes include dry 
paper and paperboard waste generated after completion of the paper-
making process; finished paper and paperboard from obsolete inventories 
of paper and paperboard manufacturers, merchants, wholesalers, dealers, 
printers, converters, or others; fibrous byproducts of harvesting, 
manufacturing, extractive, or wood-cutting processes; wastes generated 
by the conversion of goods made from fibrous material; and fibers 
recovered from waste water which otherwise would enter the waste-
stream.
    G. ``Recyclability'' means the ability of a product or material to 
be recovered from, or otherwise diverted from, the solid waste stream 
for the purpose of recycling.
    H. ``Recycling'' means the series of activities, including 
collection, separation, and processing, by which products or other 
materials are recovered from the solid waste stream for use in the form 
of raw materials in the manufacture of new products other than fuel for 
producing heat or power by combustion.
    I. ``Waste prevention'' means any change in the design, 
manufacturing, purchase or use of materials or products (including 
packaging) to reduce their amount or toxicity before they become 
municipal solid waste. Waste prevention also refers to the reuse of 
products or materials.
    J. ``Waste reduction'' means preventing or decreasing the amount of 
waste being generated through waste prevention, recycling, or 
purchasing recycled and environmentally preferable products.
    K. ``Pollution prevention'' means ``source reduction'' as defined 
in the Pollution Prevention Act of 1990, and other practices that 
reduce or eliminate the creation of pollutants through: (a) increased 
efficiency in the use of raw materials, energy, water, or other 
resources; or (b) protection of natural resources by conservation.
    L. ``Biobased product'' means a commercial or industrial product 
(other than food or feed: that utilizes biological products or 
renewable domestic agricultural (plant, animal, and marine) or forestry 
materials.
    M. ``Major procuring agencies'' shall include any executive agency 
that procures over $50 million per year of goods and services.

30-90-20  Roles of the Federal Environmental Executive and Agency 
Environmental Executives

    A. Federal Environmental Executive. The Federal Environmental 
Executive is designated by the President and is located within the 
Environmental Protection Agency (``EPA''). The Federal Environmental 
Executive is authorized to take all actions necessary to ensure that 
Federal agencies comply with the requirements of Executive Order 13101. 
The Federal Environmental Executive's responsibilities include:
    Identifying and recommending initiatives for government-wide 
implementation that will promote the purposes of Executive Order 13101, 
including:
    (a) The development of a government-wide Waste Prevention and 
Recycling Strategic Plan for implementation of Executive Order 13101 
and appropriate incentives to encourage the acquisition of recycled and 
environmentally preferable products by the Federal Government,

[[Page 10282]]

    (b) Chairing the Task Force under the steering committee 
established by Executive Order 13101, and
    (c) Preparing a biennial report on this Order.
    The Federal Environmental Executive will establish committees and 
work groups to identify, assess, and recommend actions to be taken to 
fulfill the goals, responsibilities, and initiatives of the Federal 
Environmental Executive. As these committees and work groups are 
created, OPDIVs/STAFFDIVs may be requested to designate appropriate 
personnel in the areas of procurement and acquisition, standards and 
specifications, electronic commerce, facilities management, waste 
prevention, and recycling, and others as needed to staff and work on 
the initiatives of the Executive. OPDIVs/STAFFDIVs shall make their 
services, personnel and facilities available to the Federal 
Environmental Executive to the maximum extent practicable for the 
performance of functions under Executive Order 13101.
    B. HHS Environmental Executive. Executive Order 13101 requires the 
Secretary to designate an Agency Environmental Executive, who serves at 
a level no lower than at the Assistant Secretary level or equivalent. 
The Agency Environmental Executive is responsible for:
    1. Translating the Government-wide Strategic Plan into specific 
agency and service plans;
    2. Implementing the specific agency and service plans;
    3. Reporting to the Federal Environmental Executive (FEE) on the 
progress of plan implementation;
    D. Working with the FEE and the Task Force in furthering 
implementation of this order;
    E. Tracking agencies' purchases of EPA-designated guideline items 
and reporting agencies' purchases of such guideline items to the FEE 
per the recommendations developed in this Order. Agency acquisition and 
procurement personnel shall justify in writing to the file and the 
Agency Environmental Executive (AEE) the rationale for not purchasing 
such items, above the micropurchase threshold, and submit a plan and 
timetable for increasing agency purchases of the designated item(s);
    F. One year after a product is placed on the USDA Biobased Products 
List, estimating agencies' purchases of products on the list and 
reporting agencies' estimated purchases of such products to the 
Secretary of Agriculture; and
    G. Reviewing Departmental programs and acquisitions to ensure 
compliance with this Order.

30-90-30  Acquisition Planning and Affirmative Procurement Programs

    A. Acquisition Planning. In developing plans, drawings, work 
statements, specifications, or other product descriptions, OPDIVs/
STAFFDIVs shall consider, as appropriate, a broad range of factors 
including:
    --Elimination of virgin material requirements;
    --Use of recovered materials;
    --Reuse of product;
    --Life cycle cost;
    --Recyclability;
    --Use of environmentally preferable products;
    --Waste prevention (including toxicity reduction or elimination); 
and
    --Ultimate disposal, as appropriate.
    These factors should be considered in acquisition planning for all 
procurements and in the evaluation and award of contracts, as 
appropriate. Program and acquisition managers should take an active 
role in these activities.
    B. OPDIV/STAFFDIV Responsibilities. In accordance with OFPP Policy 
Letter 924, OPDIVs/STAFFDIVs shall:
    1. Identify and procure needed products and services that, all 
factors considered, are environmentally-sound and energy-efficient;
    2. Procure products, including packaging, that contain the highest 
percentage of recovered materials, and where applicable, post-consumer 
waste, consistent with performance requirements, availability, price 
reasonableness, and cost effectiveness;
    3. Employ life cycle cost analysis, whenever feasible and 
appropriate, to assist in making product and service selections;
    4. Use product descriptions and specifications that reflect cost-
effective use of recycled products, recovered materials, water 
efficiency devices, remanufactured products and energy-efficient 
products, materials and practices;
    5. Work with private standard setting organizations and 
participate, pursuant to OMB Circular No. A-119, in the development of 
voluntary standards and specifications defining environmentally-sound, 
energy-efficient products, practices and services;
    6. Require vendors to certify the percentage of recovered materials 
used, when contracts are awarded wholly or in part on the basis of 
utilization of recovered materials;
    7. Assure, when drafting or reviewing specifications for required 
items, that the specifications:
    (a) Do not exclude the use of recovered materials;
    (b) Do not unnecessarily require the item to be manufactured from 
virgin materials; and
    (c) Require the use of recovered materials and environmentally-
sound components to the maximum extent practicable without jeopardizing 
the intended end use of the item; and
    8. Arrange for the procurement of solid waste management services 
in a manner which maximizes energy and resource recovery. OPDIVs/
STAFFDIVs that generate heat, mechanical, or electrical energy from 
fossil fuel in systems that have the technical capability of using 
energy or fuel derived from solid waste as a primary or supplementary 
fuel shall use such capability to the maximum extent practicable.
    (C) Affirmative Procurement Programs. RCRA section 6002(i) (42 
U.S.C. 6962(i)) requires the development of an affirmative procurement 
program for each item that is covered by an EPA guideline. The 
affirmative procurement program is to assure that items composed of 
recovered materials will be purchased to the maximum extent 
practicable, consistent with applicable provisions of Federal 
procurement law.
    1. OPDIVs/STAFFIDVs shall establish affirmative procurement 
programs for each of the items covered by guidelines developed by the 
Environmental Protection Agency pursuant to subsection 6002(e) of RCRA 
(see 40 CFR part 247). For newly designated items, OPDIVs/STAFFDIVs 
shall revise their internal programs within one year from the date EPA 
designated the new items. OPDIVs/STAFFDIVs shall ensure that 
responsibilities for preparation, implementation and monitoring of 
affirmative procurement programs are shared between program personnel 
and procurement personnel. The responsibility to establish an 
affirmative procurement program applies only to purchases of guideline 
items costing $10,000 or more or where the quantity of such items, or 
of functionally-equivalent items, acquired in the course of the 
preceding year was $10,000 or more.
    2. For designated EPA guideline items, excluding biobased products 
as described in this Executive Order, OPDIVs/STAFFDIVs shall ensure 
that their affirmative procurement programs require that 100 percent of 
their purchases of products meet or exceed the EPA guideline standards 
unless

[[Page 10283]]

written justification is provided that a product is not available 
competitively within a reasonable time frame, does not meet appropriate 
performance standards, or is only available at an unreasonable price. 
Written justification is not required for purchases below the 
micropurchase threshold. For micropurchases, agencies shall provide 
guidance regarding purchase of EPA-designated guideline items. This 
guidance should encourage consideration of aggregating purchases when 
this method would promote economy and efficiency.
    3. Program Elements. Each OPDIV/STAFFDIV affirmative procurement 
program, at a minimum, must comply with RCRA subsection 6002(i) and 
must:
    (a) State a preference for the procurement of the item covered by 
the EPA guideline;
    (b) Promote the cost-effective procurement of the covered item;
    (c) Require estimates of the total amount of the recovered item 
used in a contract, certification of the minimum amount actually used, 
where appropriate, and procedures for verifying the estimates and 
certifications;
    (d) Provide for the annual review and monitoring of the 
effectiveness of the program; and
    (e) Include one of the following options, or a substantially 
equivalent alternative, to insure that contracts for items covered by 
the guidelines are awarded, unless a waiver in granted, on the basis 
of:
     Case-by-case procurement, open competition between 
products made of virgin materials and products containing recovered 
materials; preference to be given to the latter, or
     Minimum-content standards, which identify the minimum 
content of recovered materials that an item must contain to be 
considered for award.
    4. Waiver. OPDIVs/STAFFDIVs are to base decisions to waive, or not 
to procure, EPA guideline items composed of the highest percentages of 
recovered materials practicable on a determination that such items:
    (a) Are not reasonably available within the time required;
    (b) Fail to meet the performance standards set forth in applicable 
specifications or fail to meet the reasonable performances standards of 
the procuring agencies; or
    (c) Are only available at an unreasonable price
    5. The Agency Environmental Executive will track purchases of 
designated EPA guideline items and report purchases of such guideline 
items to the Federal Environmental Executive when requested.
    A. Agencies shall implement the EPA procurement guidelines for re-
refined lubricating oil and retread tires. Fleet and commodity managers 
shall take immediate steps, as appropriate, to procure these items in 
accordance with section 6002 of RCRA. This provision does not preclude 
the acquisition of biobased (e.g., vegetable) oils.
    B. The FEE shall work to educate executive agencies about the new 
Department of Defense Cooperative Tire Qualification Program, including 
the Cooperative Approval Tire List and Cooperative Plant Qualification 
Program, as they apply to retread tires.

30-90-40  Agency Goals and Reporting Requirements

    Each OPDIV/STAFFDIV shall establish either a goal for solid waste 
prevention and a goal for recycling or a goal for solid waste diversion 
to be achieved by January 1, 2000. Each agency shall further ensure 
that the established goals include long-range goals to be achieved by 
the years 2005 and 2010. These goals shall be submitted to the FEE 
within 180 days after the date of this Order.
    In addition to white paper, mixed paper/cardboard, aluminum, 
plastic, and glass, agencies should incorporate into their recycling 
programs efforts to recycle, reuse, or refurbish pallets and collect 
toner cartridges for re-manufacturing. Agencies should also include 
programs to reduce or recycle, as appropriate, batteries, scrap metal, 
and fluorescent lamps and ballasts.

30-90-40  Standards, Specifications and Designation of Items

    A. Designation of items that Contain Recovered Materials. EPA shall 
designate Comprehensive Procurement Guidelines containing designated 
items that are or can be made with recovered materials. OPDIVS/
STAFFDIVs shall modify their affirmative procurement programs to 
require that, to the maximum extent practicable, their purchases of 
products meet or exceed the EPA guideline standards unless written 
justification is provided that a product is not available 
competitively, not available within a reasonable time frame, does not 
meet appropriate performance standards, or is only available at an 
unreasonable price. Concurrently with the issuance of the Comprehensive 
Procurement Guideline, EPA will publish Recovered Material Advisory 
Notice(s) that present the range of recovered material content levels 
within which the designated recycled items are currently available. 
These levels will be updated periodically to reflect changes in market 
conditions.
    B. Guidance for Environmentally Preferable Products. In accordance 
with Executive Order 13101, EPA will issue guidance that Executive 
agencies should use in making determinations for the preference and 
purchase of environmentally preferable products. OPDIVs/STAFFDIVs are 
to use this guidance, to the maximum extent practicable, in identifying 
and purchasing environmentally preferable products and shall modify 
their procurement programs by reviewing and revising specifications, 
solicitation procedures, and policies as appropriate. OPDIVs/STAFFDIVs 
may develop pilot projects to provide practical information to the EPA 
for further updating of the guidance.
    C. Designation of Biobased Items by the USDA. The USDA Biobased 
Products Coordination Council shall, in consultation with the FEE, 
issue a Biobased Products List. The biobased Products List shall be 
published in the Federal Register by the USDA within 180 days after the 
date of this Order and shall be updated biannually after publication to 
include additional items. Once the Biobased Products List has been 
published, agencies are encouraged to modify their affirmative 
procurement program to give consideration to those products.
    D. Minimum Content Standard for Printing and Writing Paper. Heads 
of OPDIVs/STAFFDIVs heads shall ensure their organizations meet or 
exceed the following minimum materials content standards when 
purchasing or causing the purchase of printing and writing paper:
    1. For high speed copier paper, offset paper, forms bond, computer 
printout paper, carbonless paper, file folders, white woven envelopes, 
writing and office paper, book paper, cotton fiber paper, and cover 
stock, the minimum content standard shall be no less than 30 percent 
post-consumer materials beginning December 31, 1998. If paper 
containing 30 percent post-consumer material is not reasonably 
available, does not meet reasonable performance requirements, or is 
only available at an unreasonable price, then the agency shall purchase 
paper containing no less than 20 percent post-consumer material. The 
Steering Committee, in consultation with the AEEs, may revise these 
levels if necessary.
    2. As an alternative to meeting the foregoing standards for all 
printing and writing papers, the minimum content standard shall be no 
less than 50 percent recovered materials that are a

[[Page 10284]]

waste material byproduct of a finished product other than a paper or 
textile product which would otherwise be disposed of in a landfill, as 
determined by the State in which the facility is located.
    E. Effective January 1, 1999, no executive branch agency shall 
purchase, sell, or arrange for the purchase of, printing and writing 
paper that fails to meet the minimum requirements of this section.

30-90-60  Recycling and Recycling Awareness Programs

    A. Recycling Program. Each OPDIV/STAFFDIV shall designate a 
recycling coordinator for each facility or installation. Each OPDIV/
STAFFDIV shall initiate a program to promote cost-effective waste 
prevention and recycling of reusable materials in all of its 
facilities. Each facility recycling program must be compatible with 
applicable state and local recycling requirements. Each facility shall 
also consider cooperative ventures with state and local governments to 
promote recycling and waste reduction in the community.
    B. Awards Programs. Each OPDIV/STAFFDIV shall develop an internal 
awards program, as appropriate, to reward its most innovative 
environmental programs. Winners of OPDIV/STAFFDIV awards will be 
eligible for annual HHS and White House awards programs. The White 
House will annually present an award to the best, most innovative 
program implementing the objectives of Executive Order 13101.
    C. Model Facility Programs. Executive Order 13101 requires HHS to 
establish a model facility demonstration program incorporating some or 
all of the following elements as appropriate. Agencies are encouraged 
to demonstrate and test new and innovative approaches such as 
incorporating environmentally preferable and bio-based products; 
increasing the quantity and types of products containing recovered 
materials; expanding collection programs; implementing source reduction 
programs; composting organic materials when feasible; and exploring 
public/private partnerships to develop markets for recovered materials.

30-90-70  Real Property Acquisition and Management

    Each OPDIV/STAFFDIV, to the extent permitted by law and where 
economically feasible, shall ensure compliance with the provisions of 
Executive Order 13101 in the acquisition and management of Federally 
owned and leased space. Environmental and recycling provisions shall be 
included in the acquisition of all leased space and in the construction 
of new Federal buildings.

30-90-80  Training

    Each OPDIV/STAFFDIV shall provide training to program management 
and requesting activities as needed to ensure awareness of the 
requirements of this Order.

30-90-90  Compliance

    Review of Implementation. The HHS Inspector General, at the request 
of the President's Council on Integrity and Efficiency (PCIE), will 
periodically review OPDIVs'/STAFFDIVs' affirmative procurement programs 
and reporting procedures to ensure their compliance with Executive 
Order 13101.

[FR Doc. 00-3631 Filed 2-24-00; 8:45 am]
BILLING CODE 4150-04-M