[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Notices]
[Pages 80298-80300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25505]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL OP-OFA-095]


Notice of Adoption of a Bureau of Indian Affairs Categorical 
Exclusion Under the National Environmental Policy Act

AGENCY: Environmental Protection Agency.

ACTION: Notice of adoption of categorical exclusion.

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SUMMARY: The Environmental Protection Agency (EPA) has adopted a Bureau 
of Indian Affairs' (BIA) categorical exclusion (CE) for waste 
management activities involving remediation of hazardous waste sites 
under the National Environmental Policy Act (NEPA) for use by the EPA's 
Contaminated Alaska Native Claims Settlement Act (ANCSA) Lands 
Assistance Program. This notice describes the categories of proposed 
actions for which EPA intends to use BIA's CE and describes the 
consultation between the agencies.

DATES: This action is effective upon publication.

FOR FURTHER INFORMATION CONTACT: Melissa Winters, Manager, Pollution 
Prevention and Communities Branch, Land, Chemicals, and Redevelopment 
Division, EPA Region 10, by phone at

[[Page 80299]]

206-553-5180, or by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

NEPA and CEs

    The National Environmental Policy Act, as amended at, 42 U.S.C. 
4321-4347 (NEPA), requires all Federal agencies to assess the 
environmental impact of their actions. Congress enacted NEPA in order 
to encourage productive and enjoyable harmony between humans and the 
environment, recognizing the profound impact of human activity and the 
critical importance of restoring and maintaining environmental quality 
to the overall welfare of humankind. 42 U.S.C. 4321, 4331. NEPA's twin 
aims are to ensure agencies consider the environmental effects of their 
proposed actions in their decision-making processes and inform and 
involve the public in that process. 42 U.S.C. 4331. NEPA created the 
Council on Environmental Quality (CEQ), which promulgated NEPA 
implementing regulations, 40 CFR parts 1500 through 1508 (CEQ 
regulations).
    To comply with NEPA, agencies determine the appropriate level of 
review--an environmental impact statement (EIS), environmental 
assessment (EA), or CE. 42 U.S.C. 4336. If a proposed action is likely 
to have significant environmental effects, the agency must prepare an 
EIS and document its decision in a record of decision. 42 U.S.C. 4336. 
If the proposed action is not likely to have significant environmental 
effects or the effects are unknown, the agency may instead prepare an 
EA, which involves a more concise analysis and process than an EIS. 42 
U.S.C. 4336. Following the EA, the agency may conclude the process with 
a finding of no significant impact if the analysis shows that the 
action will have no significant effects. If the analysis in the EA 
finds that the action is likely to have significant effects, however, 
then an EIS is required.
    Under NEPA and the CEQ regulations, a Federal agency also can 
establish CEs--categories of actions that the agency has determined 
normally do not significantly affect the quality of the human 
environment--in their agency NEPA procedures. 42 U.S.C. 4336(e)(1); 40 
CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency determines that a 
CE covers a proposed action, it then evaluates the proposed action for 
extraordinary circumstances in which a normally excluded action may 
have a significant effect. 40 CFR 1501.4(b). If no extraordinary 
circumstances are present or if further analysis determines that the 
extraordinary circumstances do not involve the potential for 
significant environmental impacts, the agency may apply the CE to the 
proposed action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2), 
40 CFR 1501.4. If the extraordinary circumstances have the potential to 
result in significant effects, the agency is required to prepare an EA 
or EIS.
    Section 109 of NEPA, enacted as part of the Fiscal Responsibility 
Act of 2023, allows a Federal agency to ``adopt'' or use another 
agency's CEs for a category of proposed agency actions. 42 U.S.C. 
4336(c). To use another agency's CEs under section 109, an agency must 
identify the relevant CEs listed in another agency's (``establishing 
agency'') NEPA procedures that cover its category of proposed actions 
or related actions; consult with the establishing agency to ensure that 
the proposed adoption of the CE to a category of actions is 
appropriate; identify to the public the CE that the agency plans to use 
for its proposed actions; and document adoption of the CE. Id. This 
notice describes EPA's adoption of BIA's CE under section 109 of NEPA 
to use in EPA's program and funding opportunities administered by EPA.

EPA's Program

    The Alaska Native Claims Settlement Act (ANCSA) was enacted in 1971 
to settle aboriginal claims to public lands through the conveyance of 
46 million acres of land to Alaska Native regional and village 
corporations and the transfer of one billion dollars from the state and 
federal governments as compensation for remaining claims. Some of the 
lands promised and conveyed to corporations pursuant to the settlement 
in ANCSA were contaminated. The contaminants on some of these lands--
which include arsenic, asbestos, lead, mercury, pesticides, 
polychlorinated biphenyls, and petroleum products--pose health and 
other concerns to Indigenous Alaskans and communities and are present 
in quantities above state and federal clean-up levels, negatively 
impacting subsistence resources and hampering cultural, social, and 
economic activities.
    In the fiscal year 2023 omnibus bill, Congress appropriated $20 
million for EPA to establish and implement a grant program to assist 
Alaska tribal entities with addressing contamination on ANCSA lands 
that were contaminated at the time of conveyance. EPA has initiated a 
new Contaminated ANCSA Lands Assistance Program to assist Alaska tribal 
and Alaska Native Corporation entities with addressing contamination on 
ANCSA lands.
    The Contaminated ANCSA Lands Assistance Program addresses 
contamination left by Federal departments and agencies on land that was 
subsequently conveyed to Alaska Native Corporations under the ANCSA. 
The activities to be funded involve remediation of hazardous materials 
sites in compliance with applicable Federal laws. Eligible entities 
include federally recognized Indian Tribal Governments (Tribes) in 
Alaska, Alaska Native Regional Corporations, Alaskan Native Village 
Corporations, Alaska Native Nonprofit Organizations, Alaska Native 
Nonprofit Associations, and Intertribal consortia. The objectives of 
the EPA program are to provide funding to eligible entities to carry 
out cleanup activities at ANCSA sites that were contaminated at the 
time of conveyance.

II. BIA Categorical Exclusion

    EPA has identified the following BIA CE listed in the Department of 
the Interior's Departmental Manual (516 DM 10.5(K)(2)).

K. Waste Management.

    (2) Activities involving remediation of hazardous waste sites if 
done in compliance with applicable federal laws, such as the Resource 
Conservation and Recovery Act (Pub. L. 94-580), Comprehensive 
Environmental Response, Compensation, and Liability Act (Pub. L. 96-
516) or Toxic Substances Control Act (Pub. L. 94-469).
    EPA intends to apply this CE for EPA's grants awarded under its 
Contaminated ANSCA Lands Assistance Program when applicable.

III. Consultation With BIA and Determination of Appropriateness

    EPA consulted with BIA on the appropriateness of EPA's adoption of 
the CE in September 2023. EPA and BIA's consultation included a review 
of BIA's experience developing and applying the CE, as well as the 
types of actions for which EPA plans to utilize the CE. The EPA actions 
under the Contaminated ANCSA Lands Assistance Program are very similar 
to the type of projects that BIA funds and therefore the impacts of EPA 
projects will be very similar to the impacts of BIA projects, which are 
not significant, absent the existence of extraordinary circumstances 
that could involve potentially significant impacts. Therefore, EPA has 
determined that its proposed use of the CE as described in this notice 
is appropriate.

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IV. Consideration of Extraordinary Circumstances

    When applying this CE, EPA will consider whether the proposed 
action has the potential to result in significant effects as described 
in EPA's extraordinary circumstances listed at 40 CFR 6.204(b). EPA 
defines extraordinary circumstances as circumstances that may cause a 
significant environmental effect such that a proposed action that 
otherwise meets the requirements of a CE may not be categorically 
excluded. 40 CFR 6.102(b)(6). In addition, in consultation with BIA, 
the EPA determined that it will also apply two applicable Department of 
the Interior extraordinary circumstances regarding Indian sacred sites 
and invasive species (43 CFR. 46.215(k) and (l)) when evaluating a 
proposed action.

V. Notice to the Public and Documentation of Adoption

    This notice serves to identify to the public and document EPA's 
adoption of BIA's CE. The notice identifies the types of actions to 
which EPA will apply the CE, as well as the considerations that EPA 
will use in determining whether an action is within the scope of the 
CE.

    Dated: November 14, 2023.
Timothy Hamlin,
Director, Land, Chemicals, and Redevelopment Division, EPA Region 10.
[FR Doc. 2023-25505 Filed 11-16-23; 8:45 am]
BILLING CODE 6560-50-P