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NEPA Public Review and

EPA’s Mandate from Section 309 CAA

Chapter 2 Module 4

HO #s 5 & 9

Module Objective

LEARNING OBJECTIVE: The student will acquire a basic understanding of the NEPA reviews and how they fit within the ongoing civil works review processes.

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3

Scientific Integrity

Reviews target many things: Technical Adequacy should not be one of them. To avoid such occurrence you should: Ensure Professional Integrity of Analysis Identify & Certify Methodologies used and

include descriptions in document appendices Reference Scientific Sources Use Best Science Promote Cooperating Agencies

(40 CFR § 1502.24)

Important EPA Review Concerns

Water Quality Air Quality Ground Water/sole source aquifers Wetlands Hazardous waste issues Environmental Justice Cumulative Impacts

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5

Circulation & Public Review

Regulatory Basis 40 CFR 1503.1 ”obtain comments of agencies

having jurisdiction by law.” 40 CFR Ch V. NEPA Implementation

Procedures FR Vol. 49. No. 247, Friday Dec 21, 1984

Appendix III; Federal & State Agency Offices for Receiving and Commenting on Other Agencies Environmental Documents.

40 CFR 1503.2 “duty to comment.”

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Circulation & Requirements for Public Review

Federal Register /Vol. 76, No. 10 /Friday, January 14, 2011 Amended EIS Filing System An EIS must be filed with the Environmental Protection

Agency in Washington, DC. EPA then places a Notice of Availability (NOA) in the

Federal Register. An EA can also be circulated. However, a NOA for

an EAs is not published in the Federal Register ! Any person, organization or agency requesting a

copy can review the document.

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Public Review Time Frames Publication of NOA starts review times 45 days for the DEIS. 30 days for the FEIS. Minimum of 90 days from DEIS NOA to

signing a ROD. EAs typically have a 30 day public review

period until FONSI is signed (see ER 200-2-2 for specifics regarding civil works planning documents)

30 Day State & Agency Review**This is an Agency imposed review not NEPA

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NEPA/COE Process Flow Chart

45 days 30 days

yes

no

unknown

yesyes

no

Federal Action

Federal Action

IssueDEIS

IssueDEIS

IssueFEIS

IssueFEIS

PrepareEA

PrepareEA

IssueDraft

FONSI

IssueDraft

FONSI

IssueROD

IssueROD

ImplementAction

ImplementActionCATEXCATEX

Issue NOI & Conduct

Scoping

Issue NOI & Conduct

Scoping

Need EnvReview?

Need EnvReview?

Sign. EnvEffects?

Sign. EnvEffects?

Sign. EnvEffects?

Sign. EnvEffects?

30 DAYS

* S&A Review

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The EPA Review Process

Section 309 of the Clean Air Act, “the Administrator of EPA shall review and comment in writing” on the draft EIS.

Does not apply to EAs! EPA provides a rating of the project’s

impacts and an evaluation of the adequacy of the analysis.

33,600 EISs were reviewed from 1970-2007.

History of Section 309 CAA 1970

Publication of EPA’s review of the NEPA document for the proposed Supersonic Transport Aircraft (SST) was being held by DOT.

DOT believed NEPA had no explicit public disclosure requirements.

Senator Edmund Muskie sponsored Section 309 requiring public release of NEPA comments.

Rating System

LO EC EO EU* 1 2 3*

Lack of objections

Environmental concerns

Environmental objections

Environmentally unsatisfactory

Adequate

Insufficient information

Inadequate Ratings are combined, for example: EC-2.

*Adverse Ratings require HQ Approval

EPA’s EIS Rating System

Project LO- No identified potential impacts requiring

substantive changes to proposal. EC- Impacts identified that must be avoided.

Corrective measures may require project changes. EU- Significant adverse impacts identified that are

unsatisfactory from public health or policy standpoint. If not corrected in the FEIS, the proposal will be recommended for referral to CEQ.

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EPA EIS’s Rating System (cont) Document

1 – Adequate. Good to go! 2 –Insufficient Information. More information is needed or

review has identified other alternatives within scope of DEIS. The additional information or analysis should be included in the FEIS.

3 – Inadequate. Seriously lacking in information or analysis to address potentially significant environmental impacts. Other alternatives outside spectrum of EIS needed. The draft EIS does not meet NEPA and/or Section 309 requirements.

Potential Referral if not corrected and reissued as a DEIS.

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Incomplete or Unavailable Information

Relevant to Study

Reasonable Foreseeable Significant Adverse Impacts

Essential to a Reasoned Choice Among Alternatives

(40 CFR § 1502.22)

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Incomplete or Unavailable InformationIF: Cost is exorbitant Means are not known

THEN: Follow 4 step process:

State information is not available State why it is relevant Summarize existing credible information Make your best estimate of impacts

(40 CFR § 1502.22) (Only amendment to Guidelines)

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Consultation follow-up of DEIS Ratings

Category Lead Agency Pre-notification

Post-Draft EIS

Follow-up

LO

EC-1, EC-2

EO-1, EO-2

None

None

Phone Call

None

Phone Call

Meeting

EO-3, EU-1

EU-2, EU-3

Meeting

Meeting

Meeting

Meeting

EIS Ratings 2004-2008

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0.7%EU Draft EISs

All Agencies

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Referral of an EIS

Occurs when interagency disagreement over issues of unsatisfactory environmental effects or analysis.

Issues are not resolved with the lead agency.

The disagreement is referred to CEQ. 1974-2001: Total 27 referrals, 9 of which

were COE 34,152 EIS filed since 2008

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Then What!

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CEQ Response Determines if submitted information supports a

request for referral. Historically, referrals discouraged if the referring

agency has authority to address the environmentally unsatisfactory issue.

Publishes its findings, including a finding that the referral is not supported by submitted information.

Submits its recommendation to the Agency or the President for action.

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How to Avoid Referral

Good Scoping effort to identify issues. Take advantage of cooperating agency’s expertise. Use sound scientific analyses and avoid taking positions not supported by sound science Maintain good coordination with other interested Federal agencies.

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Why Avoid Referral

Saves time & money!

Saves time & money!

Affects agency credibility!

Affects agency credibility!

COE Document Review District Quality Control (DQC)

Managed and conducted in home District by staff not directly involved with the study.

Focus is on meeting objectives of the PMP

Agency Technical Review (ATR) Conducted by USACE outside of home District; for Planning

products, managed by PCX Focus on Planning criteria, principles, laws etc

DQC and ATR results are included in the Draft EIS and are subject to Public/Agency Reviews

Promote Quality Decision Documents Support Chief of Engineer Decision Process.

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COE Document Review (cont)

Independent External Peer Review (IEPR) Conducted by an outside eligible organization (OEO)

- IRS 501(c)(3). Legislative basis in WRDA 2007 & Information

Quality Act 2001 (OMB directed to issue guidelines) Implemented by EC 1165-2-209 Applies to Feasibility and other Reports

requiring Congressional Authorization and CAP 205 &103 projects & those w/EISs or other triggers.

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Other Concurrent Civil Works Review Requirements

Independent External Peer Review ( cont) Focus on Scientific Information/technical issues

associated with planning for civil works projects No Policy or agency authority review Results are posted on district website for public

review Policy and Legal Compliance Reviews

Focus on a legally defensible document Safety Assurance Review

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COE Document Review (cont)

EC 1105-2-406 Civil Works Review Board March 2005 Replaces old Board of River & Harbors Establishes the readiness of Chief’s

Report for State and Agency Review Supported by IEPR, DQC & ATR

Chair Deputy Commanding General for Civil Works:

1. Director Civil Works 2. Civil Works CoP

3. One RIT (not from MSC) 4. Other CoPs

5. IEPR Representative 6. PCX Representative

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Old NEPA and the COE Review Process

PMP RP

FSCAFSM AFB

F RptCWRB

S&A ReviewChief’s Rpt

DFRpt

NOA 45 D NOA 30F

DQC

ATR

IEPR

RIT/OWPR PCR

NEPA

905(b)

Civil Works Process Steps 4-12

ASAOMB

Stars mark the review milestone determined by Review Plan

Web Page

LCR

NOI Scoping

HQUSACE Smart Planning Process

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NEPA/COE Review & Smart Planning Process PMP RP

FSCA

DQ/ATR/ IEPR/OWPR

NEPA

905(b)

Stars mark the milestones at: http://planning.usace.army.mil/toolbox/smart.cfm

LCR

NOI

Congressional Committees

NOA 45 D

Chief’s RptMilestone

ASAOMB

NOA 30 D

VT IPRs

DCG-CEO/ OWPR ( ASA by invitation)

ScopingCharrette

ER 200-2-2 EIS Time lineTIME

Variable

30-90 days

90-270 days

30-60 DAYS

45 days

30-45 days

30-60 DAYS

30 days

Wait for WRDA

Propose action

Scoping

HQUSACE/MSC/RIT Policy Review

NOI

Filing of DEIS for concurrent HQ/Public Review

Prepare DEIS

Incorporate Comments

Washington Level Review FEIS filed for concurrent S& A Public Review

ROD Signed

ASA Review & Coordination with OMB

Send Rpt to Congress

30-60 days

30 days Respond to CmtsChief’s Rpt to ASA

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AR 2-00-2-2 EIS Time Line

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Take Away Points Public Review is a required part of the process. EPA’s review authority derives from the CAA.

Not based on the NEPA Not part of CAA regulatory role

Good Science forms the basis for an LO rating! Scoping helps identify relevant issues! CEQ is the ultimate arbitrator Agency review processes augment NEPA !

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Practitioners Guide to NEPA

“The NEPA Book: A Step-By-Step Guide on How to Comply with the National Environmental Policy Act" Ronald E. Bass, Albert I. Herson, Kenneth M.

Bogan 2001 (Second Edition) Solano Press, 475 pages $65.00

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NEPA Certification Program

Representative Courses Implementation of the NEPA Preparing & Documenting Environmental Impact

Analysis Accounting for Cumulative Effects in the NEPA Process Scoping, Public Involvement and Environmental Justice Socioeconomic Impact Analysis Under NEPA The Law & NEPA

Duke Environmental Leadership ProgramNEPA Certificate (Signed by Chair, CEQ)

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NEPA Certification Program

Representative Courses (12 hrs. Required) How to Manage the NEPA Process and Write Effective

NEPA Documents (2 hrs) Clear Writing for NEPA Specialists (2 hrs) Reviewing NEPA Documents (2 hrs) NEPA Cumulative Impacts (1 hr) Socioeconomic Impact Analysis (1hr) NEPA & Climate Change (1hr)

Utah State University National Environmental Policy Act Graduate Certificate Program

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Duke Environmental Leadership Program NEPA Certificate

http://www.nicholas.duke.edu/del/executiveed/courses/implementatin-of-nepa

Utah State University National Environmental Policy Act Graduate Certificate Program.

http://www.cnr.usu.edu/htm/students/grad-degrees/nepa

The Shipley Groupwww.shipleygroup.com

NEPA Certification Program

NEPA Review Check List

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See Reference Files on Class Disk