United States
Environmental Protection
Agency
Grants Administration
Division (PM-216)
Washington, D C 20460
EPA GAD/8-79-01
November 1979
&EPA
Implementation of
Procedures on the
National Environmental
Policy Act
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Reprinted from Federal Register/Vbl. 44, No. 216
Tuesday, Nov. 6, 1979
First Printing November 1979
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Table of Contents
Preamble
Subpart A -
Subpart B -
Subpart C -
Subpart D -
Subpart E -
Subpart F -
Subpart G -
Subpart H -
Subpart I -
Appendix A-
General
Content of EIS's
Coordination With
Other Environmental
Review and Consultation
Requirements
Public and Other Federal
Agency Involvement
Environmental Review
Procedures for Wastewater
Treatment Construction
Grants Program
Environmental Review
Procedures for New Source
NPDES Program
Environmental Review
Procedures for Research and
Development Programs
Environmental Review
Procedures for Solid Waste
Demonstration Projects
Environmental Review
Procedures for EPA Facility
Support Activities
Statement of Procedures on
Floodplain Management and
Wetlands Protection
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64174 Federal Register / Vol. 44. No. 216 / Tuesday. November 6.1979 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40CFRPart6
[|RL 1315-6]
Implementation of Procedures on the
National Environmental Policy Act
AOENCY: hnvironmental Protection
Agency (EPA)
ACTION: Rule.
SUMMARY: On November 29,1978, the
Council on Environmental Quality
(CEQ) promulgated Regulations
establishing uniform procedures for
implementing the procedural provisions
of the National Environmental Policy
Act. CEQ required Federal agencies to
adopt appropriate procedures to
supplement their Regulations. As a
result, EPA has amended its procedures
contained in 40 CFR Part 6 to take into
account this initiative.
DATES: These regulations will be
effective on December 15,1979.
ADDRESSES: Comments submitted on the
regulations may be inspected at the
Public Information Referrence Unit, EPA
Headquarters, Room 2922, Waterside
Mall, 401M Street, S.W., Washington.
D.C., between 8:00 a.m. and 4:30 p.m. on
business days.
FOR FURTHER INFORMATION CONTACT.
Thomas Sheckells, Office of
Environmental Review (A-104), EPA,
401M Street, S.W., Washington, D.C.
20460; telephone 202/755-0790.
SUPPLEMENTARY INFORMATION:
Introduction
The National Environmental Policy
Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq., as implemented by Executive
Orders 11514 and 11991, and the Council
on Environmental Quality (CEQ)
Regulations (40 CFR Sections 1500-1508)
requires that all agencies of the Federal
Government to the fullest extent
possible carry out the provisions of
NEPA by building into agency decision-
making appropriate and careful
consideration of the environmental
effects of proposed actions, and
avoiding or minimizing the adverse
effects of these actions. The
environmental impact statement (EIS)
requirement under section 102(2)(C)
serves as the most significant
mechanism for implementing NEPA.
These regulations set forth the
requirements for EPA to carry out its
obligations under NEPA.
Proposed regulations were published
in the Federal Register on June 18,1979
(44 FR 35158).
In view of the President's directive to
CEQ to establish a single set of
regulations for government-wide NEPA
implementation, CEQ has directed the
Federal agencies to avoid restating or
paraphrasing the CEQ Regulations, even
though agencies may quote or cross-
reference the CEQ regulations in their
implementing procedures. Therefore, it
must be made clear the following
regulations shall be read with the
understanding that the reader has
available the policy statements and
definitions contained in the CEQ
Regulations. In this respect it is noted
that previous nomenclature used by EPA
has been adjusted to conform with the
CEQ regulations. The document entitled
"environmental assessment" as
previously used by EPA is now referred
to as an "environmental information
document"; the document entitled
"negative declaration" is now a "finding
of no significant impact"; and the
document entitled "environmental
impact appraisal" is now
"environmental assessment."
These regulations amend EPA
regulations under 40 CFR Part 6
previously promulgated in Subparts A-
H on April 14,1975 (see 40 FR 16823)
and Subpart I on January 11,1977 (see 42
FR2450).
Exemptions
Over the past several years there has,
been much controversy surrounding this
Agency's preparation of EISs.
Considering die nature of EPA's
activities is generally concerning actions
protective of the environment, the
Congress and the Courts have seen fit to
exempt numerous EPA activities from
EIS applicability.
The Congress has provided major
exemptions under the Clean Water Act
and the Clean Air Act. Specifically,
under section 511(c)(l) of the Clean
Water Act (CWA) (PL 92-500), EPA is
exempt from preparing EISs under the
CWA except for the issuance of new
source National Pollutant Discharge
Elimination System (NPDES) permits as
authorized under section 402 and the
provision of Federal financial assistance
for the purpose of assisting the
construction of publicly owned
treatment works under section 201.
Under Section 7(c)(l) of the Energy
Supply and Environmental Coordination
Act of 1974 (PL 93-319). all activities
under the Clean Air Act are exempt
from the EIS requirements of NEPA.
Further, the courts have found EPA to be
exempt from the EIS requirements for
regulatory actions under the Clean Air
Act, the Federal Insecticide, Fungicide,
and Rodenticide Act, and the Marine
Protection, Research and Sanctuaries
Act, because major EPA actions under
these statutes are undertaken with
sufficient safeguards to ensure
performance of a functionally equivalent
analysis of NEPA's EIS requirements.
See EOF v. EPA, 489 F2d 1247 (D.C.
Circuit, 1973); Wyoming v. Hathaway,
525 F2d 66 (Tenth Circuit. 1975);
Maryland v. Train, 415 F. Supp. 116
(District Court, Maryland, 1976). In
addition, the Agency has determined
that EPA regulatory activities under the
Resource Conservation and Recovery
Act of 1976, the Toxic Substances
Control Act of 1976, the Safe Drinking
Water Act, and the Noise Control Act
are exempt from the EIS requirements of
NEPA. Nevertheless, on May 7,1974,
Administrator Russell Train decided
that the Agency would voluntarily
prepare EISs on certain regulatory
activities in spite of the statutory and
court exemptions that existed at that
time. This revised regulation does not
affect those voluntary EIS procedures.
Summary of Regulation
Th& regulations set forth below are
intended to meet the requirements for
Federal agency procedures under
§ 1507.3 of the CEQ Regulations.
Subparts A through I describe
procedures for preparing required EISs.
Subparts E through I establish those
classes of action and create specific
criteria for preparing environmental
assessments and EISs pursuant to
§ 1507.3(b)(2) of the CEQ Regulations.
Also, numerous categorical exemptions
have been created over and above those
exemptions referred to above.
Specifically, Subpart E relates to
environmental review procedures for the
Wastewater Treatment Construction
Grants Program of the CWA; Subpart F
relates to environmental review
procedures for the new source NPDES
permit program; Subpart G relates to
environmental review procedures for
research and development programs;
Subpart H relates to environmental
review procedures for solid waste
demonstration projects; and Subpart I
relates to environmental review
procedures for EPA undertakings for
construction of special purpose facilities
or facility renovations. Subpart C relates
to integrating the requirements of other
environmental laws with the
environmental review procedures set
forth in subparts E through I. It is
emphasized that subpart C simply
provides a recitation of these other
environmental laws. Detailed
procedures for compliance with these
laws are set forth in regulations
promulgated by the responsible agency,
i.e., Advisory Council on Historic
Preservation regulations dated January
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Federal Register / Vol. 44, No. 216 / Tuesday. November 6, 1979 / Rules and Regulations 64175
30,1979, or EPA procedures
implementing these laws, i.e., EPA's
Statement of Procedures on Floodplain
Management and Wetlands Protection
dated January 5,1979.
Regarding EPA's Statement of
Procedures on Floodplain Management
and Wetlands Protection, there has been
seme confusion as to the effective date
of this interim Statement of Procedures.
As described under section 7.a, further
EPA program amendments implementing
the Statement of Procedures were
required by July 5,1979. This was
intended to be the effective date of this
Statement of Procedures. In order to
emphasize the importance of this
Statement of Procedures, it has been
made a part of this Regulation as
Appendix A.
Application to Ongoing Construction
Grant Activities
Applicants for wastewater treatment
construction grants currently face a
tremendous number of policies and
regulations with which they must
comply. Each time new requirements are
imposed, grantees are faced with a
situation that can require them to
duplicate work that already has been
completed. This duplication causes
undue delay hi the grants process and
causes both delay and increased costs
in water pollution control efforts.
Although these regulations impose very
few, new, substantive requirements,
lack of phasing could cause
administrative delays. To avoid this
problem and to alleviate any possible
burden on grantees and their
consultants, § 6.102(c)(2) provides for
phasing these regulations in the
construction grants program.
This regulation replaces EPA's
previous NEPA regulation dated April,
1975. The regulation, however, contains
primarily procedural changes and few
substantive changes; the regulation
consolidates those policies and
procedures that have been imposed
since EPA's previous NEPA regulations
were promulgated, as well as
implementing the CEQ Regulations
which were effective on July 30,1979.
Under these circumstances, this
rpgulation is intended to require
compliance with new administrative
procedures effective December 15,1979.
These procedures are those that are
primarily the responsibility of EPA and
include procedures such as review lime
for findings of no significant impact,
environmental assessment and EIS
format changes, etc.
No new substantive requirements will
I'e imposed on grantees that are well
f.lcn.j in '.he planning process. These
grantees will be allowed to complete
their environmental information
documents under policies and
regulations already applicable to their
projects. If a case should arise in which
EPA determines that environmental
documents submitted by a grantee fail
to comply with any new substantive
requirement under this regulation it will
be the responsibility of EPA to
supplement this information. It should
be emphasized, however, that any lack
of environmental documentation
required under previously applicable
procedures will still be the
responsibility of the grantee.
All facility plans submitted after
September 30,1980 must comply with
this regulation. This allows a nine month
phase in period which permits grantees
progressing in a timely manner to
complete environmental review
procedures under existing procedures.
Response to Comments on Proposed
Regulations
EPA received 39 comment letters on
the proposed regulations. As a result of
external and internal input numerous
technical changes were made to improve
the regulation. The following is the
response to the substantive comments
made on the regulation:
1. Request for comment period
extension and public hearing on the
proposed regulation. Several
commenters requested an extension of
the comment period beyond the Jiriy 18,
1979 (or 30-day) limit. Upon individual
request, EPA considered comments
submitted as late as August 2,1979.
However, because of the time
constraints imposed by the CEQ
Regulations' effective date of July 30,
1979, the comment period could not be
extended any further. More importantly,
we believe that the issues presented by
these proponents for a time extension
and a public hearing were given a
thorough airing during the development
of the CEQ Regulations which evolved
with substantial government, industry,
and citizen interaction between June,
1977 and November, 1978. Three specific
issues that were raised include:
a. Limiting construction activities on a
project until the environmental review
process is completed; see item 5 below
for further discussion.
b. Conditioning or denying new source
NPDES permits based on other than
water quality considerations; see item 5
below for further discussion.
c. Assuring there is no conflict of
interest or financial stake in the
outcome of the project by the contractor
preparing the EiS under EPA's "third
party" EiS preparation method; see
§ 1506.5(c) of the CEQ Regulations (also,
see item 6 below).
Considering the CEQ Regulations are
already in effect, we believe that an
appropriate comment period was
created for this regulation.
2. Establishing the need for
mandatory public hearings when an EIS
is prepared. In the proposed regulation,
we solicited comments on conducting
mandatory public hearings attendant to
a draft EIS. The response was about
even. The CEQ Regulations under
§ 1506.6 do not require mandatory public
hearings. However, EPA's public
participation regulations pertaining to
"Grants for Construction of Treatment
Works" under 40 CFR Part 35, Subpart
E, require grant applicants to undertake
a Full-scale Public Participation Program
whenever an EIS is required. This
includes the conduct of two public
meetings and one mandatory hearing
during the developing of the facilities
plan; the hearing is encouraged to be
held in conjunction with the public
hearing on the draft EIS (see 40 CFR
§ 35.917-5(c){3)(viii)). EPA prepares
most of its EISs on construction grant
projects. Additionally, there is the view
that because an EIS is generated in most
cases on controversial projects,
members of the local community should
have the opportunity to hear testimony
on the necessity of the project and
personally to make comments.
Therefore, we have concluded that
mandatory hearings shall be conducted
within 45 days after the issuance of a
draft EIS; see § 6.400{c).
3. Providing substantial exemptions
for EPA programs from the application
of NEPA requirements. The
"Exemptions" provision set forth above
spells out the numerous statutory, court
ordered and EPA interpreted
exemptions from NEPA. Several
commenters suggested that the scope of
EPA's NEPA exemptions is overly
broad. While taking philosophical
exception to EPA's statutory and
judicial exemptions, the t;ommenters
suggest that there continues to remain a
duty for EPA to prepare some form of an
"environmental assessment" for related
actions; further it was suggested that
EISs be prepared for actions which are
not environmentally protective
regulations, particularly where EPA's
action is potentially environmentally
detrimental or highly controversial. We
continue to maintain that we are exempt
from the requirements of NEPA except
as set forth under subparts A through I
of this regulation. This view is supported
by a legal opinion dated March 22,1979
on the application of the EIS
requirements to the regulatory actions
taken under the Resource Conservation
and Recovery Act of 1976. It is further
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64176 Federal Register / Vol. 44, No. 216 / Tuesday, November 6, 1979 / Rules and Regulations
supported by a legal opinion dated May
7,1979 on the application of section
102(2)(E) of NEPA to NPDES permitting
activities for either new dischargers or
existing sources.
4. Assuring inclusion, monitoring, and
enforcement of mitigation measures in
grants. In the proposed regulation, we
solicited comments on the question of
whether third parties (e.g., citizens)
should be able to file lawsuits to enforce
compliance with grant conditions.
Generally, opposition has been
expressed to this concept. However,
these regulations under § 6.509 entitled
"Identification of mitigation measures"
have been bolstered to recognize the
affirmative duty of the responsible
official to assure that effective
mitigation measures identified in a
finding of no significant impact (FNSI)
or EIS are implemented by the grantee.
Further, explicit monitoring and
enforcement measures are set forth
under § 6.510. However, the absence of
an explicit third party enforcement role
in these regulations does not limit
citizen enforcement authority under
NEPA and the CEQ Regulations.
5. Imposing substantive conditions on
new source NPDES permitting. Several
commenters expressed concern about
EPA's position that NEPA requires us to
impose substantive conditions on the
new source NPDES permitting process.
As mentioned in item 1 above, the two
major issues raised by commenters
relate to limiting construction activities
on a project until the environmental
process is completed and conditioning
or denying NPDES permits based on
factors identified during the NEPA
process. These issues were recently
considered in the June 7,1979
promulgation of the revised NPDES
Regulations (see 44 FR 32854). That
Regulation is preceded by a discussion
explaining EPA's basis for setting the
requirements at issue (see 44 FR 32871-
32872). With regard to the
preconstruction activities issue, today's
rulemaking cross-references the NPDES
Regulations under 40 CFR 122.47(c) (see
§ 6.603). However, the mitigation and
monitoring requirements contained in
the proposed NEPA regulations are
retained in today's promulgation to
clarify how the results of the NEPA
process are to be made effective (see
§ § 6.606(b) and 6.607).
6. Using third party EIS preparation
method for new source NPDES
permitting. Several commenters raised
several issues pertaining to the third
party method for preparing new source
EISs. This is the method whereby the
applicant, aware in the early planning
stages of his project of the need for an
EIS, contracts directly with a consulting
firm to prepare the EIS. This forecloses
the need for other preliminary
environmental documents (i.e., an
environmental information document or
environmental assessment): however,
EPA must select the consultant, ensure
the consultant has no conflict of interest,
and oversee the preparation of the EIS
(see § 6.604(g)(3)).
This method of EIS preparation
created such interest on the part of some
commenters that they requested a public
hearing just on this issue (see comment
1 above). We determined that there was
not sufficient basis for a hearing for the
following reasons: Several commenters
who raised this issue expressed concern
over an alleged mandatory use of this
method for new source EIS preparation;
however, it is clear, as was set forth in
the proposed regulation and now in
§ 6.603(g) of this regulation, that the
third party method is discretionary, and
is one of three methods which may be
used by EPA to prepare new source
EISs. A major concern raised by
commenters was over the conflict of
interest limitations imposed on the third
party contractor. This is a primary
concern to engineering consulting firm
parent companies involved in
performing engineering work for the
applicant who desire to see their
sudsjdiary, an environmental consulting
firm, to be used as the third party
contractor. This practice is generally
prohibited under the EPA rules (see
§ 6.604(g)(3)(ii)). This standard
concerning limitations on conflict of
interest, as well as full disclosure
pertaining to the contractor's stake in
the outcome of the project has been
imposed under § 1506.5(c) of the CEQ
Regulations; EPA fully supports this
provision in principle. We believe that
the objectivity standard that EPA has
always imposed in selecting a third
party contractor supports the primary
NEPA concepts of full and complete
disclosure in an objective way and
assurance of the integrity of the
environmental review process. Several
commenters also noted the total
exclusion of the applicant in EPA's
selecting the third party contractor.
Although EPA must select the
contractor, a provision has been added
under § 6.604(g)(3}(i) giving the applicant
a consultation role in the choosing of the
contractor.
7. Deleting express reference to the
adoption method for preparing
construction grant EISs. In the proposed
regulation, EPA included a provision for
preparing wastewater treatment
construction grant EISs by a method
whereby the grantee's facilities plan and
NEPA-related information, to the extent
they adequately addressed relevant
environmental issues, and after
independent EPA evaluation, could be
adopted to satisfy the requirement for
an EIS. Several commenters suggested
that this method of EIS preparation
contravened the intent of Subpart E for
the identification of the need for
preparation of EISs early in the facilities
planning process. For instance, under
the joint EIS process method (see
§ 6.507(h)(3)). the EIS is prepared in
parallel with the facilities plan.
Therefore, this adoption provision has
been deleted. Nevertheless, it should be
made clear that although we are
discouraging use of the adoption
approach, we recognize that situations
may arise which require reliance on this
method, which would be permissible
under Subpart E.
8. Conformity to state implementation
plans. In the proposed regulation we
proposed a course of action to ensure
the conformity of EPA actions to the
provisions of each state air quality
implementation plan (SIP) pursuant to
the requirements of section 176(c) of the
Clean Air Act, as amended in 1977.
Subpart C of the final regulation sets
forth the requirements, revised in
response to public comments, for EPA to
carry out its obligations under section
176(c).
The Agency intends that the
responsible EPA official will consult
with State and local agencies during the
preparation of the environmental
assessment to obtain a recommendation
as to the conformity of the proposed
EPA action to the SIP. Section 6.303 of
the regulation has been specifically
revised to require the responsible EPA
official to provide a written assurance in
the FNSI or draft EIS that the proposed
EPA action conforms with the SIP. The
final regulation now provides that the
opportunity for State concurrence or
nonconcurrence with EPA's conformity
determination will occur during the
FNSI or draft EIS review time periods.
Some comments on the proposed
§ 6.303(c) requested clarification of the
extent to which the Agency will delay a
proposed action when it has determined
that the action will not be in conformity
with the SIP. Accordingly, § 6.303 has
been revised to provide for an explicit
Agency response to any notification of
State nonconcurrence with the EPA
conformity determination. If EPA finds
that the State nonconcurrence is
unjustified, then an explanation of this
finding will be included in the final FNSI
or final EIS.
However, if EPA finds that the State
nonconcurrence is warranted, then the
Agency intends that the proposed action
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Federal Register / Vol. 44, No. 216 / Tuesday, November 6,1979 / Rules and Regulations 64177
will not receive final approval until it
has been brought into conformity with
the SIP. Achieving conformity may
necessitate modifications to proposed
actions implemented by EPA or actions
implemented by others, but subject to
EPA approval. In some instances, the
State may wish to revise its SIP to
account for the proposed action. When
the Agency has been notified of and
agrees with the State nonconcurrence,
the final FNSI or final EIS will detail the
measures that will need to be taken,
prior to final EPA approval, to assure
conformity with the SIP.
Dated: October 29,1979.
Note.—EPA has determined that because
this document does not constitute a
significant regulation within the meaning of
Executive Order 12044, preparation of a
regulatory analysis is not required.
Douglas M. Costle,
Administrator.
Accordingly, 40 CFR Part 6 is revised
in its entirety to read as follows:
PART 6—IMPLEMENTATION OF
PROCEDURES ON THE NATIONAL
ENVIRONMENTAL POLICY ACT
Subpart A—General
Sec.
6.100 Purpose and policy.
6.101 Definitions.
6.102 Applicability.
6.103 Responsibilities.
6.104 Early involvement of private parties.
6.105 Synopsis of EIS procedures.
6.106 Deviations.
Subpart B—Content of EISs
6.200 The environmental impact statement.
6.201 Format.
6.202 Executive summary.
6.203 Body of EIS.
6.204 Incorporation by reference.
6.205 List of preparers.
Subpart C—Coordination With Other
Environmental Review and Consultation
Requirements
6.300 General
6.301 Historical and archeological sites.
6.302 Wetlands, floodplains, agricultural
lands, coastal zones, wild and scenic
rivers, fish and wildlife, and endangered
species.
6.303 Air quality.
Subpart D—Public and Other Federal
Agency Involvement
6.400 Public involvement.
6.401 Official filing requirements.
6 402 Availability of documents.
6.403 The commenting process.
Subpart £—Environmental Review
Procedures for Wastewater Treatment
Construction Grants Program
6.500 Purpose.
6.501 Definitions.
6.502 Applicability.
Sec.
6.503 Consultation during tie environmental
review process.
6.504 Public participation.
6.505 Limitations on actions during
environmental review process.
6.506 Criteria for preparing EISs.
6.507 Environmental review process.
8 508 Limits on delegation to States.
6.r<09 Identifyr.g mitigation measures.
6.510 Monitoring.
Subpart f—Environmental Review
Procedures for New Source NPDES
Program
6.600 P'irpose.
6.601 Definitions.
6.802 Applicability.
6.603 Limitations on action,'! durirg
envii onmental review process.
6.604 Environmental review process.
6.605 Crite! !a for preparing EISs.
6.606 Record of decision.
6.607 Monitoring
Subpart G—Environmental Review
Procedures for Research and Development
Programs
6 700 Purpose.
6.701 Definitions.
6.702 Applicability.
6.703 Criteria for preparing EISs.
6.704 Environmental review process.
6.705 Record of decision,
Subpart H—Envtronmentai Review
Procedures for Solid Waste Demonstration
Projects
6.800 Purpose.
6.801 Applicability.
6.802 Criteria f',r preparing EISs.
6.803 Environmental review process.
6.804 Record of decision.
Subpart i—Environmental Review
Procedures for EPA Facility Support
Activities
6.900 Puroose.
6.901 Definitions.
6.902 Applicability.
6,903 Crileria for preparing EISs.
6.904 Environmental review process.
6.905 Record oF decision.
Appendix A™Statement of Procedures on
Floodpiain Management and Wetlands
Protection
Authority: Sec-!. 101, 102 and 103 of the
National Environmental Policy Act of 1969
(42 U.S.C. 4321 ei seq.); also, the Council on
Environmental Quality Reguidtions dated
November 29, 197'.t [40 CFR Part 1500).
Subpart A—General
§6.100 Purpose and policy.
(a) The National Environmental Policy
Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq., as implpinented by Executive
Orders 11514 and 11991 and the Council
on Environmental Quality tCEQ)
Regulations of November 29, 1978 (43 FR
55978) requires ;hai Federal agencies
include in their decision-making
processes appropriate and careful
consideration of all environmental
effects of proposed actions, analyze
potential environmental effects of
proposed actions and their alternatives
for public understanding and scrutiny,
avoid or minimize adverse effects of
proposed actions, and restore and
enhance environmental quality as much
as possible. The Environmental
Protection Agency (EPA) shall integrate
these NEPA factors as early in the
Agency planning processes as possible.
The environmental review process shall
be the focal point to assure NEPA
considerations are taken into account.
To the extent applicable, EPA shall
prepare environmental impact
statements (EISs) on those major actions
determined to have significant impact
on the quality of the human
environment. This part takes in!o
account the EIS exemptions set forth
under section 511(c)(l) of the Clean
Water Act (Pub. L. 92-500) and section
7(c)(l) of the Energy Supply and
Environmental Coordination Act of 1974
(Pub. L. 93-319).
(bj This part establishes EPA policy
and procedures for the identification
and analysis of the environmental
impacts of EPA-related activities and
the preparation and processing of EISs.
§ 6.101 Definitions.
(a | Terminology. All terminology used
in this part will be consistent with the
terms as defined in 40 CFR Part 1508
(the CEQ Regulations). Any
qualifications will be provided in the
definitions set forth in each subpart of
this regulation.
(b) The term "CEQ Regulations"
means the regulations issued by the
Council on Environmental Quality on
November 29, 1978 (see 43 FR 55978),
which implement Executive Order 11991.
The CEQ Regulations will often be
referred to throughout this regulation by
reference to 40 CFR Part 1500 et al.
fc] The term "environmental review"
means the process whereby an
evaluation is undertaken by EPA to
determine whether a proposed Agency
action may have a significant impact on
the environment and therefore require
the preparation of the EIS.
(d) The term "environmental
information document" means any
written analysis prepared by an
applicant, grantee or contractor
describing the environmental impacts of
a proposed action. This document will
be of sufficient scope to enable the
responsible official to prepare an
environmental assessment as described
in the remaining subparts of this
regulation.
(e) The term "grant" as used in this
part means an award of funds or other
assistance by a written grant agreement
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64178 Federal Register / Vol. 44, No. 216 / Tuesday, November 6, 1979 / Rules and Regulations
or cooperative agreement under 40 CFR
Chapter I, Subpart B.
§6.102 Applicability.
(a) Administrative actions covered,
This part applies to the activities of EPA
in accordance with .the outline of the
subparts set forth below. Each subpart
describes the detailed environmental
review procedures required for each
action.
(1) Subpart A sets forth an overview
of the regulation. Section 6.102(b)
describes the.requirements for EPA
legislative proposals.
(2) Subpart B describes the
requirements for the content of an EIS
prepared pursuant to subparts E, F, G,
H, and I.
(3) Subpart C describes the
requirements for coordination of all
environmental laws during the
environmental review undertaken
pursuant to Subparts E, F, G, H, and I.
(4) Subpart D describes the public
information requirements which must be
undertaken in conjunction with the
environmental review requirements
under Subparts E, F, G, H, and I.
(5) Subpart E describes the
environmental review requirements for
the wastewater treatment construction
grants program under Title II of the
Clean Water Act.
(6) Subpart F describes the
environmental review requirements for
new source National Pollutant
Discharge Elimination System (NPDES)
permits under section 402 of the Clean
Water Act.
(7) Subpart G describes the
environmental review requirements for
research and development programs
undertaken by the Agency.
(8) Subpart H describes the
environmental review requirements for
solid waste demonstration projects
undertaken by the Agency.
(9) Subpart! describes the
environmental review requirements for
construction of special purpose facilities
and facility renovations by the Agency.
(b) Legislative proposals. As required
by the CEQ Regulations, legislative EISs
are required for any legislative proposal
developed by EPA which significantly
affects the quality of the human
environment. A preliminary draft EIS
shall be prepared by the responsible
EPA office concurrently with the
development of the legislative proposal
and contain information required under
subpart B. The EIS shall be processed, in
accordance with the requirements set
forth under 40 CFR 1506.8.
fe) Application to ongoing activities—
(1) Genera}. The effective date for these
regulations is December 5,1979. These
regulations do not apply to an EIS or
supplement to that EIS if the draft EIS
was filed with the Office of
Environmental Review (OER) before
July 30,1979. No completed
environmental documents need be
redone by reason of these regulations.
(2j With regard to activities under
Subpart E, these regulations shall apply
to all EPA environmental review
procedures effective December 15,1979,
However, for facility plans begun before
December 15,1979, the responsible
official shall impose no new
requirements on the grantee. Such
grantees shall comply with requirements
applicable before the effective date of
this regulation. Notwithstanding the
above, this regulation shall apply to any
facility plan submitted to EPA after
September 30,1980.
§ 6.103 Responsibilities.
(a) Genera! responsibilities. (1) The
responsible official's duties include:
(i) Requiring applicants, contractors,
and grantees tp submit environmental
information documents and related
documents and assuring that
environmental reviews are conducted
on proposed EPA projects at the earliest
possible point in EPA's decision-making
process. In this regard, the responsible
official shall assure the early
involvement and availability of
information for private applicants and
other non-Federal entities requiring EPA
approvals.
(ii) When required, assuring that
adequate draft EISs are prepared and
distributed at the earliest possible point
in EPA's decision-making process, their
internal and external review is
coordinated, and final EISs are prepared
and distributed.
(iii) When an EIS is not prepared,
assuring that findings of no significant
impact (FNSIs) and environmental
assessments are prepared and
distributed for those actions requiring
them.
(1) The responsible official's Duties
include:
(i) Requiring applicants, contractors,
and grantees to submit environmental
information documents and related
documents and assuring that
environmental reviews are conducted
on proposed EPA projects at the earliest
possible point in EPA's decision-making
process. In this regard, the responsible
officiai shall assux'e the early
involvement and availability of
information for private applicants and
other non-Federal entities requiring EPA
approvals,
(iij When required, assuring that
adequate draft EISs are prepared and
distributed at the earliest possible point
in EPA's decision-making process, their
internal and external review is
coordinated, and final EISs are prepared
and distributed,
(iii) When an EIS is not prepared,
assuring that findings of no significant
impact (FNSIs} and environmental
assessments are prepared and
distributed for those actions requiring
them.
(iv) Consulting with appropriate
officials responsible for other
environmental laws set forth in Subpart
C.
(v) Consulting with the Office of
Environmental Review (OER) on actions
involving unresolved conflicts
concerning this part or other Federal
agencies.
(vi) When required, assuring that
public participation requirements are
met.
(2) Office of Environmental Review
duties include:
Iij Supporting the Administrator in
providing EPA policy guidance and
assuring that EPA offices establish and
maintain adequate administrative
procedures to comply with this part.
(ii) Monitoring the overall timeliness
and quality of the EPA effort to comply
with this part.
(iii) Providing assistance to
responsible officials as required, i.e.,
preparing guidelines describing the
scope of environmental information
required by private applicants relating
to their proposed actions.
(iv) Coordinating the training of
personnel involved in the review and
preparation of EISs and other associated
documents.
(v) Acting as EPA liaison with the
Council on Environmental Quality and
other Federal and State entities on
matters of EPA policy and
administrative mechanisms to facilitate
external review of EISs, to determine
lead agency arid to improve the
uniformity of the NEPA procedures of
Federal agencies.
(vi) Advising the Administrator and
Deputy Administrator on projects which
involve more than one EPA office, are
highly controversial, are nationally
significant, or "pioneer" EPA policy,
when these projects have had or should
have an EIS prepared on them.
(vii) Carrying out administrative
duties relating to maintaining status of
EISs within EPA, i.e., publication of
notices of intent in the Federal Register
and making available to the public
status reports on EISs and other
elements of the environmental review
process.
(3) Office of an Assistant
Administrator duties include:
(i) Providing specific policy guidance
to their respective offices and assuring
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Federal Register / Vol. 44, No. 216 / Tuesday, November 6, 1979 / Rales and Regulations 64179
that those offices establish and maintain
adequate administrative procedures to
comply with this part.
(ii) Monitoring the overall timeliness
and quality of their respective office's
efforts to comply with this part.
(iiij Acting as liaison between their
offices and the OER and between their
offices and other Assistant
Administrators or Regional
Administrators on matters of
agencywide policy and procedures,
(iv) Advising the Administrator and
Deputy Administrator through the OER
on projects or activities within their
Respective areas of responsibilities
which involve more than one EPA office,
are highly controversial, are nationally
significant, or "pioneer" EPA policy,
when these projects will have or should
have an EIS prepared on them.
(vj Pursuant to § 6.102(b) of this
subpart, preparing legislative EISs as
appropriate on EPA legislative
initiatives.
(4) The Office of Planning and
Evaluation shall be responsible for
coordinating the preparation of EISs
required on EPA legislative proposals
(see § 6.102(b)).
[bj Responsibilities for Subpart E—(1)
Responsible official. The responsible
official for EPA actions covered by this
subpart is the Regional Administrator.
(2) Assistant Administrator. The
responsibilities of the Office of the
Assistant Administrator, as described in
§ 6.103[a)(3] shall be assumed by the
Assistant Administrator for Water and
Waste Management for EPA actions
covered by this subpart.
(c) Responsibilities for Subpart F. (1)
Responsible official. The responsible
official for activities covered by this
subpart 5s the Regional Administrator.
(2) Assistant Administrator. The
responsibilities of the assistant
Administrator, as described in section
6.103(a3(3) shall be assumed by the
Assistant Administrator for
Enforcement for EPA actions covered by
this subpart.
(d) Responsibilities for Subpart G.
The Assistant Administrator for
Research and Development will be the
responsible official for activities
covered by this subpart.
(ej Responsibilities for Subpart H.
The Deputy Assistant Administrator for
Solid Waste will be the responsible
official for activities covered by this
subpart.
{f) Responsibilities for Subpart I. (1)
Responsible official The responsible
officiai for new construction and
modification of special purpose facilities
is as follows:
(ij The Chief, Facilities Management
Branch, Facilities and Support Services
Division, Office of Management and
Agency Services, shall be the
responsible official on all new
construction of special purpose facilities
and on all improvement and
modification projects for which the
Facilities Management branch has
received a funding allowance.
(ii) The Regional Administrator shall
be the responsible officiai on all
improvement and modification projects
for which the regional office has
received the funding allowance.
(iii) The Center Directors shall be the
responsible officials- on all improvement
and modification projects for which the
National Environmental Research
Centers have received the funding
allowance.
§ 6.104 Early involvement of private
parties.
As required by 40 CFR 1501.2(d) and
§ 6.103(a)(3)(v) of this regulation,
responsible officials must ensure early
involvement of private applicants or
other non-Federal entities in the
environmental review process related to
EPA grant and permit actions set forth
under Subparts E, F, G, and H. The
responsible official in conjunction with
OER shall:
(a) Prepare where practicable, generic
guidelines describing the scope and
level of environmental information
required from applicants as a basis for
evaluating their proposed actions, and
make these guidelines available upon
request.
(D) Provide such guidance on a
project-by-project basis to any applicant
seeking assistance.
(c) Upon receipt of an application for
agency approval, or notification that an
application will be filed, consult as
required with other appropriate parties
to initiate and coordinate the necessary
environmental analyses.
§ 6.105 Synopsis of EIS procedures.
(a) Responsible offical. The
responsible official shall utilize a
systematic, interdisciplinary approach
to integrate natural and social sciences
as well as environmental design arts in
planning programs and making
decisions which are subject to
environmental review. The respective
staffs may be supplemented by
professionals from other agencies (see
40 CFR § 1501.6) or consultants
whenever in-house capabilities are
insufficiently interdisciplinary.
(b) Environmental information
documents. Environmental information
documents must be prepared by
applicants, grantees, or permittees and
submitted to EPA as required in
Subparts E, F, G, H, and I. The
environmental information document
will be of sufficient scope to enable the
responsible official to prepare an
environmental assessment as described
under § 6.105(d) below and Subparts E
through L
(c) Environmental reviews.
Environmental reviews shall be
conducted on the EPA activities outlined
in § 8102 above and set forth under
Subparts E, F, G, H and I. This process
shall consist of a study of the action to
identify and evaluate the related
environmental impacts. The process
shall include a review of any related
environmental information document to
determine whether any significant
impacts are anticipated and whether
any changes can be made in the
proposed action to eliminate significant
adverse impacts; when an EIS is
required, EPA has overall responsibility
for this review, although grantees,
applicants, permittees or contractors
will contribute to the review through
submission of environmental
information documents.
(d) Environmental assessments.
Environmental assessments (i.e., concise
public documents for which EPA is
responsible] are prepared to provide
sufficient data and analysis to
determine whether an EIS or finding of
no significant impact is required. Where
EPA determines that an EIS will be
prepared, there is no need to prepare a
formal environmental assessment.
(e) Notice of intent and EISs. When
the environmental review indicates that
a significant environmental impact may
occur and significant adverse impacts
can not be eliminated by making
changes ia the project, a notice of intent
to prepare an EIS shall be published in
the Federal Register, scoping shall be
undertaken in accordance with 40 CFR
§ 1501.7, and a draft EIS shall be
prepared and distributed. After external
coordination and evaluation of the
comments received, a final EIS shall be
prepared and disseminated. The final
EIS shall list any mitigation measures
necessary to make the recommended
alternative environmentally acceptable.
(f) Finding of no significant impact
(FNSt). When the environmental review
indicates no significant impacts are
anticipated or when the project is
altered to eliminate any significant
adverse impacts, e FN81 shall be issued
end made available to the public. The
environmental assessment shall be
included as a part of the FNSI. The FNSI
shall list any mitigation measures
necessary to make the recommended
alternative environmentally acceptable.
(g) Record of decision. At the time of
its decision on any action for which a
final EIS has been prepared, the
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64180 Federal Register / Vol. 44. No. 216 / Tuesday, November 6, 1979 / Rules and Regulations
responsible official shall prepare a
concise public record of the decision.
The record of decision shall describe
those mitigation measures to be
undertaken which will make the
selected alternative environmentally
acceptable. Where the final EIS
recommends the alternative which is
ultimately chosen by the responsible
official, the record of decision may be
extracted from the executive summary
to the final EIS,
(h) Monitoring. The responsible
official shall provide for monitoring to
assure that decisions on any action
where a final EIS has been prepared are
properly implemented. Appropriate
mitigation measures shall be included in
actions undertaken by EPA.
§ 6.106 Deviations.
(a) General. The Director, OER, is
authorized to approve deviations from
these regulations. Deviation approvals
shall be made in writing by the Director.
OER.
(b) Requirements. (1) Where
emergency circumstances make it
necessary to take an action with
significant environmental impact
without observing the substantive
provisions of these regulations or the
CEQ Regulations, the responsible
official shall notify the Director, OER,
before taking such action. The
responsible official shall consider to the
extent possible alternative
arrangements; such arrangements will
be limited to actions necessary to
control the immediate impacts of the
emergency; other actions remain subject
to the environmental review process.
The Director, OER, after consulting
CEQ, will inform the responsible official,
as expeditiously as possible of the
disposition of his request.
(2) Where circumstances make it
necessary to take action without
observing procedural provisions of these
regulations, the responsible official shall
•notify the Director, OER, before taking
surh action. If the Director, OER.
determines such a dpv.aiion v,ould be in
the best interest of the Government, he
shall inform the responsible official, as
soon as possible, of his approval.
(3) The Director, OER, shall
coordinate his action on a deviation
under § 6.106(b) (1) or (2) above with the
Director, Grants Administration
Division, Office of Planning and
Management, for any required grant-
related deviation under 40 CFR 30.1000,
as well as the appropriate Asvlptant
Administrator.
Subpart B—Content of EISs
§ 6.200 The environmental impact
statement.
Preparers of EISs must conform with
the requirements o» 40 CFR Part 1502 in
writing EISs.
§ 6.201 Format.
The format used for EISs shall
encourage good analysis and clear
presentation of alternatives, including
the proposed action, and their
environmental, economic and social
impacts. The following standard format
for EISs should be used unless the
responsible official determines that
there is a compelling reason to do
otherwise:
(a) Cover sheet;
(b) Executive Summary;
(cj Table of contents;
(d) Purpose of and need for action;
(e) Alternatives including proposed
action;
(f) Affected environment;
(g) Environmental consequences of
the alternatives;
(h] Coordination (includes list of
agencies, organizations, and persons to
whom copies of the EIS are sent);
(i) List of preparers;
(j) Index (commensurate with
complexity of EIS);
(k) Appendices.
§ 6.202 Executive summary.
The executive summary shall describe
in sufficient detail (10-15 pages) the
critical facets of the EIS so that the
reader can become familiar with the
proposed project or action and its net
effects. The executive summary shall
focus on:
(a) The existing problem;
(b) A brief description of each
alternative evaluated (including the
preferred and no action alternatives)
along with a listing of the environmental
impacts, possible mitigation measures
relating to each alternative, and any
areas of controversy (including issues
raised by governmental agencies and
the public]; and
(cj Any major conclusions.
A comprehensive summary may be
prepared in instances where the EIS is
unusually long in nature. In accordance
with 40 CFR 1502.19, the comprehensive
siimR'.iiy may be circulated in lieu of the
EIS' however, both documents shall be
distributed to any Federal State and
local agencies who have EIS review
responsibilities and also shall be made
available to other interested parties
upon request.
§6.203 Body of ESS.
(d) Purpose and need. The EIS shall
clearly specify the underlying purpose
and need to which EPA Is responding. If
the action is a request for a permit or a
grant, the EIS shall clearly specify the
goals and objectives of the applicant.
(b) Alternatives including the
proposed action. In addition ro 49 CFR
1502.14, the EIS shall discuss,:
(1) Alternatives considered by thv
Applicant. This section shall include a
bnlunccd description of each alternative
considered by the applicant. These
discussions shall include size and
location of facilities, land requirements,
operation-and maintenance
requirements, auxiliary structures such
as pipelines or transmission lines, and
construction schedules. The alternative
of no action shall be discussed end the
applicant's preferred aliernativefs] shall
be identified. For alternatives which
were eliminated from detailed study, a
brief discussion of the reasons for their
having been eliminated shall be
included.
(2) Alternatives available to EPA.
EPA alternatives to be discussed shall
include: (i) Taking an action; or (ii)
taking an action on a modified or
alternative project, including an action
not considered by the applicant: and (iii)
denying the action.
(."!) Alternatives available to other
permitting agencies. When preparing'a
joint EIS, and if applicable, the
alternatives available to other Federal
and/or State agencies shall be
discussed.
(4) Identifying preferred alternative.
In the final EIS, the responsible official
shall signify the preferred alternative,
(c) Affected environment and
environmental consequences of the
alternatives. The affected en vironment
on which the evaluation of each
alternative shall be based includes for
example hydrology, geology, air quality,
noise, biology, socioeconomics, energy.
land use, and archeology/history. These
subject matters shall be adapted to
analyze each alternative within a
project area. The discussion shall be
structured so as to present the impacts
of each alternative under each subject
heading for easy comparison by the
reader. The "no action" alternative
should be described first so thai the
reader may relate the other alternatives
to beneficial and adverse impacts
related to the applicant doing nothing.
Description of environmental setting for
the purpose of necessary background
shall be included in this discussion of
the impacts of the "no action"
alteinative. The amount of detail in
describing the affected environment
shall be commensurate with the
complexity of the situation and the
importance of the anticipated impacts.
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Federal Register / Vol. 44, No. 216 / Tuesday, November 8, 1979 / Rules and Regulations 64181
(d) Coordination. The EIS shall
include: (1) The objection* and
suggestions made by local, State, and
Federal agencies before and during the
EIS review process mast be given full
consideration, along with the issues of
public concern expressed by individual
citizens and interested environmental
groups. The EIS must include
discussions of any such comments
concerning our actions, and the author
of each comment should be identified. If
a comment has resulted in a change in
the project or the EIS, the impact
statement should explain the reason.
(2) Public participation through public
hearings or scoping meetings shall also
be included. If a public hearing has been
held prior to the publication of the HIS, a
summary of the transcript should be
included In this section. For the public
hearing which shall be held after the
publication of the draft EIS, the date,
time, place, and purpose shall be
included here.
(3) In the final EIS, a summary of the
coordination process and EPA
responses to comments on the draft EIS
shall be included.
8 8.204 Incorporation by retortno*.
In addition to 40 CFR 1502.21, material
Incorporated into an EIS by refer«nc«
shall be organized to the extent posaible
into a Supplemental Information
Document and be made available for
review upon request No material may
be incorporated by reference unless it is
reasonably available for inspection by
potentially interested persons within the
period allowed for comment.
§ 6.205 Ust of preparora.
When the EIS is prepared by contract,
either under direct contract to EPA or
through an applicant's or grantee's
contractor, the responsible official must
independently evaluate the EIS prior to
its approval and take responsibility for
its scope and contents. The EPA officials
who undertake this evaluation shall also
be described under the list of preparers.
Subpart C—Coordination With Oth*r
Environmental Review and
Consultation Requirements
§6.300 General.
Various Federal laws and executive
orders address specific environmental
concerns. The responsible official shall
integrate to the greatest practicable
extent the applicable procedures in this
subpart during the implementation of
the environmental review process under
subparts E through I. This subpart
presents the central requirements of
these laws and executive orders. It
refers to the pertinent authority and
regulations or guidance that contain the
procedures. These laws and executive
orders establish review procedures
independent of NEPA requirements. The
responsible official shall be familiar
with any other EPA or appropriate
agency procedures implementing these
laws and executive orders.
§ 8.301 Historical and arcli«ologlcal sites,
EPA is subject to the requirements of
the National Historic Preservation Act
of 1986, as amended, 16 U.S.C. 470 el
seq., the Archaeological and Historic
Preservation Act of 1974,18 U.S.C. 469 et
seq., and Executive Order 11593, entitled
"Protection and Enhancement of the
Cultural Environment." These provisions
and regulations establish review
procedures independent of NEPA
requirements.
(a} Under section 106 of the National
Historic Preservation Act and Executive
Order 11593, if an EPA undertaking
affects any property with historic,
architectural, archeological or cultural
value that is listed on or eligible for
listing on the National Register of
Historic Places, the responsible official
shall comply with the procedures for
consultation and comment promulgated
by the Advisory Council on Historic
Preservation in 36 CFR Part 800. The
responsible official must identify
properties affected by the undertaking
that are potentially eligible for listing on
the National Register and shall request a
determination of eligibility from the
Keeper of the National Register,
Department of the Interior, under the
procedures in 36 CFR Part 83.
(b) Under the Archaeological and
Historic Preservation Act, if an EPA
activity may cause irreparable loss or
destruction of significant scientific,
prehistoric, historic or archeological
data, the responsible official or the
Secretary of the Interior is authorized to
undertake data recovery and
preservation activities. Applicable
procedures are found in 36 CFR Parts 64
and 66.
§ 6.302 Wetlands, noodptalns, agricultural
lands, coastal zone*, wild and scenic rivers,
fish and wildlife and endangered species
The following procedures shall apply
to EPA administrative actions in
programs to which the pertinent statute
or executive order applies.
(a) Wetlands protection. Executive
Order 11990, Protection of Wetlands,
requires Federal agencies conducting
certain activities to avoid, to the extent
possible, the adverse impacts associated
with the destruction or loss of wetlands
and to avoid support of new
construction in wetlands if a practicable
alternative exists. EPA's Statement of
Procedures on Floodpiain Management
and Wetlands Protection (dated January
5,1979, incorporated as Appendix A
hereto) requires EPA programs to
determine if proposed actions will be in
or will affect wetlands. If so, the
responsible official shall prepare a
flocdplains/wetlands assessment, which
will be part of the environmental
assessment or environmental impact
statement The responsible official shall
either avoid adverse impacts or
minimize them if no practicable
alternative to the action exists.
(b) Floodpiain management. Executive
Order 11988, Floodpiain Management,
requires Federal agencies to evaluate
the potential effects- of actions they may
take in a fioodplain to avoid, to the
extent possible, adverse effects
associated with direct and indirect
development of a fioodplain. EPA's
Statement of Procedures on Fioodplain
Management and Wetlands Protection
(dated January S, 1979, incorporated as
Appendix A hereto), requires EPA
programs to determine whether -an
action will be located in or will affect a
flocdplain. If so, the responsible official
shall prepare a Qoodplain/wetlanda
assessment The assessment will
become part of the environmental
assessment or environmental impact
statement The responsible official shall
either avoid adverse impacts or
minimize them if no practicable
alternative exists.
[c} Agricultural lands. It is EPA's
policy to consider the protection of the
Nation's environmentally significant
agricultural lands from irreversible
conversion to uses which result in its
loss as an environmental or essential
food production resource. Before
undertaking an action, the responsible
official shall determine whether there
are significant agricultural lands in the
planning area. If significant agricultural
lands are identified, direct and indirect
effects of the undertaking on the land
shall be evaluated and adverse effects
avoided or mitigated, to the extent
possible, in accordance with EPA's
Policy to Protect Environmentally
Significant Agricultural Lands
(September 8,1978).
(d) Coastal zone management. The
Coastal Zone Management'Act, 16
U.S.C. 1451 et seq., requires that all
.Federal activities in coastal areas be
consistent with approved State Coastal
Zone Management Programs, to the
maximum extent possible. If an EPA
action may affect a coastal zone area,
the responsible official shall assess the
impact of the action on the coastal zone.
If the action significanlly affects the
coastal zone area and the State has an
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64182 Federal Register / Vol. 44, No. 21ti / Tuesday, November 6, 1979 / Rules and Regulations
approved coastal zone management
program, a consistency determination
shall be sought in accordance with
procedures promulgated by the Office of
Coastal Zone Management in 15 CFR
930.
(e) Wild and scenic rivers. Under the
Wild and Scenic Rivers Act 16 U.S.C.
1274 et seq., a Federal agency may not
assist, through grant, loan, license or
otherwise, the construction of a water
resources project that would have a
direct and adverse effect on the values
for which such river was established, as
determined by the Secretary charged
with its administration. Nothing
contained in the foregoing sentence,
however, shall preclude licensing of, or
assistance to, developments below or
above a wild, scenic or recreational
river area or on any stream tributary
thereto which will not invade the area
or unreasonably diminish the scenic,
recreational, and fish and wildlife
values present in the area on the date of
approval of the Wild and Scenic Rivers
Act. The responsible officical shall
determine whether there are any
designated rivers in the planning area.
The responsible official shall not
recommend authorization of any water
resources project that would have a
direct and adverse effect on the values
for which such river was established, as
determined by the Secretary charged
with its administration, in request of
appropriations to begin construction of
any such project, whether heretofore or
hereafter authorized, without advising
the Secretary of Interior or the Secretary
of Agriculture, as the case may be, in
writing of his intention at least sixty
days in advance, and without
specifically reporting to the Congress in
writing at the time he makes his
recommendation or request in what
respect construction of such project
would be in conflict with the purposes of
the Wild and Scenic Rivers Act and
would affect the component and the
values to be protected by him under the
Act. Applicable consultation procedures
are found in section 7 of the Act.
(f) Fish and wildlife protection. The
Fish and Wildlife Coordination Act, 18
U.S.C. 661 etseq., requires Federal
agencies involved in actions that will
result in the control or structural
modification of any natural stream or
body of water for any purpose, to take
action 1o protect the fish and wildlife
resources which may be affected by the
action. The responsible official shall
consult with the Fish and Wildlife
Service and the appropriate State
agency to ascertain the means and
measures necessary to mitigate, prevent
and compensate for project-related
losses of wildlife resources and to
enhance the resources, Reports and
recommendations of wildlife agencies
should be incorporated into the
environmental assessment or
environmental impact statement.
Consultation procedures are detailed in
16 U.S.C. 662.
(g) Endangered species protection.
Under the Endangered Species Act, 16
U.S.C. 1531 et seq., Federal agencies are
prohibited from jeopardizing threatened
or endangered species or adversely
modifying habitats essential to their
survival. The responsible official shall
identify all designated endangered or
threatened species or their habitat that
may be affected by an EPA action. If
listed species or their habitat may be
affected, formal consultation must be
undertaken with the Fish and Wildlife
Service or the National Marine Fisheries
Service, as appropriate. If the
consultation reveals that the EPA
activity may jeopardize a listed species
or habitat, mitigation measures should
be considered. Applicable consultation
procedures are found in 50 CFR 402.
§6.303 Air quality.
(a) The Clean Air Act, as amended in
1977, 42 U.S.C. 7476(c), requires all
Federal projects, licenses, permits,
plans, and financial assistance activities
to conform to any State Air Quality
Implementation Plan (SIP) approved or
promulgated under section 110 of the
Act. For proposed EPA actions that may
significantly affect air quality, the
responsible official shall assess the
extent of the direct or indirect increases
in emissions and the resultant change in
air quality.
(b; If the proposed action may have a
significant direct or indirect adverse
effect on air quality, the responsible
official shall consult with the
appropriate State and local agencies as
to the conformity of the proposed action
with the SIP. Such agencies shall include
the State agency with primary
responsibility for the SIP, the agency
designated under section 174 of the
Clean Air Act and, where appropriate,
the metropolitan planning organization
(MPO). This consultation should include
a request for a recommendation as to
the conformity of the proposed action
with the SIP.
(c) The responsible official shall
provide an assurance in the FNS1 or the
draft EIS that the proposed action
conforms with the SIP.
(d) The assurance of conformity shall
be based on a determination of the
following:
(!) The proposed action will be in
compliance with al! applicable federal
and State air pollution emission
limitations and standards;
(2) The direct and indirect air
pollution emissions resulting from the
proposed action have been expressly
quantified in the emissions growth
allowance of the SIP; or if a case-by-
case offset approach is included in the
SIP, that offsets have been obtained for
the proposed action's air quality
impacts;
(3) The proposed action conforms to
the SIP's provisions for demonstrating
reasonable further progress toward
attainment of the national ambient air
quality standards by the required date;
(4) The proposed action complies with
all other provisions and requirements of
the SIP.
(e) During the 30-day FNSI and 45-day
draft EIS review time periods EPA shall
provide an opportunity for the State
agency with primary responsibility for
the SIP to concur or nonconcur with the
determination of conformity. All State
notifications of concurrence or
nonconcurrence with the EPA
conformity determination shall include a
record of consultation with the
appropriate section 174 agency and,
where different, the MPO. There shall be
a presumption of State concurrence if no
objection is received by EPA during the
review time period.
(f) The responsible official shall
provide in the FNSI or the final EIS a
response to a notification of state
nonconcurrence with the EPA
conformity determination. This response
shall include the basis by which the
conformity of the proposed action to the
SIP will be assured. If the responsible
official finds that the State
nonconcurrence with the EPA
conformity determination is unjustified,
then an explanation of-this finding shall
be included in the FNSI or the final EIS.
Subpart D—Public and Other Federal
Agency Involvement
§6.400 Public Involvement
(a) General. EPA shall make diligent
efforts to involve the public in the
environmental review process
consistent with program regulations and
EPA policies on public participation.
The responsibile official shall ensure
that public notice is provided for in
accordance with 40 CFR § 1506.6(b) and
shall ensure that public involvement is
carried out in accordance with EPA
Public Participation Regulations, 40 CFR
Part 25, and other applicable EPA public
participation procedures.
(b) Publication of notices of intent. As
soon as practicable after his decision to
prepare an EIS and .before the scoping
process, the responsible official shall
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Federal Register / Vol. 44, No. 216 / Tuesday, November 6, 1979 / Rules and Regulations 64183
send the notice of intent to interested
and affected members of the public and
shall request the OER to publish the
notice of intent in the Federal Register.
The responsible official shall send to
OER the signed original notice of intent
for Federal Register publication
purposes. The scoping process should be
initiated as soon as practicable in
accordance with the requirements of 40
CFR § 1501.7. Participants in the scoping
process shall be kept informed of
substantial changes which evolve during
the EIS drafting process.
(c) Public meetings or hearings. Public
meetings or hearings shall be conducted
consistent with Agency program
requirements. There shall be a
presumption that a scoping meeting will
be conducted whenever a notice of
intent has been published. The
responsible official shall conduct a
public hearing on a draft EIS. The
responsible official shall ensure that the
draft EIS is maae available to the public
at least 30 days in advance of the
hearing.
(d) Findings of no significant impact.
The responsible official shall allow for
sufficient public review of a FNS! before
it becomes final. The FNSI and
attendant publication must state that
interested persons disagreeing with the
decision may submit comments to EPA.
The responsible otficial shall not take
administrative action on the project for
at least thirty (30) calendar days after
release of the FNSI and may allow more
time for response. The responsible
official shall consider fully comments
submitted before taking administrative
action. The FNSI shall be made
available to the public in accordance
with the requirements of 40 CFR
§ 1506.6. One copy shall be submitted to
OER.
(e) Record of decision. The
responsible official shall disseminate
the record of decision to those parties
which commented on the draft or final
EIS. One copy shall be submitted to
OER.
§ 6.401 Official filing requirements.
(a) General. OER is responsible for
the conduct of the official filing system.
for EISs. This system was established as
a central repository for all EISs which
serves not only as means of advising the
public of the availability of each EIS but
provides a uniform method for the
computation of minimum time periods
for the review of EISs. OER publishes a
weekly notice in the Federal Register
listing all EISs received during a given
week. The 45-day and 30-day review
periods for draft and final EISs,
respectively, are computed from the
Friday following a given reporting week.
Pursuant to 40 CFR § 1506.9, responsible
officials shall comply with the
guidelines established by OER on the
conduct of the filing system.
(b) Minimum time periods. No
decision on EPA actions shall be made
until the later of the following dates: (1)
Ninety (90) days after the date
established in § B.401(a) above from
which the draft EIS review time period
is computed.
(2) Thirty (30) days after the date
established in § 6.401(a) above from
which the final EIS review time period is
computed. *
(c) Filing of EISs. All EISs, including
supplements, must be officially filed
with OER. Responsible officials shall
transmit each EIS in five (5) copies to
the Director, Office of Environmental
Review, EIS Filing Section (A-104). OER
will provide CEQ with one copy of each
EIS filed. No EIS will be officially filed
by OER unless the EIS has been made
available to the public. OER will not
accept unbound copies of EISs for filing.
(d) Extensions or waivers. The
responsible official may independently
extend review periods. In such cases,
the responsible official shall notify OER
as soon as possible so that adequate
notice may be published in the weekly
Federal Register report. OER upon a
showing of compelling reasons of
national policy may reduce the
prescribed review periods. Also, OER
upon a showing by any other Federal
agency of compelling reasons of
national policy may extend prescribed
review periods, but only after
consultation with the responsible
official. If the responsible official does
not concur with the extension of time,
OER may not extend a prescribed
review period more than 30 days beyond
the minimum prescribed review period.
(e) Rescission of filed EISs. The
responsible official shall file EISs with
OER at the same time they are
transmitted to commenting agencies and
made available to the public. The
responsible official is required to
reproduce an adequate supply of EISs to
satisfy these distribution requirements
prior to filing an EIS. If the EIS is not
made available, OER will consider
retraction of the EIS or revision of the
prescribed review periods based on the
circumstances.
§ 6.402 Availability of documents.
(a) General. The responsible official
will ensure sufficient copies of the EIS
are distributed to interested and
affected members of the public and are
made available for further public
distribution. EISs, comments received,
and any underlying documents should
be available to the public pursuant to
the provisions of the Freedom of
Information Act (5 U.S.C. section
552(b)), without regard to the exclusion
for interagency memoranda where such
memoranda transmit comments of
Federal agencies on the environmental
impact of the proposed actions. To the
extent practicable, materials made
available to the public shall be provided
without charge; otherwise, a fee may be
imposed which is not more than the
actual cost of reproducing copies
required to be sent to another Federal
agency.
(b) Public information. Lists of all
notices of intent, EISs, FNSIs, and
records of decision prepared by EPA
shall be maintained by OER for the
public. Each responsible official will
maintain a-similar monthly status report
for all environmental documents
prepared. In addition, OER will make
available for public inspection copies of
EPA EISs; the responsible official shall
do the same for any prepared EIS.
§ 6.403 The commenting process.
(a) Inviting comments. After preparing
a draft EIS and before preparing a final
EIS, the responsible official shall obtain
the comments of Federal agencies, other
governmental entities and the public in
accordance with 40 CFR § 1503.1.
(b) Response to comments. The
responsible official shall respond to
comments in the final EIS in accordance
with 40 CFR § 1503.4.
§ 6.404 Supplements.
(a) General. The responsible official
shall consider preparing supplements to
draft and final EISs in accordance with
40 CFR § 1502.9(c). A supplement shall
be prepared, circulated and filed in the
same fashion (exclusive of scoping) as
draft and final EISs.
(b) Alternative procedures. In the case
where the responsible official wants to
deviate from existing procedures, OER
shall be consulted. OER shall consult
with CEQ on any alternative
arrangements.
Subpart E—Environmental Review
Procedures for Wastewater Treatment
Construction Grants Program
§ 6.500 Purpose.
This subpart amplifies the procedures
described in Subparts A through D with
detailed environmental review
procedures for the wastewater
treatment works construction grants
program under Title II of the Clean
Water Act.
§ 6.501 Definitions.
(a) "Step 1 grant" means grant
assistance for a project for preparation
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64184 Federal Register / Vol. 44, No. 216 / Tuesday. November 6, 1979 / Rules and Regulations
of a facilities plan as described in 40
CFR 35.930-l(a)(l).
(b) "Step 2 grant" means grant
assistance for a project for preparation
of construction drawings and
specifications as described in 40 CFR
35.930-l(a)(2).
(c) "Step 3 grant" means grant
assistance for a project for erection and
building of a publicly owned treatment
works as described in 40 CFR 35.930-
l(a)(3).
(d) "Step 2 plus step 3 grant" means
grant assistance for a project which
combines the grants set forth in section
6.501 (b) and (c) above as described in
40 CFR 35.930-l(a)(4).
(e) "Applicant" means any individual,
agency, or entity which has filed an
application for grant assistance under 40
CFR Part'35.
(f) "Grantee" means any individual,
agency, or entity which has been
awarded assistance under 40 CFR
35.930-1.
§6.602 Applicability.
(a) Administrative actions covered.
This subpart applies to the
administrative actions listed below
(except as provided in § 6.502(c) below):
(1) Approval of a facilities plan; and
(2) Award of grant assistance for a
project involving step 2 or step 3 when
the responsible official determines that
a significant change has occurred in the
project or its impact from that described
in the facilities plan,
(b) Administrative actions excluded.
The actions listed below are not subject
to the requirements of this subpart:
(1) Approval of State priority lists;
(2) Award of a step 1 grant;
(3) Approval or award of a section 208
planning grant;
(4) Award of grant assistance for a
step 2 or step 3 project unless the
responsible official determines that a
significant change has occurred in the
project or its impact from that described
in the facilities plan (see § 6.502(a)(2)
above);
(5) Approval of issuing an invitation
for bids or awarding a construction
contract;
(6) Actual physical commencement of
building construction;
(7) Award of a section 206 grant for
reimbursement;
(8) Award of a grant increase unless
the responsible official determines that
a significant change has occurred in a
project or its impact as described in the
approved facilities plan; and
(9) Awards of training assistance
under section 109[b) of the Clean Water
Act;
(10) Approval of user charge system or
industrial cost recovery system.
§ 6.503 Consultation during the
environmental review process.
When there are overriding
considerations of cost or impaired
program effectiveness, the responsible
official may award a step 2 or step 3
grant for a discrete segment of the
project plans or construction before the
environmental review is completed. The
project segment must be
noncontroversial, necessary to correct
water quality or other immediate
environmental problems and cannot, by
its completion, foreclose any reasonable
options being considered in the
environmental review. The remaining
portion of the project shall be evaluated
to determine if an EIS is required. In
applying the criteria for this
determination, the entire project shall be
considered, including those parts
permitted to proceed. In no case may
these types of grant assistance for step 2
or step 3 projects be awarded unless
both the OER and CEQ have been
consulted, a FNSI has been issued on
the segments permitted to proceed at
least 30 days prior to grant award, and
the grant award contains a specific
agreement prohibiting action on the
segment of planning or construction for
which the environmental review is not
complete. The Director, OER, is
responsible for consulting with CEQ and
the Assistant Administrator for Water
and Waste Management.
§ 6.504 Public participation.
(a) Genera]. It is EPA policy that
optimum public participation be
achieved during the environmental
review process as deemed appropriate
by the responsible official under 40 CFR
Part 25 and implementing provisions of
Part 35, Subpart E of this Chapter.
Compliance with Part 25 and
implementing provisions constitutes
compliance with public participation
requirements under this part.
(b) Full-scale public participation. In
accordance with 40 CFR 35.917-5(c), the
responsible official shall assure that a
full-scale public participation program
shall be undertaken where EPA
prepares or requires the preparation of
an EIS during the facility planning
process. If the need for an EIS is
identified late in the facility planning
process, the responsible official shall
determine on an individual project basis
what elements are necessary to ensure
full-scale public participation.
(c) Public participation activities
undertaken in connection with the
environmental review process should be
coordinated with the facility planning
public participation program wherever
possible.
(d) The responsible official may
institute such additional NEPA-related
public participation procedures as he
deems necessary during the
environmental review process.
§ 6.505 Limitations on actions during
environmental review process.
No administrative action under
§ 6.502(a) shall be taken until the
environmental review process has been
completed except as provided under
§ 6.502(c) above. The responsible official
shall ensure compliance in accordance
with 40 CFR § 1506.1 and subparts A, C,
and D of this regulation, and all policies,
guidance and regulations adopted to
implement the requirements under 42
U.S.C. 7616 of the Clean Air Act.
§ 6.506 Criteria for preparing EISs,
(a) The responsible official shall
assure that an EIS will be issued when
he determines that any of the following
conditions exists:
(1) The treatment works will induce
significant changes (either absolute
changes or increases in the .rate of
change) in industrial, commercial,
agricultural, or residential land use
concentrations or distributions. Factors
that should be considered in
determining if these changes are
significant include but are not limited to:
(i) The vacant land subject to increased
development pressure as a result of the
treatment works; (ii) the increases in
population which may be induced; (iii)
the faster rate of change of population;
changes in population density; (iv) the
potential for overloading sewage
treatment works; (v) the extent to which
landowners may benefit from the areas
subject to increased development; (vi)
the nature of land use regulations in the
affected area and their potential effects
on development; (vii) and deleterious
changes in the availability or demand
for energy.
(2) The treatment works or collector
system will have significant adverse
effects on wetlands, including indirect
effects, or any major part of the
treatment works will be located on
wetlands.
(3) The treatment works or collector
system will significantly affect a habitat
identified on the Department of tha
Interior's or a State's threatened and
endangered species lists, or the
treatment works will be located on the
habitat.
(4) Implementation of the treatment
works or plan may directly cause or
induce changes that significantly:
(i) Displace population;
(ii) Alter the character of an existing
residential area;
(iii) Adversely affect a floodplain; or
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Federal Register / Vol. 44. No. 216 / Tuesday, November 6, 1979 / Rules and Regulations 64185
(ivj Adversely affect significant
amounts of prime or unique agricultural
land, or agricultural operations on this
lend as defined in EPA'a Policy to
Prelect Environmentally Significant
Agriculture! Land.
(5) The treatment works will have
significant adverse direct or indirect
effects on parklands, other public lands
or ereas of recognized scenic,
recreational, archeological, or historic
value.
(8j The treatment works may directly
at through induced development have a
significant adverse effect upon local
ambient air quality, local ambient noise
levels, surface or groundwater quality er
quantity, fish, wildlife, and their natural
habitats,
[7] The treated effluent is being
discharged into s body of water where
the present classification is too lenient
or is being challenged as too low to
protect present or recent uses, and the
effluent will not be of sufficient quality
or quantity to meet the requirements of
th-^se uses.
fb) When the treatment works shall
threaten a violation of Federal, State, or
local law or requirements imposed for
the protection of the environment, the
responsible official shall consider
preparing an FJS.
(cj Wften full-scale public
participation is required under 40 CFR
35.9?.7-5{c), the responsible official shall
consider preparing an EIS.
§ 6.507 Environmental review process.
Consistent with 40 CFR 1501.2, EPA
shall integrate the environmental review
process throughout the construction
grants program facilities planning
process (Step 1). Critical decisionmaklng
points and the scope of review
recommended include:
(a) A ward of a facilities planning
"grant (Step 1) Prior to award of Step 1
assistance, or within no more than 30
days thereafter, EPA may review, or
request that the State review, if the
facilities plan review is delegated under
section 205(gJ of the Glean Water Act,
the existence of environmentally
sensitive areas in the facilities planning
area. This review is intended to be brief
and concise drawing on existing
information and knowledge of EPA,
Slate agencies, regional planning
agendas, treiiwide water quality
management agencies, and grantees.
This review may be used to determine
the scope of the environmental
information dr.-cur.nent prepared by the
greiruee. It may also be used to make an
early determination of the need for an
HIS. Whenever possible, this initial
review should be discussed at the first
conference held with the potential
grantee.
(b) Mid-course reviews. A review of
environmental information developed
by the grantee should be conducted to
the extent practicable whenever
meetings are held to assess the progress
of facilities plan development. These
meetings should be held after
completion and submission to EPA and
the State of the majority of the
environmental information document
and before a preferred alternative is
selected. When the program is
delegated, the state shall forward to
EPA the required preliminary
environmental assessment to enable
EPA to make decisions with respect to
the need for an EIS. Although the
decision whether to prepare an EIS must
be mada before a facilities plan can be
approved, a decision to prepare an EIS
is encouraged earlier during the
facilities planning process. Following
any mid-course review meeting, EPA
should inform interested parties as to
the following:
(1) The preliminary nature of the
agency's position on preparing an EIS;
(2) The relationship between the
facilities planning and environmental
review processes;
(3) The desirability of further public
input; and
(4) A contact person for further
information.
(c) Review of completed facilities
plan. EPA, or the State when the
program is delegated, shall review any
completed facilities plan with particular
attention to the environmental
information document and its utilization
in the development of alternatives and
the selection of a preferred alternative.
An adequate environmental information
document should be an integral part of
any facilities plan submitted to EPA or
to a State. The environmental
information document shall be of
sufficient scope to enable the
responsible official to prepare an
environmental assessment. For those
States where the review of facilities
plans has been delegated, State
personnel will be required to prepare a
preliminary environmental! assessment
which serves as an adequate basis for
EPA's decision to issue an FNSI or an
EIS. The environmental assessment
shall cover all potentially significant
environmental impacts and related
factors. Each of the following subjects
shall be critically reviewed to identify
potentially significant environmental
concerns and shall be addressed in the
environmental assessment.
(1) Description of the existing
environment. For the delineated
facilities planning area, the existing
environmental conditions relevant to the
analysis of alternatives or
determinations of the environmental
impacts (especially indirect) of the
proposed action shall be considered.
The description may include, those
environmental factors potentially
affected by the alternatives under
consideration, such as: surface and
groundwater quality; water supply and
use; general hydrology; air quality: noise
levels, energy production and
consumption; land use trends including
probable development of regional
shopping centers; population
projections; wetlands, floodplains,
coastal zones, prime agricultural lands,
and other environmentally sensitive
areas; historic and archeological sites;
other related Federal or State projects in
the area; plant and animal communities
which may be affected, especially those
containing threatened or endangered
species.
(2) Description of the future
environment without the project. The
relevant future environmental
conditions shall be described. The no
action alternative must be adequately
evaluated.
(3) Purpose and need. This should
include a summary discussion and
demonstration of the need for
wastewater treatment in the facilities
planning area, with particular emphasis
on existing public health or water
quality problems and their severity and
extent.
(4) Documentation. Sources of
information used to describe the existing
environment and to assess future
environmental impacts should be clearly
referenced. These sources should
include regional, State and Federal
agencies with responsibility or interest
in the types of impacts listed in
§ 6.506(a)(l) aboVe and in Subpart C.
(5) Evaluation of Alternatives. This
discussion shall include a comparative
analysis of feasible alternatives
(including the no action alternative)
throughout the study area. The
alternatives shall be screened with
respect to capital and operating costs;
significant direct and indirect
environmental effects; physical, legal or
institutional constraints; and compliance
with regulatory requirements. Special
attention should be given to long term
impacts, irreversible impacts and
induced impacts such as development.
The reasons for rejecting any
alternatives shall be presented in
addition to any significant
environmental benefits precluded by
rejection of an alternative. The analysis
should consider when relevant to the
project:
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64186 Federal Register
/ Vat. 44. No. 216 / Tuesday, November 6, 1979 / Rules and Regulations
(i) Flow and waste reduction
measures, including infiltration/inflow
reduction;
(ii) Appropriate wates conservation
measures;
(iii) Alternative locations, capacities,
and construction phasing of facilities;
(iv) Alternative waste management
techniques, including treatment and
discharge, wastewater reuse, land
application, and individual systems;
(v) Alternative mctnods for
management of sludge, other residual
materials, including utilization options
such as land application, composting,
and conversion of sliidge. for marketing
as a soil conditioner or fertilizer.
(vi) Improving effluent quality through
more efficient operation and
maintenance;
(vii) Appropriate energy reduction
measures;
fviii) Multiple use, including
recreation and education.
(6) Environmental consequences.
Relevant direct and indirect impacts of
the proposed action shall be considered,
giving special attention to unavoidable
impacts, steps to mitigate adverse
impacts, any irreversible or irretrievable
commitments of resources to the project
and the relationship between local short
term uses of the environment and the
maintenance andjenhancement of long
term productivity/. The significance of
land use impacts shall be considered,
based on the analysis required under
Appendix A to 40 CFR Part 35, Subpart
E. Any specific land use controls
(including grant conditions and
areawide waate treatment management
plan requirements) should be identified
and referenced. In addition to these
items, the responsible official may
require that other analyses and data,
which are needed to satisfy
environmental review requirements, be
included with the facilities plan. Such
requirements should be discussed during
initial conferences with potential
grantees or mid-course review meetings.
The responsible official also may
require submission of supplementary
information either before or after award
of grant assistance for a step 2 project or
before a step 3 project if needed for
compliance with environmental review
requirements. Requests, for
supplementary informs tion shall be
made in writing.
(7) Steps to minimize adverse effects.
(i) This section shall describe structural
and nonstructural measures, if any, in
the facilities plan, or additional
measures identified during She review,
to mitigate or eliminate significant
adverse effects un the human and
natural environments. Structural
provisions include changes in facility
design, size, end location; non-structural
provisions include staging facilities as
well as developing and enforcing land
use regulations and environmental
protection regulations.
(ii) The Responsible official snail not
award step 2 or step 3 grant assistance if
the grantee has no* made, or agreed to
make, pertinent changes in the project,
in accordance with determinations
made in a FNSI or EIS. He shall
condition a gran! to ensure that the
grantee will comply, or seek to obtain
compliance, with such, environmental
review determinations.
(d) Environmental review. The
environmental review shall apply the
criteria under § 6,506 above. This review
shall be conducted by the responsible
official and based on any of the
following:
(1) A complete facilities plan and the
environmental information document,
whenever review of facilities plan has
not been delegated;
(2) A complete facilities plan, the
applicant's environmental information
document and the preliminary
environmental assessment prepared by
the State, for a State which has been
delegated authority for facilities plan
review; or
(3) Other documentation, deemed
necessary by the responsible official or
submitted by a State with delegated
review authority, adequate to make an
EIS determination by EPA. Where EPA
determines that an EIS is to be prepared,
there is no need to prepare a formal
environmental assessment
If deficiencies exist in the
environmental information document,
preliminary environmental assessment,
or other supporting documentation, they
may be identified by EPA and necessary
corrections shall be made before the
facilities plan is approved.
(e) Finding of No Significant Impact,
If, after completion of the environmental
review, a determination is made that an
EIS will not be required, the responsible
official ahall prepare and distribute a
FNSI in accordance with § 6.104 and
subpart D of this Chapter. The FNSI will
be based on EPA's independent review
and environmental assessment finalized
by EPA which will either be
incorporated into or attached to the
FNSI. The FNSI shall list any mitigation
measures necessary to eliminate
significant adverse environmental
effects and make the recommended
alternative environmentally acceptable.
Once a FNSI and environmental
assessment have been prepared for the
facilities plan for a certain area, grant
awards may proceed without
preparation of additional FNSIs, unless
the responsible official has determined
that the project has changed
significantly from that described ir> the
facilities plan.
(f) Notice of intent, If, after completion
of the environmental review, or
subsequent to any of the steps described
in | 6.507 (aj, (b), or (c) above, a
determination is made that an EIS will
be required, the responsible official shall
prepare and disliibute a notice of intent
in accordance with § 6.104 and subpart
D.
lg) Scoping. As soon as possible, after
the publication of the notice of intent,
the responsible official will convene a
meeting of affected Federal, State and
local agencies, the grantee end other
interested parties' (645. Advisory Group
members under 40 CFR 25.7) to
determine the scope of the EIS. A notice
of this scoping meeting will meet the
requirements of subpart D. As part of
the scoping meeting EPA will as a
minimura;
(1) Determine the scope and the
significant issuer to be analyzed in
depth in the ETS;
(2) Identify those issues which are not
significant;
(3) Determine what information is
needed from cooperating agencies or
other parties;
(4) Discuss the method for EIS
preparation and the public participation
strategy;
(5} Identify consultation requirements
of other environmental laws, in
accordance with subpart C; and
(6) Determine the relationship
between the EIS and the completion of
the facilities plan and any necessary
coordination arrangements between the
preparers of both documents,
(h) EIS method. EPA shall prepare the
EIS by any one of the following means:
(1) Directly by its own staff;
(2) By contracting directly with a
qualified consulting firm; or
[3] By utilizing a joint EIS process,
whereby the grantee contracts directly
with a qualified consulting firm. In this
case the draft EIS serves the purpose of
and satisfies the requirement for an
environmental information document. In
this instance, the following selection
requirements shall be fulfilled:
(i] A Memorandum of Understanding
shall be developed between EPA, the
grantee, and whure possible, the State,
outlining fhp responsibilities of each
party and their relationship to the E18
consultant.
(ii) EPA shall approve evaluation
criteria to be used m the consultant
selection process.
(iiil EPA shdll review and approve the
selection process.
(ivj EPA shall approve the consultant
selected for EJS preparation.
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Federal Register / Vol. 44, No. 216 / Tuesday. November 6, 1979 / Rules and Regulations 64187
(v) The detailed Scope of Work
prepared by the EIS consultant must be
approved by EPA.
(vi) The EIS consultant shall execute a
disclosure statement prepared by EPA
indicating that the consultant has no
financial or other interest in the outcome
of the project.
§ 6.50S Limits on delegation to States,
(a) General. In cases where the
authority for facilities plan review has
been delegated to the State under
section 205(g) of the Clean Water Act,
EPA shall, as a minimum, retain the
following responsibilities:
(1) The determination of whether or
not to prepare an EIS shall be solely that
of EPA. EPA may consider a State's
recommendation, but the ultimate
decision under NEPA shall not be
delegated.
(2) Findings of no significant impact
and the environmental assessment shall
be approved, finalized and issued by
EPA.
(3) Notices of intent shall be prepared
and issued by EPA.
(b] Elimination of duplication. The
responsible official shall assure that
maximum efforts are undertaken to
minimize duplication within the limits
described under § § 6.506 and 6.507f a)
above. In carrying out requirements
under this subpart, maximum
consideration should be given to
eliminating duplication in accordance
with 40 CFR § 1506.2, where there are
State or local procedures comparable to
NEPA, and entering into Memoranda of
Understanding with a State concerning
workload distribution and
responsibilities for implementing the
facilities planning process.
§ 6.503 Identification of mitigation
measures.
(a) Record of decision. When a final
EIS has been issued, the responsible
offical shall prepare a record of decision
in accordance with 40 CFR 1505.2 prior
to the approval of the facilities plan. The
record of decision shall include
identification of mitigation measures
derived from the EIS process which are
necessary to make the recommended
alternative environmentally acceptable.
(bj Specific mitigation measures. Prior
to the award of step 2 or step 3 grant
assistance, the responsible official must
ensure that effective mitigation
measures identified in the FNSI, final
EIS, or record of decision are
implemented by the grantee. This should
be done by revising the facilities plan,
initiating other steps to mitigate adverse
effects, or agreeing to conditions in
grants requiring actions tu minimize
effects. Care should be exercised if a
condition is to be imposed in a grant
document to assure that the applicant
possesses the authority to fulfill the
conditions.
§ 6.510 Monitoring.
(a) General. The responsible official
shall ensure there is adequate
monitoring of mitigation measures and
other grant conditions which are
identified in the FNSI, final EIS, and
record of decision.
(b) Enforcement. The responsible
official may consider taking the
following actions consistent with 40 CFR
35.965 if the grantee fails to comply wi |
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64188
Federal Register / Vol. 44, No. 216 / Tuesday, November 6, 1979 / Rules and RegpiatioBs
impacts cannot be eliminated by making
changes in the proposed new source
project, a notice of intent shall be
issued, and a draft EIS prepared aod
distributed. When the environmental
review indicates no significant impacts
are anticipated or when the proposed
project is changed to elirBmate the
significant adverse impacts, a FNSI shall
be issued which lists any mitigation
measures necessary to make the
recommended alternative
environmentally acceptable.
(2) The FNSI together with the
environmental assessment that supports
the finding shall be distributed in
accordance with section 6,4OT{d) of this
regulation.
(e) tead agency, (1) If th«
environmental review reveals that the
preparation of an EIS is required, the
responsible official shall determine if
other Federal agencies are involved with
the project. The responsible official shall
contact all other involved agencies and
together the agencies shall decide the
lead agency based on the criteria set
forth in 40 CFR 1501.5.
(2) If, after the meeting of involved
agencies, EPA has been determined to
be the lead agency, the responsible
official may request that other involved
agencies be cooperating agencies.
Cooperating agencies shall be chosen
and shall be involved in the EIS
preparation process at the manner
prescribed in the 40 CFR 15C1.6(a>, if
EPA has been determined to be a
cooperating agency, the responsible
official shall be involved in assisting in
the preparation of the EIS in the manner
prescribed in 40 CFR 150l.6(b).
(f) Notice of intent (1} If EPA is the
lead agency for the preparation of an,
EIS, the responsible official shall
arrange through OER for the publicatioa
of the notice of intent in the Federal
Register, distribute the notice of intent
and arrange and conduct a scoping
meeting as outlined in 40 CFR 1501.7.
(2) If the responsible official and the
permit applicant agree to a third party
method of EIS preparation, pursuant to
§ 6.604(g)(3) below, the responsible
official shall insure that a notice of
intent is published and that a scoping
meeting is held before the third party
contractor begins work which may
influence the scope of the EIS,
(g) EIS method EPA shaU prepare
EISs by one of the tollowing means:
(I] Directly by its own staff;
(2) By contracting directly wfth a
qualified consulting firm; or
(3) By utilizing a third party method,
whereby the responsible official eaters
into a "third party agreement" for the
applicant to engage and pay for the
services of a third party contractor to
prepare the EIS, Such an agreement
shall not be initiated unless both the
applicant and the responsible official
agree to its creation. A third party
agreement will be established prior to
the applicant's environmental
information document and eliminate the
need for that document In proceeding
under the third party agreement, the
responsible official shall carry out the
following practices:
(ij In consultation with the applicant,
choose the third party contractor and
manage that contract.
(ii) Select the consultant based on his
ability end an absence of conflict of
interest. Third party contractors will be
required to execute a disclosure
statement prepared by the responsible
official signifying they have no financial
or other conflicting interest in the
outcome of the prefect.
(iii) Specify the information to be
developed and supervise the gathering,.
analysis and presentation of the
information. The responsible official
shall have sole authority for approval
and modification of the statements,
analyses, and conclusions included in
the third party EIS.
(h) Documents for the administrative
record. Pursuant to 40 CFR
§§ 124J5(aM7l «nd 124.122 any
environmental assessment, FNSI, EIS, or
supplement to an EIS shall be made a
part of the administrative record related
to permit issuance.
§6.605 Criteria for preparing EJS«.
(a) General guidelines. {1} When
determining the significance oi a
proposed new source's impact, the
responsible official shall consider both
its short term and Song term effects at
well as its direct and indirect effects and
beneficial and adverse environmental
impacts as defined in 40 CFR 1508.8.
(2) H EPA is proposing to- issue a
number of new source NPDES permits
during a limited time span and in the
same general geographic area, the
responsible official shall examine the
possibility of tiering EISs. If the permits
are minor and environmentally
insignificant when considered
separately, the responsible official may
determine that the cumulative impact of
the issuance of all these permits may
have a significant environmental effect
and require an EIS for the area. Each
separate decision to issue an NPDES
permit shall then be based on the
information in this areawide EIS. Site
specific EISs may be required in certain
circumstances in addition to the
areawide EIS.
(b) Specific criteria. An EIS will be
prepared when:
(1) The new sc-jjce will induce or
accelerate significant changes in
industrial, commercial, agricultural, or
residential land use concentrations or
distributions which have the potential
for significant environmental effects.
Factors that should be considered in
determining if these changes are
environmentally significant include but
are not limited to: the nature and extent
of the vacant land subject to increased
development pressure as a result of the
new source; the increases in population
or population density which may be
induced and the ramifiea lions of such
changes; the nature of lend use
regulations in the affected area and their
potential effects on development and the
environment; and the changjea in the
availability or demand far energy and
the resulting environmental
consequences.
[2} The new source wiE <&BC% or
through induced devdnfjeaejii; have
significant adverse effect upon local
ambient air quality, local ambient oofss
levels, floodplains, surface or
grouncHvatCT quality or quantify, fish,
wildlife, and their nafnral habitats.
(3) Any major part of the new source
will have significant adVerse effect on
the habitat of threatened or endangered
species on the Department of the
Interior's or a State's liats of threatened
and endangered species.
(4) The environmental impact of the
issuance of a new source NPDES permit
will have significant direct and adverse
effect on a property listed in or eligible
for listing in the National Register of
Historic Places.
(5) Any major part of the source will
have significant adverse effects on
parklands, wetlands, wild and scenic
rivers, reservoirs or other important
bodre* of water, navigation projects, or
agricultural lands.
§6.ea« HKerdofdecfefen.
(a) General. At the time of permit
award, the responsible official shall
prepare a record of decision in those
cases where a final EIS was issued in
accordance with 40 CFR 1505.2 and
pursuant to the provisions of the permit
regulations under 40 CFR 124.61 and
124,122. The record of decision shaU list
any mitigation measures necessary to
make the recommended alternative
environmentally acceptable.
(b) Mitigation mea&ures. The
mitigation measures, derived from, the
EIS procesa shall be incorporated aa
conditions of the permit; ancillary
agreements shall not be used to require
mitigation.
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Federal Register / Vol. 44, No. 216 / Tuesday. November 6. 1979 / Rules and Regulations 64189
§6.307 Monitoring,
In accordance with 40 CFR 1505.3 and
pursuant to 40 CFR 122.47(c) and 122.17,
the responsible official shall ensure that
there is adequate monitoring of
compliance with all NEPA related
requirements contained in the permit.
Subpart a—Environmental Review
Procedures for Research and
Development Programs
§ 6.700 Purpose.
This subpart amplifies the
requirements described in subparts A
through D by providing mere specific
environmental review procedures on
research and development programs
undertaken by the Office of Research
and Development (ORD),
§6.701 Definition.
The term "appropriate program
official" means the official at each
decision level within ORD to whom the
Assistant Administrator has delegated
responsibility for carrying out the
environmental review process.
§6.702 Applicability.
The requirements of this subpart
apply to administrative actions
undertaken to approve intramural and
extramural programs under the purview
of ORD..
§ 6.703 Criteria for preparing EISs.
(a) The responsible official shall
assure that an EIS will be prepared
when it is determined that any of the
conditions under | 6.506{a) (1) through
(6) and (8) exist and when:
(1J The project consists of field tests
involving the introduction of significant
quantities of toxic or polluting
agricultural chemicals, animal wastes,
pesticides, radioactive materials or
other hazardous substances into the
environment by ORD, its grantees or its
contractors;
(2) The action may involve the
introduction of species or subspecies not
indigenous to an area;
(3) There is a high probability of an
action ultimately being implemented on
a large scale, and this implementation
may result in significant environmental
impacts; or
(4) The project involves commitment
to a new technology which is significant
and may restrict future viable
alternatives;
{b) An EIS will not usually be needed
when:
(!) The project is conducted
completely within any laboratory or
other facility, and external
environmental effects have been
eliminated by methods for disposal of
laboratory wastes and safeguards to
prevent hazardous materials entering
the environment accidentally; or
(2) The project is a relatively small
experiment or investigation that is part
of a non-Federally funded activity of the
private sector, and it makes no
significant new or additional
contribution to existing pollution.
§ 6.704 Environmental review process.
Environmental review activities will
be integrated into the decision levels of
ORD's research planning system to
assure managerial control,
(a) Environmental information. (I)
Environmental information documents
shall be submitted with all grant
applications and all unsolicited contract
proposals. The documents shall contain
the same information required for EISs
under Subpart B. Guidance on
environmental information documents
shall be included in all grant application
kits and attached to instructions for the
submission of unsolicited proposals.
(2) In the case of competitive
contracts, environmental information
documents need not be submitted by
potential contractors since the
environmental review procedures must
be completed before a request for
proposal (RFP) is issued. If there is a
question concerning the need for an
environmental information document,
the potential contractor should contact
the official responsible for the contract.
, (b) Environmental-review. (1) At the
start of the planning*year, an
environmental review will be performed
for each program plan with its
supporting substructures (work plans
and projects) before incorporating them
into the ORD program planning system,
unless they are excluded from review by
exibting legislation. This review is an
evaluation of the potentially adverse
environmental effects of the efforts
required by the program plan. The
criteria in § 6.703 above shall be used in
conducting this review. Each program
plan with its supporting substructures
which does not have significant adverse
impacts may be dismissed from further
current year environmental
considerations with a single FNSI Any
supporting substructures of a program
plan which cannot be dismissed with
the parent plan shall be reviewed at the
appropriate subordinate levels of the
planning system,
(i) All continuing program plans and
supporting substructures, including
those previously dismissed from
consideration, will be reevaluated
annuajly. An environmental review wil!
coincide with the annual planning cycle
and whenever a major redirection of a
parent plan is undertaken. Al!
environmental documents wil! be
updated as appropriate.
(ii) Later plans and/or projects, added
to fulfill the mission objectives but not
identified at the time program plans
were approved, will be subjected to the
same environmental review.
(2) The responsible official shall
assure completion of the EPA Form
530O-23 for each extramural project
subject to an environmental review. If
the project consists of literature studies,
computer studies, or studies in which
essentially all work is performed within
the confines of the laboratory, the Form
5300-23 may be issued as a finding of no
significant impact. "
(c) Notice of intent and EIS. [1] If the
reviews conducted according to
§ 6.704{b) above reveal a potential
significant adverse effect on the
environment snd the adverse impact
cannot be eliminated by replarming, the
appropriate program official shall issue
a notice of intent and through proper
organizational channels shall request
the Regional Administrator to assist him
hi the preparation and distribution of
the EIS.
(2) As soon as possible after release
of the notice of intent, the appropriate
program official shall prepare a draft
EIS in accordance with subpart B and
distribute the draft EIS in accordance
with subpart D.
(3) All draft and final EISs shall be
sent through the proper organizational
channels to the Assistant Administrator
for ORD for approval.
(dj Finding of no significant impact. If
an environmental review conducted
according to § 6.704{b) above reveals
that proposed actions will not have
significant adverse environmental
impacts, the appropriate program
official shall prepare a FNSI which lists
any mitigation measures necessary to
make the recommended alternative
environmentally acceptable.
(e) Timing of action. iPursuant to
§ 6,4()l(b), in no case shall a contract or
gran! be awarded or iniramural activity
undertaken until the prescribed 30-day
review period for a final EIS has
elapsed. Similarly, no action shall be
taken until the 30-day comment period
for a FNSI is completed.
§ 6.705 Record of decision.
The responsible official shall prepare
a record of decision in any case where
finai EIS has been issued in accordance
with 40 CFR 1505.2. It shall be prepared
at the time of contract or grant award 01
before the undertaking of the intramural
activity. The record of decision shall list
any mitigation measures necessary to
make; the recommended alternative
envii onmentally acceptable.
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64190 Federal Register / VoL 44* No. 216 / Tuesday, November 6, 1979 / Rules and Regulations
Subpart H—Envlronmental R«vl*w
Procedures for Solid Wacto
DonoMlratton Projects
§ 8.600 Purp0«*.
This subpart amplifies the procedures
described in subparti A through D by
providing more specific environmental
review procedurea for demonstration,
projects undertaken by the Office of
Solid Waste fOSW).
§C.8»1 AppHoibffity.
The requirements of this subpart
apply to solid waste demonstration
projects for resource recovery systems
and improved solid waste disposal
facilities undertaken pursuant to $ 8006
of the Resource Conservation, and
Recovery Act of 1978.
§6.602 CrftertoferpraperftitElS*.
lite responsible official shaft assure
that an EIS will be prepared when it is
determined that any of die conditions hi
I 6.506fa) £1) through CO) and (8) exist
$«J03 EnvtroniMBbrtravtewpracww.
(a) Environmental information, fl}
Environmental information documents
shall be submitted to EPA by grant
applicants or contractors. If there is a
question concerning the need for a
document, the potential contractor or
grantee should consult with the
appropriate project officer for the grant
or contract.
(2) The environmental information
document shall contain the same
sections specified for EK?i in Subpart B.
Guidance alerting potential grantees and
contractors of the environmental
information documents shaH be included
in all grant application kits, attached to
letters concerning the submission of
unsolicited proposals, and included with
all requests for proposal.
(b) Environmental review. An
environmental review will be conducted
before a grant or contract award is
made. This review will include the
preparation of an environmental
assessment by the responsible official;
the appropriate Regional
Administrator's input will include his
recommendations on the need for an
EIS.
(cj Notice of intent and EIS. Based on
the environmental review if the criteria
in § 6.802 above apply, the responsible
official will assure that a notice of intent
and a draft EIS are prepared. The
responsible official may request the
appropriate Regional Administrator to
assist him in the preparation and
distribution of the environmental
documents.
(d) fJnding of no significant impact. If
the environmental review indicated no
significant environmental impacts, the
responsible official will assure that a
FNSl is prepared which lists any
mitigation measures necessary to make
the recommended alternative
environmentally acceptable.
(e) Timing of action. Pursuant to
§ 6.401(b), in no case shall a contract or
grant be awarded until the prescribed
30-day review period for « final EIS baa
elapsed. Similarly, no action shall be
taken until the 3<>-day comment period
for a FNSl is completed
§6.804 Record efcfecteto*
The responsible official shall prepare
a record of decision in any case where
final EIS has been issiaed in accordance
with 40 CFR 1505,2. It shall be prepared
at the time of contract or grant award
The record of decision shall Us* any
mitigation measures necessary to make
the recommended alternative
environmentally acceptable.
Review
Procedures for EPA Facility Support
ActivHtaa
§ 6.900 Purpose.
This subpart amplifies the general
requirements described in subparts A
through D by providing environmental
procedures, for lha preparation of EISs
on construction and renovation of
special purpose facilities.
§6401 IfefinJtion*.
(a) The term "special purpose facility"
means a building or space, including
land incidental to its use, which is
wholly or predominantly utilized for She
special purpose of an agency and not
generally suitable for other uses, as
determined by the General Services
Administration.
(b) The term "program of
requirements" means1 a comprehensive
document (booklet) describing program
activities to be accomplished in the new
special purpose facility or improvement.
It includes architectural, mechanical,
structural, and space requirements.
(c) The term "scope of work" means a
document similar in content to the
program of requirements but
substantially abbreviated. It is usually
prepared for small-scale projects.
§6.902 Applicability.
(a) Actions covered. These procedures
apply to ail new special purpose facility
construction, activities related to this
construction (e.g., site acquisition and
clearing), and any improvements or
modifications to facilities having
potential environmental effects external
to the facility, including new
construction and improvements
undertaken and funded by the Facilities
Management Branch, Facilities and
Support Service* Division Office of
Management and Agency Services; by A
regional office; or by a National
Environmental ReseaichCeater.
(b) Actions axcfaded. TM» subpart
does not appky to those activities of the
Facilities Management Branch, Fauiiries
and Support Services Division, for
which the branch does not have hoi
fiscal responsibility fat- Site entire
project. This includes pilot piant
construction, land acquisition, site
clearing and access road construction
where the Fa'ciMf.-s Management
Branch's activity iu only supporting «
project financed by a program office.
Responsibility for considering the
environmental impacts of such projects
rests with the office managing ana
funding the entire project Qthes?
Biibparts of this regulation, apply
depending on the nature of lha project
§ 6.903 Criteria fof prsparfajy E1S».
fa) Pre/imiaaiy in'urms l-^en
completed for the construction,
improvements, or modification of
special purpose facilities. For special
purpose facility construction, i'he Chief,
Facilities Management Branch, sbaU
request the assistance of the appropriate
program office anJ Regional
Administrator in the review. Fur
modifications and improvement, the
appropriate re'*ponsil'.'.e officiai shall
request assistance in making the review
from other cognizant EPA offices.
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Federal Register / Vol. 44. No. 216 / Tuesday, November 6,1979 / Rules and Regulations 64191
(2) Any environmental information
documents requested shall contain the
same sections listed for EISs in sub-part
B, Contractors and consultants shall be
notified in contractual documents when
an environmental information document
must be prepared.
(b) Notice of intent, EIS, andFNSI.
The responsible official shall decide at
the completion of the Environmental
review whether there may be any
significant environmental impacts. If
there could be significant environmental
impacts, a notice of intent and an EIS
shall be prepared according to the
procedures under subparts A, B, C and
D. If there are not any significant
environmental impacts, a FNSI shall be
prepared according to the procedures in
subparts A and D. The FNSI shall list
any mitigation measures necessary to
make the recommended alternative
environmentally acceptable.
(c) Timing of nation. Pursuant to
I 0.401(b), in no case shall a contract be
awarded or construction activities
begun until the prescribed 30-day wait
period for a final EIS has elapsed.
Similarly, under | 6.400(d), no action
shall be taken until the 30-day comment
period for FNSIs is completed.
16.905 Record of decision.
At the time of contract award, the
responsible official shall prepare a
record of decision in those cases where
a final EIS has been issued in
accordance with 40 CFR 1505.2. The
record of decision shall list any
mitigation measures necessary to make
the recommended alternative
environmentally acceptable.
Appendix A—Statement of Procedures on
Floodplain Management and Wetlands
Protection
Contents:
Section 1
Section 2
Section 3
Section 4
Section 5
Section 8
Section 7
Genera!.
Purpose.
Policy.
Definitions.
Applicability.
Requirements.
Implementation.
Section 1 General
a. Executive Order 11988 entitled
"Floodplain Management" dated May 24,
1977. requires Federal agencies to evaluate
the potential effects of actions it may take in
a floodplain to avoid adversely impacting
fioodplains wherever possible, to ensure that
its planning programs and budget requests
reflect consideration of flood hazards and
floodplain management, including the
restoration and preservation of such land
areas an nature! undeveloped fioodplains,
and to prescribe procedures to implement the
policies and procedures of this Executive
Order, Guidance for implementation of the
Executive Order has been provided by the
U.S. Water Resources Council in its
Floodplain Management Guidelines dated
February 10,1978 (see 40 FR 6030).
b. Executive Order 11990 entitled
"Protection of Wetlands", dated May 24,
1977, requires Federal agencies to take action
to avoid adversely impacting wetlands
wherever possible, to minimize wetlands
destruction and to preserve the values of
wetlands, and to prescribe procedures to
implement the policies and procedures of this
Executive Order.
c. It is thq intent of these Executive Orders
that, wherever possible, Federal agencies
implement the floodplains/wetlands
requirements through existing procedures,
such as those internal procedures established
to implement the National Environmental
Policy Act (NEPA) and OMB A-95 review
procedures. In those instances where the
environmental impacts of a proposed action
are not significant enough to require an
environmental impact statement (EIS)
pursuant to section 102(2) (C) of NEPA, or
where programs are not subject to the
requirements of NEPA, alternative but
equivalent floodplain/wetlands evaluation
and notice procedures must be established.
Section 2 Purpose
a. The purpose of this Statement of
Procedures is to set forth Agency policy and
guidance for carrying out the provisions of
Executive Orders 11988 and 11990.
b. EPA program offices shall amend
existing regulations and procedures to
incorporate the policies and procedures set
forth in this Statement of Procedures.
c. To the extent possible, EPA shall
accommodate the requirements of Executive
Orders 11988 and 11990 through the Agency
NEPA procedures contained in 40 CFR Part 6.
Section 3 Policy
a. The Agency shall avoid wherever
possible the long and short term impacts
associated with the destruction of wetlands
and the occupancy and modification of
fioodplains and wetlands, and avoid direct
and indirect support of floodplain and
wetlands development wherever there is a
practicable alternative.
b. The Agency shall incorporate floodplain
management goals and wetlands protection
considerations into its planning, regulatory,
and decisionmaking processes. It shall also
promote the preservation and restoration of
fioodplains so that their natural and
beneficial values can be realized. To the
extent possible EPA shall:
(1) Reduce the hazard and risk of flood loss
and wherever it is possible to avoid direct or
indirect adverse impact on fioodplains;
(2) Where there is no practical alternative
to locating in a floodplain, minimize the
impact of floods on human safety, health, and
welfare, as well as the natural environment;
(3) Restore and preserve natural and
beneficial values served by floodplains;
(4) Require the construction of EPA
structures and facilities to be in accordance
with the standards and criteria, of the
regulations promulgated pursuant to the
National Flood Insurance Program;
(5) Identify floodplains which require
restoration and preservation and recommend
management programs necessary to protect
these floodplains arid to include such
considerations as part of on-going planning
programs; and
(6) Provide the public with early and
continuing information concerning floodplain
management and with opportunities for
participating in decision making including the
(evaluation of) tradeoffs among competing
alternatives.
c. The Agency shall incorporate wetlands
protection considerations into its planning,
regulatory, and decisionmaking processes. It
shell minimize the destruction, loss, or
degradation of wetlands and preserve and
enhance the natural and beneficial values of
wetlands. Agency activities shall continue to
be carried out consistent with the
Administrator's Decision Statement No. 4
dated February 21,1973 entitled "EPA Policy
to Prctecl the Nation's Wetlands."
Section 4 Definitions
a. "Base Flood" means t'iiat flood which
has a one percent chance of occurrence in
any g;ven year (also known as a 100-year
flood). This term is used in the National
Flood Insurance Program (NFIP) to indicate
the minimum level of flooding to be used by a
community in its floodplain management
regulations.
b. "Base Floodplain" means the 100-year
floodplain (one percent chance floodplain).
Also s,ee definition of floodplain.
c. "Flood or Flooding" means a general and
temporary condition of partial or complete
inundation of normally dry land areas from
the overflow of inland and/or tidal waters,
and/or the unusual and rapid accumulation
or runoff of surface waters from any source,
or flooding from any other source.
d. "Floodplain" means the lowland and
relatively flat areas adjoining inland and
coastal waters and other floodprone areas
such as offshore islands, including at a
minimum, that area subject to a one percent
or greater chance of flooding in any given
year. The base floodplain shall be used to
designate the 100-year floodplain (one
percent chance floodplain). The critical
action floodplain is defined as the 500-year
flcodpiain (0.2 percent chance floodplain).
e. "I'loodproofing" means) modification of
individual structures and facilities, their sites,
and their contents to protect against
Structural failure, to keep water out or to
reduce effects of water entry.
f. "Minimize" means to reduce to the
smallest possible amount or degree.
g. "Practicable" means capable of being
done within existing constraints. The test of
what is practicable depends upon the
situation and includes consideration of the
pertinent factors such as environment,
community welfare, cost, or technology.
h. "Preserve" means to prevent
modification to the natural floodplain
environment or to maintain it as closely as
possible to its natural state,
i. "Restore" means to re-establish a setting
or environment in which the natural functions
of the floodplain can again operate.
j. "Wetlands." means those areas that are
inundated by surface or ground water with a
frequency sufficient to.support and under
normal circumstances does or would support
a prevalence of vegetative or aquatic life that
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64192 Federal Register / Vol. 44, No. 216 / Tuesday, November 6. 1979 / Rules and Regulations
requires saturated or seasonally saturated
soil conditions for growth and reproduction.
Wetlands generally include swamps,
marshes, bogs, and similar areas such as
sloughs, potholes, wet meadows, river
overflows, mud flats, and natural ponds.
Section 5 Applicability
a, The Executive Orders apply to activities
of Federal agencies pertaining to (1)
acquiring, managing, and disposing of Federal
lands and facilities, (2) providing Federally
undertaken, financed, or assisted f
construction and improvements, and (3)
conducting Federal activities and programs
affecting land use, including but not limited
to water and related land resources planning,
regulating, and licensing activities.
b. These procedures shall apply to EPA's
programs as follows: (1) All Agency actions
involving construction of facilities or
management of lands or property. This will
require amendment of the EPA Facilities
Management Manual [October 1973 and
revisions thereafter).
(2) All Agency actions where the NEPA
process applies. This would include the
programs under section 306/402 of the Clean
Water Act pertaining to new source
permitting and section 201 of the Clean Water
Act pertaining to wastewater treatment
construction grants.
(3] All agency actions where there is
sufficient independent statutory authority to
carry out the floodplain/wetlands
procedures.
(4) In program areas where there is no EIS
requirement nor clear statutory authority fo'
EPA to require procedural implementation,
EPA shall continue to provide leadership and
offer guidance so that the value of floodplain
management and wetlands protection can be
understood and carried out to the maximum
extent practicable in these programs.
c. These procedures shall not apply to any
permitting or source review programs of EPA
once such authority has been transferred or
delegated to a State. However, EPA shall, to
the extent possible, require States to provide
equivalent effort to assure support for the
objectives of these procedures as part of the
state assumption process.
Section 6 Requirements
a. Floodplain/Wetlands review of
proposed Agency actions.
(1) Floodplain/Wetlands Determination—
Before undertaking an Agency action, each
program office must determine whether or
not the action will be located in or affect a
floodplain or wetlands. The Agency shall
utilize maps prepared by the Federal
Insurance Administration (Flood insurance
Rate Maps or Flood Hazard Boundary Maps),
Fish and Wildlife Service (National Wetlands
Inventory Maps), and other appropriate
agencies to determine whether a proposed
action is located in or will likely affect a
floodplain or wetlands. If there is no adverse
floodplain/wetlands impact identified, the
action may proceed without further
consideration of the remaining procedures set
forth below.
(2) Early Public Notice—When it is
apparent that a proposed or potential agency
action is likely to impact a floodplain or
wetlands, the public should be informed
through appropriate public notice procedures.
(3) Floodplain/Wetlands Assessment—If
the Agency determines a proposed action is
located in or affects a floodplain or wetlands,
a floodplain/wetlands assessment shall be
undertaken. For those actions where an
environmental assessment (EA) or
environmental impact statement (EIS) is
prepared pursuant to 40 CFR Part 6, the
floodplain/wetlands assessment shall be
prepared concurrently with these analyses
and shall be included in the EA or EIS. In all
other cases, a "floodplain/wetlands
assessment" shall be prepared. Assessments
shall consist of a description of the proposed
action, a discussion of its effect on the
floodplain/wetlands, and shall also describe
the alternatives considered.
(4) Public Review of Assessments—For
proposed actions impacting floodplain/
wetlands where an EA or EIS is prepared, the
opportunity for public review will be
provided through the EIS provisions
contained in 40 CFR Parts 6, 25, or 35, where
appropriate. In other cases, an equivalent
public notice of the floodplain/wetlands
assessment shall be made consistent with the
public involvement requirements of the
applicable program.
(5) Minimize, Restore or Preserve—If there
is no practicable alternative to locating in or
affecting the floodplain or wetlands, the
Agency shall act to minimize potential harm
to the floodplain or wetlands. The Agency
shall also act to restore and preserve the
natural and beneficial values of floodplains
and wetlands as part of the analysis of all
alternatives under consideration.
(6) Agency Decision—After consideration
of alternative actions, as they have been
modified in the preceding analysis, the
Agency shall select the desired alternative.
For all Agency actions proposed to be in or
affecting a floodplain/wetlands, the Agency
shall provide further public notice
announcing this decision. This decision shall
be accompanied by a Statement of Findings,
not to exceed three pages. This Statement
shall include: (i) The reasons why the
proposed action must be located in or affect
the floodplain or wetlands; (ii) a description
of significant facts considered in making the
decision to locate in or affect the floodplain
or wetlands including alternative sites and
actions; (iii) a statement indicating whether
the proposed action conforms to applicable
State or local floodplain protection
standards; (iv) a description of the steps
taken to design or modify the proposed action
to minimize potential harm to or within the
floodplain or wetlands; and (v) a statement
indicating how the proposed action affects
the natural or beneficial values of the
floodplain or wetlands. If the provisions of 40
CFR Part 8 apply, the Statement of Findings
may be incorporated in the final EIS or in the
environmental assessment In other cases,
notice should be placed in the Federal
Register or other local medium and copies
sent to Federal, State, and local agencies and
other entities which submitted comments or
are otherwise concerned with the floodplain/
wetlands assessment. For floodplain actions
subject to Office of Management and Budget
(OMB) Circular A-95, the Agency shall send
the Statement of Findings to State and
areawide A-95 clearinghouse in the
geographic area affected. At least 15 working
days shall be allowed for public and
interagency review of the Statement of
Findings.
(7) Authorizations/Appropriations—Any
requests for new authorizations or
appropriations transmitted to OMB shall
include, a floodplain/wetlands assessment
and, for floodplain impacting actions, a
Statement of Findings, if a proposed action
will be located in a floodplain or wetlands.
b. Lead agency concept. To the maximum
extent possible, the Agency shall relay on the
lead agency concept to carry out the
provisions set forth in section 6.a. above.
Therefore, when EPA and another Federal
agency have related actions, EPA shall work
with the other agency to identify which
agency shall take the lead in satisfying these
procedural requirements and thereby avoid
duplication of efforts.
c. Additional floodplain management
provisions relating to Federal property and
facilities.
(U Construction Activities—EPA
controlled structures and facilities must be
constructed in accordance with existing
criteria and standards set forth under the
NFIP and must include mitigation of adverse
impacts wherever feasible. Deviation from
these-requirements may occur only to the
extent NFIP standards are demonstrated as
inappropriate for a given structure or facility.
(2) Flood Protection Measures—If newly
constructed structures or facilities are to be
located in a floodplain, accepted
floodproofing and other flood protection
measures shall be undertaken. To achieve
flood protection, EPA shall, wherever
practicable, elevate structures above the base
flood level rather than filling land.
(3) Restoration and Preservation—As part
of any EPA plan or action, the potential for
restoring and preserving floodplains and
wetlands so that their natural and beneficial
values can be realized must be considered
and incorporated into the plan or action
wherever feasible.
(4) Property Used by Public—If property
used by the public has suffered damage or is
located in an identified flood hazard area,
EPA shall provide on structures, and other
places where appropriate, conspicuous
indicators of past and probable flood height
to enhance public knowledge of flood
hazards.
(5) Transfer of EPA Property—When
property in flood plains is proposed for lease,
easement, right-of-way, or disposal to non-
Federal public or private parties, EPA shall
reference in the conveyance those uses that
are restricted under Federal, State and local
floodplain regulations and attach other
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federal Register / Vol. 44. No. 216 / Tuesday. November 6,1979 / Rules and Regulations 64193
restrictions to uses of the property as may be
deemed appropriate. Notwithstanding, EPA
shall consider withholding such properties
from conveyance.
Section 7 Implementation.
a. Pursuant to section 2, the EPA program
offices shall amend existing regulations,
procedures, and guidance, as appropriate, to
incorporate the policies and procedures set
forth in thisx Statement of Procedures. Such
amendments shall be made within six months
of the date of these Procedures.
b. The Office of Federal Activities (OFA) is
responsible for the oversight of the
implementation of this Statement of
Procedures and shall be given advanced
opportunity to review amendments to
regulations, procedures, and guidance. OFA
shall coordinate efforts with the program
offices to develop necessary manuals and
more specialized supplementary guidance to
carry out this Statement of Procedures.
PK Doc. 79-34157 Filed 11^5-79; 8:45 am]
BRUNO CODE 65W-01-M
«• U.S. GOVERNMENT PRINTING OFFICE: 1979 -311-132/167
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