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NEPA Public Review and EPA’s Mandate from Section 309 CAA

NEPA Public Review and EPA’s Mandate from Section 309 CAA. Chapter 2 Module 4 HO # 4 & 5. Module Objective. LEARNING OBJECTIVE: The student will acquire a basic understanding of the NEPA reviews and how they fit within the ongoing civil works review processes. Scientific Integrity.

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NEPA Public Review and EPA’s Mandate from Section 309 CAA

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  1. NEPA Public Review and EPA’s Mandate from Section 309 CAA Chapter 2 Module 4 HO # 4 & 5

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

  3. Scientific Integrity • Reviews target many things: Technical Adequacy should not be one of them. To avoid such occurrence you should: • Ensure Professional Integrity of Analysis • Identify & Certify Methodologies used and include descriptions in document appendices • Reference Scientific Sources • Use Best Science • Promote Cooperating Agencies (40 CFR § 1502.24)

  4. Circulation & Public Review • Regulatory Basis • 40 CFR 1503.1 ”obtain comments of agencies having jurisdiction by law.” • Environmental Quality Procedures FR vol. 53, Feb 3, 1988. • Appendix III; Federal & State Agency Offices for Receiving and Commenting on Other Agencies Environmental Documents. • 40 CFR 1503.2 “duty to comment.”

  5. Circulation & Public Review Requirements • An EIS must be filed with the Environmental Protection Agency in Washington, DC. • EPA then places a Notice of Availability (NOA) in the Federal Register. • An EA can also be circulated. However, a NOA for an EAs is not published in the Federal Register ! • Any person, organization or agency requesting a copy can review the document.

  6. Public Review Time Frames • Publication of NOA starts review times • 45 days for the DEIS. • 30 days for the FEIS. • Minimum of 90 days from DEIS NOA to signing a ROD. • EAs typically have a 30 day public review period until FONSI is signed (see Notice of Availability ER 200-2-2) • 30 Day State & Agency Review • This is an Agency imposed review not NEPA

  7. NEPA Process Flow Chart Federal Action Issue NOI & Conduct Scoping Issue DEIS Issue FEIS 45 days 30 days yes Sign. Env Effects? yes Sign. Env Effects? no Issue ROD yes Need Env Review? unknown Issue FONSI Prepare EA 30 days no CATEX Implement Action

  8. The EPA Review Process • Section 309 of the Clean Air Act, “the Administrator of EPA shall review and comment in writing” on the draft EIS document. • Does not apply to EAs! • EPA provides a rating of the project’s impacts and an evaluation of the adequacy of the EIS’s analysis. 1970-2007 EPA reviewed 33,600 EISs

  9. History of Section 309 CAA 1970 • Publication of EPA’s review of the NEPA document for the proposed Supersonic Transport Aircraft (SST) was being held by DOT. • DOT believed NEPA had no explicit public disclosure requirements. • Senator Edmund Muskie sponsored Section 309 requiring public release of NEPA comments.

  10. Rating System LO EC EO EU 1 2 3 Lack of objections Environmental concerns Environmental objections Environmentally unsatisfactory Adequate Insufficient information Inadequate *Ratings are combined, for example: EC-2.

  11. EPA Rating of Insufficient Information or Inadequate Document • 2 Insufficient Information--More information is needed for review, or other alternatives should be evaluated. The additional information or analysis should be included in the FEIS. • 3 Inadequate--Seriously lacking in information or analysis to address potentially significant environmental impacts. The draft EIS does not meet NEPA and/or Section 309 requirements. • Potential Referral if not corrected and reissued as a DEIS.

  12. Incomplete or Unavailable Information • Relevant to Study • Reasonable Foreseeable Significant Adverse Impacts • Essential to a Reasoned Choice Among Alternatives (40 CFR § 1502.22)

  13. Incomplete or Unavailable Information IF: • Cost IS exorbitant • Means are not known THEN: • Follow 4 step process: • State information is not available • State why it is relevant • Summarize existing credible information • Make your best estimate of impacts (40 CFR § 1502.22)

  14. Consultation follow-up of DEIS Ratings

  15. Referral of an EIS • Occurs when interagency disagreements over issues of unsatisfactory environmental effects or analysis. • Issues are not resolved with the lead agency. • The disagreement is referred to CEQ. • Total 27 referrals, 9 of which were COE 1974-2001

  16. Then What!

  17. CEQ Response • Determines if submitted information supports a request for referral. • Publishes its findings, including a finding that the referral is not supported by submitted information. • Submits its recommendation to the Agency or the President for action.

  18. How to Avoid Referral • Good Scoping effort to identify issues. • Take advantage of cooperating agency’s expertise. • Use sound scientific analyses. • Maintain good coordination with other interested Federal agencies • Avoid taking positions not supportable by sound science.

  19. Why Avoid Referral • Saves time & money! • Saves time & money! • Affects agency credibility! • Affects agency credibility!

  20. Other Concurrent Civil Works Review Requirements • District Quality Control (DQC) Home district focus on meeting objectives of the PMP • Agency Technical Review (ATR) Outside Home District focus on Planning criteria, principles, laws etc • DQC and ATR results are included in the Draft EIS and are subject to Public/Agency Reviews • Promote Quality Decision Documents • Support Chief of Engineer Decision Process. • Policy and Legal Compliance Reviews • CAA, CWA, ESA, EFH, FLP, FWCA etc

  21. Other Concurrent Civil Works Review Requirements • Independent External Peer Review (IEPR) • Required by Section 2034 WRDA 2007 • Implemented by EC 1165-2-209/EC1105-2-410 • Managed by Outside Eligible Agency (OEO) • Applies to Feasibility Reports or others requiring Congressional Authorization • Does not apply to CAP • Focus on Scientific Information/technical issues • No Policy or exercise of agency authority review • IETR results are posted on district website for public review following HQUSACE Review

  22. CWRB • Chair Deputy Commanding General for Civil Works • Director of Civil Works • Planning CoP Leader • One RIT leader not from the presenting MSC • One COP leader from Engineering, Operations, Real Estate or other appropriate COP • Representative from IEPR Team/RMO (PCX) • Function • Resolve any outstanding Policy Issues • Determines if Chief’s report is ready for State & Agency Review • Replaces old Board of River and Harbors

  23. Other Concurrent Civil Works Review Requirements • EC 1105-2-406 Civil Works Review Board March 2005 • Replaces old Board of River & Harbors • Establishes the readiness of Chief’s Report for State and Agency Review • Supported by IEPR, DQC & ATR • Chair Deputy Commanding General for Civil Works: 1. Director Civil Works 2. Civil Works CoP 3. One RIT (not from MSC) 4. Other CoPs 5. IEPR Representative 6. PCX Representative

  24. F Rpt CWRB S&A Review Chief’s Rpt 905(b)) PMP RP FSCA FSM AFB DFRpt ASA OMB NEPA and the US COE Review Process Civil Works Process Steps 4-12 NOA 45 D NOA 30 D NEPA* NOI Scoping DQC ATR IEPR Web Page LCR HQ PCR Stars mark the Location of review action or product milestone

  25. Take Away Points • Public Review is a required part of the process. • EPA’s review authority derives from the CAA. • Not based on the NEPA • Not part of CAA regulatory role • Good Science forms the basis for an LO rating! • Scoping helps identify relevant issues! • CEQ is the ultimate arbitrator • Agency review processes augment NEPA

  26. Practitioners Guide to NEPA • “The NEPA Book: A Step-By-Step Guide on How to Comply with the National Environmental Policy Act" • Ronald E. Bass, Albert I. Herson, Kenneth M. Bogan • 2001 (Second Edition) • Solano Press, 475 pages • $65.00

  27. NEPA Certification Program • Duke Environmental Leadership Program • NEPA Certificate (Signed by Chair, CEQ) • Representative Courses • Implementation of the NEPA • Preparing & Documenting Environmental Impact Analysis • Accounting for Cumulative Effects in the NEPA Process • Scoping, Public Involvement and Environmental Justice • Socioeconomic Impact Analysis Under NEPA • The Law & NEPA

  28. NEPA Certification Program • Utah State University National Environmental Policy Act Graduate Certificate Program • Representative Courses (12 hrs. Required) • How to Manage the NEPA Process and Write Effective NEPA Documents (2 hrs) • Clear Writing for NEPA Specialists (2 hrs) • Reviewing NEPA Documents (2 hrs) • NEPA Cumulative Impacts (1 hr) • Socioeconomic Impact Analysis (1hr) • NEPA & Climate Change (1hr)

  29. Duke Environmental Leadership Program NEPA Certificate www.env.duke.edu/del/continuinged/certificates.html Utah State University National Environmental Policy Act Graduate Certificate Program www.cnr.usu.edu/htm/students/graduate_programs /nepa/ The Shipley Group www.shipleygroup.com NEPA Certification Program

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