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

Learn about NEPA reviews and their role in civil works review processes, ensuring professional integrity of analysis, important EPA review concerns, circulation and public review requirements, and the EPA review process.

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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 #s 5 & 9

  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. Important EPA Review Concerns • Water Quality • Air Quality • Ground Water/sole source aquifers • Wetlands • Hazardous waste issues • Environmental Justice • Cumulative Impacts

  5. Circulation & Public Review • Regulatory Basis • 40 CFR 1503.1 ”obtain comments of agencies having jurisdiction by law.” • 40 CFR Ch V. NEPA Implementation Procedures FR Vol. 49. No. 247, Friday Dec 21, 1984 • Appendix III; Federal & State Agency Offices for Receiving and Commenting on Other Agencies Environmental Documents. • 40 CFR 1503.2 “duty to comment.”

  6. Circulation & Requirements for Public Review • Federal Register /Vol. 76, No. 10 /Friday, January 14, 2011 Amended EIS Filing System • An EIS must be filed with the Environmental Protection Agency in Washington, DC. • EPA then places a Notice of Availability (NOA) in the Federal Register. • An EA can also be circulated. However, a NOA for an EAs is not published in the Federal Register ! • Any person, organization or agency requesting a copy can review the document.

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

  8. NEPA/COE Process Flow Chart Federal Action Issue NOI & Conduct Scoping Issue DEIS Issue FEIS 45 days 30 days * S&A Review yes Sign. Env Effects? yes Sign. Env Effects? no Issue ROD yes Need Env Review? unknown Issue Draft FONSI Prepare EA 30 DAYS no CATEX Implement Action

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

  10. 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.

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

  12. EPA’s EIS Rating System • Project • LO- No identified potential impacts requiring substantive changes to proposal. • EC- Impacts identified that must be avoided. Corrective measures may require project changes. • EU- Significant adverse impacts identified that are unsatisfactory from public health or policy standpoint. If not corrected in the FEIS, the proposal will be recommended for referral to CEQ.

  13. EPA EIS’s Rating System (cont) • Document • 1 – Adequate. Good to go! • 2 –Insufficient Information. More information is needed or review has identified other alternatives within scope of DEIS. The additional information or analysis should be included in the FEIS. • 3 – Inadequate. Seriously lacking in information or analysis to address potentially significant environmental impacts. Other alternatives outside spectrum of EIS needed. The draft EIS does not meet NEPA and/or Section 309 requirements. • Potential Referral if not corrected and reissued as a DEIS.

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

  15. 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) (Only amendment to Guidelines)

  16. Consultation follow-up of DEIS Ratings

  17. EIS Ratings 2004-2008 All Agencies Draft EISs 0.7%EU

  18. Referral of an EIS • Occurs when interagency disagreement over issues of unsatisfactory environmental effects or analysis. • Issues are not resolved with the lead agency. • The disagreement is referred to CEQ. • 1974-2001: Total 27 referrals, 9 of which were COE • 34,152 EIS filed since 2008

  19. Then What!

  20. CEQ Response • Determines if submitted information supports a request for referral. • Historically, referrals discouraged if the referring agency has authority to address the environmentally unsatisfactory issue. • Publishes its findings, including a finding that the referral is not supported by submitted information. • Submits its recommendation to the Agency or the President for action.

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

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

  23. COE Document Review • District Quality Control (DQC) • Managed and conducted in home District by staff not directly involved with the study. • Focus is on meeting objectives of the PMP • Agency Technical Review (ATR) • Conducted by USACE outside of home District; for Planning products, managed by PCX • Focus on Planning criteria, principles, laws etc • DQC and ATR results are included in the Draft EIS and are subject to Public/Agency Reviews • Promote Quality Decision Documents • Support Chief of Engineer Decision Process.

  24. COE Document Review (cont) • Independent External Peer Review (IEPR) • Conducted by an outside eligible organization (OEO) - IRS 501(c)(3). • Legislative basis in WRDA 2007 & Information Quality Act 2001 (OMB directed to issue guidelines) • Implemented by EC 1165-2-209 • Applies to Feasibility and other Reports requiring Congressional Authorization and CAP 205 &103 projects & those w/EISs or other triggers.

  25. Other Concurrent Civil Works Review Requirements • Independent External Peer Review ( cont) • Focus on Scientific Information/technical issues associated with planning for civil works projects • No Policy or agency authority review • Results are posted on district website for public review • Policy and Legal Compliance Reviews • Focus on a legally defensible document • Safety Assurance Review

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

  27. F Rpt CWRB S&A Review Chief’s Rpt 905(b) PMP RP FSCA FSM AFB DFRpt ASA OMB Old NEPA and the COE Review Process Civil Works Process Steps 4-12 NOA 45 D NOA 30F NEPA NOI Scoping DQC ATR IEPR Web Page LCR RIT/OWPR PCR Stars mark the review milestone determined by Review Plan

  28. HQUSACE Smart Planning Process

  29. 905(b) PMP RP FSCA Congressional Committees ASA OMB NEPA/COE Review & Smart Planning Process Chief’s Rpt Milestone Scoping Charrette NEPA NOI NOA 45 D NOA 30 D VT IPRs DQ/ATR/ IEPR/OWPR LCR DCG-CEO/ OWPR ( ASA by invitation) Stars mark themilestones at: http://planning.usace.army.mil/toolbox/smart.cfm

  30. ER 200-2-2 EIS Time line TIME Propose action Variable NOI Scoping 30-90 days Prepare DEIS 90-270 days HQUSACE/MSC/RIT Policy Review 30-60 DAYS Filing of DEIS for concurrent HQ/Public Review 45 days Incorporate Comments 30-45 days Washington Level Review 30-60 DAYS FEIS filed for concurrent S& A Public Review 30 days Respond to Cmts 30 days Chief’s Rpt to ASA ASA Review & Coordination with OMB 30-60 days ROD Signed Send Rpt to Congress Wait for WRDA 28

  31. AR 2-00-2-2 EIS Time Line 29

  32. 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 !

  33. 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

  34. 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

  35. 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)

  36. Duke Environmental Leadership Program NEPA Certificate http://www.nicholas.duke.edu/del/executiveed/courses/implementatin-of-nepa Utah State University National Environmental Policy Act Graduate Certificate Program. http://www.cnr.usu.edu/htm/students/grad-degrees/nepa The Shipley Group www.shipleygroup.com NEPA Certification Program

  37. NEPA Review Check List See Reference Files on Class Disk

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