ML19263E413
| ML19263E413 | |
| Person / Time | |
|---|---|
| Issue date: | 05/01/1979 |
| From: | Bickwit L, Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-79-305, NUDOCS 7906180116 | |
| Download: ML19263E413 (68) | |
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3979 umnD STATES SECY-79-305 NUCLEAR REGULATORY COMMISSION POllCY SESSION ITEM For:
The Commissioners From:
Howard K. Shapar Executive Legal Director T
Leonard Bickwit, Jr.
General Counsel
Subject:
NRC COMPLIANCE WITH CEQ NEPA REGULATIONS 1!
Pu rpose:
To infom the Commission of actions required to imple-ment final CEQ NEPA regulations, to identify signifi-cant prcblems from the standcoint of implementation, to obtain Comission guidance on the extent to which NRC, as an independent regulatory agency, should be bound by the mandate to comply with CEQ's NEPA regu-lations, and to obtain Commission approval of a pro-posed letter (Enclosure F) from Chairman Hendrie to The Honorable Charles H. Warren, Chaiman, Council on Environmental Quality, which expresses the Com-mission's concern over NRC's continuing ability to carry out its NEPA responsibilities in a manner which is consistent with its decisionmaking responsibili-ties as an independent regulatory agency, and indi-cates how the Commission plans to implement CEQ's final NEPA regulations to achieve this objective.
Issues:
1.
Is NRC required, as a matter of law, to comply with CEQ's NEPA regulations?
2.
If NRC compliance with CEQ's NEPA regulations is not mandated by law, should NRC voluntarily comply with those regulations as a matter of policy?
Discussion:
Backaround On May 24,1977, the President issued Executive Order 11991 directing the Council on Environmental Quality (CEQ) to issue regulations to the Federal agencies to implement all the procedural provisions 1/
43 FR Part VI, pgs. 55978-56007, Novembe r 29, 1978.
On December 20, 1978 in response to Comissioner Ahearne's request, the Executive Legal Director transmitted a summary of CEQ's NEPA regulations to each Comissioner.
7 9 0 618 0 llG Contacts:
J. R. Mapes - 492-8695 P. G. Crane - 634-3288 2355 194
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I e
The Commissioners of NEPA.
In this same Executive Order, the President also directed Federal agencies to comply with regula-tions issued by CEQ "except where such compliance would be inconsistent with statutory requirements."
Current CEQ Guidelines,2/ which remain in effect until July 30, 1979, the date on which CEQ's new NEPA regula-tions become effective, only provide guidance on the preparation of environmental impact statements.
In December 1977, after public hearings and consulta-tion among a wide spectrum of public officials, organizations and private citizens, CEQ circulated draft regulations to all the Federal agencies for comment. On June 9,1978, after further study, dis-cussion and evaluation of comments, CEQ published proposed draft regulations in the Federal Register (43 FR 25230-25247) and provided a two-month period for public review and comment.
Upon expiration of the comment period, August 11, 1978, CEQ reevaluated and revised the regulations in the light of the com-ments received.
The regulations were published in final form on November 29, 1978 to become effective
. July 30, 1979.
On several occasions during the development of CEQ's NEPA regulations, individual Commi3pioners and NRC staff submitted written comments to CEQ.--
The effect of the
-2/
These Guidelines were originally issued in 1970 pursuant to Executive Order 11514 and were revised in 1973.
(38 FR 20550-20562 August 1, 1973)
-3/
- Staff comments on the first draft of the proposed regulations, for-warded by letter to CEQ Chairman Charles Warren from NRC General Counsel Jerome Nelson, dated February 7, 1978.
- Letter to Chairman Warren from Commissioner Kennedy, dated February 7, 1978.
Letter to Chairman Warren from Chairman Hendrie, dated February 10, 1978.
- Letter to Chairman Warren from Commissioner Bradford, dated February 27, 1978.
- Letter to Chairman Warren from Chairman Hendrie, dated August 11, 1978, providing Commission comments on the revised draft of the regulations.
Identifies documents in which the issue of the applicability of CEQ regulations to independent regulatory agencies is addressed.
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The Commissioners propc.ed regulations was also discussed in comments, submitted to CEQ and tn White House Counsel Robert Lipshutz, on proposals relating to the application of NEPAtoagencyactivitiesaffectingtheengronment in foreign nations and the global commons.-
In six of these submittals, the possible inapplicability of the CEQ regulations to independent regalatory agencies was raised as a major problem.
On February 14, 1979, NRC staff met with CEQ staff to discuss NRC implementation of CEQ's NEPA regulations.
The meeting focused on specific items in the CEQ regulations which NRC staff had either identified as unclear or as likely to have a substantial impact on various aspects of NRC's regulatory program.
At the conclusion of the meeting, the question of the appli-cability of CEQ's NEPA regulations to independent regulatory agencies was briefly discussed.
CEQ staff stated that the regulations, which are procedural in nature, are intended to apply to the independent regulatory agencies and that the CEQ staff would view their adoption by the Commission as a positive step forward in improving the effectiveness and efficiency of the NEPA process. At the same time, CEQ staff recognized that the independent regulatory agencies might experience some difficulty in carrying out their responsibilities within the framework of CEQ's NEPA process.
CEQ staff indicated that it would use a rule of reason in evaluating the way in which independent regulatory agencies implement CEQ's NEPA regulations.
-4/
- Letter to Chairman Warren from Commissioner Kennedy, dated March 2, 1978.
- Letter to Mr. Robert Lipshutz from Chairman Hendrie stating the Com-mission's views, dated July 31, 1978.
Letter to Mr. Lipshutz from Commissioner Bradford, dated August 14, 1978.
Identifies documents in which the issue of the applicability of CEQ regulations to independent regulatory agencies is addressed.
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e s
.The Commissioners Actions Recuired to Implement CEQ NEPA Reaulations On January 19, 1979, CEQ General Counsel Nicholas C.
Yost issgpd a Memorandum For NEPA Liaisons in Federal agenci es-- providing guidance on how agencies should develop procedures to implement CEQ's NEPA regulations.
The regulations do not require, nor does CEQ consider it desirable, that agency implementing procedures address every section of the CEQ regulations.
As envisaged by CEQ, agency implementing procedures should be brief and need only contain new material not included in the CEQ regulations.
Relevant pro-visions of the CEQ regulations may be cross-referenced but may not be restated or para chrased.
Quotations from CEQ NEPA regulations must se verbatim.
Agencies adopting implementing procedures or regula-tions were directed to follow a four-step process and adhere to the following timetable:
1.
Consult with CEQ during the development of pro-posed implementing procedures.
2.
On or before April 1,1979, publish proposed procedures in the Federal Register for public review and comment.
(This date is flexible.
The effective date of the CEQ regulations, July 30, 1979, is fi nn. )
3.
On or before June 1,1979, submit final version of agency procedures to CEQ for review for con-formity with NEPA and CEQ NEPA regulations.
4.
Following adoption, file a copy of effective pro-cedures with CEQ.
The CEQ Memorandum stated that CEQ's NEPA regulations would go into effect and be binding througnout the 5/
See Enclosure A for text of CEQ Memorandum For NEPA Liaisons.
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The Commissioners government on July 30, 1979,6/ regardless of whether individual agencies have adopted implementing procedures.
The CEQ Memorandum recognizes that agency implementing procedures are not limited to rules and regulations, but may take the fann of operating manuals, administra-tive directives, explanatory bulletins and other publi-cations.
The Memorandum states that this kind of agency guidance must also be reviewed by the Council and made available to the public.
The CEQ Memorandum also refers to the requirement in i 1507.3(a) of the CEQ regulations that agencies continuously review their policies and procedures and in consultation with the Council revise them as necessary to ensure full compliance with the purposes and provisions of NEPA.
The principal task imposed on the Commission by the new CEQ NEPA regulations is the preparation, publica-tion for comment and adoption, within the time frame specified above, of regulations which ggovide proce-dures implementing particular sectionsu of the CEQ regulations. This will require extensive revision of 10 CFR Part 51, which now sets forth NRC policy and procedures for tha preparation and processing of environmental impact statements.
In connection with this task, it will also be necessary to identify and revise other portions of the Commission's regulations which relate or refer to 10 CFR Part 51.
In connection with this revision, the staff also plans to restructure 10 CFR Part 51 so as to incorporate therein any additional regulations which may be needed to accommodate specific requirements of particular environmental laws, such as, for example, the Wild and Scenic Rivers Act (16 U.S.C. i 1271 et seq. ), the National Historic Preserction Act of 1966 (16 U.S.C.
-6/
Although no completed environmental doctments need be redone by reason of the new regulations and although the new regulations do not apply to an environmental impact statement or supplement if the draft statement was filed before the effective date of the regula-tions, the regulations do apply to the fullest extent practicable to ongoing activities and environmental documents begun before the effective date.
(40CFR51506.12.)
_7f
$$1501.2(d),1502.9(c)(3),1505.1,1506.6(e)and1508.4.
These sec-tions are described in Enclosure B.
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The Commissioners $ 470 et seg.), the Endangered Species Act of 1973 (16 U.S.C. 1 1531 et seq.), and the Coastal Zoge Management Act of 1972, as amended (16 U.S.C. s 1451 et seq.)
In this way, all requirements respecting environmental matters will be brought together in one place in the Comission's regulations.
This approach is consistent with the directives in the CEQ regulations that agencies integrate their NEPA reviews with.othy environmental review and consultation requirements.-
Subject to Comission instruction, the NRC staff plans to send CEQ a draft of NRC's proposed imple-menting regulations at the same time the proposed regulations are circulated to NRC staff offices for final concurrence review.
After Comission approval of the proposed regulations (May 21, 1979 is the cur-rently projected date for transmittal of NRC's pro-posed regulations to the Commission) publication of the proposed regulations in the Federal Register, expiration of the public comment period and completion of the analysis of public comments, the NRC staff will prepare a Federal Register notice containing the text of the effective rule. This text will be submitted to the Commission and to the CEQ staff simultaneously, thus enabling both reviews to proceed in parallel.
This procedure should eliminate any unnecessary delay in Comission issuance and publication of the final rul e.
Review and analysis of specific environmental laws are now underway.
Proposals for specific additions or amendments to 10 CFR Part 51 to reflect the pro-visions of these statutes will be submitted to the Commission from time to time as they are developed.
Although an important first step, revision of 10 CFR Part 51 is not the only task that must be undertaken to implement CEQ's NEPA regulations.
Regulatory guides, environmental standard review plans and office procedures will need review and revision.
NRC resources and personnel will have to be reevaluated to detennine the availability of needed environmental expertise.
Consideration will have to be given to the appgopriate NRC response to the directive in 40 CFR 51507.2(a) that agencies "shall designate a person to be responsible for overall review of agency NEPA compliance." This matter will be addressed in p
the paper submitting the proposed revision of 10 CFR Part 51 to the Commission.
8/
ll1502.25.
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The Commissioners CEQ NEPA regulations specifically require each Federal agency to have the capability, in terms of personnel and other resources, of fulfilling the requirements of sections 102(2)(A), (B), (C), (E), (F), (G), (H) and (I) of NEPA and sectior. 2 of Executive Order No.11514, ProtectionandEnhangementofgvironmentalQuality, as amended, (40 CFR s 1507.2).-
Under the regula-tions, a Federal agency may provide this capability by arranging to use the resources of others.
- However, the regulations also require any Federal agency making such an arrangement to have sufficient capability in-house to evaluate work which the agency has requested others to perform.
Impact of CEQ NEPA Regulations on NRC's Reculatory Process CEQ's NEPA regulations contain several features which could improve NRC's present NEPA process. These include provisions:
1.
Containing guidance on the use of significance, importance and cost criteria in limiting the depth of information and analysis jn NRC environ-mentalimpactstatements(40CFR$s1501.7,1502.2 and 1502.23);
2.
Requiring early scoping of issues in proposed actions to limit the selection of alternatives for analysis to a reasonable number, emphasiz-ing real alternatives of importance for con-sideratipg by the ultimate agency decisionmaker.
(40 CFR ss 1500.4(g), 1501.7, 1502.1, 1502.2 and1502.14);
3.
Shortening environmental impact statements by reducing the volume of descriptive material and by elimipgting repetition through " tiering" (40 CFR ss 1500.4 and 1502.20);
4.
Focusing on actual issues ripe for decision at pgch level of environmental review (40 CFR ss 1500.4 and 1502.20);
_9]
See Enclosure C. for text of Section 102(2) of NEPA and texts of Exec-utive Order No.11514, March 5,1970, and Executive Order No.11991, May 24, 1977.
The Commissioners 5.
Authorizing joint preparation of environmental impact statements by Federal, State and local governments and establishing procMures for coordination of analyses (40 CFR si 1500.4(n),
1501.5,1501.6 and 1506.2);
6.
Permitting one Federal agency to adopt an environ-mental impact statemggt prepared by another Fed-eral agency (40 CFR 5s 1500.4(n) and 1506.3);
7.
Requiring agencies to make diligent efforts and to follow prescribed procedures to involve the public in preparing land implementing agency NEPA procedures (40 CFR 1506.6);
8.
Improving the clarity of environmental impact statements through use of a rey { sed format focusing on decisions (40 CFR 55 1500.4(e) and (f),1502.10,1502.14,1502.15 and 1502.16).
Other provisions of the CEQ NEPA regulations may create problems from the standpoint of implementation in the NRC regulatory process.
These provisions include:
1.
Section 1502.14(b) which provides that the environmental impact statement "[d]evote sub-stantial treatment to each alternative consid-ered in detail including the proposed action so that reviewers may evaluate their comparative me ri ts. "
Although this section represents a revision of an earlier version which would have required "substantially equal treatment" to be given to each alternative, we believe that present NRC practice may be at variance with this provision of the regulations.
In the typical nuclear power reactor licensing case under present NRC procedures, detailed safety-related information is only provided for the applicant's proposed site.
This kind of information is not provided for possible alternative sites.
Similarly, detailed environmental information is only devel-oped for the proposed site.
Reconnaissance level information is normally considered adequate for evaluating alternative sites.
If51502.14(b) 2355 201
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The Commissioners is to be interpreted as mandating a change in this procedure, the information-gathering burden placed on NRC and on the applicant could become expensive and time-consuming.
According to informal advice from CEQ, this provision does not require that each alternative receive equal treatment; application of the provision in.a given instance would be subject to a rule of reason.
2.
Section 1502.22(a) which requires an agency to obtain information relevant to adverse impacts which is not known and which is essential to a reasoned choice among alternatives if the over-all costs are not exorbitant.
This provision could have a significant impact in those circumstances where extensive informa-tion has been developed with respect to one alternative and information regarding other alternatives has not yet been developed. This provision could impact any agency decision in this circumstance where the costs (in terms of both information-gathering costs and project delay costs) of obtaining the information needed for a reasoned choice among alternatives are large but fall short of being exorbitant.
(For example, development of information necessary to evaluate viable alternatives for waste management is proceeding on different timetables.)
3.
Section 1502.22(b) which requires an agency to perform a " worst case analysis" and indicate the probability or improbability of its occurrence whenever the agency is unable to obtain informa-tion relevant to adverse impacts important in making a reasoned choice among alternatives and the agency has decided, despite this uncertainty, to proceed with the action.
The requirement to conduct a worst case analysis in any situation in which information about adverse impacts is unobtainable could have a substantial impact on NRC resources and on the length of time required to complete NRC licensing reviews.
This provision would make it necessary to perform worst case analyses for both radiolog-ical and non-radiological impacts in situations 2355 202
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The Commissioners where such analyses are not nomally conducted.
Examples could include situations involving the evaluation of reactor aquatic impacts where a case can be made for extensive long-tem time-dependent studies, and repository license actions where waste-fom perfomance cannot be accurately predicted without,in, situ testing.
Section 1502.22(b) could also have a substantial impact on NRC resources if interpreted to require in-depth analysis of the consequences of a
" worst case" accident in addition to an analysis of the likelihood that such an accident would occur.
Under NRC's current risk analysis prac-tices, the consequences of accidents whose likelihood of occurrence is remote and highly speculative are not given detailed considera-tion, except in unusual cases, even though those consequences, should they occur, would be extremely seve re.
In 1971, Russell E. Train, then Chaiman of the Council on Environmental Quality, infomed Hon. Chet Holifield, Member of the Joint Commit-tee on Atomic Energy, that CEQ felt that "...the approach taken by the Commission regarding con-sideration of accidents, [in environmental statements] [i.e., that accidents that pose severe consequences with an extremely low prob-ability of occurrence would not require further consideration]... appears to be a reasonable one..." and that CEQ also felt "...the AEC is acting reasonably when it does not require an analysis of those accidents that pose an insig-nificant threat to the environment... because of the extreme unlikelihood of their occurrence...."b This approach towards " worst case" analysis has also been upheld by the U.S. Court of Appeals for the District of Columbia Circuit in Carolina Environmental Study Group v. United States, 510 F.2d 796 (1975).
NRC staff has discussed this matter infomally with CEQ staff and has requested further clarification of 3 1502.22(b).
10f See correspondence between Hon. Chet Holifield, Member, Joint Com-mittee on Atomic Energy, U.S. Congress, and Hon. Russell E. Train, Chaiman, Council on Environmental Quality, October 8,1971 and November 4,1971, as printed in " Selected Materials on the Calvert Cliffs Decision, Its Origin and Aftemath," Joint Committee Print, 92d Congress,1st Session, February 1972 at pp. 293-295.
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The Commissioners According tg preliminary telephone advice from CEQ staff, s 1502.22(b) contemplates considera-tion of the consequences as well as the proba-bilities of an occurrence.
However, the degree of detail which must be furnished concerning remote consequences is subject to a rule of reason.
This is not to say that NRC's past approach to Class 9 accidents should not be changed - indeed the matter is currently the subject of a staff study.
However, given the cendency of the staff study and the uncertainty as to the impact of the CEQ regulations on this point, it seems unwise to adopt or implement this provision of the CEQ regulations without further study.
4.
Section 1508.18 which includes within the defini-tion of major Federal action, "the circumstance where the responsible officials fail to act and that failure to act is reviewable by courts or administrative tribunals under the Administrative Procedure Act or other applicable law as agency action."
It is unclear whether this provision would necessitate a change in present NRC practice by requiring NRC staff to prepare environmental assessments or environmental impact stat,nts for such actions as denials of petitions which claim significant on-going environmental ha nn.
According to infonnal telephone advice from CEQ staff, preparation of an environmental impact statement would not be necessary when the denial of such a petition is based on a finding that there are no significant on-going adverse environmental effects.
Under CEQ's NEPA regula-tions, this (inding could require gg environmental assessment (5 1501.4(b), see also ss 1508.9 and 1508.13.) Under present NRC practice, it is not customary to prepare environmental assessments in connection with denials of petitions.
1]f hese petitions could include petitions for rulemaking (10 CFR 2.802 and petitions to initiate enforcement actions (10 CFR 2.206.
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The Commissioners Several provisions of the CEQ NEPA regulations con-tain procedures which, when applied, could seriously interfere with the manner in which the Commission perfoms its functions as an independent regulatory agency.
These provisions include:
1.
Section 1501.5 which enumerates the responsi-bilities of lead agencies for the preparation of environmental impact statements and authorizes CEQ to designate a lead agency when Federal agencies are unable to agree on which agency should undertake the 11.ad agency role; 2.
Part 1504 which prescribes procedures for pre-decision referral to CEQ of Federal interagency disagreements concerning proposed major Federal actions that might cause unsatisfactory environ-mental effects.
In addition to the provisions just discussed, there are other provisions of the CEQ NEPA regulations (identified in Enclosure D) which could present problems if NRC were not allowed flexibility in implementing them.
- However, based on infomal advice received from CEQ, implementation of these provisions may not be difficult.
NRC Compliance with CEQ NEPA Reaulations as a Matter of Law The issue of whether NRC, as an independent regula-tory agency, can be bound by CEQ's NEPA regulations as a matter of law was raised by the Commission and by individual Coggers on several occasions in comments to CEQ.
Despite NRC's expressed concern, CEQ declined to address this question when it promulgated its final NEPA regulations on Novem-ber 29,1978 and declared them to be applicable to and binding on all Federal agencies.
CEQ has characterized its NEPA regulations as procedural rather than substantive.
This is consistent with Executive Order 11991, which authorized CEQ to develop regulations implementing NEPA's procedural provisions.
Earlier, CEQ had failed to secure Presidential approval of an Executive Order authorizing it to issue regulations implementing NEPA's substantive requirements.
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The Commissioners The Office of Legal Counsel of the Department of Justice has addressed this issue in three memoranda.12/
In a memorandum dated April 4, 1977, prepared for Charles H. Warren, Chairman of the Council on Environ-mental Quality, in response to CEQ's request, the Office of the Legal Counsel provided the following advice on the question whether the President may authorize or direct CEQ to issue regulations govern-ing the preparation of environmental impact state-ments in place of guidelines.
...it is our conclusion that he President may properly delegate to CEQ t.1: w thority to issue regulations instructing Executive departments and agencies regarding the form and content of environmental impact state-ments, but we seriously question whether independent regulatory agencies can be bo ind by the regulations."
Briefly, the April 4,1977 memorandum states that NEPA does not authorize CEQ to issue regulations or make substantive decisions binding on other Govern-ment agencies, and that a number of court cases have held that CEQ guidelines do not have the force of law.
The memorandum takes the position that although NEPA makes the preparation of impact statements the responsibility of each agency, Government-wide coor-dination to bring cohesion and uniformity to the NEPA process would not be inconsistent with the purposes l_2] The memoranda are:
2 Memorandum for Charles H. Warren, Chairman, Council on Environmental Quality, Re: CEQ's issuance of regulations, April 4, 1977.
Memorandum for Simon Lazarus, Associate Director, Domestic Council, Re:
President's Authority to impose procedural reforms on the Independent Regulatory Agencies, July 22, 1977.
Memorandum for Wayne Granquist from Si Lazarus,
Subject:
Applica-bility of Executive Order to Independent Agencies, December 9,1977, transmitting excerpt of pertinent portion of Department of Justice memorandum dated June 9,1977.
Copies of these memoranda were furnished by the General Counsel to Commissioner Bradford, with copies to other Commissioners, on February 2,1978.
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The Commissioners of the Act.
The preparation of impact statements is not an activity so peculiarly and specifically committed to agency discretion as to remove it from the general rule that the President may control the operations of Executive Branch agencies.
The memorandum states:
...we believe that a persuasive argument can be made that the President has the constitu-tional authority to direct Federal agencies under his control in their implementation of NEPA.
If the President himself possesses this power, it may properly be delegated to the Gouncil on Environmental Quality.
See U.S.C.
! 301.
" Additionally, we note that an agency is bound by its own regulations even thcugh the content of the regulations is not mandated by statute.
See, e.., United States v. Nixon, 418 U.S. 683, 694-9 974).
The contemplated CEQ regula-tions will not be the regulations of any particu-lar agency; they will only be the President's instructions to individual agencies.
But the new procedures currently under consideration could presumably be brought within the scope of the rule binding agencies to their own regulations if the President or CEQ further instructed each agency to adopt procedural and substantive requirements that confom to the CEQ regulations...."
With respect to the application of CEQ regulations to independent regulatory agencies, tt.e April 4, 1977 memorandum expresses
"... serious reservations about the ability of the President to authorize the issuance of regulations that would be binding on inde-pendent regulatory agencies.
NEPA directs agencies to prepare the environmental impact statements in connection with the substantive acts and policies they administer.
See 40 CFR 1500.4.
The President cannot remove members of independent bodies from their position for failing to follow his instructions regarding 2355 207
The Commissioners the administration of their agencies' substan-tive acts where Congress has mandated a stat-utory tenn, Humchrey's Executor v. United States, 295 U.S. 602 (1935), and we doubt that he could do so for failure to follow the President's directions in connection with NEPA requirements engrafted upon those statutes.
The absence of the power to remove in such cases suggests the absence of a power to direct the actions of the agencies.
See also Kendall v. United States,12 Pet. (37 U.S.)
524, 610 (1830); Corwin, supra, at 85....It may therefore be advisable simply to request independent agencies to comply with whatever regulations are promulgated."
The memorandum notes that although the regulations promulgated by CEQ might be persuasive to a court because of CEQ's expertise in the environmental
- area,
...it can be expected that some independent agencies will not abide by CEQ regulations in certain circumstances, and we believed that they would have a fairly strong basis for refusing to do so...."
The second memorandum, dated July 22, 1977, on the
" President's Authority to impose procedural reforms on the Independent Regulatory Agencies," replies to a request from Simon Lazarus of the Domestic Council for the views of the Office of Legal Counsel on whether the President may by re utive Order direct independent regulatory agencias to adopt certain proposals designed "to improve procedure, set up work schedules and plans for the more efficient dis-charge of the agencies' duties, and improve the pro-ficiency of personnel by appropriate training pro-grams directed to the drafting of regulations."
The July 22, 1977 memorandum cites an earlier memo-randum, dated June 9, 1977, in which the Office of Legal Counsel had advised the White House as to the legality, as applied to independent regulatory agen-cies, of a proposed Executive Order on the logging of outside contacts.
The June 9, 1977 memorandum 2355 208
The Commissioners took che position that the President's duty to see that the laws are faithfully executed "would appear to enable him to establish policies concerning the efficiency and fairness of agency procedures and determinations"--including the logging of outside contacts.
This memorandum cited previous Executive Orders on similar matters (ethical standards and standards of conduct) which had been made applicable to independent regulatory agencies.
The July 22, 1977 memorandum notes that while there are no pertinent judicial decisions, the question of the President's authority over independent regu-latory agencies has been the subject of scholarly discussion. The consensus is that the agencies, "although independent with respect to their quasi-legislative and judicial functions," can be bound by Presidential directives designed to assure that they "perfom those functions efficiently and without undue delay." Similarly, the President has the legal authority to guide the fiscal and personnel policies of the independent regulatory agencies.
The memo-randum concludes that the White House proposals for improving agency procedures appear consistent with the Presidential authority.
The July 22, 1977 memorandum considers whether the President could by Executive Order require " general or periodic reviews of existing regulations."
It states that the President would probably have this power if the regulations were " procedural or internal."
However, the memorandum concludes:
"But the legal situation is somewhat differ-ent where regulations of a substantive (i.e.,
of a truly quasi-legislative) nature are involved.
It could be said that regulations of this type may be modified or reviewed only to the extent that the governing statute requires or permits.
A Presidential require-ment that the independent regulatory agencies engage in a general review of their substan-tive rules therefore could well be considered to constitute an invasion of the agencies' quasi-legislative autonomy, a matter that does not come within the purview of the President's constitutior:al authority to take care that the laws be faithfully executed."
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The Commissioners The import of the April 4, 1977 memorandum of the Office of Legal Counsel is that regulations govern-ing the " form and content of environmental impact statements" are of a substantive and quasi-legislative nature, not merely procedural or internal.
We see no basis for assuming that the July 22, 1977 memo-randum represents a change of position by the Office of Legal Counsel.
The gist of the Office of Legal Counsel analyses, with which we have no disagreement, is that the President or his delegee has the power to prescribe purely procedural, ministerial matters to inde-pendent regulatory agencies.
As illustrated in the earlier disersion of the impact of CEQ NEPA regu-lations on NRC's regulatory process (supra, pp. 8-12) difficulties arise when the Executive Branch attempts to dictate matters that go to the substance of the way the agency performs its functions.
The April 4, 1977 memorandum of the Office of Legal Counsel observes correctly that agencies' impact statements are prepared in connection with the " substantive acts and policies they administer."
CEQ has taken the position that regulations Jpecifying the content of a written document are per g proce-du ral.
In reply to a question from an 0GC lawyer, CEQ General Counsel Nicholas C. Yost expressed the view that a regulation requiring agencies to select the least environmentally harmful alternative would be substantive, and beyond CEQ's power to require.
However, according to Yost, a regulation requiring agencies to certify in their " record of decision" that the least environmentally harmful alternative had been selected would be procedural and within the scope of CEQ's authority.
We do not regaid this argument as persuasive.
The answer to the question whether NRC, as an inde-pendent regulatory agency, can be bound by CEQ's NEPA regulations as a matter of law is two-fold.
NRC can be bound by CEQ's NEPA regulations as a matter of law insofar as those regulations are solely procedural o-ministerial in nature.
NRC cannot be bound as a matter of law by those portions of CE0's NEPA regula-tions which have a substantive impact on the way in 2355 210
The Commissioners which the Commission performs its regulatory functions.
Application of these legal principles to regulations which involve both substance and procedure presents certain practical difficulties.
Given CEQ's NEPA regulations, how does the law apply?
{ome provisions of CEQ's NEPA regulations, for example, s1502.7,prescribingrecommendedpage}imitsfor final environmental impact statements, s 1502.8, requiring environmental impget statements to be written in plain language, s 1502.11, specifying information to be included og environmental impact statement cover sheets, and s 1506.9, containing requirements for filing environmental impact state-ments with EPA, appear to be solely procedural and to have no substantive impact on the Commission's regu-latory responsibilities.
It is our view that the Commission can be held to comply with these pro-visions and with others like them.
gtherprovisionsofCEQ'sNEPAregulations,suchas s 1502.24, containing requirements relating to method-ology and scientific accuracy, and 1 1506.6, requiring agencies to make diligent efforts to involve the public in preparing and implementing their NEPA pro-cedures, although arguably procedural, have a definite though limited substantive impact.
Since provisions of this type appear to have a minimal effect on the way in which the Commission conducts its business and therefore would not jeopardize the Comission's independence, there is little reason in our view why the Commission should not voluntarily comply.
Finally, there are those provisions of CEQ's regula-tions which are clearly substantive despite CEQ's claim that they are merely procedural. These pro-visions, which are discussed n greater detail else-whereinthispaper, include {51502.14, relating to the analysis of alternatives in environmental impact statements, 31502.22(b) relating to the obligation
}o obtain information and prepare worst-case analyses, s 1501.5, relating to lead agencies, and Part 1504, relating to predecision referrals to CEQ.
It is our view that the Commission is not required, as a matter of law, to comply with these portions of CEQ's NEPA regulations because they have a significant impact on the manner in which the Commission performs its substantive regulatory responsibilities.
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The Commissioners To state these legal conclusions does not make the Commission's task of deciding how NRC should imple-ment CEQ's NEPA regulations any easier.
The problem of determining the extent to which the NRC should voluntarily comply with CEQ's NEPA regulations also needs to b2 addressed from the standpoint of policy.
NRC Compliance with CEQ NEPA Reaulations As a Matter of Policy As indicated previously in this paper, some aspects of CEQ's NEPA regulations should result in improve-ments in NRC's current NEPA process, some provisions present difficulty from the. standpoint of implemen-tation, and some provisions, notably the lead agency concept in i 1501.5 and the procedures in Part 1504 for predecision referrals to CEQ, could present serious challenges to NRC's ability to carry out its regulatory functions in an independent manner.
All these elements need to be weighed by the Commission in formulating its response.
The basic objectives of CEQ's NEPA regulations--to reduce paperwork, to reduce delay and to make sure that significant environmental issues are responsibly considered by Federal agencies in their decision-making process--are consistent with current Commis-sion policy.
Those provisions of CEQ's NEPA regula-tions which would improve the deral permitting process for energy facilities are consistent with the Connission's continuing efforts to improve the process of siting and licensing nuclear power plants.
The procedures provided to facilitate cooperation among Federal, State and local agencies, including joint planning, joint studies and joint public hear-ings, are all reminiscent of similar efforts under-taken by the Commission fr m time to time for similar pu rposes.
To these considerations can be added the weight of Commission precedent.
The Commission is now comply-ing on a voluntary basis with Executive Order 12044 on Improving Government Regulations, issued by the President on March 23, 1978.
The Commission took this step despite the fact that Executive Order 12044 13/ See Enclosure E.
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The Commissioners clearly states that it does not apply to " regulations issued by the independent regulatory agencies."
It is clear, on the other hand, that NRC ought not to comit itself now to comply voluntarily as a matter of policy with those portions of the CEQ regulations which might interfere with the effective perfomance of NRC's substantive responsibilities or with its independence.
These provisions of the CEQ regulations, which arg discussed more fully earlier in this paper, include 51502.14(b) which prescribes how alternatives gre to be presented in environmental impact statements, s 1502.22 which could either require NRC to obtain new information about adverse environmental impacts or perfom a worst case analysis, s 1501.5 which authorizes CEQ to designate lead agencies, and Part 1504 which prescribes procedures for predecision referral to CEQ of Federal interagency disagreements concerning proposed major Federal actions that might cause unsatisfactory environmental effects. - Accord-ingly, if NRC should decide to comply with CEQ's NEPA procedures as a matter of policy, care must be taken to assure that those procedures are not implemented in a manner which could have a detrimenta! effect on the Commission's effectiveness or its independence as a regulatory agency.
It should be noted that an approach which accepts some parts of CEQ's NEPA regulations and declines at this time to accept other qqrts of those regulatig is consistent with 40 CFR 551500.3 and 1507.3(b)- which specifically recognize the possibility that some of the provisions of the regulations may be inconsistent with agencies' mandates.
That the Comission comply with CEQ's NEPA regula-Recomend33f ons :
tions, subject to the following conditions:
1.
Compliance does not bind the Commissior) to adopt subsequent interpretations or changes to the regulations made by CEQ. The Comission reserves the right to examine future interpretations or changes to the regulations on a case-by-case basis.
-14/ 40 CFR S 1500.3 states in part that CEQ's regulations are "...appli-cable to and binding on all Federal agencies...except where compli-ance woyld be inconsistent with other statutory requirements...."
40 CFR i 1507.3(b) provides in nart that " Agency procedures shall comply with these regulations except where compliance would be incon-sistent with statutory requirements..."
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The Commissioners 2.
The effect of some specipe provisions of CEQ's NEPA regulations (e.g., 551502.14(b) - evaluation of alternatives, 1502.22(b) - examination of conse-quences of Class 9 accidents, and 1508.18 - require-ments for environmental impact statements associated with failures to act) on the Consnission's regulatory activities is unclear.
The Commission will devote additional study to these matters before developing implementing regulations.
3.
NRC reserves the right to prepare an independent environmental impact statement whenever it has jurisdiction over a particular activity even though it has not been designated as lead agency for oreparation of the statement.
4.
NRC reserves the right to make a final decision on all matters within its regulatory authority despite 40 CcR Part 1504--Predecision Referrals to the Count.il of Proposed Federal Actions Detennined to be Environmentally Unsatisfactory.
In the opinion of the staff, these conditions identify those areas of CEQ's NEPA regulations which present significant problems from the standpoint of the Commission's independent exer-cise of its regulatory responsibilities. Al though the staff believes that these conditions reflect major areas of NRC concern, additional problems may arise as the task of implementing CEQ's NEPA regulations proceeds.
It is not yet clear, for example, how extensively NRC will have to discuss the energy requirements and conservation poten-tial of various alternatives and mitigation measures in its environmental impact statements (40 CFR 51502.16(e)).
Nor is it clear what the discussion of direct, indirect and cumula-tive impacts mgy entail beyond what is now being done (40 CFR is 1508.7,1508.8 and 1508.25).
Subject to further guidance from the Commission, the staff plans to follow the approach presented in this paper in resolving future problems, should these occur.
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The Commissioners That the Commission approve the proposed letter to CEQ Chainnan Warren (Enclosure F) for signature by Chaiman Hendrie.
Cost Estimate:
According to preliminary estimates, the approximate cost of actions required to initiate implementation of CEQ's NEPA regulations, including, among others, revision of 10 CFR Part 51, development of a revised famat for environmental impact statements, develop-ment of procedures for early scoping of environmental issues, initiating revision of NRC's present Environ-mental Standard Review Plans (ESRPs), is expected to be about 12 man-years.
This estimate of " start-up" costs does not include costs of routine implementa-tion of CEQ NEPA regulations over an extended period.
It would be premature to develop estimates of the latter costs at this time.
Coordination:
The Offices of Standards Development, Nuclear Material Safety and Safeguards, Nuclear Reactor Regulation, Nuclear Regulatory Research, State Programs, and Policy Evaluation concur.
Scheduling:
as ward X. Shapar Executive Legal Director t
Leonard Bickwi t, Jr.
General Counsel
Enclosures:
See page 23 2355 '215
e The Commissioners
Enclosures:
A.
Memorandum for NEPA Liaisons from CEQ General Counsel, Nicholas C. Yost re " Agency Implementing Procedures Under CEQ's NEPA Regulations," Janu-ary 19,1979 B,
Provisions of CEQ NEPA Regulations Requiring Supplementary Agency Procedures C.
TextofSec.lQ2(2)ofNEPA, 42 U.S.C.S. 5 4332 and texts of Executive Order No. 11514, March 5,1970, and Executive Order No. 11991, May 24, 1977.
D.
Provisions of CEQ NEPA Regulations which present problems but appear amenable to NRC implementation E
Memorandum for Energy Coordinating Committee Members from Charles Warren, Chairman, Council on Environmental Quality on "How The NEPA Regulations Improve the Federal Permitting Process,"
December 21, 1978 F.
Proposed letter to CEQ Chair-man Warren This paper is tentatively scheduled for consideration at an Open Meeting during the Week of May 7,1979. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION Commissioners Commission Staff Offices Exec Dir for Operations Regional Offices 2355 216 ACRS ASLBP ASLAP Secretariat
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ENCLOSURE A w
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9 ENCLOSURE A EXECUTIVE OFFICE OF TH E PR ESIDENT COUNCIL ON ENVIRON M ENT AL QU ALITY 722 JACxSON Pt.ACt. N W.
WASH 1NGToN o c. 20006 January !?, 1979 P.EMORAN001 FOR NEPA LIAISONS
SUBJECT:
Agency Implementing Procedures Under CEQ's NE?A Regulations Introduction On November 29, 1978 the Ccuncil on Environmental Quality issued regu-
.lations implementing the procedural provisions of the National Environ-mental Policy Act ("NEPA regulations").
The regulations are binding on all Federal agencies and were developed through interagency and public consultation, review and co==ent.
The regulations appear at pages 53978-56007 of Volume 43 of the Federal Reetster.
Section 1507.3 of the NIFA regulations provides that each agency shall adopt procedures i=ple:enting the NEPA regulations by July 30, 1979
(" agency implementing procedures").* The purpose of this cecorandum is to provide Tederal agencies with general guidance for developing these implementing procedures.**
Implementing procedures for progrs=s administered under Section 102(2)(D) of NI?A or under Section 104(h) of the Housing and Co== unity Development Act of 1974 must also be adopted by July 30, 1979. However, Section 1506.12 provides that the procedures for these programs vill not become effective until November 30, 1979 --
four menths after the deadline for their adoption. This four =enth hiatus has been established to allow State and local agencies involved in these progra=s to adjust their decisioncaking to new implementing procedures.
On a separate point, Section 1306.12(a) also provides that any agency may proceed under these regulations at an earlier time. By this we mean that an agency =sy either adopt and place into effect implementing procedures before the July 30, 1979 deadline, if its' approved by the Council, or, for selected proposals, conduct time.
environmental reviews under the regulations before that Agencies administering programs under Section 102(2)(D) of NEPA or under Sect 4cn 104(h) of the Housing and Coc= unity Development Act of 1974 may proceed under the regulations before November 30, 1979 with the consent of the State or local agencies involved.
In developing this =emorandum we have consulted with, circulated draf ts to, and met with a number of the NEPA liaisons from agencies which prepare significant numbers of EISs.
k'e appreciate their contribution.
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E!fCLOSURE A (continued)
_2_
Mc=bers of the Council's staf f will be contacting you in the near
'a'e future regarding a schedule for developing implementing procedures.
would like to become involved in your ef forts early to avoid a last-minute crunch later in the year. We have attached as Appendix A a list-of our staff members who will be available for consultation throughout the process.
Procedural Considerations In developing implementing procedures under the NEPA regulations, agencies should bear in mind the following i=portant considerations: First, the purpose of agency procedures is both to provide agency personnel with additional, more specific direction for imple=enting the procedural provisions of NEPA and to inform the public and State and local officials of how the NEPA regulations will be implemented in agency. decisionmaking.
Agency procedures should therefore provide Federal personnel with the direction they need tc implement SEPA on a day-to-day basis. The pro-cedures must also provide a clear and uncomplicated picture of what those outside the Federal government may do to become involved in the environmental review process under MEPA.
Second, the NEPA regulations provide that each agency sha'l as necessary adopt procedures to supplement the regulations (Section 1507.3). Major agency subunits are also encouraged (with the consent of the department) to adopt their own procedures. Departmental procedures would then address issues of general concern for all of its agencies; an individual agency's procedures would address t'e particulars of its own planning and decision =aking.
Third, agency implementing procedures are not required to, nor is it The desirable that they address every section of the regulations.
sections which must be addressed are identified in Section 1507.3(b).
This is detailed in the "NEPA Procedures Checklist" enclosed herewith.
Agencies are encouraged to address other sections where this would further.mplementation of the NEPA regulations.
Fourth, whi'a the f o r=a t for imple=enting procedures is largely c matter of agency
- recion, the following points should be noted:
(1) By Executive Order 11991, the President directed the Council to estfolish a single and definitive set of uniform standards for implementing NEPA government-wide. Therefore, while agencies nay ouote the regulations in their i=plementing procedures, they shall to restate or otherwise paraphrase the regulations not attempt (Section 1507.3(a)). Agencies shall confine themselves to procedures which make the standards established by the NEPA regulations effec-tive in the context of their decision =sking.
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ENCLOStRE A (cent'inued)
(2) Agencies may quote from the regulations to, provide a context for implementing procedures. For example, an agency may quote from Section 1508.9 on environmental assessments as a means of intro-ducing its own environmental assessment procedures.
In addition, agencies may produce a single, self-contained document containing quotations f rom the NEPA regulations so that agency personnel need not refer back and forth f rom NEPA regulations to implementing procedures in conducting environmental reviews. However, whenever the NEPA regulations are quoted they must be quoted verbatim, properly cited, and set of f in some f ashion (e.g., italics, bold-faced type) so that the reader can readily distinguish between the NEPA regulations and agency implementing procedures.
You will understand the competing considerations that gu'ide us here. On the one hand we intend the agency procedures to be the minimum length possible consistent with the regulations and this memorandum. On the other hand, we do not want to place readers in the position of having constantly to refer to other documents.
(3)
Implementing procedures should cross-reference relevant sections of the regulations where they are not quoted in full. It is x=portant to link agency procedures with corresponding sections in the NEPA regulations so that agency personnel will have a com-plete picture of the standards which govern the environ = ental review process.
(4) Agency implementing procedures should where practicable follow the same sequence of procedural steps appearing in the NEPA regu-lations.
It will be easier to work with both documents if the procedures and the regulations take a parallel approach.
Fifth, there is no need to inclade every detail of agency decisionmaking in the implementing procedures. The NEPA regulations contemplate the publication of further explanatory guidance with specific information that =ay not be appropriate for agency implementing procedures (Section 1507.3(a)). This further guidance, which may be in the form of an operating manual, administrative directives, explanatory bulletins, and other publications, must also be reviewed by the Council and made available to the public.
Sixth, agencies with similar programs should consult with each other and the Council to coordinate their implementing procedures, especially for programs requesting similar information from applicants (Section 1507.3(a)).
Opportunities exist to improve the environmental review process through a coraistent approach to similar Federal programs. It is i=portant that agencies combine efforts in developing this approach and ensure that, once developed, it is uniformly adopted in agency i=ple=enting procedures.
We have attached as Appendix 3 a list of NEPA liaisons for all agencies who should be contacted for this purpose.
2355 220
F2 LO3URE A (continued)
. Finallv, in developing i=plementing procedures, agen'cies =ust allow ti=e for review by the Council and the public.
Section 1507.3(a) of the SEPA regulations establishes a three-step process leading to adoption of final procedures by July 30, 1979: Agencies shall consult with the Council in developing proposed implementing procedures. Agencies shall then publish their proposed procedures in the Federal Recister for public review and comment. As the last step, and following changes made in response to co==ents received during the review period, agencies shall submit the final version of their proposed procedures for review by the Council for conformity with the Act and the NEPA regulations. The Council will complete its review within 30 days. The Council may thereafter =ake public the results of its reviews.
To ensure that this process is concluded by July 30, 1979, the Council reco== ends that agencies publish their proposed procedures in the Federal Keeister for coc=ent no later than April 1,1979 and submit by June 1, 1979 the final version of the procedures to the Council for review.
Please note that the regulations go into effect and are binding through-out the govern =ent on July 30, 1979, regardless of whether an individual agency has adopted its procedures.
Once in effect, agency i=plementing procedures shall be filed with.the Council, published in the Federal Recister and made readily available to the public. Please note that Section 1507.3(a) of the regulations requires agencies continuously to review their policies and procedures and in consultation with the Council to revise thet
.s necessarv to ensure full compliance with the purposes and provisaons of the Act.
Guidance for Develooine Atenev I=elementine Procedures k'e have enclosed with this =e=crandu= a copy of the "NEPA Procedures Checklist" which the Council will use in evaluating egency implementing procedures. Many sections of the regulatices will need no elaboration by agencies. Those sections of the regulations which must be addressed in agency procedures are earked with asterisks. Other sections des-cribed in the checklist or appearing in the regulations may be eddressed, the option of an agency, to further provide for i=ple=entation of. the at NEPA regulations in the agency's environ = ental review proce:s.
The test for evaluating agency procedures is whether they provide the
=eans to incorporate the standards of the regulations into agency plan-ning and decision =aking.
The question we will ask, in other words, is whether the procedures will give practical effect to the provisions of the regulations in the agency's environmental review process.
In what follows, we elaborate several aspects of our guidanc-for developing agency implementing procedur*.3.
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ENCLOSURE A (continued)
A.
CARRYING OUT NATIONAL ENVIROR! ENTAL POLICY AND COALS Section 1500.1(a) of the NEPA regulations states that "The National Environnental Policy Act (NEPA) is our basic national charter for protection of the environment.
It establishes policy, sets goals (section 101), and provides means (section 102) for carrying out the policy. Section 102(2) contains ' action-.
forcing' provisions to make sure that federal agencies act according to the letter and spirit of the Act.
The regulations that follow implement Section 102(2). Their purpose is to tell federal agencies what they must do to comply with the procedures and achieve the goals of the Act.
The President, the federal agencies, and the courts share responsibility for enforcing the Act so as to achieve the substantive requirements of section 101."
In addition, Section 1500.1(c) states that
" Ultimately, of course, it is not better documents but better decisions that count. NEPA's purpose is not to generate paperwork --
even excellent paperwork -- but to foster excellent action...."
These statements of purpose place the procedural requirements of NEPA in the context of national environmental policies and goals and establish guidi ; principles for the development of agency implementing procedures.
B.
ASSURING THAT THE NEPA PROCESS CORRESPONDS WITH MAJOR DECISION POINTS FOR PRINCIPAL AGENCY PROGRAMF The NEPA regulations are designed to ensure that the data and analysis developed during the environmental review process is made available to agency planners and decision =akers at the time when it will be of most value to them in for=ulating, reviewing and deciding upon proposals for agency action. Section 1501.2 provides, for exa=ple, that "[a]gencies shall integrate the NEP! process with other planning at the earliest possible time to insure that planning and decisions reflect environ-cental values...." Section 1501.2(b) states that "(e]nviron= ental documents and appropriate analyses shall be circulated and reviewed at the sa=e time as o ther planning documents."
In addition, Section 1502.5 provides that an " agency shall coe=ence preparation of an environ = ental impact statement as close es possible to the time the agency is developing or is presented with a proposal" so that the statement "can serve practically as an important contribution to the decisionmaking process...."
In the case of Federal projects, the EIS shall be prepared at the "f easibility analysis (go-no go) stage" (Section 1502.5(a)). For projects initiated elsewhere, the process shall commence "no later than immediately after the application is received" (Section 1502.5(b)). Agencies are encouraged in such cases to initiate their analyses even earlier.
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E'; CLOSURE A (continued) 6-Morever, Section 1505.1(d) directs agencies to adopt i=ple=enting pro-cedures requiring that relevant environmental docu=c'nts, co== cats and responses "acco=pany the proposal through existing agency revieu processes so that agency of ficials use the statement in making decisions." Agency imple=enting procedures must also ensure that "the alternatives considered by the decision =aker are encompassed by the range of alternatives" discussed in these environmental =aterials (Section 1505.l(e)).
Agency imple=enting procedures must serve as the vehicle for ensuring that these critical issues of timing and integration are properly established in agency planning and decisioncaking processes. It is for this reason that Se tion 1505.l(b) provides that agency implementing procedures shall 1
'ude "(d]esignating the major decisien. points for the agency's principat programs likely to have a significant effect on the human environment assuring that the NEPA process enrresponds with them."
In order to conform eith this section, an agency's procedures should include such information as a description of when the NEPA process starts,i.e. "the earliest possible time;" a designation of =ajor decision points; an identification of the official making the major decisions; a description of what is decided at each major decision point; and a description of the envirencental data and analysis that are to be made available to the decisionmaker at each major decision point.
Charts and other graphic aids =ay be useful in presenting this =aterial.
C.
IDENTIFYING TYPICAL CLASSES OF ACTION FOR SIMILAR TREATME';T IN THE NEPA PROCESS Section 1507.3(c)(2) of the NEPA regulations prov :les that agency i=ple-menting procedures shall include:
"(2)
Specific criteria for and identification of those typical classes of action:
(1) Which normally do require environmental i= pact statements.
(ii) Which normally do not require either
- c. environmental impact statement or an environmental assessment (categorical exclusions (Sec. 1508.4)).
(iii) Which normally require environmental assessments but not necessarily environmental inpact state =ents."
Section 1501.4 describes the way in which these categories are to be used in determining whether to prepare an environmental i= pact state =ent.
Section 1508.4 defines " categorical exclusion" to =can "a category of actions which do not individually or cu=ulatively have a sir,nificant 2355 223
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' E' CLOSURE A (continued)
. ef f ect on the hum.an environment..." (the category described in 1507.3(b)(2)
(ii) above). Section 1508.4 also states, however, that agency implementing procedures "shall provide for extraordinary circumstances in which a normally excluded action may have a significant environcental ef fect."
When these extraordinary circumstances occur, the action or actions would not be treated as categorically excluded from the NEPA process.
Three things should be noted about this aspect of agency implementing procedures. First, Section 1508.18 of the regulations states that
" (b ) Federal actions tend to fall within one of the following categories:
"(1) Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seo.; treaties and international conventions or agreements; formal documents establishing an agency's policies which will result in er substantially alter agency programs.
"(2) Adoption of formal plans, such as of ficial documents prepared or approved by federal agencies which guide or prescribe alternative uses of federal resources, upon which future agency actions will be based.
"(3) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.
"(4) Approval of specific projects, such as construction or management activities located in a defined geographic area.
Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities."
Agencies should review this list of actions for purposes of establishing typical classes of action under Section 1507.3(b)(2).
Second, it is not sufficient simply to identify and categori:e typical classes of agency actions under Section 1507.3(b)(2) of the regulations.
Agency implementing procedures must also contain the " specific criteria" used for th.is purpose.
Third, categorical exclusions must be explicitly qualified as required by Section 1508.4. For each such exclusion, agency implementing pro-cedures must describe at least in general terms "the extraordinary circumstances in which a normally excluded action =ay have a significant environmental effect" and include a description of the procedures which would be followed by the agency in recognizing such an exception.
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E,; CLOSURE A (continued)
. D.
INTEGRATING NEPA REQUIREiENTS 'JITH OTHER ENVIRONMENTAL REVIE'J AND CONSULTATION REQUIREMENTS One important purpose of the regulations is "[i]ntegrating NEPA require-ments with other environmental review and consultation requirements" (Sections 1500.4(k), 1500.5(g)).
Section 1502.25(a) provides, fer example, that:
"To the fullest extent possible, agencies shall prepare draft am ironmental impact statements concurrently with and intcgrated with environmental impact analyses and related surveys and stud'.es required by the Fish and Wildlife Ccordination Act (16 U.S.C. Sec. 661 et seq.), the National Historic Preservation Act of 1966 (16 U.S.C. Sec. 470 et seq.), the Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), and other environmental review laws and executive orders."
To this end, Section 1501.7(a)(6) requires that as part of the scoping process agencies identify other environmental review and consultation requirements so that other required analyses and studies =ay be prepered concurrently with, and integrated with, the environmental impact statement (see Se..tions 1502. 25 (b), 1503. 3 (c), (d)).
We have attached as Appendix C a list of the major environmental review and consultation require =ents for Federal agencies.
Agency imple=enting procedures should identify those requirements that apply to agency actions, and the analyses, surveys and studies which they entail. The implementing procedures should also describe the process by which these requirements are met and indicate how this process will be made to run concurrently with, and integrated with, the NEFA process in terms of timing, agency personnel involved, public review and co==ent, publication and use of documents, research and analysis, and so forth. However, agencies should not allow the incorporation of these other : ore narrowly focused environ = ental review and consultation requirements to detract from the comprehensive approach required by NEPA.
E.
FACILITATING ENVIRONMENTAL REVIEUS FOR PRIVATE APPLICANTS Section 1501.2(d) of the NEPA regulations states that each agency shall:
"(d) Frevide for cases where actions are planned by private applicants or other non-Federal entities before Federal involvement so that:
"(1) Policies er designated staff are available to advise potential applicants of studies or other infor=ation foreseeably required for later Federal action.
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EJ.'OLOSURE A (continued)
"(2) The Federal agency censults early with appropriate State and local agencies and Indian tribes and with interested private persons and organizations when its own involvement is reasonably foreseeable."
Section 1507.3(b)(1) states that agency impicmenting procedures shall include the procedures required by Section 1501.2(d).
To fulfill these requirements, agency implementing procedures should accomplish the following:
(a)
Identify types of actions initiated by private parties, State and local agencies and ether non-govern =ents.1 entities for which agency involvement is reasonably foreseeable; (b)
Establish policies for advising potential applicants of studies or other information foreseeably required for later Federal action including the NEPA proctss. Such policies should provide for full public notice that agency advice en such matters is available, publications containing that advice such as a handbook for applicants, and early consultation in cases where agency involvement is reasonably foreseeable; (c) Designate agency personnel responsible for ccking the idcn-tifications and implementing the policies under subsections (a) and (b), above.
F.
MlTICATION AND MONITORING Section 1505.3 of the NEPA regulations states that
" Agencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases. Mitigation (Section 1505.2(e)) and other conditions established in the environ-mental impact statement er during its review and com=itted as part of the decision shall be implemented by the lead agency or other appropriate consenting agency. The lead agency shall:
"(a)
Include appropriate conditions in grants, permits or other approvals.
" (b ) Condition funding of actions on mitigation.
"(c)
Upon request, infor= cooperating er cocmenting agencies on progress in carrying out mitigation measures which they have proposed and which were adopted by the agency =aking the decision.
"(d) Upon request, make available to the public the results of relevant monitoring."
Agencies are encouraged to address these requirements in their implementing procedures.
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r ENCLOSURE A (continued)
. r G.
OTHER MATTERS 1.
Making Environmental Docu=ents a Part of the Record in Administrative Proceedings Section 1505.l(c) provides that agencies shall adopt procedures which require "that relevant environmental documents, co==ents, and, responses be part of the record in formal rulemaking or adjudicatory proceedings." In addition, Section 1502.9(c)(3) of the NEPA regulations prevides that agencies "[s] hall adopt procedures for introducing a supplement [to an enviorn= ental i= pact state =ent) into its formal ad-ministrative record, if such a record exists. Agency procedures must include provisions for implementing these requirements of the NEPA regulations. Section 1507.3(b)(1).
2.
Informing the Public on the Status of the NEPA Process Section 1506.6(e) of the NEPA regulations provides that agency i=ple=ent-ing procedures shall indicate "where interested persons can get inf or=a tion or status reports on enviren= ental impact statements and other elements of the NEPA process." See Section 1507.3(b)(1). Similarly, Section 1507.2(a) provides that "[algencies shall designate a person to be responsible for overall review of agency NEPA compliance."
3.
Identifying Agencies With Special Expertise and Jurisdiction 3y Law So=e agencies have already made arrange =ents a eng themselves for cooperation in the environmental revieu process. Agency icplementing procedures should describe the arrangements which exist, identify letters of agreement, me=oranda of understanding and other written docu=ents reflecting the arrangements, and indicate how these documents =ay be obtained by members of the public.
The Council is currently preparing a list of agencies with special expertise f a prescribed resource areas and an analysis of agency jurisdiction by law under Federal statutes. When published, this infor-mation vill assist lead agencies in identifying potential cooperating agencies for preparing environmental impact statements.
4, Cooperating 'Jith State and Local Agencies Section 1506.2 of the NEPA regulations provides for cooperation with State and local ageccies to reduce duplication between NEPA and State and local requirements. To this end, we have attached as Appendix D a list of State and local entities with environ = ental review require =ents that appeared in the Council's 1977 Annual Report on Environmental Quality.
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EllCLOSURE A (continued) '
We recogni:e that developing agency implementing procedures vill be a challenging job. We will be available for consultation throughout this process and are prepared to meet with you to discuss the implementing procedures at the earliest mutually convenient time.
A
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NICH01.AS C. YOST Ceneral Counsel Enclosures (not attached)
APPDIDIX A - CEQ Staff Contacts APPENDIX B - NEPA. Liaisons APPENDIX C - Environmental Review and Consultation Requirements APPENDIX D - State Environmental Impact Statement Requirements, May 1, 1977 NEPA Procedures Checklist 2355 228 P
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ENCLOSURE B Provisions of CEQ NEPA Regulations Requiring Supplementary Agency Procedures Section 1507.3(b)(1) of CEQ's NEPA Regulations requires each Federal agency to develop supplementary procedures to implement the following regulatory provisions:
(' ) 51501.2(d) - which specifies steps Federal agencies should take l
to ensure that environmental factors are con-sidered at an early stage in the planning process where actions are planned by private applicants or other non-Federal entities before Federal involvement. These steps include:
- Having policies or designated staff available to advise potential applicants of studies or other information foreseeably required for later Federal action.
- Consulting early with appropriate State and local agencies and Indian tribes and with interested private persons and organizations when involvement of the Federal agency is reasonable foreseeable.
- Commencing the NEPA process at the earliest possible time.
2355 230-
-~
-mmam-
' ENCLOSURE B (continued) crr4 (2) 5 1502.9(c)(3) - which requires agencies to adopt procedures for introducing supplements to draft or final en-vironmental impact statements into formal administrative records.
(3) 5 1505.1
- which requires agencies to adopt implementing procedures to ensure that decisions are made in accordance with the policies and purposes of NEPA as set out in sections 101 and 102(1) of that Act. These procedures shall, among other things:
- Designate the major decision points for the agency's principal programs likely to have a significant effect on the human en-vironment and assure that the agency's NEPA process corresponds with those de-cision points.
- Require that relevant environmental docu-ments, comments and responses (1) be part of the record in formal rule making or adjudicatory proceeding:;, and (2) accompany a proposal through exining agency review processes so that agency officials use these documents in making decisions.
2355 231
ENCLOSURE B (continued) - Require that alternatives considered by the de-cisionmaker be encompassed by the range of alternatives discussed in the relevant en-vironmental documents and that the decision-maker consider the alternatives described in the environmental impact statement.
- In addition to the preceding requirements relating to relevant environmental documents, S 1505.l(e) encourages agencies to make avail-able to the public before a decision is made, any parts of other decision documents which relate to the comparison of alternatives.
(4) 51506.6(e) - which requires agencies to explain in their procedures where interested persons can get infonnation or status reports on environmental impact statements or other elements of the NEPA process.
Section 1501.7(b)(3) provides that an agency may adopt im-plementing procedures to combine its environmental assessment process with its scoping process.
Pursuant to 40 CFR 51507.3(b)(2), each Federal agency is required to include in its implementing procedures specific criteria for and identification of those typical classes of action which normally (1) require an environmental impact statement, (ii) do not require an environmental impact statement or an anvironmental assessment, i.e.
2355 232
' ENCLOSURE B (continued) categorical exclusion as defined in 5 1508.4 and (iii) require an environtrental assessment but not necessarily an environmental impact statement.
Pursuant to 40 CFR S 1507.3(c), agency procedures may include specific criteria for providing limited exceptions to CEQ's regulations for classified proposals. Time periods for taking agency action and publishing a notice of intent to prepare an environmental impact state-ment may be shortened or lengthened pursuant to 40 CFR 551507.3(d) and (e).
-1/ 5 1508.4
" Categorical Exclusion" means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. An agency may decide in it: procedures or otherwise, to prepare environmental assessments for the reasons stated in 1508.9 even though it is not required to do so. Any procedures under this section shall provide for extra-ordinary circumstances in which a normally excluded action may have a significant environmental effect.
2355 233
e e
t 0
ENCLOSURE C 2355 234 4
I
ENCLOSURE C - Section 102 of the National Environmental Policy Act of 1969, as amended; 42 USCS 9 4332 ENVIRONMENTAL PoucY 42 USCS 4332 j4332. Cooperation of agencies-Reports-Availability of infor-mation-Recommendations-International and national coordination of efforts The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act (42 USCS (( 4321 et seq.], and (2) all agencies of the Federal Government shall-(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man's environment; (B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act (42 USCS QQ 4341 et seq.], which will insure that presently unquantified environmental amenities and values may be given appropriate considera-tion in decision-making along with economic and technical considera-tions; -
(C) include in every recommendation or report on proposals for legisla-tion and other major Federal actions significantly atrecting the quality of the human environment, a detailed statement by the responsible official on-(i) the environmental impact of the proposed action, (ii) any adverse environmental erTects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environ-ment and the maintenance and enhancement of long-term productiv-ity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agen-cies, which are authorized to develop and enforce environmental stan-dards, shall be made available to the President, the Council on Environ-mental Quality and to the public as provided by section 552 of title 5, United States Code [5 USCS { 552], and shall accompany the proposal through the existing agency review processes; (D) Any detail-d statement required under subparagraph (C) after January 1,1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if:
2355 235
E! CLOSURE C (continued) 42 USCS { 4332 Pusuc HEALTH AND WELFARE (i) the State agency or oflicial has statewide jurisdiction and has the i
responsibility for such action, i
(ii) the responsible Federal official furnishes guidance and participates in such preparation, (iii) the responsible Federal official independently evaluates such statement prior to its apnroval and adoption, and l
(iv) after January 1,1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or I
afTected Federal land management entity and, if there is any disagree-ment on such impacts, prepares a written assessment of such impacts 1
and views for incorporation into such detailed statement.
l The procedures in this subparagraph shall not relieve the Federal official of i
his responsibilities for the scope, objectivity, and content of the entire statement or of any other responsibility under this Act [42 USCS 4321 et seq.]; and further, this subparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide jurisdic-tion.
(E) study, develop, and describe appropriate alternatives to recom-mended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resouces; (F) recognize the worldwide and longrange character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, a d programs designed to maximize international cooperation in anticq ating and preventing a decline in the quality of mankind's world enviror. aent; (G) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment; (H) initiate and utilize ecological information in the planning and development of resource-oriented projects; and (I) assist the Council on Environmental Quality established by title II of this Act [42 USCS QQ 4341 et seq.].
(Jan.1,1970, P. L 91-190, Title I, Q 102,83 Stat. 853; Aug. 9,1975, P-L.
94-83, 89 Stat. 424.)
2355 236
ENCLOSURE C (continued) Texts of Executive Orders Nos.11514 and 11991.
Protection and enhancement of environmental quality. Ex. Or. No.
11514 of Mar. 5,1970,35 Fed. Reg. 4247, provided:
SECTION 1. Policy. The Federal Government shall provide leadership in protecting and enhancing the quality of the Nation's environment to sustain and enrich human life. Federal agencies shall initiate measures needed to direct their policies, plans and programs so as to meet national environmental goals. The Council on Environmental Quality, through the Chairman, shall advise and assist the President in leading this national effort.
SEC. 2. Responsibilities of Federal agencies. Consonant with Title I of the National Environmental Policy Act of 1969 [42 USCS 4331 et seq.], hereafter referred to as the "Act," the heads of Federal agencies shall: (a) Monitor, evaluate, and control on a continuing basis their agencies' - activities so as to protect and enhance the quality of the environment. Such activities shall include those directed to controlling pollution and enhancing the environment and those designed to accomplish other program objectives which may affect the quality of the environment. Agencies shall develop programs and measures to protect and enhance environmental quality and shall assess progress in meeting the specific objectives of uch activities. Heads of agencies shall consult with appropriate Federal, State and local agencies in carrying out their activities as they affect the quality of the environment. (b) Develop procedures to ensure the fullest practicable provision of timely public information and understanding of Federal plans and programs with environmental impact in order to obtain the views of interested parties. These procedures shall include, whenever appropri-ate, provision for public hearings, and shall provide the public with relevant information, including information on alternative courses of action. Federal agencies shall also encourage State and local agencies to adopt similar procedures for informing the public concerning their activities affecting the quality of the environment. (c) Insure that information regarding existing or potential environmen-tal problems and control methods developed as part of research, development, demonstration, test, or evaluation activities is made available to Federal agencies, States, counties, municipalities, institu-tions, and other entitics, as appropriate. (d) Review their agencies' statutory authority, administrative regula-tions, policies, and precedures, including those relating to loans, grants, contracts, leases, licenses, or permits, in order to identify any deficien-cies or inconsistencies therein which prohibit or limit full compliance with the purposes and provisions of the Act [42 USCS (( 4321 et seq.). A report on this review and the corrective actions taken or planned, including such measures to be proposed to the President as may be necessary to bring their authority and policies into conformance with the intent, purposes, and procedures of the Act [42 USCS (( 4321 et seq.], shall be provided to the Council on Environmental Quality not later than September 1,1970. (e) Engage in exchange of data and research results, and cooperate with agencies of other governments to foster the purposes of the Act (42 USCS {} 4321 et seq.]. (f) Proceed, in coordination with other agencies, with actions required by section 102 of the Act [42 USCS } 4332]. Refer to Section 2 of Executi,2 Order No.11791 for text of new subsection (g). 2355 2.~
E'iCLOSI.'RE C (continued) Text of Executive Order No.11514 (continued) S'EC. 3. Responsibilities of Council on Environmental Quality. The Council on Environmental Quality shall: (a) Evaluate existing and proposed policies and activities of the Federal Government directed to the control of pollution and the enhancement of the environment and to the accomplishment of other objectives which affect the quality of the environment. This shall include continu-ing review of procedures employed in the development and enforcement of Federal standards affecting environmental quality. Based upon such evaluatioas the Council shall, where appropriate, recommend to the President policies and programs to achieve more effective protection and enhancement of environmental quality and shall, where appropri-ate, seek resolution of significant environmental issues. (b) Recommend to the President and to the agencies priorities among programs designed for the control of pollution and for enhancement of the environment. (c) Determine the need for new policies and programs for dealing with environmental problems not being adequately addressed. (d) Conduct, as it determines to be appropriate, public hearings or conferences on issues of environmental significance. (c) Promote the development and use of indices and monitoring systems (1) to assess environmental conditions and trends, (2) to predict the environmental impact of proposed public and private actions, and (3) to determine the errectiveness of programs for protect-ing and enhancing environmental quality. (f) Coordinate Federal programs related to environmental quality. (g) Advise and assist the President and the agencies in achieving international cooperation for dealing with environmental problems, under the foreign policy guidance of the Secretary of State. R:f:r to Section 1. of Executito Order No. 11991 for t2xt of revised subsection (h). (h) hsu@deF :: '~ FdemLage :9for 'N rep 2u'in-cf h'aued-statemenWcp !: f= ':gE!:.cn and oth s ndcr:! u.om alTecting 'h; ;;; Jrenmentr-es-required-by-section402(2)(GHf-the-Act {, ~,,.,. w n. (i) Issue such other instructions to agencies, and request such reports and other information from them, as may be required to carry out the Council's responsibilities under the Act (42 USCS (( 4321 et seq.). G) Assist the President in preparing the annual Environmental Quality Report provided for in section 201 of the Act (42 USCS { 4341]. (k) Foster investigations, studies, surveys, research, and analyses relat-ing to (i) ecological systems and environmental quality, (ii) the impact of new and changing technologies thereon, and (iii) means of prevent-ing or reducing adverse effects from such technologies. 2355 238
E;CLOSUPS C (continued) Text of Executive Order No. 11514 (continued) S5C. 4. Amendments of EO. IN72. Execu;ise Order No.11472 of May 29,1969 (see above note to this sectioni, including the heading thereof, is hereby amended: (1) By substituting for the term "the Envi.cnmental Quality Coun-cil", wherever it occurs, the following: "tne Cabinet Committer on the Environment". (2) By substituting for the term "the Co mcil", wherever it occurs, the following:"the Cabinet Committee". (3) By inserting in subsection (f) of section 101, after " Budget,", the following:"the Director of the Omce of Scienee and Technology,". (4) By substituting for subsection (g) of section Mi the following: "(g) The Chairman of the Council on Environmental Quamy (estab-lished by Public Law 91-190) shall assist the President in directing the affairs of the Cabinet Committee." (5) By deleting subsection (c) of section 102. (6) By substituting for "the Omce of Science and Technology", in section 104, the following: "the Council on Environmental Quality (established by Public Law 91-190)". (7) By substituting for "(hereinafter referred to as the ' Committee *)", in section 201, the following: "(hereinafter referred to as the 'Citi-zcas' Committee')". (8) By substituting for the term "the Committee", wherever it occurs, the following: "the Citizens' Committee". 2355 239
T.:'CLOSITn?.; C, scontinued) 88it ruauttu EM7 E:,erothe 0:dcr 11991 .%f ay 21,1977 lu;rxt u:G To P!:0TrcTIO:1 At:ts E::liA'!c Mth:r4T OF 1:IJVII:0::F.l;tJTAl, OtIA!.lTY By vittue of the aut.hority vested in me by the Constitution and utatutes of the United States of A152rica, l - m and as President of the United States of Aincrica, i n' furtherance of the purpouc and policy of the National {, Environmental Policy Act of 1969, as amended (4 2 U.S.C. 4 321 e t seq. ), the Environmental Quality.Improvcment Act ', 7., i / of 1970 (4 2 U.S.C. 4371 c_t. ccq.), and Section 309 of the t i-,' .,.) ' Clean Air Act, as amended (42 U.S.C. 1057!-7), it is hereby ordered as follows: J Section 1. Subsection (h) of Section 3 (relating to . responsibilitics of the Council on rnvironnental Quality) .;,s' of Executive Order No. 11514, as a:nended, is revised to .., c. ./ read as follows: ', ~. '. "(h) Issue regulations to Federal agencies for the / :.;. implementation of the procedural provisions of the Act (42 U.S.C. 4332(2)). Such regulations shall be developed af ter consultation with affected agencies and af ter such ..-i public hearings as may be appropriate. They will be de- ,a.. signed to make the environmental impact statement process ,.l, more useful to decisionmakers and the public; and to reduce g' paperwork and the accumulation of extraneous background data, in order to emphasize the need to focus on real environc.3ntal issues and alternativos. They will require impact ctatements to be concisc, clear, and to the point, and supported by evidence that agencies have inade the necessary environnental analyses. The Council shall include in its regulations procedures (1) for the early preparation of environtrental impac t s tatements, and (2) for the referral to the Council of conflicts between s, 2355..240 f fDILA1 tJClif tt, Vot. 4 2, No.101-WECNE5 DAY, MAY 25, 1977 .imie.,e .amea +w
~ENCLCSLRE C (continued)' E.C. //?f/ . 5 03-liiE rREstorNT a<y'ncies concernisvy the i:.pl et, ant a t ion of the :: s t ional l'n v i ron: v:n t a l r'ol i cy Act o f 1969, as ama nd< d, and Cection 309 of the Clean Air Act, as amended, 'for the Council's recommendation as to their prompt resolution.". Occ. 2. The following new subsection is added to Section 2 (rclating to respons,ibilities of Federal I agencies) of Executive, Cider No. 11514, as amended: "(g) In carrying out their responsibilitics under the Act and this Order, comply with the regulations issued by the Council except where such compliance would be inconsistent with statutory reqc*rements.". s s
- lA/O TIIE UllITE !!OUSE, May 24, 1977
[FR Doc.77-15124 Filed 5-24-77;!:45,,m] 2355 241
- =, *...
.a dB y f fCIR AL ttC151t t, VCL. 47. NO. 101-W!CNt!D AY, MAY 25, 1977
4 e t 4 O ENCLOSURE D 9 a w ~ 2355'242 O
ENCLOSURE D Provisions of CEQ NEPA Reculations Which Present Problems but Appear Amenable to NRC Imolementation 1. Section 1502.9, which relates to draft, final and supplemental impact statements and provides in part that "[t]he agency shall make every effort to disclose and discuss at appropriate points in the draft statement all major points of view on the environmental impacts of the alternatives including the proposed action." It is unclear whether this requirement, to discuss and disclose all major points of view, obligates agencies to identify and discuss all theoreti-cally possible points of view with respect to environmental impacts or whether agencies are only obligated to discuss major points of view which are actually presented. According to informal advice from CEQ staff, the second interpretation is correct. This provision was not intended to require agencies to conduct exhaustive, completely open-ended environ-mental reviews. 2. Several provisions of the CEQ regulations, specifically those relating to the record of decision,2/ establishment of time limits,2/ 1/ 40 CFR 5 1502.2(f), 1505.2, 1506.1 and 1506.10. 2/ 40CFRl1501.8. 2355 243
ENCLOSURE D (Continued) and treatment of comments on final environmental impact statements ! could present preblems unless the Commission was given latitude to detennine how best to mesh these requirements with the Commission's regulatory review and hearing process. For example, the timing of the issuance of the record of decision could have a major impact on the. Comission's immediate effectiveness rule (10 CFR l 2.764)4/- by reason of the fact that 51506.l(a) of CEQ's NEPA regulations (see also !!1505.2and1506.10) precludes agency action on a proposal which would have an adverse environmental impact or limit the choice of rea-sonable alternatives until the record of decision is issued. According to informal advice from CEQ staff, regulatory agencies will be accorded sufficient latitude to enable them to incorporate these pro-visions in their implementing regulations in a rational manner. CEQ staff has indicated that they see no problem with staff level issuance of the record of decision. ,3] 40CFRSIS03.l(b). -4/ The issues involved in the immediate effect'veness rule are being studied by the NRC's Advisory Committee on luclear Power Plant Con-struction During Adjudication The Advisory Committee is expected to issue its report about November 1, 1979. 2355 244
ENCLOSURE D (Continued) Further clarification of the tiering concept (51502.20)E/ was 3. sought to determine whether tiering would preclude NRC from continuing to use generic environmental studies 5/ n its regulatory process. i (These studies do not satisfy CEQ Mquirements for environmental impact statements.) According to informal telephone advice from CEQ staff, NRC could continue to use these studies. 4. Concerns respecting the reach of the limitations placed on agency action pending completion of a reauf red program environmental impact statement (51506.l(c)) were alleviated by informal advice from CEQ staffthatthelimitationswhich$1506.l(c)placesonagencyaction -S/ Tiering permits agencies to link broad environmental impact state-ments with specific environmental impact statements in order to eliminate repetitive discussions of the same issues and focus on issues ripe for decision at each level c,f environmental review. -6/ For examples of these studies, see 10 CFR Part 51, Table S Summary of environmental considerations for uranium fuel cycle, based on supporting data contained in " Environmental Survey of the Uranium Fuel Cycle," WASH-1248, April 1974, " Environmental Survey of the Reprocessing and Waste Management Portions of the LWR Fuel Cycle," NUREG-0116 (Supp. 1 to WASH-1248, October 1976) and " Dis-cussion of Comments Regarding the Environmental Survey of the Reprocessing and Waste Management Portions of the LWR Fuel Cycle," NUREG-0216 (Supp. 2 to WASH-1248, March 1977). See also Vermont Yankee Nuclear Power Corp. v. NRDC, et al. Nos. 76-491 and 76-528, decided April 3, 1978, 435 U.S. S19, in which the U.S. Supreme Court uphild the procedures, including the use of environmenta'l surveys, ised in this rulemaking proceeding. See also, 1: CFR Part 51, Summary Table S Environmental impact of transporth+. ion of fuei and waste to and from 1 light-water-cooled nuclear power reactor, based on supporting data contained in " Environmental Survey of Transportation of Radioactive Materials to ard from Nuclear Power Plants," WASH-1238, December 1972, and NUREG-75/038 (Supp. I to WASH-1238, April 1975). 2355 245
ENCLOSURE D (Continued) when an agency is required to prepare a program environmental impact statement do not apply to instances in which an agency prepares a pro-gram environmental impact statement voluntarily. 5. The CEQ regulations contain several provisionsU which encouraae affected agencies to the fullest extent possible to cooperate and coor-dinate their review processes so that needed permits and approvals are issued simultaneously instead of sequentially. Accordi1g to infomal advice from CEQ staff, these provisions are not intended to bar any Federal agency from taking action until after other needed pemits and approvals have, in fact, been obtained. In accordance with current NRC practice, each final environmental impact statement contains a section which summarizes the status of other Federal, State or local pemits which might be required in connection with the proposed action. CEQ staff indicated that this practice would continue to be acceptable under the new CEQ NEPA regulations. 6. Section 1505.3 of the CEQ regulations provides in part that "/a/gencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases...." The provisions y See il 1502.16(c),1502.25,1503.3(c) and (d) and 1506.2(b), (c) and (d). For a general discussion of "How The NEPA Regulations Improve The Federal Pemitting Process" see Memorandum on this sub-ject for Energy Coordinating Committee Members from Charles Warren, Chairman, Council on Environmental Quality, dated December 21, 1978, Enclosure E. 2355 246
ENCLOSURE D (Continued) of the Frderal Water Pollution Control Act preclude NRC from perfoming monitaring in connection with certain water quality matters. CEQ staff acknowledged the limitations placed by this statute on NRC's monitoring capability. 2355 247
4 e e e e v. ENCLOSURE E 2355 248 4
Et; CLOSURE E COUNCIL ON ENVIRONMCNrAL QUALITY. 722.'ACK:oM N. ACE. N. W. WASHINGl ord, o. C. 2lW.6 'December 21, 1978 MEMORANDUM FOR ENERGY CCORDINATING CC121ITTEE MEMBERS m
SUBJECT:
How The NEPA Regulations Improve The Federal Permitting
- Process,
~ ~ In its newly adopted regulations under the Nation 51 Environmental Policy Act, the Council adopted a series of specific measures which will greatly improve the federal permitting process for energy facilities. The new regulations go beyond environmental impact statement require-ncnts and address broader issues in integration and cocrdination of all environmental review and permit requirements. Major refor=s include: ~ All permits identified early. All agencies with authority over a project required to consult ~~ early and work.with the lead agency. .s All agencies to develop procedures to aid applicants.. ' Avoidance of delay. ~ Ti=e limits on NEPA process cust be set at applicant's request. All reviews to be prepared concurren:1y rather than consecutively All information or mitigation that will be necessary to approve the project to be identified early. Eliminates duplicatien in EIS preparation. ~ This memorandum briefly discusses these and other provisions in the nev NEPA regulations, which were issued on Nove=ber 29, 1978. Project sponsors of ten face a nu=ber of federal permit and license requirements before construction can start. There are a variety of ' federal statutes requiring different kinds of environ = ental reviews to k*hile precede the issuance of applicable federal per=its or licenses. NEPA's EIS require =cnt is the only co=prehensive environeental review requirecent, a project =ay require co=pliance with specialized environ- = ental reviews and analyses such as those required under the Fish and Wildlife Coordination Act (in connection with the issuance of dredge and 2355 249 y
EMCLOSURE E (continued) -2~ fill per=its), or those required under the Clean Air Act (in connection with permits issued directly by EPA or by a state through its State Impicmentation Plan requirements). Similarly, a non-federal project may , require federal permission and co=pliance with federal environmental reviews for some components, such as a 3LM casef::ent over public lands for transmission lines for a fossil fuel generating plant that otherwise requires no federal permits. ~ ' ' i In the past there have been cases, particularly where cultiple federal permit and environmental revie.w requirements are applicabic, where cocpliance with various federal per=it and environtental review require- ~ ments has been delayed. Reasons for delay include lack of coordination among federal agenciec having approval and review authority, sequential (rather than concurrent) processing of permit and review require =ents, failure to prepare enviren= ental reviews early during the planning stages, inadequate guidance fro::: federal agencies to permit applicants, adversary relations between agencies having differing missions, and duplication between federal and state environ = ental protection require-ments. The Coun il's final NEPA regulations address each'of these problems in the federal permitting process. Applicabic provisions in the NEPA regulations which will i= prove federal permitting are sur=a.-ized belev. 1.. Agencies having per=itting, licensing or'other approval authority over
- 2. project are required to consult early in the planning of the project.
During this early consultation, called the " scoping process" agencies are to identify signifi-cant environ = ental issues, identify all applicable permit and ~ environmental review requirements, and organire the prepara-tion of the EIS in a way that consolidates and integrates all , environmental reviews. (Sections 1501.1, 1501.2, 1501.7). 2. Agencies with jurisdiction by law over the project (e. g., permitting or approval authority) are required to cooperate with the lead agency in preparing the EIS. An agency.having permit authority over a ec=ponent of the project cannot' stay I 4 aloof from the EIS preparation and intervene at later stage in ,j the project approval to conduct environmental reviews necessary for the permit. (Section 1501.6). 3. Agencies having permitting or licensing authority are required to develop procedures that facilitate application of the NEPA ' process at the earliest possible ti=e in cases where projects are being planned by private applicants or other non-Federal entities before Federal involve =ent. Such procedures =ust make available to potential :.pplicants agency policies or . designated staff to advise applicants of studies or other 2355 250 3
~2 'EdCL SURE E (continued) - information forcsceably required for the later-stage Federal permit or approval. Such procedures cust also indicate how the agency will c.onsult early with appropriate State and local agencies, Indian tribes, interested private parties and organizations when the Federal agency's permitting authority is reasonably foreseeabic. (Section 1,501.2(d)). 4. In order to avoid delays in applying
- the NEPA process to
~ permits, the regulations require environmental assessments or EISs to be started no later than i==ediately af ter the permit application is received, preferably earlier and jointly with . applicable State or local agencies. (Section 1502.5(b)). In .~ c addition,*the 1 cad agency is required to set time limits for . the NEPA process at the request of the per=it applicant so long as the time limits are consistent with NEPA and other essential considerations of national policy (Section 1501.8). 5. In order to mini =ize delays caused by sequential preparation ~ of environ = ental reviews and analyses for a project requiring federal permits, licenses or approvals, the regulations / require that the draft EIS.scrve to the maximum extent as the j vchicic for conducting all required environ = ental reviews. e Thus the draft EIS is to be prepared concurrently with and integrated with environmental studies, reports and analyses required by other federal statutes, regulations and Executive Orders (Section 1502. 25 (a)). 3 s at 6. To facilitate identification of federal per=it require =ents for a project, the regulations require that all applicable federal perctis, license and other approval require =ents be identified initially when the EIS is started (Section 1501.7) and again when the draft EIS is circulated for review and comment (Section 1502. 25 (b)). 7. To improve coordination a=eng federsi agencies having authority over a project and to mini =ize adversary relaticns between agencies with conflicting missions, the regulations require federal agencies with jurisdiction by law to com=ent on the draft EIS and to state in their com=ents whether they need additional infor=ation to fulfill environ = ental review require-ments for permits, licenses or entitle =ents they issue, and to state what additional infor=ation is required. In particular, a cooperating agency is required to specify any additional information it needs to co==ent adequately on the draft EIS's analysis of site-specific effects associated with the granting or approving'by that agency of necessary Federal per=its, licenses or entitlements.- (Section 1503.3(c)). 2355 251 e g 5 e
. E:: CLOSURE E (con (inued) Reinforcing this requirccent, the regulations provide that when one federal agency with jurisdiction by lau objects to or expresses reservations about the project on environecntal impact grounds, the agency expressing the reservation or objectica =ust specify any citigation ceasures it considers necessary to allcw the agency to grant' or approve applicable permit, license or related requircrents or concurrences (Section 1503.3(d)). These provisions will help insure that federal per=itting agencies will work closely with the lead agency in r6 solving environmental i= pact issues, and avoid adversarial positions which cause. delay in the per=itting process. 8. To minimize delays in the permitting process caused by duplicate reviews, the regulatiens allow a federal permitting agency to adopt the EIS prepared by the lead agency without recircu-lating it for, review (Section 1506.3(c)). In addition, the regulations provide for eliminating duplication between the Federal EIS and State / local review requirements (Section 1506.2)). ,/ fA ) HARLES WARREN,,, Chair =an 2555252 O O e e ,e e e e 8
e6 g a A 6 4 e 0 ENCLOSURE F 2355 253 e e m 9
ENCLOSURE F Proposed Letter to CEQ Chairman Warren The Honorable Charles H. Warren Chairman, Council on Environmental Quality Executive Office of the President 722 Jackson Place, N.W. Washington, D.C. 20006
Dear Chairman Warren:
The Commission supports the objectives of Executive Order 11991 to make the environmental impact statement process more useful to decisionmakers and the public, to reduce paperwork and delay, and to focus on real environmental issues and alternatives. Towards this end and to the extent possible and consistent with its substantive statutory responsi-bilities, the Commission plans to carry out its responsibilities under the National Environmental Policy Act, as amended, in accordance with the procedures promulgated by the Council. The November 29, 1978 issue of the Federal Register in which the text of CEQ's final NEPA regulations appeared contains a detailed account of the concerns and problems which the Council considered and addressed in preparing the regulations in effective form. Although tatement is helpful in understanding some of the broad objectives and specific pro-visions of the Council's HEPA regulations, it does not provide guidance on how conflicts between CEQ's NEPA requirements and NRC's responsibili- ' ties as an independent regulatory agency might best be resolved. 2355 254
ENCLOSURE F (Continued) The Honorable Charles H. Warren In considering what actions ma.y be needed to implement CEQ's NEPA regu-lations, the Commission has again focused its attention on this matter. After further deliberation and review of the problems involved, we have concluded that a sound accommodation can be reached between NRC's inde. pendent regulatory responsibilities and CEQ's objective of establishing uniform NEPA procedures. To achieve this goal, the Commission would undertake to comply with CEQ's NEPA regulations voluntarily, subject to the following conditions: 1. Voluntary compliance with CEQ's NEPA regulations does not bind the Commission to adopt subsequent interpretations or changes to the regulations made by CEQ. The Commission reserves the right to examine future interpretations or changes to the regulations on a case-by-case basis. 2. The effect of some specific provisions of CEQ's NEPA regulations (e.g., 1502.14(b), 1502.22(b) and 1508.18) on the Commission's regulatory activities is unclear. The Commission will devote additional study to these matters before developing implementing regulations. 3. NRC reserves the right to prepare an independent environmental impact statement whenever it has jurisdiction over a particular activity even though it has not been designated as lead agency for preparation of the statement. 2355 255
g.... ENCLOSURE F (Continued) The Honorable Charles H. Warren 4. NRC reserves the right to make a final decision on all matters within its regulatory authority despite the provisions of 10 CFR Part 1504 which provide procedures for predecision referrals to CEQ. It is the Comission's present plan to develop implementing NEPA regu-lations in accordance with the above guidelines. Although these guide-lines contain certain reservations, we believe the reservations are limited to matters which fall well within the exception in 40 CFR H 1500.3 and 1507.3(b) which relieves agencies from compliance "... where compliance would be inconsistent with other statutory requi rements. " We would appreciate any comments which you may wish to make concerning this approach. The NRC staff has been instructed to consult with members of your staff throughout the drafting process. We have every confidence that this continuing dialogue will yield a set of implementing regula-tions which the Council and the Commission will find mutually acceptable. Sincerely, Joseph M. Hendrie Chaiman 2355 256 __}}