ML20217H070
| ML20217H070 | |
| Person / Time | |
|---|---|
| Issue date: | 08/05/1997 |
| From: | Nelson R NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Mccold L OAK RIDGE NATIONAL LABORATORY |
| References | |
| REF-WM-3 NUDOCS 9708080208 | |
| Download: ML20217H070 (11) | |
Text
,v August 5, 1997 Lance N. McCold, Program Manager l
Energy Division l
Oak Ridge National Laboratory P.O. Box 2008. Bldg 4500N Oak Ridge. TN 37831 6206
SUBJECT:
GUIDANCE ON THE DEVELOPMENT OF ENVIRONMENTAL ASSESSMENTS AND ENVIRONMENTAL IMPACT STATEMENTS r
i
Dear Mr. McCold:
Enclosed is a memorandum from the Council on Environmental Quality on the a > plication of the National Environmental Policy Act to transboundary impacts tlat may occur as a result of proposed federal actions across the United States' borders.
Please include transboundary analyses, as appropriate. in future Environmental Impact Statements (EISs) or Environmental Assessments.
It has come to our attention during the process of publishing the Parks Township Shallow Land Disposal Area Draft EIS that, in order for a personal communication to be cited in a NUREG document, the documentation for that personal communication must be present in the NRC's Public Document Room.
For future NUREGs, if you wish to cite a personal communication, please document that conversation and send a copy to the NRC project manager so it can be placed in the Public Document Room.
Thank you again for all your efforts in producing the Parks Township DEIS.
The staff appreciates the extra hours that were necessary to produce this document and looks forward to working with you on the FEIS.
Sincerely.
[ Original signed by)
Robert A. Nelson, Chief Low-level Waste and Regulatory Issues Section Low tevel Waste and Decommissioning Projects Branch Division of Waste Management Office of Nuclear Material Safety and Safeguards
Attachment:
As Stated DISTRIBUTION:
Central File NMSS r/f LLDP r/f JHickey
.LBell TCJohnson JKennedy JHolonith DDeMarco PUBLIC Path & File Name: S:\\DWM\\LLDP\\ PAS \\mccold.ltr See orevious concurrence OFC LLDP PMDA LLM[
-NAME PSobel*
DDeM6I80 blIonx DATE 8/l/97 8/5197 8/l/97 0FFICIAL RECORD COPY ACNW: YES NO x
Category:
Proprietary or CF Only
-l IG : YES NO x
LSS :.YES NO x
Delete file after distribution:
Yes X No 9700080208 970005
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August 5, 1997 Lance N. McCold, Program Manager Energy Division Oak Ridge National Laboratory P.O. Box 2008. Bldg 4500N Oak Ridge. TN 37831 6206
SUBJECT:
GUIDANCE ON THE DEVELOPMENT OF ENVIRONMENTAL ASSESSMENTS AND ENVIRONMENTAL IMPACT STATEMENTS
Dear Mr. McCold:
Enclosed is a memorandum from the Council on Environmental Quality on the a) plication of the National Environmental Policy Act to transboundary impacts tlat may occur as a result of proposed federal actions across the United States' borders.
Please include transboundary analyses, as appropriate, in future Environmental Impact Statements (EISs) or Environmental Assessments.
It has come to our attention during the process of publishing the Parks Township Shallow Land Disposal Area Draft EIS that, in order for a personal communication to be cited in a NUREG document, the documentation for that personal communication must be present in the NRC's Public Document Room.
For future NUREGs. if you wish to cite a personal communication, please document that conversation and send a copy to the NRC project manager so it can be placed in the Public Document Room.
Thank you again for all your efforts in producing the Parks Township Draft EIS.
The staff appreciates the extra hours that were necessary to produce this document and looks forward to working with you on the final EIS.
Sincerely.
Robert A. Nelson. Chief low-level' Waste and Regulatory Issues Section Low Level Waste and Decommissioning Projects Branch Division of Waste Management Office of Nuclear Material Safety and Safeguards
Attachment:
As Stated o
August 5, 1997 Lance N. McCold. Program Manager Energy Division Oak Ridge National Laboratory P.O. Box 2008. Bld 4500N Dak Ridge. TN 378 1-6206
SUBJECT:
GUIDANCE ON THE DEVELOPMENT OF ENVIRONMENTAL ASSESSMENTS AND ENVIRONMENTAL IMPACT STATEMENTS
Dear Mr. McCold:
Enclosed is a memorandum from the Council on Environmental Quality on the a) plication of the National Environmental Policy Act to transboundary irnpacts tlat may occur as a result of proposed federal actions across the United States' borders.
Pledse include transboundary analyses, os appropriate. in future Environmental Impact Statements (EISs) or Environmental Assessments.
It has come to our attention during the process of publishing the Parks Township Shallow Land Disposal Area Drift EIS that. In order for a personal communication to be cited in a NUREG document, the documentation for that personal communication must be present in the NRC's Public Document Room.
For future NUREGs. if you wish to cite a personal communication. please document that conversation and send a copy to the NRC project manager so it can be placed in the Public Document Room.
Thank you again for all your efforts in producing the Parks Township DElS.
The staff appreciates the extra hours that were necessary to produce this document and looks forward to working with you on the FEIS.
Sincerely.
[ Original signed by]
Robert A. Nelson. Chief Low Level Wasta and Regulatory issues Section Low Level Waste and Decommissioning Projects Branch Division of Waste Management Office of Nuclear Material Safety
Attachment:
As Stated DISTRIBUTION:
Central File NMSS r/f LLDP r/f JHickey LBell 1CJohnson JKennedy JHolonich DDeMarco PUBLIC Path & File Name:
S:\\DWM\\LLDP\\ PAS \\mccold.ltr
- - See previous concurrence Llh[
0FC LLDP PMDA NAME PSobel*
DDeMa[80 d$1IonA DATE 8/l/97 8/5/97 8/l/97 0FFICIAE RECURD CDPY ACNW: YES NO x
Category:
Proprietary or CF Only IG
- YES NO x
LSS. YES NO x
Delete file after distribution:
Yes X No __
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I COUNCIL ON ENVIRONMENTAL QUALITY N-
] i L ms-mcw o e em up.v yog? .: m niet QJl}'f, hiEhiORANDUh1 TO llEADS OF AGENCIES ON TliE APPLICATION OF Tile NATIONAL ENVIRONhiENTAL POLICY ACT TO PROPOSED FEDERAL ACTIONS IN TliE UNITED STATES WITli TRANSBOUNDARY EFFECTS FR0ht: KATiiLEEN A.hiCGINTY y CHAIR /, DATE: JULY 1,1997 Its recent months, the Council has been involved in ciscussions with several agencies conceming the applicability of the National Environmental Policy Act (NEPA) to transboundary impt that may occur as the result of proposed federal acticns in the United States. To set forth a consistent interpretation of NEPA, CEQ is today issuing the attached guidance on NEPA analysis for transboundary innpacts in it, we advise that NEPA requires analysis and disclosure of transboundary impacts of proposed federal actions taking place in the United States. We recommend that agencies which take actions with potential trarisboundary impacts consult as necessary with CEQ concerning specific procedures, proposals or programs which may be
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COUNCIL ON ENVIRONMENTAL QUALITY GUIDANCE ON NEPA AN FOR TRANSBOUNDARY IMPACTS JULY 1,1997 The purpose of this guidance is to clarify the applicability of the National Environm Policy Act (NEPA) to proposed federal actions in the United States, including its territo possessions, that may have transboundary effects extending across the border and a another country's environment. While the guidance arises in the context of negotiations undertaken with the governments of Mexico and Canada to devdop an agreement on transboundary environmemal impact assessment in North America,' the guidance prWns federal agency actions that are normally subject to NEPA, whether covered by an intem agreement or not. It is important to state at the outset the matters to which this guidance is addressed those to which it is not. This guidance does not expand the range of actions to which NEPA currently applies. An action that does not otherwise fall under NEPA would riot now fall NEPA by virtue of this guidance. Nor does this guidance apply NEPA to so-called " extraterritorial actions"; that is, U.S. actions that take place in another country or otherwise outside the jurisdiction of the United States. The guidance pertains only to those proposed 2 actions currently covered by NEPA that take place within the United States and its territories, and it does not change the applicability of NEPA law, regulations or case law to those actions. Finally, the guidance is cv sistent with long-standing principles ofintemational law. NEPA LAW AND POLIC Y NEPA declares a national policy that encourages productive and enjoyable harmony ' The negotiations were authorized in Section 10.7 of the North American Agreement on Environmental Cooperation, which is a side agreement to the North American Free Trade Agreement. The guidance is also relevant to the ECE Convention on Environmental I Assessment in a Transboundary Context, signed in Espoo, Finland in February,1991, but not in force. 2 For example, NEPA does apply to actions undertaken by the National Science Foundation in the Antarctica. Environmental Defense Fund v. Massey,986 F.2d 528 (D.C. C 1993). Recycled Paper
2 between human beings and their environment, promotes efforts wind will prevent or eliminate damage to the environment and biosphere, stimulates the health and welfare of human bein and cruiches the understanding of ecological systems.) Section 102(1) of NEPA " authorizes directs that, to the fullest extent possible.... the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in [the) Act."4 NEPA's explicit statement of policies calls for the federal govemment "to us practical means and measures.... to create and maintain conditions under which man a can exist in productive hannony...."5 In addition, Congress directed federal agencies to "use all practical means.... to improv snd coordinate "ederal plans, functions, programs, and resources to the end that the Nation may.... attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences. ' Section 102(2)(C) requires federal agencies to assess the' environmental impacts of and altematives to proposed major federal actions significantly affecting the q the human environment.' Congress also recognized the " worldwide and long range character of environmental problems"in NEPA and directed agencies to assist other countries in anticipating and preventing a decline in the quality of the world environment.' Neither NEPA nor the Council on Environmental Quality's (CEQ) regulations implementing the procedural provisions of NEPA define agencies' obligations to analyze effec of actions by administrative boundaries. Rather, the entire body ofNEPA law directs federal agencies to analyze the effects of proposed actions to the extent they are reasonably foreseea consequences of th6 propased action, regardless of" here those impacts might occur. Agencies ) 42 USC 4321. 42 USC 4332(1). 5 42 UdC 4331(a).
- 42 USC 4331(b)(3).
' 42 USC 4332(2)(C). ' 42 USC 4332(2)(F). Recycled Paper I
i 3 must analyze indirect effects, which are caused by the action, are later in time or fanher removed I I in distance, but are still reasonably foreseeable, including growth. inducing effects and related effects on the ecosystem,' as well as cumulative effects. Case law interpreting NEPA has reinforced the need to analyze impacts regardless of geographic boundaries within the United States," and has also assumed that NEPA requires analysis of major federal actions that take place entirely outside of the United States but could have environmental effects within the United States." l Couns that have addressed impacts across the United States' borders have assumed that the same rule oflaw applies in a transboundary concext. In Swinomish Tribal community v. Federal Energv Regulatorv Commission," Canadian intervenors were allowed to challenp die adequacy of an environmental impact statement (EIS) prepared by FERC in connection with its approval of an amendment to the City of Seattle's license that permitted rafsing the height of the Ross Dam on the Skagit River in Washington State. Assuming that NEPA required cmsideration of Canadian impacts, the court concluded that the report had taken the requisite "hard look" at Canadian impacts. Similarly, in Wilderness Societv v. Monon," the coun granted intervenor status to Canadian environmental organizations that were challenging the adequacy of the trans Alaska pipeline EIS. The coun granted intervenor status because it found that there was a reasonalle possibility that oil spill damage could significantly affect Canadian resources, ' 40 CFR 1508.8(b). i' 40 CFR 1508.7, " See,for example, Sierra Club v. U.S. Forest Service,46 F.3d 835 (8th Cir.1995); Resources Ltd_ Inc. v. Robertson,35 F.3d 1300 and 8 F.3d 1394 (9th Cir.1993); Natural Resources Defense Council v Hodel,865 F.2d 288 (D.C. Cir.1988); county of Josephine v. ht,539 F.Supp. 696 (N.D. Cal.1982), u Ecs Sierra Club v. Adams,578 F.2d 389 (D.C. Cir.1978); NORML v. Dent. of State, 452 F.Supp.1226 (D.D.C.1978). " 627 F.2d 499 (D.C. Cir.1980). " 463 F.2d 1261 (D.C. Cir.1972). Recycled Paper
] 4 and that Canadian interests were not adequately represented by other parties in the case. In sum, based on legal and policy considerations, CEQ has determined that agencies must include analysis of reasonably foreseeable transboundary effects of proposed actions in their analysis of proposed actions in the United States. PRACTICAL CONSIDERATIONS CEQ notes that many proposed federal actions will not have transboundary effects, and cautions agencies against creating boilerplate sections in NEPA analyses to address this issue. Rider, federal agencies should use the scoping process" to identify those actions that may have traasboundary environmental effects + 1 determine at that point their information needs,if any, for such analyses. Agencies should be particularly alert to actions that may affect migratory species, air quality, watersheds, and other components of the natural ecosystem that cross borders, as well as to interrelated social and economic effects." Should sueh potential impacts be identified, agencies may rely on available professional sources ofinformation and should contact agencies in the affected country with relevant expertise. Agencies have expressed concem about the availability ofinformation that would be adequate to comply with NEPA standards that have been developed through the CEQ regula c.nd through judicial decisions. Agencies do have a responsibility to undertake a reasonable search for relevant, cunent information associated with an identified potential effect.11owever, the courts have adopted a " rule of reason" to judge an agency's actions in this respect, and do not require agencie> to discuss " remote and highly spuulative consequences"." Furthermore, " 40 CFR 1501.7. Scoping is a process for determining the scope of the issues to be addressed and the parties that need to be involved in that process prior to writing the environmental analyses. " It is a well accepted rule that under NEPA, social and economic impacts by themselves do not require preparation of an EIS. 40 CFR 1508.14. " Trout Unlimited v. Morton,509 F.2d 1276,1283 (9th Cir.1974). Sec abo, Northern Alaska Environmental Center v. Luian,961 F.2d 886,890 (9th Cir.1992); Idaho Constryalton Leacue v. Mumma,956 F.2d 1508,1519 (9th Cir.1992); San Luis Obisoo Mothers for Peace v. N.R.C.,751 F.2d 1287,1300 (D.C. Cir.1984); Scientists Institute for Public Information. Inc. v. Atomic Enerev Commission,481 F.2d 1079,1092 (D.C. Cir.1973). Flecycled Paper
i I i 5 CEQ's regulation at 40 CFR 1502.22 dealing with incomplete or unavailable information sets forth clear steps to evaluating effects in the context of an EIS when infonnation is unobtainable." Additionally, in the context ofintemational agreements, the parties may set forth a specific process for obtaining information from the affected country which could then be relied upon in most circumstances to satisfy agencies' responsibility to undertake a reasonable search for information. Agencies have also pointed out that certain federal actions that may cause transboundary effects do not, under U.S. law, require compliance with Sections 102(2)(C) and 102(2)(E) of NEPA. Such actions include actions that are statutorily exempted from NEPA, Presidential actions, and individual actions for which procedural compliance with NEPA is excused or modified by virtue of the CEQ regulations" and various judicial doctrines interpreting NEPA 0 Nothing in this guidance changes the agencie.' ability to rely on those rules and doctrines. INTERNATIONAL LAW lt has been customary law since the 1905 Trail Smelter Arbitration that no nation may undertake acts on its territory that will harm the territory of another state '. This rule of 2 " See Preamble to Amendment of 40 CFR 1502.22, deleting prior requirement for " worst case analysis" at 51 Federal Recister 15625, April 25,1986, for a detailed explanation of this regulation. " For example, at neies may contact CEQ for approval of alternative arrangements for
- ompliance with NEPA
- % ase o. emergencie:. 40 CFR 1506.11.
For example, courts have recognized that NEPA does not require arragency to make public information that is otherwise properly classified information for national security reasons, Weinbercer v. Cathollie Action of Hawaii,454 U.S.139 (1981). 2' Trail Smelter Arbitration, U.S. v. Canada,3 UN Rep. Int'l Arbit. Awards 1911 (1941). The case involved a smelter in British Columbia that was causing environmental harm in the state of Washington The decision held that "under principles ofIntemational Law, as well as the law of the United States, no State has the right to use or permit the use ofits territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is described by clear and convincing injury." /d. at 1965). Also see the American Law institute's Restatement of the Foreien Relations Law of the United States 3d. Section 601,(" State obligations with respect to environment of other States and the common environment"). Recycled Paper
o 6 customary law has been recognized as binding in Principle 21 of the Stukholm Dec the liuman Environment and Principle 2 of the 1992 Rio Declaration on Environment and Development. This concept, along with the duty to give notice to others to avoid o harm,is incorporated into numerous treaty obligations undertaken by the United States. Analysis of transboundary impacts of federal agency actions that occur in the Unite appropriate step towards implementing those principles. CONCLUSION NEPA requires agencies to include analysis of reasonably foreseeable transboundary effects of proposed actions in their analysis of p.:gosed actions in the United States. Such i effects are best identified during the scoping stage, and should be analyzed to the best of th agency's ability using reasonably available information. Such analysis sho'uld be in EA or EIS prepared for the proposed action. e Recycled Paper ~. -.
e, Lance N. McCold. Program Manager Energy Division 00k Ridge National Laboratory ~. P.O. Box 2008. Bld 4500N Oak Ridge. TN 378 1 6206 l
SUBJECT:
GUIDANCE ON THE DEVELOPMENT OF ENVIRONMENTAL ASSESSMENTS AND ENVIRONMENTAL IMPACT STATEMENTS /
Dear Mr. McCold:
/ Enclosed is a memorandum from the Council on Environme/ ntal Quality on the a plication of the National Environmental Policy Act to transboundary impacts tlat may occur as a result of proposed federal actions across the United States' borders. Please include transboundary 4nalyses. as appropriate, in future Environmental Impact Statements (Elssy,or Environmental Assessments. lt has come to our attention during the pro / cess of publishing the Parks Township Shallow Land Disposal Area D n EIS that. in order for a personnel conmunication to be cited in a NUREG cument, the documentation for that )ersonnel communication must be pre nt in the NRC's Public Document Room. For future NUREGs. 1f you wish to ite a personnel communication, please document that conversation and d a copy to the NRC project manager so it can be placed in the Public Dogument Room. / Thestaffappreciatesthes/effortsinproducingtheParksTownshipDEIS. Thank you again for all your tra hours that were necessary to produce this document and looks forward to working with you on the FEIS. / / Sincerely. / [ Original signed by) Robert A. Nelson, Chief / Low-Level Waste and Regulatory issues Section ,/ Low-Level Waste and Decommissioning Projects Branch Division of Waste Management Office of Nuclear Material Safety and Safeguards
Attachment:
As Stated DISTRIBUTION: Central File NMSS r/f LLDP r/f JHickey LBell TCJohnson JKennedy JHolonich DDeMarco PUBLIC Path & File Name: S:\\DWM\\LLDP\\ PAS \\mccold.ltr 0FC LLDP PMDA LLDf/// NAME PSobeN DDeMarco Rfbson DATE 8/l/97 8/ /97 8/ / /97 0FFICIAL RECORD COPY ACNW: YES NO x Category: Proprietary or CF Oniy IG. YES NO x LSS
- YES NO x
Delete file after distribution: Yes X No l}}