ML23293A056

SECY-79-305 - NRC Compliance with Council on Environmental Quality (Ceq) National Environmental Policy Act (NEPA) Regulations

ML23293A056
Person / Time
Issue date:	05/01/1979
From:	NRC/OGC
To:	Commissioners
References
SECY-79-305
Download: ML23293A056 (1)

Text

• May 1, 1979

Purpose:

Issues:

O*f scussion:

UNITED STATES SECY.305 NUCLEAR REGULATORY COMMISSION POLICY SESSION ITEM

,_.:f'he Comm1 s_s, one rs Howard K. Shapa r Executive Legal Director Leonard Bickwit, Jr.

General Counsel NRC COMPLIANCE WITH CEQ NEPA REGULATIONsJI To ;nfonn the Commission of actions required to imple-ment final CEQ NEPA regulations, to identify signifi-cant problems from the standpoint of implementation, to obtai~ Comnission guidance on the extent to which NRC, as an independent regulatory agency, should be bound by the mandate to comply with CEQ 1s NEPA regu-lations, arid to obtain Commission approval of a pro-posed letter (Enclosure F) from Chainnan Hendrie to The Honorable Charles H. Warren, Chainnan, Council on Environmental Quality, which expresses the Com-m1ssion 1s concern over NRC's continuing ab;lity to carry out its NEPA responsibilities in a manner which is consistent with its decisionmak1ng 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.

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?

Background

On May 24, 1977

• the_ President issued Executive Order 11991 di rect1 ng the Cou*ncil on Envi ronmenta 1 Quality (CEQ) to issue regulations to the Federal agencies to implement all the procedural provisions l/

43 FR Part VI, pgs. 55978-56007, November 29, 1978.

On December 20, 1978 in response to Corrmissioner Ahearne 1s request, the Executive Legal Director transmitted a sunrnary of CEQ's NEPA regu1ations to each Corrmissioner.

Contacts:

J. R. Mapes - 492-8695 P. G. Crane - 634~3288

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y ll of NEPA.

In this same Executive Order, the President also directed Federal agencies to comply with regula-tions 1 s sued by CEQ II except where such comp l i a nee.

would be inconsistent with statutory requirements."

Current CEQ Guidelines,Y which remain in effect until July 30, 1979, the date on which CEQ 1s new NEPA regula-tions become effective, only provide guidance on the preparation of environmental impact statements.

In December 1977, after public hearin~s and consulta-tion among a wide spectrum of public officialst organiz&tions and private citizens, CEQ circulated draft regulations to a11 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 fom on November 29, 1978 to become effective July 30. 1979.

On several occasions during the development of CEQ 1s NEPA regulations, individual Commi§$ioners and NRC staff submitted written comments to CEQ..:Y The effect of the These Guidelines were originally issued in 1970 pursuant to Executive Order 11514 and were revised in 1973.

(38 FR 20550-20562 August 1, 1973)

• Staff comments on the first draft of the proposed regulat1ons, for-warded by letter to CEQ Chairman Charles Warren from NRC General Counsel Jerome Nelson, dated February 7, 1978.

• Letter to Chainnan Warren from Corrmissioner Kennedy, dated February 7, 1978.

Letter to Chairman Warren from Chainnan Hendrie, dated February 10, 1978.

• letter to Chairman Warren from Commissioner Bradford, dated February 27, 1978.

• Letter to Chainnan Warren from Chairman Hendrie, dated August 11, 1978, prodding Commission comments on the revised draft of the regulations.

Identifies documents fn which the issue of the applicability of CEQ regulations to independent regulatory agencfe~ 1s addressed.

The Comm1ss ioners proposed regulations was also discussed in comments, submitted to CEQ and to White Hm.1se Counsel Robert Lipshutz, on proposals relating to the application of NEPA to agency activities affecting the en~ironment in foreign nations and the globill commons.~

In six of these submittalst the possib'le inapplicability of the CEQ regulations to independent regulatory 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 regu1ations.

The meeting foe;used 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 1s 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 t*ule of reason in evaluating the way in which independent regulatory agencies implement CEQ's NEPA regulations.

• Letter to Cta:drman Warren from Commfssfoner Kennedy, dated March 2, 1978.

• Letter to Mr. Robert Lipshutz from Chainnan Hendrie stating the Com-m1ss1on's views, dated July 31, 1978.

.Letter to Mr. L f pshutz from Commissioner Bradford, *dated August 14, 1978.

Identffie~ documents in which the issue of the app11cabflity of CEQ regulations to independent regulatory agencies fs addressed.

The Conmi ssi one rs Actions Required to Implement CEQ NEPA Regulations On January 19, 1979, CEQ General Counsel Nicholas C.

Yost iss~,d a Memorandum For NEPA Liaisons i~ Federal agencies-providing guidance on how agencies should develop procedures to implement CEQ 1s 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 tEQ, agency implementing procedures should be bri~f 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 paraphrased~

Quotations from CEQ NEPA regulations must be verbatim.

Agencies adopting implementing procedures or regula-tions were directed to follow a four-step process and adhere to the following timetable:

1.

Cotsult 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 finn.)

3.

On or before June 1, 1979, submit final version of agency procedures to CEQ for review for con-fonnity with NEPA and CEQ NEPA regulations.

4.

Follow;ng adoption, file a copy of effective pro-cedures with CEQ.

The CEQ Memorandum stated that CEQ 1s NEPA regulations would go into effect and be binding throughout the

§.J See Enclosure A. for text of CEQ Memo rand um For NEPA Li a i sons.

The Commissioners JJ government on July 30, 1979,§./ 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 tne fonn of operating manuals, administra-tive directivest 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. 5The CEQ Memorandum also refers to the requirement 1n s 1507.3(a) of the CEQ regulations that agencies continuously review their policies and procedures and in consultation w1 th the Cou nci 1 revise them a-s 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 ~~ovide proce-dures implementing particular sections~ of the CEQ regulations. This will require extensive. revision of 10 CFR Part 51, which now sets forth NRC policy and procedures for the prepa ra t1 on and processing of environmP.ntal impact statements.

In connection with this task, it will also be necessary to identify and r*~!V1se other portions of the Commission 1 s' regulations which rel1te or refer to 10 CFR Part 51.

In connection with this revision, the staff also plans to restructure l O 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 Wi1d and Scenic Rivers Act {16 u~s.c. s 1271 et seq.), the National HistQric Preservation Act of 1966 (16 U.S.C.

Although no completed environmental documents 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 and5env1ronmenta1 documents begun before the effective date. (40 CFR s 1506.12.)

ii l501.2(d). 1502.9(c)(3), 1505.1 1 1506.6(e) and 1508.4.

These sec-tions are described in Enclosure B.

Pie Commissioners w n 1so2.2s. I 470 et sej.), the Endangered Species Act of 1973 (16 U.S.C. s 1531 et seq.), and the Coastal Zoge Management Act of 1972, as amended (16 U.S.C. ~ 1451 et seq.) In this way, all requirements respecting environmental matte rs wi 11 be brought together in one place in the Conmfssion 1s regulations. This approach is consistent with the directives in the CEQ regulations that agencies integrate their NEPA reviews with oth§7 environmental review and consultation requirements.-

Subject to Commission 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 Commission approval of the proposed regulations (May 21, 1979 is the cur-rently projected date for transmi tta 1 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 s1'llff simultaneously.

thus enabling both reviews to proceed in parallel.

This procedure should eliminate any unnecessary delay in Corrmission issuance and publication of the final rule.

Review and analysis of specific.environmental laws are now underway.

Proposals for specific additions or amendments to 10 CFR Pa~: 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 stept revision of 10 CFR Part 51 is not the only task that must be undertaken to implement CEQ's NEPA regulations. Regulatoty guides, env i ronmenta 1 standard review p 1 ans and office procedures will need review and revision.* NRC resources and personnel will have to be reevaluated to detennine the availa~tlity of needed environmental expertise. Consideration wil 1 have to be gi-ven to the appropriate NRC response to the directive in.

40 CFR ~ 1507.2(a} that agencies "shall des*gnate a person to be responsible for overall review of agency NEPA compliance.

11 This matter wil 1 be addressed in the paper subm1 tt 1 ng the proposed rev1s ion of 1 O CFR Part 51 to the Commission.

r

The Commissioners jj CEQ NEPA regulations specifically require each F~deral agency to have the capability, 1n terms of personnel and other resources, of fulfilling the requirements of sections 102(2}(A), (B), (C), (E), (F), (G), (H) and (I) of ~EPA and section 2 of Executive Order No. 11514, Protection and Enhan,ement of ~9vtronmental Quality, 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 Regulatory 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 ~n NRC environ-mental impact statements (40 CFR ~s 1501.7, 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 ~lternatives of importance for con-_

sideratipp by the ultimate agency dec1sionmaker.

(40 CFR ~s 1500.4(9), 1501.7, 1502.l, 1502.2 and 1502.14);

3.

Shortening environmental impact statements by reducing the volume of descriptive material and by elimiptting repetition through "tiering" (40 CFR ~s 1500.4 and 1502.20);

4.

Focusing on actual issues ripe for dec1sion at etch level of environmental review (40 CFR

~~ 1500.4 and 1502.20);

See Enc.losure 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, 1917.

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5.

Authorizing joint preparation of environmental impact statements by Federal, State and local governments and establishing proc,~ures for coordination of analyses (40 CFR ~s 1500.4(n),

1501.5, 1501.6 and 1506.2);

6.

Permitting one Federal agency to adopt an environ-mentai impact statem~~t prepared by another Fed-eral agency (40 CFR ~s 1500.4(n) and 1506.3);

7.

Requiring agencies to make diligent efforts and to follow pre$cribed procedures to involve the public in preparfngsand implementing agency NEPA procedures (40 CFR s 1506.6);

8.

Improving the clarity of environmental impact statements through use of a re~ised format focusing on decisions (40 c:,.~ ss 1500.4(e) and (f), 1502.lO, 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 p.rocess.

These provisions include:

1.

Section l502.14(b) which provides that the environmental impact statement 11[d]evote sub-stantial treatment to each alternative consid-ered in detuil including the proposed action so that reviewers may evaluate their comparative merits.

11 Although this s~ction represents a revision of an earlier version which would have required "substantially equal treatment" to be given to each a 1 tern a ti v~, we be 1i eve that present NR C practice may be at variance with this provision of the regulations.

In the t:*pical nuclear power reactor licensing case under present NRC procedures, detailed safety-related infonriation is only provided for the applicant's proposed s1te. This kind of infonnation is not provided for possible alternative sites. Similarly, detailed environmental infonnation is only devel-oped for the proposed site. Reconnaissance 1 eve l fnfonnation is nornially consideredsadequate for evaluating alternative sites. If s 1502. l4(b)

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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 infonnal 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) wh~ch requires an agency to obtain infonnation 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 infonnation regarding other alternatives has not yet been developed. This provision could impact any agency decision in this circumstance where the costs (in tenns of both infonnation-gatherfng costs and project delay costs) of obtaining the infonnation needed for* a reasoned choice among alternatives are large but fall short of being exorbitant. (For ex amp 1 e, deve 1 opment of info nna t.i on necessary to evaluate viabl* alternatives for waste management is proceeding on different timetables.)

3.

Section 1502.22(b) which requires an agency to perfom1 a "worst case analysis 11 and indicate the probabi 1 ity or improbabi1 ity of its occurrence whenever the agency is unab 1 e to obtain info nna-t ion 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 infonnation about adverse impacts 1s 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 perfonn worst case analyses for both radfo1og-1cal and non-radiological impacts in situations

Tl1e Commissioners where such analyses are not normally conducted.

Examples could include situat~ons involving the evaluation of reactor aquatic impacts where a case can be made for extensive 1ong-tenn ~;ime-dependent studies. and repository license actions where waste-fonn perfonnance cannot be accurately predicted without.i!!_ 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 fo addition to an analysis of the likelihood that such an accident would occur.

Under NRC 1s current risk analysis prac-tices. the consequences of accidents whose likeliho~d of occurrence is remote and highly speculative are not given detailed considera-t1cn, except fn unusual cases, even though those consequences, should they occur~ would be extremely severe.

In 1971, Russell E. Train, then Chaim,an of the Council on Environmental Quality, informed Hon. Chet Holifield, Member of the Joint Commit-tee on Atomic Energy, that CEQ felt that 11 *** 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 **.

11 and that CEQ al so felt 11 *** 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 101 the extreme un 1 i ke 1 i hood of their occurrence.... 11-Thi s approach towards 11worst case" analysis has also been upheld by the U.S. Court of Appeals*

for the District of Columbia Circuit in Carolina Environmental StudJ Grou~ v. United States,.

5l0 F.2d 796 (1975.

NR staff has discussed this matter infonnally with CEQ staff and has requested further clarification of~ 1502.22(b).

.!Q/ See correspondence between Hon. Chet Holifield, Member, Joint Com-mittee on Atomic Energy, U.S. Congress,.and Hon. Russell E. Train, Chairman, Council on Environmental Quality, October 8, 1971 and November 4, 1971

• as printed 1 n 11Se 1 ected Materials on the Calvert Cliffs Deci s 1 on, I ts Origin and A ftenna th, 11 Jo 1 nt Committee Prf nt, 92d Congress, 1st Session, February 1972 at pp. 293-295.

j 11

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The Commissioners According t~ 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 p~ndency of the staff study.and the uncertainty as to the impact of the CEQ regulati.ons on this point, ~t seems unwise to adopt or implement this provisio~ of the CEQ regulations without further study.

4.

Section 1508. 18 which includes within the defini-tion of major Federal action, 0 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.

11 It is unclear whether this pro*Jision would necessitate a chang_e 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 hann.

According to infonnal telephone advice from CEQ staff, preparation of an environmental impact statement would not be necessary when the denial of such a ~etiti.on is based on a finding that there are no significant on-going adverse environmental effects. Under CEQ's NEPA regula-tions, this finding could require ~Q environmental assessment(~ 1501,4(b), see also g~ 1508.9 and 1508. 13.) Under present NRC practice. it is not customary to prepare environmental assessments in connection with denials of petitions, 1I7 lhese petitions could include pet1t;ons for rulemaking (10 CFR 2.802} and petitions to initiate enforcement actions (10 CFR 2.206).

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Several prov1s1ons of the CEQ NEPA regulations con-tain procedures which, when applied, could seriously interfere with the manner in which the Commission perfonns 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 lead agency role;

2.

Part 1504 whtch prescribes frocedures for pre-decision referral to CEQ of Federal interagency di$agreements concerning proposed major Federal actions that might cause unsatisfactory environ-mental effects.

In addition to the provi.sions just discussed.

_there are other provisions of the CEQ NEPA regulations (identified in Enclosure O} which could present problems if NRC were not allowed flexibility in implementing them.

However, based on infonnal advice received from CEQ, implementation of these provisions may not be difficult.

• NRC Compliance with CEQ NEPA Regulations as a Matter of Law The issue of whether NRC, as an independent regula-tory ag,mcy,. can be bound by CEQ' s NEPA regu 1 at ions as a matter of law was raised by the Commission and by individual Co~as~~g?ers on several occasions in comments to CEQ.

• u

. 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 tc secure Presidential approval of an Executive Order authorizing it to issue regulations implementing NEPA's substantive requirements.

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The Office of Legal Counsel of the Department of 12.

Justice has addressed this issue in three memoranaa.-1 In a memorandum dated April 4, 1977, prepared for Charles H. Warren, Chairman of the Council on Environ-mental Quality, in response to CEQ 1s request, the Office of the Leg a 1 Counse 1 provided the foll owi n9 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 the President may properly delegate to CEQ the authority 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 bound by the regulat;ons.

11 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 mak~s the preparation of impact statements the responsibility of each agency, Government-wide coor-dination to bring cohesion and unifonnity to the NEPA process would not be inconsistent with the purposes 12 1 The memoranda are:

~

Memorandum for Charles H. Warren, Chainnan, Council on Environmental Quality, Re:

CEQ 1s 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, w1th copies to other Commfssfoners, on February 2, 1978.

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of the A~t.

The preparation of impact ~tatements fs not an activity so peculiarly and specifically co11111itted 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:

11 **

• we believe that a persuasive argument.can be made that tne 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

~ouncil on Environmer.tal Quality. See U.S.C.

s 301.

"Additionally, we note that an agency is bound by its own regulations even though the content of the regulations *1s not mandated by statute.

See, ~* United States v.. Nixon, 418 U.S. 683.

6§4.. 97 {1974). The contemplated CEO regula-tions will not be the regulations of any particu-lar agency; they *.a1ill only be the President 1s 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 procedu ra 1 and substantive requirements that confonn to the CEQ regulations....

11 With respect to the application of CEQ regulations to independent regulatory agencies, the 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 crR 1500.4. The President cannot removemembers of independent bodies from their position for failing to follow hfs instructions regarding

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the administration of their agenci~s* substan-tive acts w!1ere Congress has mandated a stat-utory tenn, Humphre~*s Executor v. United States, 295 U.S. 60 (1935}, and we doubt that he could do so for failure to follow the President's directions in connection with NEPA requirem~nts 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~ (37u.s-:i--

524, 610 {1838) i Corwin, supra, at 85.... It may therefore be advisable simply. to request independent agencies to comply with whatever regulatio*ns are promulgated."

The memorandum notes that although the regulations promulgated by CEQ might be persuasive to a court because of CEQ 1s expertise in the environmental

area,

"... it can be expe~ted 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, 11 replies to a reriuest from Simon Lazarus of the Domestic Counci 1 for the views of the Office of Lega1. Counsel on whether. the President may by Ex.ecutive Order direct independent regulatory agencies to adopt certain proposals designed "to improve procedure, set up work sc""* 'ules and plans for the more efficient dis-charg

... 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 1 as applied to independent regulatory agen-cies 1 of a proposed Executive Order on the logging of outside contacts. The June 9, 1977 memorandum

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took the position that the President's duty to see that the laws are faithfully executed 11would appear to enable him to establish policies concerning the efficiency and fairness of age:T!:y procedures and detenninations 11--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. T977 memorandum notes that while there are no pertinent judicial decisions. the question of the President's authority over independent regu-lo.tory agencies has been the subject of scholarly discussion.

The consensus i~ that the agencies, 11although independent with respect to their quasi-legislative and judicial functions," can be bound by Presidential directives designed to assure. that they "perfonn 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 thdt the White House proposals for improving agency procedures appear cons is terit 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. 11 It states that the President would probably have this power if the regulations were "procedural or internal. 11 However, the memorandum concludes:

11But the legal situation is somewhat differ-ent where regulations of a substantive (i.e.,

of a truly quasi-le~islative) nature are involved. It,cou. be s~id 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 fn a general review of their substan-tive rules therefore cou1d well be considered to constitute an invasio~ of the agencies' quasi-legislative autonomy, a matter that does not come within the purview of the President 1s constitutional authority to take care that the laws be faithfully executed."

The Commissioners The import of the Apri 1 4, 1977 memorandum of the Office of Legal Counsel is thit regulations govern-ing the 11fonn and content of environmental impact statements1' 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 de1egee has the power to prescribe purely procedural. ministerial matters to* inde-pendent regu 1 a tory ag-enci es.

As i 11 us t rated in the earlier discussion of the impact of CEQ NEPA regu-lations on NRC 1s 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 1 impact statements are prepared in connection with the "substantive acts and policies they administer.II CEQ has taken the position that regulations specifying the content of a written document are per.fil! proce-dural.* In reply to a question from an OGC lawyer, CEQ General Counsel Nicholas C. Yost expressed the view that a regulation requiring agencies to select the least environmentally harmful alternative would be substantive9 and beyond CEQ's power to require.

However, according to Yost, a regulation requiring agencies to certify in their 11record of decision 11 that the least environmentally harmful alternative had been selected would be procedural and within the scope of CEQ's authority.

We do not regard 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-fo'/d.

NRC can be bound by CEQ's NEPA regulations as a matter of law insofar as those regulations are solely procedural or ministerial in nature.

NRC cannot be bound as a matter of law by those portions of CEQ's NEPA regula-tions which have a substantive impact on the way in

The Commissioners

~ 18 -

which the Commission perfonns its regulatory functions.

Application of these legal principles to regulations which involve both substance and procedure presents certain pr~ctical difficulties.

Given CEQ's NEPA regulations, how does the law apply?

Some provisions of CEQ's NEPA regulations, for example,

! 1502.7, prescribing recommended page limits for final environmental impact statements, s 1502.8, requiring environmental imptct statements to be written in plain language, s 1502.11, specifying infonnation to b.e included og environmental impact statement cover sheets, ands 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 Commissio~ can be held to comply with these pro-v;sions and with others like them.

~ther provisions of CEQ 1s NEPA regulations, such as s 1502.24, containing requirements relating to method-ology and scientific accuracy, and g 1506.6, requiring agencies to make diligent efforts to involve the public in preparing and implementing their NEPA pro-cedures, although arguably procedural, have~ definite though limited substantive impact. Since provisions*

of this type appear to have a m*lnimal effect on the way in which the Commission conducts its business and therefore would not jeopardize the Co1T111ission 1s 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 jn greater detail else-where in this paper, include~ 1502.14, relating to the analysis~of alternatives in environmental impact statements, ~ 1502.22(b) relating to the obligation to obtain information and prepare worst-case analyses, i 1501.5, relating to lead agencies, and Part 1504, relating to predecision referrals to *cEQ.

It 1s our view that the Commission is not require~. 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.

The Commissioners

.. 19

• To state these legal conclusions does not make the Conrnission 1s 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 ~lso needs to ba addressed from the standpoint of policy.

NRC Compliance with CEQ NEPA Regulations As a Matter of Pol icy As indicated previously in this paper, some aspects of CEQ 1s NEPA regulations should result in improve-ments in NRC 1s current NEPA process, some provisions present difficulty from the standpoint of implemen-tation, and5some provisions, notably the lead agency concept ins 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

n fonnulating its response.

The basic objectives of CEQ 1s NEPA regulation~--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 1s NEPA regula-tions wh*ich would ir11prove th!illderal pennitting process for ene*rgy faci1itie are consistent with the Co11111ission 1s 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 Conmission from time to time for similar purposes.

To these considerations can be added the weight of Conmission precedent.

The Comnission 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

]1/ See Enclosure E.

1he Commissioners

- 20..

clearly states that it does not apply to "regulations issued by the independent regulatory agencies. 11 It is clear, on the other hand, that NRC ought not to comi t its e 1 f now* to comp 1 y vol unta ri l y as a matter of policy with those portions of the CEQ regulations which might interfere with the effective perfomiance of NRC 1s substantive responsibilities or with its independence. These provisions of the CEQ regulations, which ar~ discussed more fully earlier in this paper, include~ 1502. 14(b) which prescribes how alternatives Jre to be presented in environmental impact statements,

§ 1502.22 which could either require NRC to obtain new information about adverse environmental impacts or perfom a worst case analysis,~ 1501.5 which authorizes CEQ to designate lead agencies. and Part 1504 which prescr;bes 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 detrimental effect on the Co!ffll;ssion*s effectiveness or its independence as a regulatory agency.

It should be noted that an approach which acc1:pts some parts of CEQ Is NEPA regulations and declines at this time to accept other Qtrts of those regulati9~} is consistent with 40 CFR

~~ 1500.3 and 1507.3(b)- which specifically recognize the possibility that some of the provisions of the regulations may be inconsistent with agencies* mandates.

Reconmendations: -

That the Commission comply with CEQ 1s NEPA regula-tions, subject to the fo 11 ow.1 ng conditions:

1.

Compliance 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.

40 CFR ~ 1500.3 states in part that CEQ 1s regulations are 11 *** appl i-cable to and binding on. all Federal agencies, *. except where compli-ance woyld be inconsistent with other statutory requirements.... 11 40 CFR l 15'l7.3{b) provides in part that 11Agency procedures shal1 comply with these regulations except where compliance would be fncon-si stent with statutory requirements... II

The Conmissioners

2.

3.

4.

• 21..

The effect of some specific provisions of CEQ 1s NEPA regulations (e.g., ~~ 1502.14(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 fa*11ures to act) on the Commission 1s regulatory activities is unclear. The Commission will devote additional study to these matters before developing implementing regulations.

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.

NRC reserves the right to make a fin~l decision on all matters within ii~ regulatory authority despite 40 CFR Part 1504---Predecision Referrals to the Council of Proposed Federal Actions Detennined to be Env;ronmenta11y 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. Although 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 i_s 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 ~ 1502. 16(e)). Nor is it clear what the discussion of direct, indirect and cumula-tive impact~ m~y entail beyond what is now being done (40 CFR i~ 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.

The Commissioners Cost Estimate:

Coordination:

Scheduling: -

That the Commission approve the proposed letter to CEQ Chainnan Warren (Enclosure *F) for signature by Chainnan Hendrie.

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 fonnat for environmental impact statements, develop-ment of procedures for early scoping of environmental issues, initiating revision of NRC 1s present Environ-mental Standard Review Plans (ESRPs), is expected to be about 12 man-years. This estimate of 11start-up 11 costs does not include costs of routine implementa-tion of CEQ NEPA regulations over an extended period.

It would be premature to develop estiniates of the latter costs at this time.

The Offices of Standards Development, Nuclear Material Safety and Safeguards, Nuclear Reactor Regulation, Nuclear Regulatory Research, State Programs, and Policy Evaluation concur.

oward K. Shapar Executive Legal Director e..

£\\. ~,

\\.._.

Leonard Bickwit, Jr.

~_....

General Counsel

Enclosures:

See page 23

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.

Text of Sec. 102(2) of NEPA, 42 U.S.C.S. ~ 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-mal'.I Warren

ENCLOSURE A

Er:CLOSURE A EXECUTIVE OFF'ICE OF THE PRESIDENT COUNCIL ON ENVIRONMENTAL OUALITV 722 JACKSON PUICE, N. W.

WASHfHGTOftf. 0. C. 2000t January 19~ 1979 MEMORAXDL~1 FOR NEPA LIAISO~S

SUBJECT:

Agency Implementing Procedures Under CEQ's NEPA Regulations Introduction On ?-ove!:lber 29, 1978 the Council on Environmental Quality issued regu-lations implementing the procedural provisions of the ~ational Environ-mental Policy Act ("~EPA regulations").

The regulations are binding on all Federal agencies-and were developed through interagencr and public

~n:ultation, revie*..., and co~ent.

The regulations* appear at pages

,~9,8-56007 of Volu~e G3 of the federal Re~!ster.

Section 1507,3 of the N~~A regulations provides that each agency shall adopt proc:edures irnpler:ienting the ~EPA regulations by July 30, 19i9

("agency imple::ienting proc-edures").M The purpose of this memorandum is to provide Federal a~encies ~ith gener~l guidance for develgping these implementing procedures.**

Implementing procedures for programs administered under Section 102(:?)(D) of ~!PA or ur.der Section 101.(h.) of the Housing and Co:i:.':lunity 0.?velo?ment Act of 1974 inust also be adopted by July 30, 1979.

P.oYev.er, Section 1506.12 provides that the procedures for; these programs ~ill not become effective until November 30, 1979 --

four months after the deadline for their adoption. This four month hiatus has been established to allow State and local agencies involved in these progra~s to adjust their decisionmaking to new implementing procedures.

On-a separate point, Section 1506.12(a) also provides that any agency may ~roceed under these regulations at an earlier time.

By this we mean that an agency may either adopt and place into effect implementing proce~ures before the July 30, 1979 deadline, if approved by the Council, or, for selected proposals, conduct its*

environmental reviews under the regulations before that time.

Agencies administering pr~grams under Section 102(2)(0) of NEPA or under Section l04(h) of the Housing and Community_ Development Act of 1974 may proceed under the regulations before Nove~ber 30, 1919 with the consent of the State or local agencies involved.

In developing this ~emorandum ve have consulted with, circulated 4rafts co. and met with a number of the NEPA liaiaons frOII ar.encies which prepare significant numbers of tlSs. Ye appreciate their coutribution.

EHCLOSURE A (continued) Members of the Council's staff will ~e contacting you in the near future regarding a schedule for developing implementing procedures, ~e would like to become involved in your efforts early to avoid a last-minute crunch later in the year.

We have attached as Appendix A a list of our staff me~bers ~ho will be available for consultation throughout the process.

Procedural Considerations ln developing implementing procedures under the NEPA regulations, agencies should bear in mind the following important considerations: First, the purpose of agency procedures is both to provide agency personnelwith additional, more specific direction for implementing the procedural provisions of NEPA and to inform the public and Sta~e and Jocal officials of how the NiPA regulations will be implemented in agency decisiorunaking.

Agency procedures should therefo-re provide Federal personnel with *the direction they*need tc implement ~EPA on a day-co-day basis. The pro-cedures must also provide a clear and uncomplicated picture of what those outside the Federal government may do to become involv~d f.n the

.environmental review process under !lEPA.

Second, the ~EPA regulations provide that each agency shall 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 proced1.rres.

Departmental procedures would then address issues of general concern for all of its agencies; an individual agency's procedures would address the particulars of its own planning and decisionmaking.

TI1ird, agency implementing procedures are~!. required to. nor is it desirabl~ that ch~y address every section of the regulations.

The sections which must be addressed are identified in Section 1507.J(h).

. This* is detailed in the "~EPA Procedures Checklist" enclosed herewith.

Agencies are encouraged to address other sections where this wouH further implementation of the NEPA regulaticns.

~h, ~hile the fcnnat for implenenting procedures is largely~ matter of asency discretion, the following points should be noted:

(1) By Executive O~der 1199t, the President directed the Council to establish a single and definitive set of unifcrm standards for implementing ~!PA government-~ide. Therefore, while ~gencies may auote -the regulations in their implementing procedures, thPY shall not attempt to restate or othervise paraphrase the r~gulations (Section 1507. 3 (a.)).

Agencies shall confine themselves to procedures which make the standards established b1 the NEPA regulations effec-tive in the context of their decisionmaking.

ENCLOSURE A *(continued) (2)

Agencies may quote from the regulations toJprovide 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 ~rocedures, In addition, agencies may produce a single, self-contained document containing quotations from the NEPA 1*egulatio*ns so that agency personnel need not refer back and forth from NEPA regulations to implementing procedures in conducting environmental reviews, Ho~ever, whenever the NEPA regulations. are quoted they must be quoted verbatim, properly cited, and set off in some fashion (e.g., italics, bold-faced type) so chat the reader can readily disting\\.!.sh between the NEPA regulations and agency implementing procedures.

You will understand the competing considerations that guide us here.

On the one hand ve intend the agency procedures to be the minimum length possible consistent with the ~egulations and this memoia~dum.

On the other hand, we do not want to place readers in the positi~n of h*ving constantly to refer to other documents.

(3)

Implementing procedures sho~ld cross-reference relevant sections of the regulations where they are not quoted in full. It is important to link agency procedures with corr~sponding sections in the ~EPA resula~ions so that agency personnel will have a com-plete picture of the standards which govern the environmental review pr~cess.

~

(4)

Agency implementing procedures should where. practicable follo~

the same sequence of procedural steps appearing in the NEPA reiu-lations. It will be easier to work with both docu~ents if the procedures and the regulations take a parallel approach.

Fifth, there is no need to include e.very detail of agency decisionrnaking in the implementing proceduns. The NEPA regulations contemplate the publication of further explanatory guidance with specific information that may not be appropriate for agency im?lementing procedures (Section 1507,3(a)). This further guidance, which may be in the form of an operating manual. ad~inistrative directives, explanatory bulletins, and other publications, must also te reviewed by the Council and made available to the public.

Sixth. agencies vith similar programs should consult with each other and theeciundl to coordinate their implementing procedures~ especiai'ly for

-programs requesting s1milar information from applicants (S~ction 1507.)(a))..

Opportunities exist to improve the environmental review process through a consistent approach.* to similar Federal programs. It is important that agencies combine efforts in developing this approach and ensure that, once developed, it is uniformly adopted in agency implementing procedures,

\\le have attached as Appendix Ba list of NEPA liaisons for all agencies who should be contacted for this purpose.

ENCLOSURE A

( continued) ;

Finallv, in developing implementing procedures. agencies must allov time for revie~ by the Council and the public, Section 1507.3(a) of the NEPA regulations establishes a three-step process leading to adoption of final procedures by July 30, 1979: Agencies shall consult vith the Coun~il in developing ?roposed implementing procedures. Agencies shall then publish their proposed procedures in the Federal Re~ister for public review and cor..ment.

As the last step, and follol.:ing~nges made in response co comments rect?ived 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 ~EPA regulations.

The Council will complete its review within 30 days.

The Council may thereafter make public the results of its revie~s.

To ensure that this process is concluded by July 30, 1979, the Council recoll'!lllends that agencies publish their proposed procedures in the Federal Regiiter for coQ~ent oo later than April 1, 1979 and submit by June l.

1979 the final version of the pr6cedures to the Council for review.

Please note that the ~egulations go into effect and ar~ binding through-out the government on July 30, 1979, regardless of 1,;hether an individual agency has adopted its ~rocedures.

Once in effect, agency irnpl~nenting procedures shall be filed with the Council, published in the Federal Re2ister ar.d 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 ana 1n consultation with the Council to revise them as necessary to ensure full compliance with the purposes and provisions of the Act.

Guidance for Develooin2 A2encv Imnlernentin2 Procedures

~e have enclosed with this memorandu,n a copy of the "~EPA Procedures Checklist",.,.hich the Council will use in evaluating agency implementing procedures.

Many sectio~s of the regulatior.s will need no el~boration by agencies.

These sections of the regulations which~ be addressed in agency procedures are ~arked with asterisks. Other sections des-cribed in the checklist or appearing in the regulations ma~* be c>ddressed, at the option of an agency. to further provide for implementation of the NEPA regulations in the agency's environmental revie~ process.

The test !or evaluating agency procedures is whether they provide the means to incorporate the standards of the regulations into ager.cy plan-ning and decisionmaking.

The question...,e will ask, in other words, is whether the procedures will give practical effect to the provisions of the regulations in the agency's environmencal revi~ process.

In what follows, we elaborate several aspects of our guidance for developing agency implementing procedures.

, ENC~OSURE A ( continued) 5 -

A.

CARRYING OUT NATIONAL ENVIRONMENTAL POLICY AND GOALS Section 1500.l(a) of the NEPA regulations states that "The National Enviror.mental Policy Act (~EPA) is our basic national charter for protection of the environ.~ent. It establishes policy, sets goals (section 101), and provides means (section 102) for carrying cut the policy.

Section 102(2) contaSns *action-f'orcing' provisions to* ma\\le $Ure that federal agencies act according to the letter and spirit of the Act.

The regulations that follo~

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 agancies, and the courti share responsibility for enforcing the Act*so as to achieve the substantive requirements of section 101.

11 In addition, Section 1500.l(c) states that 11Cl timately, of course, i.C-is not better documents but better decisions that count.

SEPA's purpose is not to generate p~perwork even excellent J)apel",IOT.k -- but to foster excellent action.... "

These statements of purpose place the procedural requi rements of NEPA in the context of national environmental policies and goals and establish guiding principles for the development of agency implementing procedu~es.

B.

ASSCRI~G THAT THE ~EPA PROCESS CORRESPONDS ~ITH MAJOR DECISION POI~TS FOR PRINCIPAL AGENCY PROGRA?-:~

The ~EPA regulations are designed to ensure that the data and analysis

~eveloped during the -environmental review process is made a,.-ailable to agency planners and decision:nakers at the time when it \\.*ill be of most value to them in formulating, reviewing and deciding upon proposals for agenc>' action.

Section 1501.. 2 provides, for example, that "[a]gencies shall integrate the NEPl process with other planning at the earliest possible time to insure that planning and decisions reflect environ-mental values.... " Section l501.2(b) states that "[eJnvironroental documents and appropriate analyses shall be circulated and revie~ed at the sar.,e time as other planning documents.

11 ln addition, Section 1502. 5 provides that an agency shall commence prepar&tion of an environmental impact state~ent a~ close es possible to the time the asency is developing or is presented with a proposal" so that the statement "can serve practicall>' as... n ir11portant cor.tribution.

to the dec:isionmaking process *... 11 In the case of Federal projects* the EIS shall be prepared at the "feasibilit)f analysis (go-no go) s.:age11 (Section 1502.S(a)).

For projects initiated elsewhere, the process shall commence 11no latet' than immediately after the application is received" (Section lSOi.S(b)).

Agencies are enc:ouTaged in such cases to initiat* their analyses even earlier.

ENCLOSURE A (continued) Morever, Sectioh 150S.l(d) directs agencies to adopt implementing pro-cedures requiring that relevant enviroruDental docuaents, eott:::ients and responses "accompany tbe proposal through existing agency revieY processes so that agency officials use the stater.ient in trwlking decisions. 0 Agency implementing procedures must also ensure that "the alternatives considered by the decisiorunaker are encompassed by the range of alternatives" discussed in these environmental materials (Section 1505.l(e)).

Agency implementing procedures must serve as the vehic:le for ensurir,g that these critical issues of timing and integration are properly established in. agency planning and decisionmaking processes. It is for this reason that Section 1505.l(b) provides that agency implementing procedures shall include "[d]esignating the rn.1jor decision.points for the agency's principal programs likely to h.1ve a s-ignificant effect on the hurr.an environment assuring that the NEPA ?rocess corresponds "'ith them."

In order to conf01:1J1 ~ith this section. an agency's procedures should include such information as a description of ~hen the NEPA process starts. i.e. "the earliest possible time;" a designation of r.:ajor decision points; an identification of the official ~aking the major decisions; a description of what is decided at each major decision point; and a description of the enviro.n*ment.al data and analysis that are to* be made available to the decisionmaker at each major decision point.

Charts and other graphic aids may be useful in presenting this ma_terial.

C.

IDE~TIFYING TYPICAL CLASSES OF ACTION FOR SI.~ILAR TREATXE!IT IN THE l.fEPA PROCESS Section 1S01.3(c)(2) of the NEPA regulations ?rovides that age~cy i~ple-m~nting procedures shall include:

"(2) Specific cri ceria for and identification of those typical classes of action: *

(i) Which normally do require environmental impact statements.

(ii) w'hi~h normally do cot require either an environmental impact statement or an environmental assessment (caterorical exclusions (Sec. 1508,4)).

(iii) Which normally require environnental assessments but not necessarily environmental i~pact statements."

Section 1501.4 describes the..-:ay in which these categories are to be used in determining vhether to prepare an environmental impact statement.

Section 1508.4 defines "categorical exclusion 11 to mean 11a category of actions which do not individually or cumulatively have a etgniffcant

ENCLOSURE A (continued) ~ effect on the human environment... " (the category detcribed in 1507. 3(b)(2)

(ii) above").

Section 1508.4 also states, however, that agency i~plcmenting procedures "shall provide for extraordinary circumstances in which a normally excluded action may have a significant enviroru:1ental effect. "

When. these extraordinary cir.cumstances 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 aserlcy i mplementing protedures. First, Section 1508.18 of the regulations states that

"(b) Federal actions tend to fall within one of the following categories:

~(l)

Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act. 5 U.S,C. 551.ll ~.; treaties and international conventions or agreements; forC\\al docur.1ents est ablishing an asenc:,,'s polic;:ies...,hich will result in er substantially alter agency programs.

11(2) Adoption of formal plans, such as official documents prepared or approved by federJl agencies ~hich iuide 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 ~onnected agency decisions allocating ai,enc)' resour.ces to implemeQt a specific statutory program or ~xecutive 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 regul atory decisi~n as wall as federal and federally assisted activities."

Agencies should review this list of actions for purposes of establishing typic~I* classes of action under Section 1507,3(b)(2).

Second, it is not sufficient simply to identify and categorize typical classes of agency actions under Section 15O7;3(b)(2) of t~e regulations.

Agenc~* imple~enting procedures must also contain the "specific criteria

used for t~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 ter.ns "the extraordinary circumstances in which a normally excluded action may *have a significant environmental effect" and include a description of the procedutes which would be follove*d by the agency in recognizing such an exception.

.. ENCLOSURE A (continued),

D.

lNTEGRATlNG NEPA REQUIR~NTS WITH OTHER ENVIRONMENTAL REVIEW AND COSSULTATlON REQUIREMENTS One important purpose of the regulations is "[i]ntegrating NEPA require-ments with other environmental review and consultation requirements" (Sections l500.4(k), 1500,5(~)). Section 15O2.25(a) provides. fer example, that:

"To the fullest extent possible, agencies shall prepare draft environmental impact statements concurrently with and integrated vith environmental impact analyses and related surveys and studies required by the Fish and Wildlife Coordination 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 £nd~ngered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq,), and other environmental review laws and executive orders."

To this end, Section 150l.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 may be prepered concurrently with, and integrated with, the environmental impact statement (see Sections 1502.25(b), 150J.3(c), (d)).

Ve have attached as Appendix Ca list of the major environ~ental review and consultation requirements for Federal agencies.

Agency irnple~enting procedures should identify those requir~rnents that apply to agency actions, and the analyses, surveys and studies which they £ntail. The implementing procedures should also cescribe the process by which these requirements are met and indicate how this process will be made to run concurrently with,* and :!.ntegrated with, the NEPA process in terms of timing, agency personnel involved, public review and comment, publication and use of documents, research and analysis, and so forth.

However, agencies should not allow the incorporation of these other more narrowly focused environmental review and consultation requirements to detract from the comprehensive aprrcach*required by NEPA.

E.

FACILITATING E?IVIR0~"}1£NTAL REVIEWS FOR PRIVATE APPLICANTS Section 1501,2(d) of the ~EPA regulations states that each agency shall:

"(d) Provide fo~ cases vhere acr.ions are planned by private applicants or other non-Federal entities before Federal involvement so that:

11(1) Policies or designated staff are available to advise potential applicants of studies or othPr information foreseeably required for lat.er Federal action.*

• ... p ENCLOSURE A {continued) 11(2) The Federal agency consults early vith appropriate State ~nd local agencies and Indian tribes and with interested private persons and organizations Yhen its own involvement is rFasonably foreseeable. 11 Section 1507.J(b)(l) states that agency implementing procedures shall include the procedures required by Section 150l,2(d).

To fulfill these requirements, agency implementing procedures should a, ~mplish the following:

(a) Identify types of actions initiate~ by private parties, State and local agencies and ~ther non-goverruDental entities for ~hich agency involvement is reasonably foreseeable; (b) Establish policies for advising potential applicants of studies or other infor~ation fo~eseeably required for later Federal action including the ~EPA process.

Such policies should provide for full public notice that agency advice en such matters is available.

publications containin~ 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 ~king the iden-ti-fications and implementing the policies under subsections {a) and (b), above.

F.

MITIGATION AND MONITORING Section 1505.3 of the NEPA regulations stat~s that 11Agencies may provide for monitoring to assure that their d_edsions are carried out and should do so in importar.t cases. Mitigation (Section 1505.2(c)) and other conditions established in the environ-.

mental impact staternent or during its review and committed as part of the decision shall be.i.mple:nented by the lead agency or ether appropriate consenting a6dncy.

The lead agency shall:

"(a) Include aporopriate conditions in grants, permits or other approvals,

"(b)

Condition funding of actions on mitigation.

"(c) Upon request, inform cooperating or coC1J11enting agencies on progress in carrying out mitigation measures which they have proposed and which were adopted by the agency making the decision.

11 (d)

Upon request, make available to the public the results of relevant monitoring,"

Agencies are encouraged ta address these requirements in their implementing procedures.

., I ENCLOSURE A (continued) 10 -

I C.

OTHER MATTERS

1. Making Environmental Docwnents a Part of the Record in Administrative Proceedings Section 1505,l(c) provides that agencies shall adopt procedures

~hich require "that relevant envi~onmental documents. con;;;ients, and responses be part of the record in formal rulemaking or adjudicatory proceedings.n In addition, Section 1502.9(c)(3) of the NEPA regulations prcvides that agencies "(s]hall adopt procedures for introducing a supplement [to an enviornmental impact statement) 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 l507.3(b)(l).

2, Informing the Public on the Status of the NEPA Process Section 1506,6(e) of the NEPA regulations provides that agency implement-ing procedures shall indicate "where interested persons can get information or status reports on environmental impact state~ents and other elements of the NEPA process." See Section 1507. l(b) (1). Similarly, Section 1507.2(a) provides that [a]gencies shall designate a person to be responsible for overall review of agency NEPA compliance."

3.

Identifying Agencies With Special Expertise and Jurisdiction By Law Some agencies have already made arrangements among themselves for cooperation in the environmental reviev process. Agency imple~ent1ng procedures should describe the. arrangements which exist, identify letters of agreement, memoranda of understanding and other written documents reflecting the arrangements. and indicate how these documents may be obtained by members of the public.

The Council is currently preparing a list of agencies with special expertise in prescribed resource areas and an analysis of agency jurisdiction by law und~r Federal statutes. When published, this infor*

mation will assist lead agencies in identifying potential cooperating asencies for preparing environmental impact sta~ements.

4, Cooperating ~ith State and Local Agencies Section 1506.2 of the NEPA regulations provides for cooperacfon with State and local agencies to reduce duplication between NEPA ~nd ~tate and local requirements.

To this. end. 1o1e have attached as Appendix D a list of State and local entities with enviroomencal review requirements that appeared in the Council's 1977 Annual Report on Environmental Quality.

ENCLOSURE A (continued),.

We recognize 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.

Enclosures (not attached)

NICHOLAS C. YOST General Counsel APPENDIX A* - CEQ Staff Contacts APPENDD..l - NEPA.Liaisons APPENDIX i;

- Environrnenta1 Review and Consultation Requirements APPENDIX D - State Environmenta1 Impact Statement Requirements, May 1, 1977 NEPA Procedures Checklist

ENCLOSURE B

ENCLQSURE B Provisions of CEQ NEPA Regulations Requiring Supplementary Agency Procedures Section 1507.3(b)(l) of CEQ 1s NEPA Regulations requires each Federal agency to develop supplementary procedures to implement the following regulatory provisions:

(1) S 1501.2{d) - which specifies steps Federal agencies should take 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.

.. Conmencing the NEPA process at the earliest possible time.

ENCLOSURE 8 (continued) (2) S 1502.9(c)(3) - which requires agencies to adopt procedures for introducing supplements to draft or final en-vi ronmenta 1 impact statements in to forma 1 administrative records.

(3) S 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 1 among other things:

- Designate the major decision points for the agency's principal programs likely ~o 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 1 comments and responses (1) be part of the record in formal rule making or adjudicatory prcceedings~ and (2} accompany a proposal through existing agency review processes so that agency officials use these documents in making decisions.

.ENCLOSURE B {cont;nued) - Require that alternatives considered by the de-c1s;onmaker be encompassed by the range of alternatives discussed in the relevant en-vironmental document~ and that the decision-maker consider the alterna-tives described in the environmental impact statement.

- In addition to the preceding requirements relating to relevant environmental documents,

§ 1505.l(e) encourages agen~ies to m_ake avail-able to the public before a decision is made, any parts of other decision documents which relate to the comparison of alternatives.

(4). S l506,6(e) - which requires agencies to explain in their procedures where interested persons can get information 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 s 1507.3(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, (11) do not require an environmental impact statement or an environmental assessment, i.e.

ENCLOSURE B (continued}.!/

categorical exclusion as defined in§ 1508.4 and (iii) require an environmental.a$sessment 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 Ss 1507.3(d) and ( e).

!/ S 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 Federa 1 agency in implementation of these regulations ('1507.3) and for which 1 therefore, neither an environmental assessment nor an environmental impact statement is required.

An agency may decide in its 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.

ENCLOSURE C

• ENCLOSURE C - Section 102 of the National Environmental Policy Act or 1969, as amended; 42 USCS 8 4332.

ENVIRONMENTAL POLICY*

42 uses § 4332

§ 4332. Cooperation or agencies-Reports-** A vailabiUty of infor-mali on-Rccommenda tions-International and national coordination of efforts The Congress authorizes and directs that, to th.? fullest extent possible: (t) the policies, regulations, and public faws of the United States shall be interpreted rend administered in accordance with the policies set forth in this Act [42 uses §§ 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 §§ 4341 ct seq.], which will insure that presently unqu1t_ntified 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 p.*oposals for legisla-tion and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on-(i) the environmental impact of the proposed action, (ii) any ad,*er&e environmental effects which cannot be avoided should the; proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-tenn 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 rr&Aking any detailed statement, the responsible Federal official shall consult with and obta:n 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, an*d local agen-cies, which are authorized to develop and enfort.:e 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 uses § 55Z), and shall accompany the proposal through the existing agency review processes; (D) Any detailed statement required under subparagraph. (C) after January I, 1970. for any major Federal action funded under a program of grants to S~atcs shall not be deemed to be legally insufficient solely by reason of havina been prepared by a State agency or official, if:

'ENCLOSURE C (continued) 42 uses § 4332 PUBLIC HEALTH ANO WELFARE (i) the Stnte agency or official has statewide jurisdiction and has the responsibilily for such action,.

(ii) the responsible Federal official furnishes guidance and partir.ipales in such preparation, (iH) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and (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 affected Federal land management entity and, if there is any disagree-ment on such impacts, prepares a written assessment or such impacts i!nd views for incorporation into such detailed statement.

The procedures in this subparagraph shall not relieve the Federal official of his resp~nsibilities for the scope. objectivity, and content of the entire statement or of 3ny other responsibility under this Act [42 USCS §§ 4321 et seq.]; anti forther, this subparagraph does not affect tl1e legal sufficiency of statements prep?.red by State agencies with less than statewide jurisdic-tion.

(E) study, develop, an,d 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 1ongrange character of environmental problems and. where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decJine in th~ quality of mankind's world environment; (G) make available to States, counties, municipaJities, institutions, and individuaJs, advice and information useful in restoring, maintaining, and enhancing the quality or 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 uses §§ 4341 et seq.].

(Jan. ?, 1970, P. L.91-190, Title I. § 102, 83 Stat. 853; Aug. 9, 1975, P:- L 94-83, 89 Stat. 424.)

1 I I I I I i

ENCLOSURE C (continued) Texts of Executiv~ Orders Nos. 11514 and 11991.

Protection and enhancement ot environmental qunlity, Ex. Or. No.

11514 of Mar. S, 1970, 35 Fed. Reg. 4247, provided:

SECTION I. 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 nct!dcd to direct their polides, 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.,gencies. Consoriant wilh Titie I of the National Environmental Policy Act of 1969 [42 uses §§ 4331 et seq.], hcreaner referred to as the "Act," the heads or 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 en\\*ironment 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 ;;pecilic objectives of such activities. Heads of agencies shall consuh with appropriate Federal, Stale and local agencies in carr)'ing out their activities as they affect the quality of the environment.

(b) Develop procedures to ensure the fullest practicable provision of timely public in(ormation and underslanding of Federal plans and programs with environmental impact in order to obtain the views of interested {)anics. These procedures shall include, whenever appropri*

ale, proviston ror 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 exisling or potential environmen-taJ 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 entities, as appropriate.

(d) Review their agencies' statutory authority, administrative regula-tions, policies, and procedures, 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 ::.eq.].

A report on this review and the correc1ive 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 or the Act (42 uses §§ 4321 ct seq.], shall be provided to lhc Council on Environmental Quality not later than September I, 1970.

(e) Engage in ellchange or data and rtsearch results, and cooperate with agencies of other governments to roster the purposes of the Act [42 uses§§ 4321 et seq.).

(f) Proceed, in coordination with other agencies, with actions required by section 102 of the Act [42 uses § 4332).

Refer to Section 2 or Exccuti*;:, Ord.er No. 11991 for text of new subsection (g).

ENCLOSURE C (continued) Text of Executive Order No. 11514 {continued)

SEC. 3. Responsibilities of Council on Environmental Quality. The Council on Environmental Qu:ility shall:

(a) Evaluate existing and proposed policies and activities of the Federal Oovernmcnt directed to the control of pollution and the cnh3ncement of the environment and to the accomplishmt:nt of other objectives w11ich affect the quality of the environment. This shall include conlinu-ing review of procedures employed in the de,*clopmcnt and enforcement of Federal standnrds affecting en~*ironmenfal quality. Based upcn such evaluations the Council shall, where appropriate, recommend to the President policies and progra~s to achieve more effective protection and enhancement of environmental quality and !;b3ll, 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 or 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 conference.~ on issues of environmental significance.

(e)

• Promote the development. and use or indices and monitoring systems (1) to :isscss environmental conditions and trends, (2) to predict the environmental impact of proposed public and prh*ate actions, and (3) to determine the effectiveness of programs for protect-ing and enhancing environmental qualily.

(f) Coordinate F1;:dcral programs n:lated to environmental quality.

~g) Advise and assist the President and the agc=ncies in achieving international. cooperation for dealing with em*ironmental problems.

under the foreign policy guidance of the Secretary of State.

R:ir~r to Section 1. or Ex~cuthr::i Order No. 11991 for t.Jxt of revised subsection (h). *

(h) ks~deli,u1s t9 NdeAI ageooilE fQr &h.1 pnpaa:alien er detaiHMl-slalemenl!l en pret'osals for legislalien aRd other :FeEleral aetioM aff'eeting the en\\'ironmcnt,as-requtred-by-sectieft-lG2(~)(:) of the-Aet f 42 uses § 4332(2)()).

'(i) Issue such other instructions to agencies. and request such reports and other inform3tion from them, as may be required to carry out the Council's responsibilities under the Act [42 USCS §t 4321 et seq.].

(D Assist the President in prcp11.ring the annual Environmental Quali!.y Report provided for in section 201 *of the Act [42 USCS § 4341).

(k) Foster investigations, studies, surveys, research, and analyses relat-ing lo (i) ecological systems and environmental quality, (ii) the impact of new and changing technologies thereon, and (iii) means of prcveni-ing or r~ucing adverse eKecls from such technologies.

ENCLOSURE C (continued)

Text of Executive Order No. 11514 (continued)

SEC. 4. Amendments of E.O. 11472. *Executive Order No. 11472 of May 29, 1969 {sec above note to this section), including the heading thereof, is hereby amended:

(1) By substituting for the tenn "the Environmental Quality Coun*

cil", wherever it occurs, the fol1owing: "the C:ibinet Committee on the Environment".

(2) By substituting for the term "the Council", wherever it occurs, the following: "the Cabinet Committee".

(3) By i nscrting in subsection (f) of section l 01, aRer "Budget,", the following: "the Director of the Office of Science nnd Technology..

(4) By substituting for subsection (g) of section 101 the following:

.. (g) The Chairman of the Council on Environmcnlal Quality (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 Office of Science and Technology", in section 104, the following: '"the Council on Environmental Quality (esta!lli shed by Public Law 9 t-190)".

(7) By substituting for "(hercin::ifler referred to as the 'Committee').

in section 201, the following: "(hereinafter. referred to as the 'Citi*

zens' Committee')". *

(8) By substituting for the tenn the Committee". wherever it occurs,. the following: '"lhe_ Citizens' Committee".

'J *. *:

• ENCLOSURE C continued

. : : :,i :'.

~- *-~- *.

• ~

Hi~l.,\\'l'li:G TO J*JlO'h:1.,."flClil./'\\!Ill 1-::;11;,'/Cl-:M:-:1-n' 01-* l~/JV11:CJ:*:;-11:W!*l\\f. {.)il/\\l.1TY ny vi1*tuc of the..iul.horily vc:::;tcd in mo by the Con:;1. ilution,rn<l :;t,1tutcs of the United St,1tcs o( l'uno~rica,

!url:1wi:anca o! the p11rpo!;a ~intl pol j r.:y of th~ U,:.d:ional

~nviron1ncntal Policy Act of 196~, au ~rn~ndc:d (42 U.~.C. --

4321 ct ~~-), lh(;.E:nv.ironmcnt.nl Quality.!mprovcmc:nt Act of 1~70 ('12 u.s.c. 4_371 ct SC!q.), and Section 309 of the Clc~n Air Act, a~ ~mended {42 u.s.c~ 185~1-7), it is hereby otdcLcd as follows:

Section 1.

~ubGcction (h) of ~cclion 3 (relclting to

. respon!;ibili U es of t.hc Co11ncil on J::nvironm:rnt.al Ou,11 ity) of Executive Order No. 1151'1,.:is ;i::1cndcd, is rcvis~d to rend as follows:

'"(h_).

Is~uc r~gulat.ions to federal.1.9P.ncics for the implcm{?nt.ition of the procerlural p1:ovi sions of *the Act (42 u.s.c. 4332(2)).

Such rcgulntions shall be developed aftC!r consultation with affected agencies and after such public hearings as may be appropri~1te.

They will be de-signed to make the environmental impact statcmant process more useful to dccision111.:1~crs <<nd the public;.and to reduce p.i.penrork and the accumulation of C?<tra.neous background data, in ordci; to cmph,--i::.ize the nce<l to focus on* rC!al cnviron,r.~nt.il issues and alternatives.

They will require impac~ &tntczoon~s to be concise!, clear, an~ to the point, oncl supported by ovidcncc that c1gonc.l~s h..1vc inndc the naccssnry cnvironnicntlll.analyses.

The Council *shall includo in its regulations procedures (1) for ihe early prt-p.:1r11t.ion of cnvlrori1nr:mtal imp.::act stateroonts, and (2) !or tJ10 raforr.:Jl to tho Council of conflicts between HDIU& UOIIIU. \\'Dt.. U, WO. 101-WIDNHDAY, MAY 25, 1971 I

1111: r;::r:~mrr-:r

.:19{':ncic:;} o( Ex~_cutivc,O.t<lur No. 1151'1,.* ~ ;11n~ndrd: --

" ( g)

In c,1rrying out t.licir )."1'*~;ponr:.ibilil:)QZ u~dc-r Ly the Council e>:ccpt where such coiur,l i.mce \\<,'011ld be inconf.iistcnt with GtatuLury rcquirem,:::nts.".

THE 1-/UITE IlOllSE, May 24

• 19'17

[FR Doc;.77-15124 file,:f5-Z-t-77 ;I: ~,,in)

IIDUAl UCISHI, VOL. 42, NO. 10,-.:.wu~riuDAY, MAY u,.,,,

ENCLOSURE 0

ENCLOSURE D

- l -

Prov1s1ons of CEQ NEPA Regulations Which Present Problems but Appear Amenable to NRC Implementation

1.

Section l502.9t which relates to draft, final and supplemental impact statements and provides in part that 11[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 acticin."

It 1s 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 infonnal 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,11 estabiishment of time lfmfts,Y V

40 CFR I 1502.Z(f), 1505.2, 1506.1 and 1506.10.

y 40 CFR l 1501.8.

' ENCLOSURE D (Continued}

- 2

• and treatment of comments on final environmental impact statementsl/

could present problems unless the Commission was given latitude to detennfne 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 Comn1ssfon's immediate effectiveness rule (10 CFR ~ 2.764)41 by reason of ihe fact that 11506.l(a) of CEQ's NEPA regulations (see also 111505.2 and 1506.10) precludes agency action on a proposal which would have an adverse environmental impact or limit the choice of rea-sonable alternat1ves unt11 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 in~fcated that they see no problem with staff level issuance of the record of decision.

40 CFR I 1503.l(b).

The issues involved in the immediate effectiveness rule are being studied by the NRC's Advisory Committee on Nuclear Power Plant Con-struction During.Adjudication. The Ad~isory Committee 1s expected to issue its report about November l, 1979.

ENCLOSURE D (Continued) 3.

Further clar1f1cat1on of the tiering concept(~ 1502.20)~ was sought to detennine whether tiering would preclude NRC from continuing to use generic environmental studies61 in its regulatory process.

(These studies do not satisfy CEQ requirements for environmental impact statements.) According to 1nfonnal 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 required program environmental impact statement (s 1506.l(c)) were alleviated by infonnal advice from CEQ staff that the limitations whfch ~ 1506.1 (c) places on agency action

~ Tiering pennits 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 of environmental review.

For examples of these studies, see 10 CFR Part 51, Table *s Sunrnary 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, 11 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, 11 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. 519, in which the U.S. Supreme Court upheld the procedures, including the use of environmental surveys, used in this rulemaking proceeding.

See also, 10 CFR Part 51, Summary Table S-4 ~ Environmental impact of transportation of fuel.and waste to and from 1 light-water-cooled nuclear power reactor, based on supporting data contained in 1'Environmental Survey of Transportation of Radioactive Materf als to and from Nuclear Power Plants, 1

' WASH-1238, December 1972, and NUREG-75/038 (Supp. 1 to WASH-1238, April 1975).

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 provisions11 which encourage affected agencies to the fullest extent possible to cooperate and coor-dinate their review processes so that needed permits and approvals are issued simu1taneous1y instead of sequentially. According to informal advice from CEQ staff~ these provisions are not intended to bar any Federal agency from taking action until after other needed permits and approval~ have, in fact~ been*obtatned.

In accordance with current NRC practice, each final environmental impact statement contains a sectfon which sunmarizes the status of other Federal, State or local pennits whfch might be required in connectfon with the proposed action.

CEQ staff indicated that this practice would continue to be acceptable under the new CEQ NEPA regulations.

6.

Section 1505.J 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 1n important cases.... Q The provisions 11 See U 1502.16(c), 1502.25, 1503.J(c) and (d) and l506.2(b), (c) and {d). For a general discussion of "How The NEPA Regulations Improve The Federal Penn1tting Process" see Memorandum on thfs sub-ject for Energy Coordinating Conmittee Members from Charles Warren.

Chairman, Council on Environmental Quality. dated December 21, 1978, Enclosure E.

ENCLOSURE D (Continued) 5 -

of the Federal Water Pollution Control Act preclude NRC from perfonning monitoring in connection with certain water quality matters.

CEQ staff acknowledged the limitatfons placed by this statute on NRC's 1nonitoring capability.

ENCLOSURE E

Et;CLOSURE E EXECUTIVE Of'FICE: OF THE PRESIDENT COUNCIL ON ENVIRONMC:NTA~ QU/,LITY-122 JACKfO!-J ru.ce:. N. w.

WASHING10P~, 0, C. 200:iG Dcce'C\\bcr 21, 1978.

MEHOMh"I)UM FOR ENERGY COORDINATING COMMITTEE MDIDERS SUJ4ECT:

How 'I1le NEPA Regulations Illlprove Tha Federal Permitting Process In its newly adopted rQgulations under toe National Environmental Policy Act; the Council adopted~ series of specific measures which will greatly improve the !ederal permitting process for energy facilities.

The new regulations *go l,eyond environmental iinpact stateaen*t require-*

mcnts and address broader issues in integration and coordination of all

-environn1entn_l revie*.1 and permit requirements.

Hajor rcfor.ns include:

All permits identified early.

All agon,:ies with authority over a project required to consult early an~ ~ork. with the lead agency.

• All agencies to develop procedures to aid.applicants.

Avoidance of delay.

TiDe limits on NEPA process must be set at applicant's request

• All reviews to be prepared concurrently !atber than consecutive!;

All information or mitiaation that will.be necessary to approve the project to be identified early.

Eliminates duplication in EIS preparation.

This memorandl'll!l briefly discusses these and other provisions in the new NF.PA reg~lationst whicb* vere issued on Nove~ber 29, 1978.

Project sponsors often face a number of federal permit and license requirements before construction can start. There are a variety of

• federal statutes r~uiring different kinds of enviTon~ental xeviews to precede the issuance of applicable federal t-el"l.lits or licenses. While RP.A's EIS requirement is the only comprehensive environmental review requireQen~, a project may -require compliance vith speci3lized envirou-

• ental reviews and analys~s such as those required under the ¥ish and Wildlife Coordination Act (in connection witll the issuance of dredge and

ENCLOSURE E (continued) fill permits), or those required under the Clean Air Act (in conn0.1:tion

.with permits issued directly by r:PA or by a state tlrroueh :i.t:::. Stata Implementation Plan requirements).

Si1:i.ihrly, a non-federal project 'C'..ay

. require federal permission and compliance:: with federal cnvironrnental reviews for some components, such as a BUI casef:lcnt over public l.~nds for transmission lines for a fossil fuel &enerating plant that othenrise requires no federal permits.

~.-h 'In the* past tl1cre have been cases, particularly where 1:1ultiplc federal permit'and environmental review requirements are ~pplic~ble, where compliance with various federal pe~it and environccntal review require~

ments has been delayed.

Reasons for delay include lack of coordin~tioo among federal agencies having approval and revieY authority, sequential (rathet' than concurrent) processing of perJJit <<od -review require::.ients, faiiure to prepare cnviron~ental reviews early during the pla..~ning

• stages, inadequate guidgnce from federal agencies to permit applic2nts.

adver.sary relations bet~een agencies having differing ~issions, and duplication between federal and state env_ironmental protection re.quire-

• D\\ents.

The Council's final NEPA regulations address each.of these proble~s in the fer.!cr<'l.l permitting process..Applicable provisions in the ??EPA regulations which will improve federal permitting are SUi!Elarized belmt.

1. : Agencies having percitting, licensing or**~othe:r approval authority over a project are required to consult early in the

~

planning of the project. During this early consultationt called the "scoping process" agencies are to identify sisnifi-cant environmental issues, identify all applicable penlit and environ~ental review requirements, and organize 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 ageocy having permit authority over a co~ponent of the project ca~not stay aloof from the EIS preparation and intervene at later stage in the.project approval to conduct envirom:iental reviews necessa-ry for the permit.

(Section 1501.6).

3.

Agencies having permitting or licecsing autbority are required to develop procedures that facilitate application of the NEPA process at the earliest possible time *iu cases where projects are being planned by priv3te applicants or other non-Federal entities before Federal involve~ent.

Such procedures must 1Dake available to potential applicants agency policies or

• designated staff to advise applicants of studies or other

• ENGLOSURE E ( continued) *..

infor~ation fo~csecably required for the lotcr-staee Fc~cral permit or opproval. Such procedures riust al.co indicate how the agency will consult early with oppropriate State.:md local

~&cncies, Indian tribes, interested private parties and organizations when the Fedcr.i.l agency's permitting authority is reasonably foreseeable.

(Section 1501.2{~)).

I

4.

In order to avoid delays in apply-ing"the NEPA process to

• permits. the regulations require environmental assessments or EISs to.be started no later than imme9iatcly after the permit application is received, preferably earlier and jointly with

• . **. applicable State or local agencies.

(Section 1502.5 (b)). In additiont

• the lead agency is 1:equired to set

• time. limits for

s.

6.

7.

• the l~EPA process at t.he request of the pernit applicant so

• long 2s the time limits are consistent ~1th NEPA and o.ther essential considerations of national policy (Section 1501.8).

In order to min~mize delays caused by sequential preparation of environ~ental ravie~s and ana~yses for a project requiring federal permits, licenses or approvals, the regulations r'equire that the draft EIS serve to the ll'laximum extent as the

,;*~chicle fur conducting all required environmental revie-ws.

Thus the draft EIS is to be prepared concurrently with and integrated with environ~ental studies, Teports and 2nalyses required by other federal statutes. regulations and Executive Orders (Section l502.25(a)).

To facilitate identification of federal permit require~ents for*a project, the regulations require that all applicable fcder~l permtis, 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 1502.2S(b)).

To improve coordina~ion among federal agencies having auchority over a project and to ~imize adversary relations betveen agencies vith conflicting missions, the regulations require federal agencies Yitb jurisdiction by law to comment on* the

• I draft EIS and to state iu their comments ~hether they need additional infon:iation to fulfill envirotll:lental review require-ments. for permits, licenses or entitlements they iss1.1e, and to state ~hat additional infon:ation is requiTed. In parcicular, a cooperating a&ency is required to specify any additional information it needs to cot:i::l:lent adequately on the draft ~IS'*

analysis of site-specific effects associated ~ith the 1rantin1 or appToving*by that agency of necessary Fede~al permits, licenses or entitlements.* (Section lSOJ.l(c)).

i I

ENCLOSURE E _(continued)... *....

Reinforcing this requirement, the rceulations providl'.! that when ona federal atcnc.y with jurisdiction by 1~,w ?bjc:c.ts to or expres~cs reservations about. chc 1n:ojcct on cnvirom:1cntal impact ~rounds, the agency cxprcssins the rcscrvution or objection ~ust specify any ~itigation ~easures it con$idcrs necessary to allo~ the agency to grant or approve applicable permit, license or related requirements or concurrences (Section 1503.3(d)).

These provisions will help insure that federal permitting

• .., **. accncics will ~ork closely "1ith the lead aeency in resolving environmental impact issues, and avoid adversarial positions

• which cause-delay in the perI!litting proce~s.

8.

• To minimize delays in th~ permitting process caused by duplicate revielolS, t.he regulations allow a federal permitting agency to adopt the EIS prepared by* the leaa agency without recircu-

• lating it for. review (Section 1506.3(c)).

In addition, the regulations provide for eli~inating duplication between the Federal EIS and State/local review requirements (Section

• • 1506.2)).

ENCLOSURE F I

I ENCLOSURE F

.. 1..

Proposed Letter to CEQ Chainnan Warren The Honorable Charles H. Warren Chainnan, Council on Environmental Quality Executive Office of the President 722 Jackson Place, N.W.

Washington, D.C.

20006

Dear Chainnan 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 Enviromental 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 1s 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 fonn.

Although this statement 1s helpful in understanding some of the broad objectives and speci fie pro-visions of the -Council 1s NEPA regulations, ft does_ not provide guidance on how conflicts between CEQ's NEPA requirements and NRC 1s responsibili-ties as an independent regulatory agency might best be resolved.

• * ENCLOSURE F (Continued)

(he Ho11orable Charles In considering what actions may be needed to implement CEQ 1s NEPA regu-lations, the Comnission has again focused its attention on this matter.

After further deliberation and review of the problems involved, we have concluded that a sound accormtodation can be reached between NRC 1s inde-pendent regulatory responsibilities and CEQ 1s objective of establishing unifonn NEPA procedures.

To achieve this goal, the C001T1ission would undertake to comply with CEQ 1s NEPA regulations voluntarily. subject to the following conditions:

1.

Voluntary compliance with CEQ 1s NEPA regulations does not bind the Comnission 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 1s NEPA regulations (e.g., 1502.14(b), 1502.22(b) and 1508.18) on the Comnission's regulatory activities is unclear. The Conwnfssion 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 jur1sd1ct1on over a particular activity even though it has not been designated as lead agency for preparation of the statement.

~..

• .. * '

• tNCLOSURE F (Continued)

The Honorable Charles 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 Comnission 1s present plan to develop implementing NEPA regu-lations in accordance with the above guidelines.

A*lthough these guide-lines contain certain reservationst 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 11 ***

where compliance would be inconsistent with other statutory requirements.

11 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 n11tually acceptable.

Sincerely, Joseph M. Hendrie Chafman