**0ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Part 6**

**\[EPA-HQ-OECA-2005-0062; FRL-xxxx-x\]**

**RIN 2020-AA42**

**Procedures for Implementing the National Environmental Policy Act and
Assessing the Environmental Effects Abroad of EPA Actions**

**AGENCY:** Environmental Protection Agency (EPA).

**ACTION:** Final Rule.

**SUMMARY:** The Environmental Protection Agency (EPA or Agency) is
amending its procedures for implementing the requirements of the
National Environmental Policy Act of 1969 (NEPA). This also includes
minor, technical amendments to the Agency's procedures for implementing
Executive Order 12114, "Environmental Effects Abroad of Major Federal
Actions."

This rule amends EPA's NEPA implementing procedures by: consolidating
and standardizing the procedural provisions and requirements of the
Agency's environmental review process under NEPA; clarifying the general
procedures associated with categorical exclusions, consolidating the
categories of actions subject to categorical exclusion, and amending
existing and adding new categorical exclusions; consolidating and
amending existing and adding new extraordinary circumstances;
consolidating and amending the listing of actions that generally require
an environmental impact statement; clarifying the procedural
requirements for consideration of applicable environmental review laws
and executive orders; and incorporating other revisions consistent with
the Council on Environmental Quality's regulations (CEQ's Regulations).

**DATES:** This final rule is effective on \[30 days after publication
in the FR\].

**ADDRESSES:** EPA has established a docket for this action under Docket
ID No. EPA-HQ-OECA-2005-0062. All documents in the docket are listed on
the [www.regulations.gov](http://www.regulations.gov/) web site.
Although listed in the index, some information is not publicly
available, e.g., CBI or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through
[www.regulations.gov](http://www.regulations.gov/) or in hard copy at
the Public Reading Room, Room B102, Enforcement and Compliance Docket
and Information Center, EPA West Building, 1301 Constitution Avenue, NW,
Washington, DC 20004. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the OECA Docket is (202) 566-1752.

**FOR FURTHER INFORMATION CONTACT:** Mr. Robert Hargrove; NEPA
Compliance Division; Office of Federal Activities (Mailcode 2252A);
Environmental Protection Agency; 1200 Pennsylvania Avenue, NW,
Washington, DC 20460; telephone (202) 564-7157; fax number: (202)
564-0072; e-mail address: <hargrove.robert@epa.gov>.

**SUPPLEMENTARY INFORMATION:** The contents of this preamble are
organized according to the following outline:

I. General Information

A. Does This Rule Apply To Me?

B. Statutory Authority

C. Background

D. Exemptions from NEPA for Certain EPA Actions

E. EPA's Voluntary NEPA Policy and Procedures

II\. Summary of This Rule

III\. Responses to Comments

A. Scope of the Regulations

B. Categorical Exclusions (CEs)

C. Extraordinary Circumstances (ECs)

D. NEPA Process

IV\. Statutory and Executive Order Reviews

> A. Executive Order 12866
>
> B. Paperwork Reduction Act
>
> C. Regulatory Flexibility Act (RFA)
>
> D. Unfunded Mandates Reform Act
>
> E. Executive Order 13132: Federalism
>
> F. Executive Order 13175: Consultation and Coordination with Indian
> Tribal Governments
>
> G. Executive Order 13045: Protection of Children From Environmental
> Health Risks and Safety Risks
>
> H. Executive Order 13211: Actions Concerning Regulations That
> Significantly Affect Energy Supply, Distribution and Use
>
> I. National Technology Transfer and Advancement Act of 1995
>
> J. Executive Order 12898: Federal Actions to Address Environmental
> Justice in Minority Populations and Low-Income Populations
>
> K. Congressional Review Act

**I. General Information**

*A. Does This Rule Apply to Me?*

Those subject to this rule include EPA employees who must comply with
NEPA or Executive Order 12114, and certain grant and permit applicants
who must submit environmental information documentation to EPA for their
proposed projects.

[EPA's Procedures for Implementing NEPA]{.underline}. Compliance with
these regulations is the responsibility of EPA\'s Responsible Officials.
Certain procedures in these NEPA regulations require those defined as
applicants (that is, grant and permit applicants) to provide
environmental information for EPA's use in its environmental review
process.

These regulations consolidate and standardize the environmental review
process applicable to all EPA proposed actions subject to NEPA. These
regulations supplement and should be used in conjunction with the
government-wide Council on Environmental Quality (CEQ) NEPA Regulations
(40 CFR Parts 1500 -- 1508).

[EPA's Procedures for Implementing Executive Order 12114]{.underline}.
Compliance with these procedures is the responsibility of EPA's
Responsible Officials. For applicant-proposed actions, applicants may be
required to provide environmental information for EPA's use in its
environmental review process. EPA's Executive Order 12114 implementing
procedures ensure that environmental information is available to the
Agency's decision-makers and other appropriate Federal agencies and
officials for proposed actions subject to Executive Order 12114.

This rule also includes minor, technical amendments to the Agency's
procedures for implementing Executive Order 12114 (42 U.S.C. 4321, note,
E.O. 12114, 44 FR 1979, 3 CFR 1979, Comp., p. 356). EPA actions
typically subject to Executive Order 12114 include major EPA actions
that affect the environment of a foreign nation or the global commons
and may include: major research or demonstration projects, ocean dumping
activities carried out under section 102 of the Marine Protection,
Research, and Sanctuaries Act (33 U.S.C. 1401 *et seq.*), and major
permitting or licensing of facilities by EPA (such as EPA-issued permits
for hazardous waste treatment, storage, or disposal facilities under
section 3005 of the Resource Conservation and Recovery Act (42 U.S.C.
6925), National Pollutant Discharge Elimination System permits under
section 402 of the Clean Water Act (33 U.S.C. 1342), and prevention of
significant deterioration approvals under Part C of the Clean Air Act
(42 U.S.C. 7470 *et seq.*).

To determine whether a project would be subject to these procedures,
carefully examine the applicability criteria in §6.101 and Subpart C of
the NEPA implementing procedures, and §6.401 of the Executive Order
12114 implementing procedures in this proposed rule. If there are
questions regarding the applicability of these procedures to a
particular entity, consult the person listed in the preceding \"FOR
FURTHER INFORMATION CONTACT\" section of this Preamble.

*B. Statutory Authority*

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4321-4347, establishes the federal government's national policy for
protection of the environment. The Council on Environmental Quality
Regulations (CEQ Regulations) at 40 CFR parts 1500 through 1508
establish procedures implementing this national policy. The CEQ
Regulations (40 CFR 1505.1) require federal agencies to adopt and, as
needed, revise their own NEPA implementing procedures to supplement the
CEQ Regulations and to ensure their decision-making processes are
consistent with NEPA.

Executive Order 12114, "Environmental Effects Abroad of Major Federal
Actions," (see 46 FR 3364) is the authority and basis for EPA's policy,
criteria, and procedures contained in the portion of today's proposed
rule entitled "Assessing the Environmental Effects Abroad of EPA
Actions."

*C. Background*

The Environmental Protection Agency initially established its NEPA
regulations as 40 CFR Part 6 (Part 6), Subparts A through H on April 14,
1975 (see 40 FR 16823). Subpart I was added on January 11, 1977 (see 42
FR 2450). On November 29, 1978, the Council on Environmental Quality
(CEQ) promulgated regulations establishing uniform federal procedures
for implementing NEPA (see 43 FR 55978). Section 102 of NEPA and the CEQ
Regulations require federal agencies to adopt appropriate NEPA
procedures to supplement those regulations. As a result, EPA amended its
NEPA regulations on November 6, 1979, to make them consistent with the
CEQ Regulations (see 44 FR 64177).

Under the Agency's 1979 Part 6 amendments, Subparts A through D
described general NEPA procedures for preparing environmental reviews
applicable to all EPA NEPA actions and established certain categorical
exclusions. Subpart A contained an overview of EPA's NEPA regulations,
including environmental impact statement (EIS) requirements for EPA
legislative proposals and requirements for environmental information
documents (EIDs) to be submitted to EPA by applicants, grantees, or
permitees as required in Subparts E through I. Subpart B described the
requirements for the content of an EIS prepared pursuant to Subparts E
through I. Subpart C described the requirements for coordination of
applicable environmental laws and certain executive orders with the
environmental review procedures. It provided a brief recitation of the
provisions of those laws or executive orders and EPA implementing
procedures. Subpart D described the public information requirements to
be undertaken in conjunction with the environmental review requirements
under Subparts E through I. Subparts E through I established specific
criteria for conducting environmental reviews for particular types of
actions and categorical exclusions applicable to those actions.
Specifically, Subpart E established NEPA environmental review procedures
for the Wastewater Treatment Construction Grants Program of the Clean
Water Act; Subpart F for the issuance of new source NPDES permits;
Subpart G for research and development program actions; Subpart H for
solid waste demonstration projects; and Subpart I for EPA actions for
construction of special purpose facilities or facility renovations.
EPA's "Statement of Procedures on Floodplain Management and Wetlands
Protection," dated January 5, 1979, was included as Appendix A to
clarify the effective date and to emphasize the importance of this
Statement of Procedures.

In 1981, Subpart J, "Assessing the Environmental Effects Abroad of EPA
Actions," was added as EPA's general policy, criteria, and procedures
for implementing Executive Order 12114, \"Environmental Effects Abroad
of Major Federal Actions\" (see 46 FR 3364). Executive Order 12114 does
not impose NEPA compliance requirements on Federal agencies, rather it
"furthers the purpose" of NEPA and identifies the documents, including
environmental impact statements (EISs) and environmental assessments
(EAs), to be used when conducting assessments under Executive Order
12114.

In 1982, the Agency revised its Part 6 NEPA regulations by removing CEQ
from the consultation process on requests to segment wastewater
treatment facility construction grant projects (see 47 FR 9831). In
1983, EPA revised the categorical exclusions and the criteria for not
granting an exclusion, and corrected a factual error on the
responsibility for preparing a final EA (see 48 FR 1012).

In 1985, the Agency promulgated procedural amendments and minor
substantive amendments to its Part 6 NEPA regulations to accommodate
changes in EPA's regulations for the construction grants program found
at 40 CFR Part 35 (see 50 FR 26310). The modifications in the
construction grants program changed the process that EPA grant
recipients followed in planning and building wastewater treatment
facilities. The amendments to Subpart E and related sections of the EPA
NEPA regulations streamlined and clarified the criteria and process for
an environmental review and for preparing an EIS, including partitioning
of the review process and the public involvement requirements. These
amendments also included Office name and technical changes to reflect an
Agency reorganization.

In 1986, EPA amended its Part 6 NEPA regulations to clarify and
streamline procedures for partitioning and re-evaluating environmental
reviews, making categorical exclusion determinations, providing for
public participation, and producing and distributing environmental
review documents; and to make various technical changes including Office
name changes due to reorganizations.

In 1991, EPA amended Subpart G of its Part 6 NEPA regulations by adding
categorical exclusions and a list of projects that normally result in
preparation of EAs; revising the criteria used to determine whether
preparation of an EIS is required; revising the provision directing
coordination, where feasible, with other EPA program reviews; and
clarifying the NEPA review process for Office of Research and
Development actions (see 56 FR 20541). In addition, EPA amended Subpart
D by eliminating the requirement for public notice of categorical
exclusion determinations for all EPA programs except the Wastewater
Treatment Construction Grants Program.

In 1993, EPA amended its Part 6 NEPA regulations to address the
requirement that EPA actions conform to any air quality State
implementation plan, and to clarify that air pollution control
requirements need to be considered when performing NEPA reviews for
wastewater treatment works (see 58 FR 63214).

*D. Exemptions from NEPA for Certain EPA Actions*

Certain EPA actions are exempt from the procedural requirements of NEPA,
including the CEQ Regulations. Congress has provided specific statutory
exemptions for certain EPA actions taken under the Clean Water Act (CWA)
and all EPA actions taken under the Clean Air Act (CAA). Specifically,
under CWA Section 511(c)(1), EPA is exempt from preparing EISs for all
actions taken under the CWA except for issuance of NPDES permits under
CWA Section 402 for "new sources" as defined in Section 306, and for
Federal financial assistance provided for assisting construction of
publicly owned treatment works under CWA Section 201 (33 U.S.C.
1371(c)). Under the Energy Supply and Environmental Coordination Act of
1974 (15 U.S.C. 793(c)(1)), all actions taken under the CAA are deemed
not to be major federal actions significantly affecting the environment.

Further, the courts have exempted certain EPA actions from the
procedural requirements of NEPA through the functional equivalence
doctrine. Under the functional equivalence doctrine, courts have found
EPA to be exempt from the procedural requirements of NEPA for certain
actions under the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA); the Resource Conservation and Recovery Act (RCRA), the Toxic
Substances Control Act (TSCA), the Safe Drinking Water Act (SDWA), and
the Marine Protection, Research, and Sanctuaries Act (MPRSA). The courts
reasoned that EPA actions under these statutes are functionally
equivalent to the analysis required under NEPA because they are
undertaken with full consideration of environmental impacts and
opportunities for public involvement. [See, e.g.]{.underline}, *EDF v.
EPA*, 489 F.2d 1247 (D.C. Cir. 1973) (FIFRA); *State of Alabama v. EPA*,
911 F. 2d 499 (11^th^ Cir. 1990) (RCRA); *Warren County v. North
Carolina*, 528 F. Supp. 276 (E.D. N.C. 1981) (TSCA); *Western Nebraska
Resources Council v. US EPA*, 943 F.2d 867 (8^th^ Cir. 1991) (SDWA);
*Maryland v. Train*, 415 F. Supp. 116 (D. Md. 1976) (MPRSA).

Agency actions exempt from the requirements of NEPA remain exempt under
this rule. If a question arises regarding the applicability of the NEPA
requirements to certain proposed actions, the Responsible Official
should consult with the NEPA Official and the Office of General Counsel.

*E. EPA\'s Voluntary NEPA Policy and Procedures*

In 1974, EPA Administrator Russell Train determined that the Agency
could voluntarily prepare EISs for certain regulatory activities that
were exempt from NEPA. In 1998, Administrator Carol Browner amended this
policy to permit the preparation of non-EIS NEPA documents for certain
EPA regulatory actions. The Agency's current \"Notice of Policy and
Procedures for Voluntary Preparation of National Environmental Policy
Act (NEPA) Documents\" (see 63 FR 58045) sets out the policy and
procedures EPA uses when preparing environmental review documents under
the Voluntary NEPA Policy. This proposed rule does not make any changes
to the voluntary NEPA policy and procedures. However, the proposed rule
can serve as a framework for the preparation of voluntary NEPA
documents.

*F. EPA's Statement of Procedures on Floodplain Management and Wetlands
Protection*

On January 5, 1979, EPA issued its *Statement* *of Procedures on
Floodplain Management and Wetlands Protection* to implement Executive
Orders 11988 (Floodplain Management) and 11990 (Protection of Wetlands);
the Statement had been included in 40 CFR Part 6 as Appendix A. As part
of this rulemaking, EPA is removing the Statement as an appendix to the
rule. The Statement remains in effect, and can be viewed on EPA's NEPA
website, at:
<http://www.epa.gov/compliance/resources/policies/nepa/floodplain-management-wetlands-statement-pg.pdf>.

**II. Summary of This Rule**

On December 19, 2006, EPA published a *Federal Register* notice seeking
comment on a proposed rule that would amend its regulations for
implementing the NEPA and EO 12114.

The Agency is amending its procedures for implementing the requirements
of NEPA. The rule amends EPA's NEPA implementing procedures by: (1)
consolidating and standardizing the procedural provisions and
requirements of the Agency's environmental review process under NEPA;
(2) clarifying the general procedures associated with categorical
exclusions, consolidating the categories of actions subject to
categorical exclusion, amending existing and adding new categorical
exclusions, and consolidating and amending existing and adding new
extraordinary circumstances; (3) consolidating and amending the listing
of actions that generally require an environmental impact statement; (4)
clarifying the procedural requirements for consideration of applicable
environmental review laws and executive orders; and (5) incorporating
other proposed revisions consistent with CEQ's Regulations. These
regulations supplement and are to be used in conjunction with the CEQ
Regulations.

40 Part 6 also includes EPA's procedures, "Assessing the Environmental
Effects Abroad of EPA Actions," that implement Executive Order 12114,
"Environmental Effects Abroad of Major Federal Actions" (see 46 FR
3364). The rule includes minor, technical amendments to EPA's procedures
for implementing the Order. These procedures further the purpose of NEPA
and provide that EPA may be guided by the CEQ Regulations and EPA's NEPA
implementing regulations to the extent they are applicable. Therefore,
when EPA conducts an environmental assessment pursuant to its Executive
Order 12114 procedures, the Agency generally follows its NEPA procedures
(unless the assessment process is addressed in other EPA programs).
EPA's Executive Order 12114 implementing procedures ensure that
environmental information is available to the Agency's decision-makers
and other appropriate Federal agencies and officials for actions subject
to Executive Order 12114.

After considering comments made on the December 19, 2006 proposed rule,
EPA is finalizing the rule substantially as proposed, with some minor
modifications. Two changes in the rule were made in response to public
comment. One change was to clarify that only major *federal* actions
require the preparation of an EIS (this change can be found at §
6.207(a) of the rule). Another clarified the role of cooperating
agencies in the preparation of EPA NEPA documents (found at § 6.202(a)).

Other changes were made by EPA to clarify the rule's applicability,
clarify the CE for on site replacement systems, and improve the overall
flow of the regulation. These changes can be found at §§ 6.101(a),
6.101(b), 6.203(b), 6.204(a)(1)(iii) and 6.210. In § 6.101(a), the
specific reference to the STAG account was eliminated to avoid confusion
about the need for NEPA compliance for all STAG account activities. In
this regard, the text was revised to indicate that the rule applies to
certain grants awarded to projects authorized through the Agency's
annual Appropriation Acts, which includes special grants for municipal
wastewater treatment and water supply projects, projects funded through
the US-Mexican Border program, and projects funded through the Indian
Environmental General Assistance Program. The other change regarding the
rule's applicability was to move § 6.101(f) to § 6.101(b), to improve
the flow of the section, and to clearly state that this rule does not
apply to actions that are statutorily exempt from NEPA. The paragraph at
§ 6.203(b) was separated into two paragraphs: one for the standard
procedure, and one for deviations from this procedure under the
appropriate circumstances. This also demonstrates that even under an
abbreviated comment period, there is still a need to circulate the
FONSI/EA for public review. The additional language is meant to improve
the overall flow of the section. Additionally, the text of §
6.204(a)(1)(iii) has been clarified. Lastly, § 6.210 has been
restructured to clarify that consultation with CEQ must occur prior to
the approval of any alternate arrangements for emergency circumstances.

**III. Responses to Comments**

Comments received expressed general support for the revisions to the
rule; however, some comments raised concerns regarding specific aspects
of the rule. The comments fell into the following four areas: the scope
of the rule; categorical exclusions; extraordinary circumstances; and
the NEPA process. EPA's responses to the comments have been grouped into
these four areas.

A.  ***Comments Relating to the Scope of the Regulations***

[Comment]{.underline}: One commenter asked that the EPA not weaken the
Clean Water Act.

[EPA's Response]{.underline}: EPA appreciates the commenter's concern.
The purpose of this rule, however, is to revise and consolidate EPA's
NEPA implementing procedures. These regulations are strictly procedural;
they set out the procedures EPA follows to comply with NEPA. They have
no effect on EPA's authorities under the Clean Water Act, nor do they
weaken EPA's implementation of the Clean Water Act.

[Comment]{.underline}: A commenter asked that applicants be specifically
referenced in various sections of the rule because of their integral
part in the process.

[EPA's Response]{.underline}: EPA agrees that applicants have an
integral role in the NEPA environmental review process. EPA believes,
however, that it is unnecessary to include additional specific
references to applicants. As the commenter acknowledged, the proposed
regulations already specifically include applicants. For example, §
6.103(b)(3) requires the Responsible Official to "ensure to the extent
practicable, early and continued involvement of interested federal
agencies, state and local governments, federally-recognized Indian
tribes, and affected [applicants]{.underline} in the environmental
review process." (emphasis added) Applicants also are specifically
identified in Subpart C "Requirements for Environmental Information
Documents and Third-Party Agreements." EPA believes that inclusion of
applicants in the broad definition of the public (see § 6.203(a)(2)), as
well as the identification of applicants in specific sections and
subsections of the proposed rule, provides applicants with sufficient
and appropriate participation in the environmental review process.

[Comment]{.underline}: Another commenter asked that EPA define the term
"major Federal action" and clarify that only major federal actions
trigger the requirement to prepare an environmental impact statement.

[EPA's Response]{.underline}: EPA agrees that the proposed rule may have
been unclear because it used the term "major action" instead of "major
federal action." Therefore, in response to this comment, EPA modified
section 6.207(a) of the rule to clarify that an EIS is required only for
its major federal actions significantly affecting the quality of the
human environment. In regard to defining the term "major federal
action," EPA does not agree that the term should be defined in EPA's
regulations. The CEQ regulations, which EPA is adopting through this
rule, define the term "major federal action." (See 40 C.F.R. § 1508.18.)
Since EPA is adopting the CEQ regulations, it is not necessary for EPA's
regulations to define the term.

[Comment]{.underline}: A tribal commenter asserted that the rule is
inconsistent with EPA's trust obligation to protect Indian country
because the rule may have negative impacts on the Tribe's efforts to
protect water quality. In particular, the commenter claims that the rule
"compromises the Tribe's ability to certify" that certain discharges
will meet tribal water quality standards.

[EPA's Response]{.underline}: EPA recognizes the federal government's
trust responsibility to federally-recognized Indian tribes that arises
from Indian treaties, statutes, executive orders, and the historical
relations between the United States and Indian tribes. This rule
complies with NEPA and other applicable federal statutes and
regulations; therefore, it meets the federal trust responsibility and
does not negate or diminish that responsibility.

The commenter's assertion regarding the rule compromising the Tribe's
ability to certify that certain discharges will meet tribal water
quality standards and to protect water quality mischaracterizes the
effect of the rule. The rule does not alter or limit any authority or
ability the Tribe has under Tribal law, federal law, or any agreement,
to protect water quality. Moreover, in this case, the Tribe's approval
for treatment in the same manner as a state for the Clean Water Act
Water Quality Standards and Certification programs and federal approval
of the Tribe's water quality standards enhances the Tribe's ability to
protect its waters. Under Section 401 of the Clean Water Act, no federal
permit can be issued to approve any activity until the Tribe certifies
that any discharge under the permit will comply with applicable tribal
water quality standards. Also, EPA regulations require that any permit
for a discharge upstream from the Tribe's reservation must include
conditions that ensure compliance with applicable downstream water
quality standards.

B.  ***Comments Relating to Categorical Exclusions (CEs)***

[Comment]{.underline}: Some commenters expressed concern about the new
CE that is established at § 6.204(a)(1)(iv) for the reissuance of new
source NPDES permits because the commenters believe it would eliminate
the need for EPA to comply with NEPA for NPDES permits.

[EPA's Response]{.underline}: It appears that the commenters mistakenly
believe that NEPA compliance is required for all NPDES permits. In point
of fact, pursuant to § 511(c) of the Clean Water Act, 33 U.S.C. §
1371(c), NEPA compliance is required only for NPDES permits for the
discharge of any pollutant by a "new source," which is defined in the
Clean Water Act as a source that is subject to promulgated new source
performance standards (see, 33 U.S.C. § 1316(a)(2)). Thus, NPDES permits
for sources other than "new sources" are not subject to NEPA. It should
also be noted that NEPA applies only to federal actions. The issuance of
NPDES permits by an EPA-authorized state is a state, not federal, action
and is, thus, not subject to NEPA. Currently, most states are authorized
and, thus, the bulk of the NPDES permits issued in the United States are
not subject to NEPA and the new CE has no effect on those actions. Those
state permit actions, however, will continue to be subject to the
environmental and public review procedures established for those state
programs.

EPA does not agree that the use of a CE eliminates the need for EPA to
comply with NEPA. A CE, as defined by the CEQ regulations, is 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 an Federal agency in
implementation of these regulations and for which, therefore, neither an
environmental assessment nor an environmental impact statement is
required." 40 CFR § 1508.4. Accordingly, the establishment and proper
use of a CE achieves NEPA compliance. The proposed rule requires that
the Responsible Official determine that the proposed action first fits
within the category of actions described by the CE, and then determines
that the proposed action does not involve any extraordinary
circumstances. § 6.204(a) Further, the decision that an action is
eligible to be excluded from further NEPA review based on this CE is
required to be documented in writing, the documentation must include an
explanation of why no extraordinary circumstance apply to the action,
and the documentation must be made available to the public on request. §
6.204(a)(1).

Finally, not all NPDES new source permits would qualify for this CE.
First, the permit must be a re-issuance, not a first-time permit.
First-time NPDES new source permits issued by EPA are reviewed and the
environmental effects are considered in either an EA or EIS. Second, the
Responsible Official must determine that the conclusions of the NEPA
document for the original permit are still valid. Third, the Responsible
Official must determine that the re-issuance of the permit will not
result in degradation of the receiving waters. Lastly, the permit
conditions in the re-issued permit must be the same as those in the
original permit or more environmentally protective. Based on EPA's
experience, EPA believes that the re-issuance of permits that meet all
of these conditions will not have a significant impact on the quality of
the human environment.

[Comment]{.underline}: One commenter expressed the opinion that
expanding the list of CEs reduces public participation in the NEPA
process.

[EPA Response]{.underline}: EPA acknowledges that the use of a CE may
reduce opportunities for public participation on that specific action.
However, the public has the opportunity to comment on new CEs when they
are developed. This provides a better use of agency resources for the
public benefit than repeatedly focusing resources on environmentally
insignificant actions. Moreover, other aspects of the approval of
specific actions may provide an opportunity for public input independent
from the NEPA process.

[Comment]{.underline}: One commenter expressed concern that relying on
past NEPA documents risks compounding errors or oversights in prior
environmental review.

[EPA Response]{.underline}: EPA's experience with relying on past NEPA
documents is that when the action in question is a continuation and the
conclusions of the earlier NEPA document regarding the lack of
significant impacts have been reviewed and determined to still be valid,
the continuation of that actions will not cause significant impacts. The
only CE that requires a re-evaluation of a past NEPA document and
decision is the new CE that is established at 40 CFR § 6.204(a)(1)(iv)
for the reissuance of new source NPDES permits. As noted in the
Supporting Statement for this rule, EPA's experience with such actions
is that where the original NEPA document projected that the action would
not cause significant environmental effects, it was determined that the
continuation of the discharge would not degrade the receiving waters and
that the permit conditions do not change or are more environmentally
protective, the reissuance of the respective new source NPDES permit
does not result in significant impacts. It should also be note that the
use of this CE will require additional evaluation beyond an evaluation
of the action for consistency with a prior NEPA decision. Accordingly,
EPA believes that review process that must be employed before approval
of this CE is adequate to ensure that past errors/oversights (assuming
there are any) will not be repeated.

[Comment]{.underline}: One commenter requested clarification about
whether NPDES construction general permits are subject to NEPA and
recommended that EPA add the following CE to the regulations:
"Residential construction undertaken in accordance with the
environmental protection requirements of a NPDES construction general
permit." The commenter also stated that EPA's economic analysis of the
impact of the rule on small businesses, pursuant to the Regulatory
Flexibility Act (RFA), did not include consideration of the potential
number of affected small businesses that would require permit coverage
under the construction general permit.

[EPA Response]{.underline}: EPA believes that there is no need to add
the recommended CE into the rule because NPDES construction general
permits are not new source permits. Under section 511(c) of the Clean
Water Act, 33 U.S.C. 1371(c), NEPA compliance is required only for NPDES
permits for the discharge of any pollutant by a "new source," which is
defined in the Clean Water Act as a source that is subject to
promulgated new source performance standards (see, 33 U.S.C.
1316(a)(2)). Since there are no new source performance standards for
construction discharges, NEPA compliance is not required for these
permit actions.

As to the comment on the RFA economic analysis, as noted above,
construction general permits are not new source NPDES permits and,
therefore, are not subject to EPA NEPA regulations. Therefore, there is
no need to include small businesses that apply for such permits as part
of the regulated public subject to this rule.

[Comment]{.underline}: One commenter questioned why the revised rule did
not propose CEs for EPA actions under the Resource Conservation and
Recovery Act, Superfund, and the Clean Air Act.

[EPA Response]{.underline}: EPA actions under the Clean Air Act are
statutorily exempt from NEPA. See, 15 U.S.C. 793(c)(1). Additionally,
the decision-making processes for EPA actions under the Resource
Conservation and Recovery Act and Superfund are considered to be the
functional equivalent of NEPA -- see Section I.D above. Accordingly, CEs
are unnecessary for EPA actions under these programs.

[Comment]{.underline}: A commenter expressed the opinion that the CE
process should allow for project-specific flexibility.

[EPA Response]{.underline}: EPA agrees with this comment and believes
that the CE process in the rule allows for the most flexibility
possible.

[Comment]{.underline}: Several commenters expressed the opinion that the
CEs established in the rule should include activities: that create
temporary disturbances with minimal impacts; and whose impacts are
already relatively well-known and for which mitigation measures are
well-established.

[EPA Response]{.underline}: EPA appreciates this comment, and believes
that the CEs established in the rule meet these general criteria for the
actions covered. However, EPA believes that establishing CEs for the
activities described in the comment would be too broad and too
subjective; EPA does not have sufficient historical support for such
broad CEs for all of its programs. Further, it is unlikely that such CEs
could be approved without some level of environmental review on the
individual projects, which would defeat the intent of establishing CEs
in the first place.

C.  ***Comments Relating to Extraordinary Circumstances***

[Comment]{.underline}: One commenter objected to the broad nature of the
extraordinary circumstances, and the similarity between the
extraordinary circumstances, which, if present, would prohibit the use
of a CE, and the list of criteria that normally require the preparation
of an EIS.

[EPA's Response]{.underline}: EPA believes that the extraordinary
circumstances, which require determinations regarding the proximity of
environmental/natural features in the project area, and/or the
application of professional judgment about the severity of an action's
potential environmental effects are not too broad. Moreover, as required
by the CEQ NEPA implementing regulations, when establishing a CE,
agencies must determine whether the actions in question result in
significant effects on the quality of the human environment either
individually or cumulatively. 40 CFR § 1508.4. The CEQ regulations also
require that each agency's NEPA procedures include circumstances in
which "a normally excluded action may have a significant environmental
effect." Id. Accordingly, EPA believes that it is essential that these
two lists parallel each other.

[Comment]{.underline}: Several commenters believe that the Agency will
not have enough information to make an informed decision regarding the
applicability of extraordinary circumstances without input from the
public.

[EPA Response]{.underline}: EPA appreciates this concern, and has
included an extraordinary circumstance that requires the evaluation of
public controversy about an action's potential environmental effects -
40 CFR § 6.204(b)(8). Of the remaining extraordinary circumstances, many
relate to the presence of environmental/natural features (endangered
species, historic properties, and farmland) in the project area. The
rest require the application of routine professional judgment in making
preliminary determinations about the potential severity of the action's
environmental effects. EPA does not believe that public input is needed
to make these routine determinations.

[Comment]{.underline}: One commenter expressed concern about the
extraordinary circumstance in § 6.204(b)(7), which prohibits the use of
a CE if the action will likely have a significant effect on land use
patterns or be inconsistent with an approved land use plan because the
commenter believes the criterion has little to do with NEPA, and is
outside of EPA's jurisdiction.

[EPA Response]{.underline}: EPA disagrees with this comment because
federal actions that significantly alter land use patterns or are
inconsistent with approved land use plans can result in significant
environmental effects. Moreover, this criterion is consistent with CEQ's
NEPA implementing regulations. See 40 CFR § 1502.16.

[Comment]{.underline}: One commenter expressed concern about the
extraordinary circumstance in § 6.204(b)(8), which prohibits the use of
a CE if the action is expected to cause significant public controversy
about a potential environmental impact because the commenter believes
public controversy alone (i.e., in the absence of an environmental
impact) should not prohibit the use of a CE.

[EPA Response]{.underline}: EPA agrees that public controversy alone
should not prohibit the use of a CE. As written, this extraordinary
circumstance is limited to significant public controversy about a
potential environmental effect. EPA believes it is appropriate to
prohibit the use of a CE if there is significant public controversy
regarding a potential environmental impact. Moreover, this criterion is
consistent with CEQ's NEPA implementing regulations at 40 C.F.R. §
1508.27(b)(4), which state that in determining whether an action is
significant, the agency is to consider " the degree to which the effects
on the quality of the human environment are likely to be highly
controversial."

[Comment]{.underline}: One commenter expressed concern about the
extraordinary circumstance in § 6.204(b)(10), which prohibits the use of
a CE if the action may conflict with federal, state, local government,
or federally-recognized Indian tribe environmental, resource protection,
or land-use laws or regulations because the commenter believes that the
criteria have little to do with NEPA, and are outside of EPA's
jurisdiction.

[EPA Response]{.underline}: EPA disagrees with this comment because
federal actions that are inconsistent with environmental, resource
protection, or land-use laws or regulations, can, regardless of the
source of these requirements, result in significant environmental
effects. Therefore, it is appropriate to prohibit the use of a CE in
such cases. Moreover, this criterion is consistent with CEQ's NEPA
implementing regulations.

***D. Comments Relating to the NEPA Process***

[Comment]{.underline}: One commenter suggested that the proposed rule be
revised to provide for public hearings if an interest is expressed.

[EPA Response]{.underline}: EPA appreciates the comment and agrees that
public participation in the NEPA process is important, but does not
agree that the rule should require public hearings. The proposed rule
requires the Responsible Official to "make diligent efforts to involve
the public . . . in the preparation of \[environmental assessments\] and
\[environmental impact statements\] consistent with 40 C.F.R. 1501.4 and
1506.6 and applicable EPA public participation regulations." Section
6.203(a)(2). The Responsible Official also is required to "use
appropriate communication procedures to ensure meaningful public
participation throughout the NEPA process." Section 6.203(a)(5).
Further, in preparing in EIS, the Responsible Official may hold one or
more scoping meetings, and public meetings or hearings on the draft EIS.
Section 6.203(c)(3)(iii) and (iv). Thus, EPA does not believe that the
rule in any way reduces opportunities for public participation in the
environmental review process. Rather, it provides the Responsible
Official the flexibility to use the most appropriate public
participation process considering both the unique circumstances of the
project and any applicable EPA public participation requirements. This
approach is consistent with CEQ's NEPA implementing regulations, which
require the agency to "make diligent efforts to involve the public in
preparing and implementing their NEPA procedures," 40 C.F.R. §
1506.6(a), but do not prescribe how that public participation is to be
carried out.

[Comment]{.underline}: A commenter expressed support for the Emergency
Circumstance provision in the rule, but urged EPA to expand the
authority of the Responsible Official.

[EPA Response]{.underline}: EPA appreciates the comment, but does not
agree that the Responsible Official should be given more authority
because the rule gives the responsible Official, in consultation with
the NEPA Official and CEQ, the authority necessary to properly address
NEPA compliance for emergency situations. The authority EPA is providing
to the Responsible Official is consistent with CEQ's NEPA implementing
regulations, which require EPA to consult with CEQ about alternative
arrangements for emergency circumstances. See 40 C.F.R. § 1506.11.

[Comment]{.underline}: A commenter asked EPA to set page and time limits
for NEPA documents and processes, respectively.

[EPA Response]{.underline}: While EPA appreciates the comment, we
believe that it is not necessary or appropriate for this rule to set
time or page limits. CEQ's NEPA implementing regulations provide general
guidelines for time and page limits, but the nature of the specific
environmental issues evaluated in NEPA documents appropriately affects
their length and preparation time. Generally, the depth of analysis
should correlate to the severity and probability of a proposed action's
potential environmental effects. Since the purpose of a NEPA
environmental review is to thoroughly and appropriately analyze the
environmental impacts of a federal action, it would be
counter-productive to establish mandatory time or page limits.

[Comment]{.underline}: A commenter asked that NEPA review be limited to
economically and technically feasible alternatives.

[EPA Response]{.underline}: EPA does not agree that the NEPA review
should be limited to economically and technically feasible alternatives.
While these are two important factors, they are not the only ones to be
considered in establishing the range of reasonable alternatives for NEPA
analyses. Indeed, not all economically and technically feasible
alternatives that meet the purpose and need are reasonable. Other
factors (e.g., environmental soundness, compliance with statutory and
regulatory requirements, and public concern) must also be considered
when determining whether alternatives are reasonable under NEPA.

[Comment]{.underline}: One commenter suggested that the rule clarify the
meaning of cumulative impacts that are examined in an EIS.

[EPA Response]{.underline}: EPA appreciates the comment, but does not
believe that clarification of the meaning of cumulative impacts is
necessary. The reference to cumulative impacts in the rule is consistent
with accepted NEPA practice, as well as the definition of cumulative
impacts in section 1508.7 of CEQ's NEPA implementing regulations, which
EPA is adopting through this rulemaking (see section 6.100(b)).
Moreover, both CEQ and EPA have issued considerable guidance on the
definition of cumulative impacts and techniques for assessing them.
Accordingly, EPA believes that it is not necessary to expand the
definition of cumulative impacts in this rule.

[Comment]{.underline}: One commenter expressed concern because the
proposed rule appeared to increase the authorities of cooperating
agencies to require their approval in the preparation of EPA NEPA
documents prior to issuance.

[EPA Response]{.underline}: EPA agrees that the proposed rule implied
that cooperating agencies would always assume a greater role in
preparing EPA NEPA documents than is envisioned by EPA or the CEQ's NEPA
implementing regulations (40 CFR 1501.6). As acknowledged by those
regulations, and demonstrated by NEPA practice, cooperating agencies may
jointly prepare the NEPA document, or may focus their involvement to
those specific issues on which they have jurisdiction or expertise.
Accordingly, the rule, at 40 CFR 6.202(a) has been revised to clarify
the role of cooperating agencies in the development of EPA NEPA
documents.

[Comment]{.underline}: One commenter suggested that EPA use the phrase
"significant adverse effect" as the threshold for requiring an EIS.

[EPA Response]{.underline}: EPA does not agree that the threshold for
requiring an EIS should be limited to "significant adverse effects."
Restricting the threshold of significant impacts (that would require the
preparation of an EIS) to only adverse effects would result in limiting
analyses, which could result in overlooking and/or disregarding effects
where there is controversy over the "beneficial" or "adverse" nature of
the environmental consequence. This approach is consistent with 40 CFR
1508.27(b)(1).

**IV. Statutory and Executive Order Reviews**

*A. Executive Order 12866: Regulatory Planning and Review*

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this
action is a "significant regulatory action." Accordingly, EPA submitted
this action to the Office of Management and Budget (OMB) for review
under EO 12866 and changes that were made in response to OMB
recommendations have been documented in the docket for this action.

In addition, EPA prepared an analysis of the costs and benefits
associated with this action. A copy of the analysis is available in the
docket for this action, and the analysis is briefly summarized here. The
total annual public reporting and recordkeeping burden for this
collection of information is estimated at 48,147 hours and \$3,823,740
for contractor hours and costs, direct labor hours and costs, and O&M
costs. The hour and cost estimates reflect the annual preparation of
documentation for an anticipated 312 applicant-proposed projects that
may be documented with a CE, or an EA/FONSI, or an EIS/ROD.

*B. Paperwork Reduction Act*

The information collection requirements in this rule have been submitted
for approval to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 *et seq*. The information
collection requirements are not enforceable until OMB approves them.
[]{.mark}

EPA collects information from certain applicants as part of the process
of complying with either NEPA or Executive Order 12114. EPA's Executive
Order 12114 procedures further the purpose of NEPA and provide that EPA
may be guided by these procedures to the extent they are applicable.
Therefore, when EPA conducts an environmental assessment pursuant to its
Executive Order 12114 procedures, the Agency generally follows its NEPA
procedures. For this ICR, applicant-proposed projects subject to either
NEPA or Executive Order 12114 (and that are not addressed in other EPA
programs' ICRs), are addressed through the NEPA assessment process.
Those subject to the rule include EPA employees who must comply with
NEPA and certain grant and permit applicants who must submit
environmental information to EPA for their proposed projects.

The NEPA review for a project may result in a categorical exclusion
(CE), or an EA documented with a finding of no significant impact
(EA/FONSI), or an EIS documented with a record of decision (EIS/ROD).
(EPA assumes a project may be documented with a CE only for
grantee-proposed projects. EPA does not anticipate that an initial new
source NPDES permit application would be documented with a CE.) For any
specific project, only one of these levels of documentation is generally
prepared. Applicants may submit an environmental information document
(EID) to EPA as part of the environmental review process. Alternately,
an applicant may submit a draft EA or a draft EIS and supporting
documents. Applicants may prepare and submit the information directly,
or may enter a third-party contract agreement with EPA for preparation
of an EA or EIS and supporting documentation. For purposes of
determining the maximum costs to applicants for this ICR, EPA assumed
that grant and permit applicants would expend time and contractor costs
to submit: (1) information to support application of a CE with
environmental information prepared directly by the applicant's
contractor; or (2) a draft EA and supporting documents prepared directly
by the applicant's contractor; or (3) a draft and final EIS and
supporting documents prepared by the applicant's contractor under a
third-party contract agreement with EPA. Based on EPA's experience, EPA
anticipates there will be approximately 300 grantee projects annually
with about 60% of these projects documented with a CE, and about 40%
with an EA/FONSI. In addition, EPA estimates that one project (less than
one percent of the total annual grantee projects) will have an EIS/ROD
completed during the 3-year period of this ICR. For permit applicants,
EPA assumes there will be approximately 12 projects annually with about
11 of the projects documented with an EA/FONSI, and one project will
have an EIS/ROD completed. None will be documented with a CE. EPA
estimated the one-time costs for applicants to prepare the environmental
documentation by including contractor hours and costs, direct labor
hours and costs, and O&M for documentation submitted to EPA to support a
CE determination, or an EA/FONSI, or an EIS/ROD. For a grantee, EPA
estimates an applicant's one-time costs for submitting environmental
information will be: 45 hours and \$3,292 for CE documentation, or 260
hours and \$18,340 for EA/FONSI documentation, or 2,840 hours and
\$324,480 for EIS/ROD documentation. For a permit applicant, EPA
estimates an applicant's one-time costs for submitting environmental
information will be: 460 hours and \$53,940 for EA/FONSI documentation,
or 2,840 hours and \$328,880 for EIS/ROD documentation. These figures
may vary depending on the complexity of issues associated with the
project and the availability of relevant information, particularly for
EISs. EPA believes the calculations for this ICR are representative of
most projects.

For purposes of this ICR, the total annual public reporting and
recordkeeping burden for this collection of information is estimated at
48,147 hours and \$3,823,740 for contractor hours and costs, direct
labor hours and costs, and O&M costs. This burden reflects the annual
submission of documentation for an anticipated 312 applicant-proposed
projects that may be documented with a CE, or an EA/FONSI, or an
EIS/ROD. Over the 3-year period of this ICR, EPA anticipates 937
applicant-proposed projects with a 3-year total burden estimate of
144,440 hours and \$11,471,220. Burden means the total time, effort, or
financial resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.

An agency may not conduct or sponsor, and a person is not required to
respond, to a collection of information unless it displays a currently
valid OMB control number. The OMB control numbers for EPA\'s regulations
in 40 CFR are listed in 40 CFR Part 9. In addition, EPA is amending the
table in 40 CFR Part 9 of currently approved OMB control numbers for
various regulations to list the regulatory citations for the information
requirements contained in this final rule.

*C. Regulatory Flexibility Act*

The Regulatory Flexibility Act (RFA) generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.

For purposes of assessing the impacts of today\'s proposed rule on small
entities, small entity is defined as: (1) a small business as defined by
the Small Business Administration\'s (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is any
not-for-profit enterprise which is independently owned and operated and
is not dominant in its field.

After considering the economic impacts of today's final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant [adverse]{.underline} economic impact on small entities,
since the primary purpose of the regulatory flexibility analyses is to
identify and address regulatory alternatives "which minimize any
significant economic impact of the rule on small entities." 5 USC 603
and 604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities if
the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule.

The environmental information submitted by an applicant under the
proposed rule is one-time only for EPA actions subject to NEPA based on
applicant proposals; i.e., actions proposed by grantees seeking funding
assistance from EPA or for an NPDES permit application initiated by the
permit applicant. In either case, EPA assumes the action will directly
benefit the applicant (such as a grantee seeking STAG funding for
renovation of a community drinking water system, or a permit applicant
seeking an NPDES permit from EPA to further the applicant's business
interests). Nonetheless, if the applicant cannot afford to provide the
required environmental information to EPA, then EPA would undertake the
environmental review without input from the applicant. (Applicants would
normally be requested to demonstrate financial hardship, including
inability to provide the requested environmental information.) Grantees
may be grant-eligible for certain costs associated with providing
environmental information to EPA; permit applicants are not eligible for
EPA financial assistance. Further, EPA has attempted to reduce the cost
on all entities, including small entities, through the following
provisions of the proposed rule: Section 6.300 provides that an EID is
not required when the action is categorically excluded, or the applicant
will prepare a draft EA and supporting documents. The Responsible
Official may prepare the NEPA documents without assistance from the
applicant. Section 6.302 provides that the Responsible Official may
prepare generic guidance for categories of actions involving a large
number of applicants; and must ensure early involvement of applicants,
consult with the applicant and provide guidance describing the scope and
level of environmental information required, and provide guidance on a
project-by-project basis to any applicant seeking assistance. This
Section also provides that the Responsible Official must consider the
extent to which the applicant is capable of providing the required
information, must not require the applicant to gather data or perform
analyses that unnecessarily duplicate either existing data or the
results of existing analyses available to EPA, and must limit the
request for environmental information to that necessary for the
environmental review. Section 6.303 provides that an applicant may enter
into a third-party agreement with EPA. For grantees, third-party
agreement contractor costs may be grant-eligible. Permit applicants are
not eligible for EPA financial assistance.

This final rule is applicable to certain EPA actions subject to NEPA,
including certain applicant-proposed projects. Because the projects are
proposed by the applicants, who are non-federal entities, including
small businesses and small governments, EPA does not know what projects
will be proposed, when they will be proposed, or what level of NEPA
review will be required for each individual project. In this regard,
EPA's NEPA review process is reactive to an applicant's request. These
factors are built into this screening assessment, including assumptions
about the entities likely to be subject to the regulations, the types of
projects they are likely to propose, and the degree of possible economic
impact based on the NEPA review process and the three levels of
environmental documentation possible under this process using available
historical information as future indicators. More detailed information
on the small entity screening analysis can be found in the docket for
this proposed rulemaking, EPA-HQ-OECA-2005-0062 (available at
http://www.regulations.gov), and is summarized below.

Based on EPA's past experience, EPA anticipates that annually there will
be approximately 170 small governments applying to EPA for STAG grants
for projects subject to NEPA, and four small businesses applying to EPA
for new source NPDES permits for a total of approximately 174 small
entities out of potential 312 total entities. Of the 174 small entities
possibly affected by this proposed rule, we have determined that the
economic impact of submitting one-time environmental documentation to
support a CE determination would be less than 1% of annual revenues for
all small entities; and that for the one-time costs associated with
submitting EA-related environmental documentation six small entities
(3.4%) could experience an economic impact of 1-3%, and up to four small
entities (2%) could experience an economic impact of greater than 3%.
Additionally, we have also determined that approximately 57 of the 174
small entities (33%) could experience an economic impact of 1-3%, and up
to 26 of the 174 small entities (15%) could experience an economic
impact of greater than 3% for the one-time costs associated with
submitting EIS-related environmental documentation. In all, these
approximately 83 small entities represent about 48% of the estimated 174
total number of small entities that could experience a one-time economic
impact of 1-3% or greater of annual revenues. Of these 83 small
entities, 79 are likely to be governmental grant applicants and could be
grant-eligible for EPA financial assistance with only one EIS
anticipated per three years with this likelihood spread over 300 total
grant applicants, including small and large governments, including
tribes, and special districts.

We have therefore concluded that today\'s final rule will relieve
regulatory burden for all affected small entities.

*D. Unfunded Mandates Reform Act*

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 104-4,
establishes requirements for Federal agencies to assess the effects of
their regulatory actions on State, local, and tribal governments and the
private sector. Under section 202 of the UMRA, EPA generally must
prepare a written statement, including a cost-benefit analysis, for
proposed and final rules with \"Federal mandates\" that may result in
expenditures to State, local, and tribal governments, in the aggregate,
or to the private sector, of \$100 million or more in any one year.
Before promulgating an EPA rule for which a written statement is needed,
section 205 of the UMRA generally requires EPA to identify and consider
a reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.

Today\'s rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector.

EPA believes the calculation for this UMRA assessment is representative
of most projects. On an annual one-time submission basis, EPA's
aggregate estimate for applicants is \$3,823,740 for contractor hours
and costs, direct labor hours and costs, including third-year costs for
an EIS/ROD for one grantee project. The requirement in today's final
rule for applicants to submit one-time, project-specific environmental
information does not impose substantial compliance costs on applicants,
including governmental grantees, because it is not likely to result in
the expenditure by applicants, including State and local governments,
and tribes, in the aggregate, or the private sector, of \$100 million or
more in any one year. Thus, today's final rule is not subject to the
requirements of sections 202 and 205 of the UMRA, and EPA has determined
that this rule contains no regulatory requirements that might
significantly or uniquely affect small governments.

*E. Executive Order 13132: Federalism*

Executive Order 13132, entitled "Federalism" (64 FR 43255, August 10,
1999), requires EPA to develop an accountable process to ensure
"meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications."
"Policies that have federalism implications" is defined in the Executive
Order to include regulations that have "substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government."

This final rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. Under these NEPA regulations, as
well as EPA's procedures for implementing Executive Order 12114, State
and local governments are required to submit environmental information
only when the State or local government is a project-applicant for an
EPA action subject to NEPA, for example, when the State or local
government applies for a grant for a special project identified in EPA's
State and Tribal Assistance (STAG) account, or for a new source NPDES
permit issued by EPA. The requirement to submit environmental
information to EPA for the NEPA review does not impose substantial
compliance costs because it is not likely to result in the expenditure
by State and local governments in the aggregate of \$100 million or more
in any one year. Further, this requirement does not preempt State law,
or alter the current relationship between the States and the Federal
Government. Thus, Executive Order 13132 does not apply to this rule.

In the spirit of Executive Order 13132, and consistent with EPA policy
to promote communications between EPA and State and local governments,
EPA specifically solicited comment on the proposed rule from State and
local officials.

*F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments*

Executive Order 13175, entitled "Consultation and Coordination with
Indian Tribal Governments" (65 FR 67249, November 9, 2000), requires EPA
to develop an accountable process to ensure "meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications." This final rule does not have tribal implications,
as specified in Executive Order 13175. Neither the amendments to EPA's
NEPA implementing regulations nor the minor, technical amendments to
EPA's procedures implementing Executive Order 12114 impose new
regulatory obligations on tribes. They will not have substantial direct
effects on tribes, on the relationship between the national government
and tribes, or on the distribution of power and responsibilities between
the national government and tribes. Under EPA's regulations, Tribes are
required to submit environmental information only when the Tribes are
project-applicants for EPA actions subject to NEPA or Executive Order
12114, for example, when Tribes apply for grants for special projects
identified in EPA's State and Tribal Assistance (STAG) account, or for
new source NPDES permits issued by EPA. The requirement to submit
environmental information to EPA for the environmental review process do
not impose substantial compliance costs because it is not likely to
result in the expenditure by state, local, and tribal governments in the
aggregate of \$100 million or more in any one year. Further, these
requirements do not preempt tribal law. Thus, Executive Order 13175 does
not apply to this rule.

*G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks*

Executive Order 13045, "Protection of Children from Environmental Health
Risks and Safety Risks," (62 FR 19885, April 23, 1997) applies to any
rule that: (1) is determined to be "economically significant" as defined
under Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.

EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the potential
to influence the regulation. This final rule is not subject to Executive
Order 13045 because it does not establish an environmental standard
intended to mitigate health or safety risks.

*H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution and Use*

This rule is not a "significant energy action" as defined in Executive
Order 13211, "Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use" (66 FR 28355 (May 22, 2001))
because it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy. Further, we have concluded that
this rule is not likely to have any adverse energy effects.

*I. National Technology Transfer and Advancement Act of 1995*

As noted in the proposed rule, Section 12(d) of the National Technology
Transfer and Advancement Act of 1995 ("NTTAA"), Public Law No. 104-113,
12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards. This action does not involve
technical standards. Therefore, EPA did not consider the use of any
voluntary consensus standards.

*J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations*

EPA maintains an ongoing commitment to ensure environmental justice for
all people, regardless of race, color, national origin, or income.
Ensuring environmental justice means not only protecting human health
and the environment for everyone, but also ensuring that all people are
treated fairly and given the opportunity to participate meaningfully in
the development, implementation, and enforcement of environmental laws,
regulations, and policies. In recognizing that minority and/or
low-income communities frequently may be exposed disproportionately to
environmental harms and risks, EPA works to protect these and other
burdened communities from adverse human health and environmental effects
of its programs, consistent with existing environmental and civil rights
laws, and their implementing regulations, as well as Executive Order
12898, "Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations." (59 FR 7629 (Feb. 16, 1994)).
Executive Order 12898 establishes federal executive policy on
environmental justice. Its main provision directs federal agencies, to
the greatest extent practicable and permitted by law, to make
environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and/or low-income populations in the
United States. In developing this rule in compliance with Executive
Order 12898, EPA determined that this rule did not raise any
environmental justice concerns.

Today's rule, including the amended EPA NEPA implementing procedures and
the minor, technical amendments to the Agency's procedures for
implementing Executive Order 12114, does not impose new regulatory
program, policy, or activity obligations on EPA, state or local
governments, tribes, or individual applicants required to provide
environmental information to EPA for certain grants or permits.
Therefore, EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not affect
the level of protection provided to human health or the environment.
However, the NEPA rule at §6.201 requires that for specific projects,
consistent with 40 CFR 1500.5(g) and 1502.25, the EPA Responsible
Official must determine the applicability of executive orders, including
Executive Order 12898, and should incorporate applicable requirements as
early in the NEPA review process as possible. In addition, sections
6.203(a)(5) and (c)(3)(iv) require the Responsible Official to choose
public participation methods and engage in outreach designed to reach
those in "potentially affected communities where the proposed action is
known or expected to have environmental impacts including minority
communities, low-income communities, or federally-recognized Indian
tribal communities." EPA provides guidance to Responsible Officials and
EPA staff on incorporating environmental justice concerns into the NEPA
analysis. See "Final Guidance For Incorporating Environmental Justice
Concerns in EPA\'s NEPA Compliance Analyses,"April 1998.

*K. Congressional Review Act*

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating the
rule must submit a rule report, which includes a copy of the rule, to
each House of the Congress and to the Comptroller General of the United
States. EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of the
rule in the Federal Register. A Major rule cannot take effect until 60
days after it is published in the Federal Register. This action is not a
"major rule" as defined by 5 U.S.C. 804(2). This rule will be effective
\[30 days after FR publication\].

**List of Subjects in 40 CFR Part 6**

Environmental protection, Environmental Protection Agency, Environmental
assessments, Environmental impact statements, Environmental protection
reporting, Foreign relations, Grant programs - environmental protection,
Reporting and recordkeeping requirements

Dated: \_\_\_\_\_\_\_\_\_\_\_\_\_

**Stephen L. Johnson**

*Administrator.*

Therefore, for the reasons set forth in the preamble, EPA hereby
proposes to amend **Title 40 Chapter I of the Code of Federal
Regulations** by revising Part 6 to read as follows:

PART 6-- PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY
ACT AND ASSESSING THE ENVIRONMENTAL EFFECTS ABROAD OF EPA ACTIONS

Subpart A -- General Provisions for EPA Actions Subject to NEPA

6.100 Purpose.

6.101 Applicability

6.102 Definitions.

6.103 Responsibilities of the NEPA and Responsible Officials.

Subpart B -- EPA's NEPA Environmental Review Procedures

6.200 General requirements.

6.201 Coordination with other environmental review requirements.

6.202 Interagency cooperation.

6.203 Public participation.

6.204 Categorical exclusions and extraordinary circumstances.

6.205 Environmental assessments.

6.206 Findings of no significant impact.

6.207 Environmental impact statements.

6.208 Records of decision.

6.209 Filing requirements for EPA EISs.

6.210 Emergency circumstances.

Subpart C -- Requirements for Environmental Information Documents and
Third-Party Agreements for EPA Actions Subject to NEPA

6.300 Applicability.

6.301 Applicant requirements.

6.302 Responsible Official requirements.

6.303 Third-party agreements.

Subpart D -- Assessing the Environmental Effects Abroad of EPA Actions

6.400 Purpose and policy.

6.401 Applicability.

6.402 Definitions.

6.403 Environmental review and assessment requirements.

6.404 Lead or cooperating agency.

6.405 Exemptions and considerations.

6.406 Implementation.

**Authority:** 42 U.S.C. 4321 *et seq*., 7401‑7671q.

**Subpart A -- General Provisions for EPA Actions Subject to NEPA**

**§6.100 Policy and Purpose.**

\(a\) The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4321 *et seq.,* as implemented by the Council on Environmental Quality
(CEQ) Regulations (40 CFR Parts 1500-1508), requires that Federal
agencies include in their decision-making processes appropriate and
careful consideration of all environmental effects of proposed actions,
analyze potential environmental effects of proposed actions and their
alternatives for public understanding and scrutiny, avoid or minimize
adverse effects of proposed actions, and restore and enhance
environmental quality to the extent practicable. The U.S. Environmental
Protection Agency (EPA) shall integrate these NEPA requirements as early
in the Agency planning processes as possible. The environmental review
process shall be the focal point to ensure NEPA considerations are taken
into account.

\(b\) Through this rule, EPA adopts the CEQ's regulations (40 CFR Parts
1500-1508) implementing NEPA; subparts A through C of this part
supplement those regulations, for actions proposed by EPA that are
subject to NEPA requirements. Subparts A through C supplement, and are
to be used in conjunction with, the CEQ Regulations.

**§6.101 Applicability.**

\(a\) Subparts A through C apply to the proposed actions of EPA that are
subject to NEPA. EPA actions subject to NEPA include the award of
wastewater treatment construction grants under Title II of the Clean
Water Act, EPA's issuance of new source National Pollutant Discharge
Elimination System (NPDES) permits under section 402 of the Clean Water
Act, certain research and development projects, development and issuance
of regulations, EPA actions involving renovations or new construction of
facilities, and certain grants awarded for projects authorized by
Congress through the Agency's annual Appropriations Act.

\(b\) Subparts A through C of this part do not apply to EPA actions for
which NEPA review is not required. EPA actions under the Clean Water
Act, except those identified in §6.101(a), and EPA actions under the
Clean Air Act are statutorily exempt from NEPA. Additionally, the courts
have determined that certain EPA actions for which analyses that have
been conducted under another statute are functionally equivalent with
NEPA.

\(c\) The appropriate Responsible Official will undertake certain EPA
actions required by the provisions of subparts A through C of this part.

\(d\) Certain procedures in subparts A through C of this part apply to
the responsibilities of the NEPA Official.

\(e\) Certain procedures in subparts A through C of this part apply to
applicants who are required to provide environmental information to EPA.

\(f\) When the Responsible Official decides to perform an environmental
review under EPA's Voluntary NEPA Policy (see 63 FR 58045), the
Responsible Official generally will follow the procedures set out in
subparts A through C of this part.

**§6.102 Definitions.**

\(a\) Subparts A through C of this part use the definitions found at 40
CFR part 1508. Additional definitions are listed in this subpart.

\(b\) Definitions.

\(1\) *Administrator* means the Administrator of the United States
Environmental Protection Agency.

\(2\) *Applicant* means any individual, agency, or other entity that
has:

\(i\) Filed an application for federal assistance; or

\(ii\) Applied to EPA for a permit.

\(3\) *Assistance agreement* means an award of federal assistance in the
form of money or property in lieu of money from EPA to an eligible
applicant including grants or cooperative agreements.

\(4\) *Environmental information document (EID)* means a written
analysis prepared by an applicant that provides sufficient information
for the Responsible Official to undertake an environmental review and
prepare either an EA and FONSI or an EIS and record of decision (ROD)
for the proposed action.

\(5\) *Environmental review* or *NEPA review* means the process used to
comply with section 102(2) of NEPA or the CEQ Regulations including
development, supplementation, adoption, and revision of NEPA documents.

\(6\) *Extraordinary circumstances* means those circumstances listed in
section 6.204 of this part that may cause a significant environmental
effect such that a proposed action that otherwise meets the requirements
of a categorical exclusion may not be categorically excluded.

\(7\) *NEPA document* is a document prepared pursuant to NEPA.

\(8\) *NEPA Official* is the Assistant Administrator for Enforcement and
Compliance Assurance, who is responsible for EPA's NEPA compliance.

\(9\) *Responsible Official* means the EPA official responsible for
compliance with NEPA for individual proposed actions.

**§6.103 Responsibilities of the NEPA** **and Responsible Officials.**

\(a\) The NEPA Official will:

\(1\) Ensure EPA\'s compliance with NEPA pursuant to 40 CFR 1507.2(a)
and the regulations in subparts A through C of this part.

\(2\) Act as EPA's liaison with the CEQ and other federal agencies,
state and local governments, and federally-recognized Indian tribes on
matters of policy and administrative procedures regarding compliance
with NEPA.

\(3\) Approve procedural deviations from subparts A through C of this
part.

\(4\) Monitor the overall timeliness and quality of EPA's compliance
with subparts A through C of this part.

\(5\) Advise the Administrator on NEPA-related actions that involve more
than one EPA office, are highly controversial, are nationally
significant, or establish new EPA NEPA-related policy.

\(6\) Support the Administrator by providing policy guidance on
NEPA-related issues.

\(7\) Assist EPA's Responsible Officials with establishing and
maintaining adequate administrative procedures to comply with subparts A
through C of this part, performing their NEPA duties, and training
personnel and applicants involved in the environmental review process.

\(8\) Consult with Responsible Officials and CEQ regarding proposed
changes to subpart A through C of this part, including:

> \(i\) the addition, amendment, or deletion of a categorical exclusion,
> or
>
> \(ii\) changes to the listings of types of actions that normally
> require the preparation of an EA or EIS.

Upon receipt of such a request, the NEPA Official will determine whether
the requested change is appropriate, and if it is, coordinate with CEQ,
pursuant to 40 CFR 1507.3, and initiate a process to amend this rule.

\(b\) The Responsible Official will:

\(1\) Ensure EPA's compliance with the CEQ regulations and subparts A
through C of this part for proposed actions.

\(2\) Ensure that environmental reviews are conducted on proposed
actions at the earliest practicable point in EPA\'s decision‑making
process and in accordance with the provisions of subparts A through C of
this part.

\(3\) Ensure, to the extent practicable, early and continued involvement
of interested federal agencies, state and local governments,
federally-recognized Indian tribes, and affected applicants in the
environmental review process.

\(4\) Coordinate with the NEPA Official and other Responsible Officials,
as appropriate, on resolving issues involving EPA-wide NEPA policy and
procedures (including the addition, amendment, or deletion of a
categorical exclusion and changes to the listings of the types of
actions that normally requires the preparation of an EA or EIS) and/or
unresolved conflicts with other federal agencies, state and local
governments, and federally-recognized Indian tribes, and/or advising the
Administrator when necessary.

\(5\) Coordinate with other Responsible Officials, as appropriate, on
NEPA-related actions involving their specific interests.

\(6\) Consistent with national NEPA guidance, provide specific policy
guidance, as appropriate, and ensure that the Responsible Official's
office establishes and maintains adequate administrative procedures to
comply with subparts A through C of this part.

\(7\) Upon request of an applicant and consistent with 40 CFR 1501.8,
set time limits on the NEPA review appropriate to individual proposed
actions.

\(8\) Make decisions relating to the preparation of the appropriate NEPA
documents, including preparing an EA or EIS, and signing the decision
document.

\(9\) Monitor the overall timeliness and quality of the Responsible
Official\'s respective office\'s efforts to comply with subparts A
through C of this part.

\(c\) The NEPA Official and the Responsible Officials may delegate
NEPA-related responsibilities to a level no lower than the Branch Chief
or equivalent organizational level.

**Subpart B -- EPA's NEPA Environmental Review Procedures**

**§6.200 General requirements.**

\(a\) The Responsible Official must determine whether the proposed
action meets the criteria for categorical exclusion or whether it
requires preparation of an EA or an EIS to identify and evaluate its
environmental impacts. The Responsible Official may decide to prepare an
EIS without first undertaking an EA.

\(b\) The Responsible Official must determine the scope of the
environmental review by considering the type of proposed action, the
reasonable alternatives, and the type of environmental impacts. The
scope of an EIS will be determined as provided in 40 CFR 1508.25.

\(c\) During the environmental review process, the Responsible Official
must:

\(1\) Integrate the NEPA process and the procedures of subparts A
through C of this part into early planning to ensure appropriate
consideration of NEPA's policies and to minimize or eliminate delay;

\(2\) Emphasize cooperative consultation among federal agencies, state
and local governments, and federally-recognized Indian tribes before an
EA or EIS is prepared to help ensure compliance with the procedural
provisions of subparts A through C of this part and with other
environmental review requirements, to address the need for interagency
cooperation, to identify the requirements for other agencies' reviews,
and to ensure appropriate public participation.

\(3\) Identify at an early stage any potentially significant
environmental issues to be evaluated in detail and insignificant issues
to be de-emphasized, focusing the scope of the environmental review
accordingly;

\(4\) Involve other agencies and the public, as appropriate, in the
environmental review process for proposed actions that are not
categorically excluded to:

\(i\) Identify the federal, state, local, and federally-recognized
Indian tribal entities and the members of the public that may have an
interest in the action;

\(ii\) Request that appropriate federal, state, and local agencies and
federally-recognized Indian tribes serve as cooperating agencies
consistent with 40 CFR 1501.6 and 1508.5; and

\(iii\) Integrate, where possible, review of applicable federal laws and
executive orders into the environmental review process in conjunction
with the development of NEPA documents.

\(d\) When preparing NEPA documents, the Responsible Official must:

\(1\) Utilize a systematic, interdisciplinary approach to integrate the
natural and social sciences with the environmental design arts in
planning and making decisions on proposed actions subject to
environmental review under subparts A through C of this part (see 40 CFR
1501.2(a) and 1507.2);

\(2\) Plan adequate time and funding for the NEPA review and preparation
of the NEPA documents. Planning includes consideration of whether an
applicant will be required to prepare an EID for the proposed action.

\(3\) Review relevant planning or decision-making documents, whether
prepared by EPA or another federal agency, to determine if the proposed
action or any of its alternatives have been considered in a prior
federal NEPA document. EPA may adopt the existing document, or will
incorporate by reference any pertinent part of it, consistent with 40
CFR 1506.3 and 1502.21, respectively.

\(4\) Review relevant environmental review document prepared by a state
or local government or federally-recognized Indian tribe to determine if
the proposed action or any of its alternatives have been considered in
such a document. EPA will incorporate by reference any pertinent part of
that document consistent with 40 CFR 1502.21.

\(e\) During the decision-making process for the proposed action, the
Responsible Official must:

\(1\) Incorporate the NEPA review in decision-making on the action.
Processing and review of an applicant's application must proceed
concurrently with the NEPA review procedures set out in subparts A
through C of this part. EPA must complete its NEPA review before making
a decision on the action.

\(2\) Consider the relevant NEPA documents, public and other agency
comments (if any) on those documents, and EPA responses to those
comments, as part of consideration of the action (see 40 CFR 1505.1(d)).

\(3\) Consider the alternatives analyzed in an EA or EIS before
rendering a decision on the action; and

\(4\) Ensure that the decision on the action is to implement an
alternative analyzed or is within the range of alternatives analyzed in
the EA or EIS (see 40 CFR 1505.1(e)).

\(f\) To eliminate duplication and to foster efficiency, the Responsible
Official should use tiering (see 40 CFR 1502.20 and 1508.28) and
incorporate material by reference (see 40 CFR 1502.21) as appropriate.

\(g\) For applicant-related proposed actions:

\(1\) The Responsible Official may request that the applicant submit
information to support the application of a categorical exclusion to the
applicant's pending action.

\(2\) The Responsible Official may gather the information and prepare
the NEPA document without assistance from the applicant, or, pursuant to
Subpart C of this part, have the applicant prepare an EID or a draft EA
and supporting documents, or enter into a third-party agreement with the
applicant.

\(3\) During the environmental review process, applicants may continue
to compile additional information needed for the environmental review
and/or information necessary to support an application for a permit or
assistance agreement from EPA.

\(h\) For all NEPA determinations (CEs, EA/FONSIs, or EIS/RODs) that are
five years old or older, and for which the subject action has not yet
been implemented, the Responsible Official must re-evaluate the proposed
action, environmental conditions, and public views to determine whether
to conduct a supplemental environmental review of the action and
complete an appropriate NEPA document or reaffirm EPA's original NEPA
determination.. If there has been substantial change in the proposed
action that is relevant to environmental concerns, or if there are
significant new circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts, the
Responsible Official must conduct a supplemental environmental review of
the action and complete an appropriate NEPA document .

**§6.201 Coordination with other environmental review requirements.**

Consistent with 40 CFR 1500.5(g) and 1502.25, the Responsible Official
must determine the applicability of other environmental laws and
executive orders, to the fullest extent possible. The Responsible
Official should incorporate applicable requirements as early in the NEPA
review process as possible.

**§6.202 Interagency cooperation.**

\(a\) Consistent with 40 CFR 1501.5, 1501.6, and 1508.5, the Responsible
Official will request other appropriate federal and non-federal agencies
to be joint lead or cooperating agencies as a means of encouraging early
coordination and cooperation with federal agencies, state and local
governments, and federally-recognized Indian tribes with jurisdiction by
law or special expertise.

\(b\) For an EPA action related to an action of any other federal
agency, the Responsible Official must comply with the requirements of 40
CFR 1501.5 and 1501.6 relating to lead agencies and cooperating
agencies, respectively. The Responsible Official will work with the
other involved agencies to facilitate coordination and to reduce delay
and duplication.

\(c\) To prepare a single document to fulfill both NEPA and state or
local government, or federally-recognized Indian tribe requirements,
consistent with 40 CFR 1506.2, the Responsible Official should enter
into a written agreement with the involved state or local government, or
federally-recognized Indian tribe that sets out the intentions of the
parties, including the responsibilities each party intends to assume and
procedures the parties intend to follow.

**§6.203 Public participation.**

\(a\) *General requirements.*

\(1\) The procedures in this section apply to EPA\'s environmental
review processes, including development, supplementation, adoption, and
revision of NEPA documents.

\(2\) The Responsible Official will make diligent efforts to involve the
public, including applicants, in the preparation of EAs or EISs
consistent with 40 CFR 1501.4 and 1506.6 and applicable EPA public
participation regulations (e.g., 40 CFR Part 25).

\(3\) EPA NEPA documents will use plain language to the extent possible.

\(4\) The Responsible Official will, to the greatest extent possible,
give notice to any state or local government, or federally-recognized
Indian tribe that, in the Official\'s judgment, may be affected by an
action for which EPA plans to prepare an EA or an EIS.

\(5\) The Responsible Official must use appropriate communication
procedures to ensure meaningful public participation throughout the NEPA
process. The Responsible Official must make reasonable efforts to
involve the potentially affected communities where the proposed action
is expected to have environmental impacts or where the proposed action
may have human health or environmental effects in any communities,
including minority communities, low-income communities, or
federally-recognized Indian tribal communities.

\(b\) *EA and FONSI requirements.*

\(1\) At least thirty (30) calendar days before making the decision on
whether, and if so how, to proceed with a proposed action, the
Responsible Official must make available to the interested federal
agencies, state and local governments, federally-recognized Indian
tribes and the affected public the EA and preliminary FONSI for review
and comment. The Responsible Official must respond to any substantive
comments received and finalize the EA and FONSI before making a decision
on the proposed action.

\(2\) Where circumstances make it necessary to take the action without
observing the 30 calendar day comment period, the Responsible Official
must notify the NEPA Official before taking such action. If the NEPA
Official determines that a reduced comment period would be in the best
interest of the Government, the NEPA Official will inform the
Responsible Official, as soon as possible, of this approval. The
Responsible Official will make the EA and preliminary FONSI available
for review and comment for the reduced comment period.

\(c\) *EIS and ROD requirements.*

\(1\) As soon as practicable after the decision to prepare an EIS and
before beginning the scoping process, the Responsible Official must
ensure that a notice of intent (NOI) (see 40 CFR 1508.22) is published
in the *Federal Register*. The NOI must briefly describe the proposed
action; a preliminary list of environmental issues to be analyzed, and
possible alternatives; EPA\'s proposed scoping process including, if
available, whether, when, and where any scoping meeting will be held;
and the name and contact information for the person designated by EPA to
answer questions about the proposed action and the EIS. The NOI must
invite comments and suggestions on the scope of the EIS.

\(2\) The Responsible Official must disseminate the NOI consistent with
40 CFR 1506.6.

\(3\) The Responsible Official must conduct the scoping process
consistent with 40 CFR 1501.7 and any applicable EPA public
participation regulations (e.g., 40 CFR Part 25).

\(i\) Publication of the NOI in the *Federal Register* begins the
scoping process.

\(ii\) The Responsible Official must ensure that the scoping process for
an EIS allows a minimum of thirty (30) days for the receipt of public
comments.

\(iii\) The Responsible Official may hold one or more public meetings as
part of the scoping process for an EPA EIS. The Responsible Official
must announce the location, date, and time of public scoping meetings in
the NOI or by other appropriate means, such as additional notices in the
*Federal Register*, news releases to the local media, or letters to
affected parties. Public scoping meetings should be held at least
fifteen (15) days after public notification.

\(iv\) The Responsible Official must use appropriate means to publicize
the availability of draft and final EISs and the time and place for
public meetings or hearings on draft EISs. The methods chosen for public
participation must focus on reaching persons who may be interested in
the proposed action. Such persons include those in potentially affected
communities where the proposed action is known or expected to have
environmental impacts including minority communities, low-income
communities, or federally-recognized Indian tribal communities.

\(v\) The Responsible Official must circulate the draft and final EISs
consistent with 40 CFR 1502.19 and any applicable EPA public
participation regulations and in accordance with the 45-day public
review period for draft EISs and the 30-day public review period for
final EISs (see section 6.209 of this part). Consistent with section
6.209(b) of this part, the Responsible Official may establish a longer
public comment period for a draft or final EIS.

\(vi\) After preparing a draft EIS and before preparing a final EIS, the
Responsible Official must solicit the comments of appropriate federal
agencies, state and/or local governments, and/or federally-recognized
Indian tribes, and the public (see 40 CFR 1503.1). The Responsible
Official must respond in the final EIS to substantive comments received
(see 40 CFR 1503.4).

\(vii\) The Responsible Official may conduct one or more public meetings
or hearings on the draft EIS as part of the public involvement process.
If meetings or hearings are held, the Responsible Official must make the
draft EIS available to the public at least thirty (30) days in advance
of any meeting or hearing.

\(4\) The Responsible Official must make the ROD available to the public
upon request.

**§6.204 Categorical exclusions and extraordinary circumstances.**

\(a\) A proposed action may be categorically excluded if the action fits
within a category of action that is eligible for exclusion and the
proposed action does not involve any extraordinary circumstances.

\(1\) Certain actions eligible for categorical exclusion require the
Responsible Official to document a determination that a categorical
exclusion applies. The documentation must include: a brief description
of the proposed action; a statement identifying the categorical
exclusion that applies to the action; and a statement explaining why no
extraordinary circumstances apply to the proposed action. The
Responsible Official must make a copy of the determination document
available to the public upon request. The categorical exclusions
requiring this documentation are listed in paragraphs (a)(1)(i) through
(a)(1)(v) of this section.

\(i\) Actions at EPA owned or operated facilities involving routine
facility maintenance, repair, and grounds-keeping; minor rehabilitation,
restoration, renovation, or revitalization of existing facilities;
functional replacement of equipment, acquisition and installation of
equipment, or construction of new minor ancillary facilities adjacent to
or on the same property as existing facilities.

\(ii\) Actions relating to existing infrastructure systems (such as
sewer systems; drinking water supply systems; and stormwater systems,
including combined sewer overflow systems) that involve minor upgrading,
or minor expansion of system capacity or rehabilitation (including
functional replacement) of the existing system and system components
(such as the sewer collection network and treatment system, the system
to collect, treat, store and distribute drinking water; and stormwater
systems, including combined sewer overflow systems) or construction of
new minor ancillary facilities adjacent to or on the same property as
existing facilities. This category does not include actions that:
involve new or relocated discharges to surface or ground water; will
likely result in the substantial increase in the volume or the loading
of pollutant to the receiving water; will provide capacity to serve a
population 30% greater than the existing population or is not supported
by the state, or other regional growth plan or strategy; or directly or
indirectly involve or relate to upgrading or extending infrastructure
systems primarily for the purposes of future development.

\(iii\) Actions in unsewered communities involving the replacement of
existing onsite systems, providing the new onsite systems do not result
in substantial increases in the volume of discharge or the loadings of
pollutants from existing sources, or relocate existing discharge.

\(iv\) Actions involving re-issuance of a NPDES permit for a new source
providing the conclusions of the original NEPA document are still valid
(including the appropriate mitigation) there will be no degradation of
the receiving waters, and the permit conditions do not change or are
more environmentally protective.

\(v\) Actions for award of grants authorized by Congress under EPA's
annual Appropriations Act that are solely for reimbursement of the costs
of a project that was completed prior to the date the appropriation was
enacted.

\(2\) Certain actions eligible for categorical exclusion do not require
the Responsible Official to document a determination that a categorical
exclusion applies. These categorical exclusions are listed in paragraphs
(a)(2)(i) through (a)(2)(x) of this section.

\(i\) Procedural, ministerial, administrative, financial, personnel, and
management actions necessary to support the normal conduct of EPA
business.

\(ii\) Acquisition actions (compliant with applicable procedures for
sustainable or "green" procurement) and contracting actions necessary to
support the normal conduct of EPA business.

\(iii\) Actions involving information collection, dissemination, or
exchange; planning; monitoring and sample collection wherein no
significant alteration of existing ambient conditions occurs;
educational and training programs; literature searches and studies;
computer studies and activities; research and analytical activities;
development of compliance assistance tools; and architectural and
engineering studies. These actions include those conducted directly by
EPA and EPA actions relating to contracts or assistance agreements
involving such actions.

\(iv\) Actions relating to or conducted completely within a permanent,
existing contained facility, such as a laboratory, or other enclosed
building, provided that reliable and scientifically-sound methods are
used to appropriately dispose of wastes and safeguards exist to prevent
hazardous, toxic and radioactive materials in excess of allowable limits
from entering the environment. Where such activities are conducted at
laboratories, the Lab Director or other appropriate official must
certify in writing that the laboratory follows good laboratory practices
and adheres to all applicable federal, state, local and
federally-recognized Indian tribal laws and regulations. This category
does not include activities related to construction and/or demolition
within the facility (see paragraph (a)(1)(i) of this section).

\(v\) Actions involving emergency preparedness planning and training
activities.

\(vi\) Actions involving the acquisition, transfer, lease, disposition,
or closure of existing permanent structures, land, equipment, materials
or personal property provided that the property: has been used solely
for office functions; has never been used for laboratory purposes by any
party; does not require site remediation; and will be used in
essentially the same manner such that the type and magnitude of the
impacts will not change substantially. This category does not include
activities related to construction and/or demolition of structures on
the property (see paragraph (a)(1)(i) of this section).

\(vii\) Actions involving providing technical advice to federal
agencies, state or local governments, federally-recognized Indian
tribes, foreign governments, or public or private entities.

\(viii\) Actions involving approval of EPA participation in
international "umbrella" agreements for cooperation in
environmental-related activities that would not commit the United States
to any specific projects or actions.

\(ix\) Actions involving containment or removal and disposal of
asbestos-containing material or lead-based paint from EPA owned or
operated facilities when undertaken in accordance with applicable
regulations.

\(x\) Actions involving new source NPDES permit modifications that make
only technical corrections to the NPDES permit (such as correcting
typographical errors) that do not result in a change in environmental
impacts or conditions.

\(b\) The Responsible Official must review actions eligible for
categorical exclusion to determine whether any extraordinary
circumstances are involved. Extraordinary circumstances are listed in
paragraphs (b)(1) through (b)(10) of this section. (See 40 CFR 1508.4.)

\(1\) The proposed action is known or expected to have potentially
significant environmental impacts on the quality of the human
environment either individually or cumulatively over time.

\(2\) The proposed action is known or expected to have
disproportionately high and adverse human health or environmental
effects on any community, including minority communities, low-income
communities, or federally-recognized Indian tribal communities.

\(3\) The proposed action is known or expected to significantly affect
federally listed threatened or endangered species or their critical
habitat.

\(4\) The proposed action is known or expected to significantly affect
national natural landmarks or any property with nationally significant
historic, architectural, prehistoric, archeological, or cultural value,
including but not limited to, property listed on or eligible for the
National Register of Historic Places.

\(5\) The proposed action is known or expected to significantly affect
environmentally important natural resource areas such as wetlands,
floodplains, significant agricultural lands, aquifer recharge zones,
coastal zones, barrier islands, wild and scenic rivers, and significant
fish or wildlife habitat.

\(6\) The proposed action is known or expected to cause significant
adverse air quality effects.

\(7\) The proposed action is known or expected to have a significant
effect on the pattern and type of land use (industrial, commercial,
agricultural, recreational, residential) or growth and distribution of
population including altering the character of existing residential
areas, or may not be consistent with state or local government, or
federally-recognized Indian tribe approved land use plans or federal
land management plans.

\(8\) The proposed action is known or expected to cause significant
public controversy about a potential environmental impact of the
proposed action.

\(9\) The proposed action is known or expected to be associated with
providing financial assistance to a federal agency through an
interagency agreement for a project that is known or expected to have
potentially significant environmental impacts.

\(10\) The proposed action is known or expected to conflict with
federal, state or local government, or federally-recognized Indian tribe
environmental, resource-protection, or land-use laws or regulations.

\(c\) The Responsible Official may request that an applicant submit
sufficient information to enable the Responsible Official to determine
whether a categorical exclusion applies to the applicant's proposed
action or whether an exceptional circumstance applies. Pursuant to
Subpart C of this part, applicants are not required to prepare EIDs for
actions that are being considered for categorical exclusion.

\(d\) The Responsible Official must prepare an EA or EIS when a proposed
action involves extraordinary circumstances.

\(e\) After a determination has been made that a categorical exclusion
applies to an action, if new information or changes in the proposed
action involve or relate to at least one of the extraordinary
circumstances or otherwise indicate that the action may not meet the
criteria for categorical exclusion and the Responsible Official
determines that an action no longer qualifies for a categorical
exclusion, the Responsible Official will prepare an EA or EIS.

\(f\) The Responsible Official, or other interested parties, may request
the addition, amendment, or deletion of a categorical exclusion.

\(1\) Such requests must be made in writing, be directed to the NEPA
Official, and contain adequate information to support and justify the
request.

\(2\) Proposed new categories of actions for exclusion must meet these
criteria:

\(i\) Actions covered by the proposed categorical exclusion generally do
not individually or cumulatively have a significant effect on the human
environment and have been found by EPA to have no such effect.

\(ii\) Actions covered by the proposed categorical exclusion generally
do not involve extraordinary circumstances as set out in paragraphs
(b)(1) through (b)(14) of this section and generally do not require
preparation of an EIS; and

\(iii\) Information adequate to determine that a proposed action is
properly covered by the proposed category will usually be available.

\(3\) The NEPA Official must determine that the addition, amendment, or
deletion of a categorical exclusion is appropriate.

\(g\) Any addition, amendment, or deletion of a categorical exclusion
will be done by rule-making and in coordination with CEQ pursuant to 40
CFR 1507.3 to amend paragraph (a)(1) or paragraph (a)(2) of this
section.

**§6.205 Environmental assessments.**

\(a\) The Responsible Official must prepare an environmental assessment
(EA) (see 40 CFR 1508.9) for a proposed action that is expected to
result in environmental impacts and the significance of the impacts is
not known. An EA is not required if the proposed action is categorically
excluded, or if the Responsible Official has decided to prepare an EIS.
(See 40 CFR 1501.3.)

\(b\) Types of actions that normally require the preparation of an EA
include:

> \(1\) the award of wastewater treatment construction grants under
> Title II of the Clean Water Act;
>
> \(2\) EPA's issuance of new source NPDES permits under section 402 of
> the Clean Water Act;
>
> \(3\) EPA actions involving renovations or new construction of
> facilities;
>
> \(4\) certain grants awarded for special projects authorized by
> Congress through the Agency's annual Appropriations Act; and
>
> \(5\) research and development projects, such as initial field
> demonstration of a new technology, field trials of a new product or
> new uses of an existing technology, alteration of a local habitat by
> physical or chemical means, or actions that may result in the release
> of radioactive, hazardous, or toxic substances, or biota.

\(c\) The Responsible Official, or other interested parties, may request
changes to the list of actions that normally require the preparation of
an EA, (i.e. the addition, amendment, or deletion of a type of action).

\(d\) Consistent with 40 CFR 1508.9, an EA must provide sufficient
information and analysis for determining whether to prepare an EIS or to
issue a FONSI (see 40 CFR 1508.9(a)), and may include analyses needed
for other environmental determinations. The EA must focus on resources
that might be impacted and any environmental issues that are of public
concern.

\(e\) An EA must include:

\(1\) A brief discussions of:

> \(i\) The need for the proposed action;

\(ii\) The alternatives, including the no action alternative (which must
be assessed even when the proposed action is specifically required by
legislation or a court order);

\(iii\) The affected environment, including baseline conditions that may
be impacted by the proposed action and alternatives;

\(iv\) The environmental impacts of the proposed action and
alternatives, including any unresolved conflicts concerning alternative
uses of available resources; and

\(v\) Other applicable environmental laws and executive orders.

\(2\) A listing or summary of any coordination or consultation
undertaken with any federal agency, state or local government, or
federally-recognized Indian tribe regarding compliance with applicable
laws and executive orders;

\(3\) Identification and description of any mitigation measures
considered, including any mitigation measures that must be adopted to
ensure the action will not have significant impacts; and

\(4\) Incorporation of documents by reference, if appropriate,
including, when available, the EID for the action.

**§6.206 Findings of no significant impact.**

\(a\) The Responsible Official may issue a finding of no significant
impact (FONSI) (see 40 CFR 1508.13) only if the EA supports the finding
that the proposed action will not have a significant effect on the human
environment. If the EA does not support a FONSI, the Responsible
Official must prepare an EIS and issue a ROD before taking action on the
proposed action.

\(b\) Consistent with 40 CFR 1508.13, a FONSI must include:

\(1\) The EA, or in lieu of the EA, a summary of the supporting EA that
includes a brief description of the proposed action and alternatives
considered in the EA, environmental factors considered, and project
impacts; and

\(2\) A brief description of the reasons why there are no significant
impacts.

\(c\) In addition, the FONSI, must include:

\(1\) Any commitments to mitigation that are essential to render the
impacts of the proposed action not significant;

\(2\) The date of issuance; and

\(3\) The signature of the Responsible Official.

\(d\) The Responsible Official must ensure that an applicant that has
committed to mitigation possesses the authority and ability to fulfill
the commitments.

\(e\) The Responsible Official must make a preliminary FONSI available
to the public in accordance with section 6.203(b) of this part before
taking action.

\(f\) The Responsible Official may proceed with the action subject to
any mitigation measures described in the FONSI after responding to any
substantive comments received on the preliminary FONSI during the 30-day
comment period, or 30 days after issuance of the FONSI if no substantive
comments are received.

\(g\) The Responsible Official must ensure that the mitigation measures
necessary to the FONSI determination, at a minimum, are enforceable, and
conduct appropriate monitoring of the mitigation measures.

\(h\) The Responsible Official may revise a FONSI at any time provided
the revision is supported by an EA. A revised FONSI is subject to all
provisions of paragraph (d) of this section.

**§6.207 Environmental impact statements.**

\(a\) The Responsible Official will prepare an environmental impact
statement (EIS) (see 40 CFR 1508.11) for major federal actions
significantly affecting the quality of the human environment, including
actions for which the EA analysis demonstrates that significant impacts
will occur that will not be reduced or eliminated by changes to or
mitigation of the proposed action.

\(1\) EISs are normally prepared for the following actions:

\(i\) New regional wastewater treatment facilities or water supply
systems for a community with a population greater than 100,000.

\(ii\) Expansions of existing wastewater treatment facilities that will
increase existing discharge to an impaired water by greater than 10
million gallons per day (mgd).

\(iii\) Issuance of new source NPDES permit for a new major industrial
discharge.

\(iv\) Issuance of a new source NPDES permit for a new oil/gas
development and production operation on the outer continental shelf.

\(v\) Issuance of a new source NPDES permit for a deepwater port with a
projected discharge in excess of 10 mgd.

\(2\) The Responsible Official, or other interested party, may request
changes to the list of actions that normally require the preparation of
an EIS (i.e. the addition, amendment, or deletion of a type of action).

\(3\) A proposed action normally requires an EIS if it meets any of the
following criteria. (See 40 CFR 1507.3(b)(2)).

\(i\) The proposed action would result in a discharge of treated
effluent from a new or modified existing facility into a body of water
and the discharge is likely to have a significant effect on the quality
of the receiving waters.

\(ii\) The proposed action is likely to directly, or through induced
development, have significant adverse effect upon local ambient air
quality or local ambient noise levels.

\(iii\) The proposed action is likely to have significant adverse
effects on surface water reservoirs or navigation projects.

\(iv\) The proposed action would be inconsistent with state or local
government, or federally-recognized Indian tribe approved land use plans
or regulations, or federal land management plans.

\(v\) The proposed action would be inconsistent with state or local
government, or federally-recognized Indian tribe environmental,
resource-protection, or land-use laws and regulations for protection of
the environment.

\(vi\) The proposed action is likely to significantly affect the
environment through the release of radioactive, hazardous or toxic
substances, or biota.

\(vii\) The proposed action involves uncertain environmental effects or
highly unique environmental risks that are likely to be significant.

\(viii\) The proposed action is likely to significantly affect national
natural landmarks or any property on or eligible for the National
Register of Historic Places.

\(ix\) The proposed action is likely to significantly affect
environmentally important natural resources such as wetlands,
significant agricultural lands, aquifer recharge zones, coastal zones,
barrier islands, wild and scenic rivers, and significant fish or
wildlife habitat.

\(x\) The proposed action in conjunction with related federal, state or
local government, or federally-recognized Indian tribe projects is
likely to produce significant cumulative impacts.

\(xi\) The proposed action is likely to significantly affect the pattern
and type of land use (industrial, commercial, recreational, residential)
or growth and distribution of population including altering the
character of existing residential areas.

\(4\) An EIS must be prepared consistent with 40 CFR Part 1502.

\(b\) When appropriate, the Responsible Official will prepare a
legislative EIS consistent with 40 CFR 1506.8.

\(c\) In preparing an EIS, the Responsible Official must determine if an
applicant, other federal agencies or state or local governments, or
federally-recognized Indian tribes are involved with the project and
apply the applicable provisions of section 6.202 and Subpart C of this
part.

\(d\) An EIS must:

\(1\) Comply with all requirements at 40 CFR parts 1500-1508.

\(2\) Analyze all reasonable alternatives and the no action alternative
(which may be the same as denying the action). Assess the no action
alternative even when the proposed action is specifically required by
legislation or a court order.

\(3\) Describe the potentially affected environment including, as
appropriate, the size and location of new and existing facilities, land
requirements, operation and maintenance requirements, auxiliary
structures such as pipelines or transmission lines, and construction
schedules.

\(4\) Summarize any coordination or consultation undertaken with any
federal agency, state and/or local government, and/or
federally-recognized Indian tribe, including copies or summaries of
relevant correspondence.

\(5\) Summarize any public meetings during the scoping process including
the date, time, place, and purpose of the meetings. The final EIS must
summarize the public participation process including the date, time,
place, and purpose of meetings or hearings held after publication of the
draft EIS.

\(6\) Consider substantive comments received during the public
participation process. The draft EIS must consider the substantive
comments received during the scoping process. The final EIS must include
or summarize all substantive comments received on the draft EIS, respond
to any substantive comments on the draft EIS, and explain any changes to
the draft EIS and the reason for the changes.

\(7\) Include the names and qualifications of the persons primarily
responsible for preparing the EIS including an EIS prepared under a
third-party contract (if applicable), significant background papers, and
the EID (if applicable).

\(e\) The Responsible Official must prepare a supplemental EIS when
appropriate, consistent with 40 CFR 1502.9.

**§6.208 Records of decision.**

\(a\) The Responsible Official may not make any decisions on the action
until the time periods in 40 CFR 1506.10 have been met.

\(b\) A record of decision (ROD) records EPA\'s decision on the action.
Consistent with 40 CFR 1505.2, a ROD must include:

\(1\) A brief description of the proposed action and alternatives
considered in the EIS, environmental factors considered, and project
impacts;

\(2\) Any commitments to mitigation; and

\(3\) An explanation if an environmentally preferred alternative was not
selected.

> \(c\) In addition, the ROD must include:
>
> \(1\) Responses to any substantive comments on the final EIS;

\(2\) The date of issuance; and

\(3\) The signature of the Responsible Official.

\(d\) The Responsible Official must ensure that an applicant that has
committed to mitigation possesses the authority and ability to fulfill
the commitment.

\(e\) The Responsible Official must make a ROD available to the public.

\(f\) Upon issuance of the ROD, the Responsible Official may proceed
with the action subject to any mitigation measures described in the ROD.
The Responsible Official must ensure adequate monitoring of mitigation
measures identified in the ROD.

\(g\) If the mitigation identified in the ROD will be included as a
condition in the permit or grant, the Responsible Official must ensure
that EPA has the authority to impose the conditions. The Responsible
Official should ensure that compliance with assistance agreement or
permit conditions will be monitored and enforced under EPA\'s assistance
agreement and permit authorities.

\(h\) The Responsible Official may revise a ROD at any time provided the
revision is supported by an EIS. A revised ROD is subject to all
provisions of paragraph (d) of this section.

**§6.209 Filing requirements for EPA EISs.**

\(a\) The Responsible Official must file an EIS with the NEPA Official
no earlier than the document being transmitted to commenting agencies
and made available to the public. The Responsible Official must comply
with any guidelines established by the NEPA Official for the filing
system process and comply with 40 CFR 1506.9 and 1506.10. The review
periods are computed through the filing system process and published in
the *Federal Register* in the Notice of Availability.

\(b\) The Responsible Official may request that the NEPA Official extend
the review periods for an EIS. The NEPA Official will publish notice of
an extension of the review period in the *Federal Register* and notify
the CEQ.

**§6.210 Emergency circumstances**

If emergency circumstances make it necessary to take an action that has
a significant environmental impact without observing the provisions of
subparts A through C of this part that are required by the CEQ
Regulations, the Responsible Official must consult with the NEPA
Official at the earliest possible time. Consistent with 40 CFR 1506.11,
the Responsible Official and the NEPA Official should consult with CEQ
about alternative arrangements at the earliest opportunity. Actions
taken without observing the provisions of subparts A through C of this
part will be limited to actions necessary to control the immediate
impacts of the emergency; other actions remain subject to the
environmental review process.

**Subpart C -- Requirements for Environmental Information Documents and
Third-Party Agreements for EPA Actions Subject to NEPA**

**§6.300 Applicability.**

\(a\) This section applies to actions that involve applications to EPA
for permits or assistance agreements.

\(b\) The Responsible Official is responsible for the environmental
review process on EPA's action (that is, issuing the permit or awarding
the assistance agreement) with the applicant contributing through
submission of an EID or a draft EA and supporting documents.

\(c\) An applicant is not required to prepare an EID when:

\(1\) The action has been categorically excluded or requires the
preparation of an EIS; or

\(2\) The applicant will prepare and submit a draft EA and supporting
documents.

\(d\) The Responsible Official must notify the applicant if EPA will not
require submission of an EID.

**§6.301 Applicant requirements.**

\(a\) The applicant must prepare an EID in consultation with the
Responsible Official, unless the Responsible Official has notified the
applicant that an EID is not required. The EID must be of sufficient
scope and content to enable the Responsible Official to prepare an EA
and FONSI or, if necessary, an EIS and ROD. The applicant must submit
the EID to the Responsible Official.

\(b\) The applicant must consult with the Responsible Official as early
as possible in the planning process to obtain guidance with respect to
the appropriate level and scope of environmental information required
for the EID.

\(c\) As part of the EID process, the applicant may consult with
appropriate federal agencies, state and local governments, and
federally-recognized Indian tribes and other potentially affected
parties to identify their interests in the project and the environmental
issues associated with the project.

\(d\) The applicant must notify the Responsible Official as early as
possible of other federal agency, state or local government, or
federally-recognized Indian tribe requirements related to the project.
The applicant also must notify the Responsible Official of any private
entities and organizations affected by the proposed project. (See 40 CFR
1501.2(d)(2).)

\(e\) The applicant must notify the Responsible Official if, during
EPA's environmental review process, the applicant:

\(1\) Changes its plans for the project as originally submitted to EPA;
and/or

\(2\) Changes its schedule for the project from that originally
submitted to EPA.

\(f\) In accordance with section 6.204 of this part, where appropriate,
the applicant may request a categorical exclusion determination by the
Responsible Official. If requested by the Responsible Official, the
applicant must submit information to the Responsible Official regarding
the application of a categorical exclusion to EPA's pending action and
the applicant's project.

**§6.302 Responsible Official requirements.**

\(a\) Consistent with 40 CFR 1501.2(d), the Responsible Official must
ensure early involvement of applicants in the environmental review
process to identify environmental effects, avoid delays, and resolve
conflicts.

\(b\) The Responsible Official must notify the applicant if a
determination has been made that the action has been categorically
excluded, or if EPA needs additional information to support the
application of a categorical exclusion or if the submitted information
does not support the application of a categorical exclusion and that an
EA, or an EIS, will be required.

\(c\) When an EID is required for a project, the Responsible Official
must consult with the applicant and provide the applicant with guidance
describing the scope and level of environmental information required.

\(1\) The Responsible Official must provide guidance on a
project-by-project basis to any applicant seeking such assistance. For
major categories of actions involving a large number of applicants, the
Responsible Official may prepare and make available generic guidance
describing the recommended level and scope of environmental information
that applicants should provide.

\(2\) The Responsible Official must consider the extent to which the
applicant is capable of providing the required information. The
Responsible Official may not require the applicant to gather data or
perform analyses that unnecessarily duplicate either existing data or
the results of existing analyses available to EPA. The Responsible
Official must limit the request for environmental information to that
necessary for the environmental review.

\(d\) If, prior to completion of the environmental review for a project,
the Responsible Official receives notification, that the applicant is
proposing to or taking an action that would result in significant
impacts or would limit alternatives, the Responsible Official must
notify the applicant promptly that EPA will take appropriate action to
ensure that the objectives and procedures of NEPA are achieved (see 40
CFR 1506.1(b)). Such actions may include withholding grant funds or
denial of permits.

\(e\) The Responsible Official must begin the NEPA review as soon as
possible after receiving the applicant's EID or draft EA. The
Responsible Official must independently evaluate the information
submitted and be responsible for its accuracy (see 40 CFR 1506.5).

\(f\) At the request of an applicant and at the discretion of the
Responsible Official, an applicant may prepare an EA or EIS and
supporting documents or enter into a third-party contract pursuant to
section 6.303 of this part.

(g)The Responsible Official must review, and take responsibility for the
completed NEPA documents, before rendering a final decision on the
proposed action.

**§6.303 Third-party agreements.**

\(a\) If an EA or EIS is to be prepared for an action subject to
subparts A through C of this part, the Responsible Official and the
applicant may enter into an agreement whereby the applicant engages and
pays for the services of a third-party contractor to prepare an EA or
EIS and any associated documents for consideration by EPA. In such
cases, the Responsible Official must approve the qualifications of the
third-party contractor. The third-party contractor must be selected on
the basis of ability and absence of any conflict of interest. Consistent
with 40 CFR 1506.5(c), in consultation with the applicant, the
Responsible Official shall select the contractor. The Responsible
Official must provide guidance to the applicant and contractor regarding
the information to be developed, including the project's scope, and
guide and participate in the collection, analysis, and presentation of
the information. The Responsible Official has sole authority for final
approval of and EA or EIS.

\(1\) The applicant must engage and pay for the services of a contractor
to prepare the EA or EIS and any associated documents without using EPA
financial assistance (including required match).

\(2\) The Responsible Official, in consultation with the applicant, must
ensure that the contractor is qualified to prepare an EA or EIS, and
that the substantive terms of the contract specify the information to be
developed, and the procedures for gathering, analyzing and presenting
the information.

\(3\) The Responsible Official must prepare a disclosure statement for
the applicant to include in the contract specifying that the contractor
has no financial or other interest in the outcome of the project (see 40
CFR 1506.5(c)).

\(4\) The Responsible Official will ensure that the EA or EIS and any
associated documents contain analyses and conclusions that adequately
assess the relevant environmental issues.

\(b\) In order to make a decision on the action, the Responsible
Official must independently evaluate the information submitted in the EA
or EIS and any associated documents, and issue an EA or draft and final
EIS. After review of, and appropriate changes to, the EA or EIS
submitted by the applicant, the Responsible Official may accept it as
EPA's document. The Responsible Official is responsible for the scope,
accuracy, and contents of the EA or EIS and any associated documents
(see 40 CFR 1506.5).

\(c\) A third-party agreement may not be initiated unless both the
applicant and the Responsible Official agree to its creation and terms.

\(d\) The terms of the contract between the applicant and the
third-party contractor must ensure that the contractor does not have
recourse to EPA for financial or other claims arising under the
contract, and that the Responsible Official, or other EPA designee, may
give technical advice to the contractor.

**Subpart D -- Assessing the Environmental Effects Abroad of EPA
Actions**

**Authority:** 42 U.S.C. 4321, note, E.O. 12114, 44 FR 1979, 3 CFR, 1979
Comp., p. 356.

**§6.400 Purpose and policy.**

\(a\) *Purpose.* On January 4, 1979, the President signed Executive
Order 12114 entitled \"Environmental Effects Abroad of Major Federal
Actions.\" The purpose of this Executive Order is to enable responsible
Federal officials in carrying out or approving major Federal actions
which affect foreign nations or the global commons to be informed of
pertinent environmental considerations and to consider fully the
environmental impacts of the actions undertaken. While based on
independent authority, this Order furthers the purpose of the National
Environmental Policy Act (NEPA) (42 U.S.C. 4321 *et seq.*) and the
Marine Protection, Research, and Sanctuaries Act (MPRSA) (33 U.S.C. 1401
*et seq.*). It should be noted, however, that in fulfilling its
responsibilities under Executive Order 12114, EPA shall be guided by CEQ
regulations only to the extent that they are made expressly applicable
by this subpart. The procedures set forth below reflect EPA's duties and
responsibilities as required under the Executive Order and satisfy the
requirement for issuance of procedures under section 2-1 of the
Executive Order.

\(b\) *Policy.* It shall be the policy of this Agency to carry out the
purpose and requirements of the Executive Order to the fullest extent
possible. EPA, within the realm of its expertise, shall work with the
Department of State and the Council on Environmental Quality to provide
information to other Federal agencies and foreign nations to heighten
awareness of and interest in the environment. EPA shall further
cooperate to the extent possible with Federal agencies to lend special
expertise and assistance in the preparation of required environmental
documents under the Executive Order. EPA shall perform environmental
reviews of activities significantly affecting the global commons and
foreign nations as required under Executive Order 12114 and as set forth
under these procedures.

**§6.401 Applicability.**

\(a\) Administrative actions requiring environmental review. The
environmental review requirements apply to the activities of EPA as
follows:

\(1\) Major research or demonstration projects which affect the global
commons or a foreign nation.

\(2\) Ocean dumping activities carried out under section 102 of the
MPRSA which affect the related environment.

\(3\) Major permitting or licensing by EPA of facilities which affect
the global commons or the environment of a foreign nation. This may
include such actions as the issuance by EPA of hazardous waste
treatment, storage, or disposal facility permits pursuant to section
3005 of the Resource Conservation and Recovery Act (42 U.S.C. 6925),
NPDES permits pursuant to section 402 of the Clean Water Act (33 U.S.C.
1342), and prevention of significant deterioration approvals pursuant to
Part C of the Clean Air Act (42 U.S.C. 7470 *et seq.*)

\(4\) Wastewater Treatment Construction Grants Program under section 201
of the Clean Water Act when activities addressed in the facility plan
would have environmental effects abroad.

\(5\) Other EPA activities as determined by OFA and OIA (see §6.406(c)).

\(b\) \[Reserved\].

**§6.402 Definitions.**

As used in this subpart, *environment* means the natural and physical
environment and excludes social, economic and other environments;
*global commons* is that area (land, air, water) outside the
jurisdiction of any nation; and *responsible official* is either the EPA
Assistant Administrator or Regional Administrator as appropriate for the
particular EPA program. Also, an action *significantly* affects the
environment if it does *significant* harm to the environment even though
on balance the action may be beneficial to the environment. To the
extent applicable, the responsible official shall address the
considerations set forth in the CEQ regulations under 40 CFR 1508.27 in
determining significant effect.

**§6.403 Environmental review and assessment requirements.**

\(a\) *Research and demonstration projects.* The appropriate Assistant
Administrator is responsible for performing the necessary degree of
environmental review on research and demonstration projects undertaken
by EPA. If the research or demonstration project affects the environment
of the global commons, the applicant shall prepare an environmental
analysis. This will assist the responsible official in determining
whether an EIS is necessary. If it is determined that the action
significantly affects the environment of the global commons, then an EIS
shall be prepared. If the undertaking significantly affects a foreign
nation EPA shall prepare a unilateral, bilateral or multilateral
environmental study. EPA shall afford the affected foreign nation or
international body or organization an opportunity to participate in this
study. This environmental study shall discuss the need for the action,
analyze the environmental impact of the various alternatives considered
and list the agencies and other parties consulted.

\(b\) *Ocean dumping activities.*

\(1\) The Assistant Administrator for Water shall ensure the preparation
of appropriate environmental documents relating to ocean dumping
activities in the global commons under section 102 of the MPRSA. For
ocean dumping site designations prescribed pursuant to section 102(c) of
the MPRSA and 40 CFR part 228, and for the establishment or revision of
criteria under section 102(a) of the MPRSA, EPA shall prepare
appropriate environmental documents consistent with EPA's Notice of
Policy and Procedures for Voluntary Preparation of National
Environmental Policy Act (NEPA) Documents dated October 29, 1998 (see 63
FR 58045).

\(2\) For individual permits issued by EPA under section 102(b) an
environmental assessment shall be made by EPA. Pursuant to 40 CFR part
221, the permit applicant shall submit with the application an
environmental analysis which includes a discussion of the need for the
action, an outline of alternatives, and an analysis of the environmental
impact of the proposed action and alternatives consistent with the EPA
criteria established under section 102(a) of MPRSA. The information
submitted under 40 CFR part 221 shall be sufficient to satisfy the
environmental assessment requirement.

\(c\) *EPA permitting and licensing activities.* The appropriate
Regional Administrator is responsible for conducting concise
environmental reviews with regard to permits issued under section 3005
of the Resource Conservation and Recovery Act (RCRA permits), section
402 of the Clean Water Act (NPDES permits), and section 165 of the Clean
Air Act (PSD permits), for such actions undertaken by EPA which affect
the global commons or foreign nations. The information submitted by
applicants for such permits or approvals under the applicable
consolidated permit regulations (40 CFR parts 122 and 124) and
Prevention of Significant Deterioration (PSD) regulations (40 CFR part
52) shall satisfy the environmental document requirement under Section
2-4(b) of Executive Order 12114. Compliance with applicable requirements
in part 124 of the consolidated permit regulations (40 CFR part 124)
shall be sufficient to satisfy the requirements to conduct a concise
environmental review for permits subject to this paragraph.

\(d\) *Wastewater treatment facility planning.* 40 CFR part 6, subparts
A through C, detail the environmental review process for the facilities
planning process under the wastewater treatment works construction
grants program. For the purpose of these regulations, the facility plan
shall also include a concise environmental review of those activities
that would have environmental effects abroad. This shall apply only to
the Step 1 grants awarded after January 14, 1981, but on or before
December 29, 1981, and facilities plans developed after December 29,
1981. Where water quality impacts identified in a facility plan are the
subject of water quality agreements with Canada or Mexico, nothing in
these regulations shall impose on the facility planning process
coordination and consultation requirements in addition to those required
by such agreements.

\(e\) *Review by other Federal agencies and other appropriate
officials.* The responsible officials shall consult with other Federal
agencies with relevant expertise during the preparation of the
environmental document. As soon as feasible after preparation of the
environmental document, the responsible official shall make the document
available to the Council on Environmental Quality, Department of State,
and other appropriate officials. The responsible official with
assistance from OIA shall work with the Department of State to establish
procedures for communicating with and making documents available to
foreign nations and international organizations.

**§6.404 Lead or cooperating agency.**

\(a\) *Lead Agency.* Section 3‑3 of Executive Order 12114 requires the
creation of a lead agency whenever an action involves more than one
Federal agency. In implementing section 3‑3, EPA shall, to the fullest
extent possible, follow the guidance for the selection of a lead agency
contained in 40 CFR 1501.5 of the CEQ regulations.

\(b\) *Cooperating Agency.* Under Section 2‑4(d) of the Executive Order,
Federal agencies with special expertise are encouraged to provide
appropriate resources to the agency preparing environmental documents in
order to avoid duplication of resources. In working with a lead agency,
EPA shall to the fullest extent possible serve as a cooperating agency
in accordance with 40 CFR 1501.6. When other program commitments
preclude the degree of involvement requested by the lead agency, the
responsible EPA official shall so inform the lead agency in writing.

**§6.405 Exemptions and considerations.**

Under section 2‑5 (b) and (c) of the Executive Order, Federal agencies
may provide for modifications in the contents, timing and availability
of documents or exemptions from certain requirements for the
environmental review and assessment. The responsible official, in
consultation with the Director, Office of Federal Activities (OFA), and
the Assistant Administrator, Office of International Affairs (OIA), may
approve modifications for situations described in section 2‑5(b). The
responsible official, in consultation with the Director, OFA and
Assistant Administrator, OIA, shall obtain exemptions from the
Administrator for situations described in section 2‑5(c). The Department
of State and the Council on Environmental Quality shall be consulted as
soon as possible on the utilization of such exemptions.

**§6.406 Implementation.**

\(a\) *Oversight.* OFA is responsible for overseeing the implementation
of these procedures and shall consult with OIA wherever appropriate. OIA
shall be utilized for making formal contacts with the Department of
State. OFA shall assist the responsible officials in carrying out their
responsibilities under these procedures.

\(b\) *Information exchange.* OFA with the aid of OIA, shall assist the
Department of State and the Council on Environmental Quality in
developing the informational exchange on environmental review activities
with foreign nations.

\(c\) *Unidentified activities.* The responsible official shall consult
with OFA and OIA to establish the type of environmental review or
document appropriate for any new EPA activities or requirements imposed
upon EPA by statute, international agreement or other agreements.