[Federal Register Volume 76, Number 10 (Friday, January 14, 2011)]
[Notices]
[Pages 2681-2683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-758]



[[Page 2681]]

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ENVIRONMENTAL PROTECTION AGENCY

[ER-FRL-8994-7]


Amended Environmental Impact Statement Filing System Guidance for 
Implementing 40 CFR 1506.9 and 1506.10 of the Council on Environmental 
Quality's Regulations Implementing the National Environmental Policy 
Act

1. Introduction

    On October 7, 1977, the Council of Environmental Quality (CEQ) and 
the Environmental Protection Agency (EPA) signed a Memorandum of 
Agreement (MOA) that allocated the responsibilities of the two agencies 
for assuring the government-wide implementation of the National 
Environmental Policy Act of 1969 (NEPA). Specifically, the MOA 
transferred to EPA the administrative aspects of the environmental 
impact statement (ElS) filing process. Within EPA, the Office of 
Federal Activities has been designated the official recipient in EPA of 
all EISs. These responsibilities have been codified in CEQ's NEPA 
Implementing Regulations (40 CFR Parts 1500-1508), and are totally 
separate from the substantive EPA reviews performed pursuant to both 
NEPA and Section 309 of the Clean Air Act.
    Under 40 CFR 1506.9, EPA can issue guidelines to implement its EIS 
filing responsibilities. The purpose of the EPA Filing System 
Guidelines is to provide guidance to Federal agencies on filing EISs, 
including draft, final, and supplemental EISs. Information is provided 
on: (1) Where to file EISs; (2) the number of copies required; (3) the 
steps to follow when a Federal agency is adopting an EIS, or when an 
EIS is withdrawn, delayed or reopened; (4) public review periods; (5) 
issuance of notices of availability in the Federal Register; and (6) 
retention of filed EISs. EPA's current EIS filing guidelines were 
published in the Federal Register on March 7, 1989.
    The guidelines published today update the previous guidelines, 
modify the number and format of the EISs to be filed, and provide 
specific guidelines for EIS filing during Continuity of Operations Plan 
(COOP) events. Additionally, we are soliciting input from federal 
agencies, other stakeholders, and the public on a series of questions 
that will be used to make further modifications to the EIS filing 
process in the future.

2. Purpose

    Pursuant to 40 CFR 1506.9 and 1506.10, EPA is responsible for 
administering the EIS filing process, and can issue guidelines to 
implement those responsibilities. The process of EIS filing includes 
the following: (1) Receiving and recording of the EISs, so that 
information in them can be incorporated into EPA's computerized data 
base; (2) establishing the beginning and ending dates for comment and 
review periods for draft and final EISs, respectively; (3) publishing 
these dates in a weekly Notice of Availability (NOA) in the Federal 
Register; (4) retaining the EISs in a central repository; and (5) 
determining whether time periods can be lengthened or shortened for 
``compelling reasons of national policy.''
    Under 40 CFR 1506.9, lead agencies are responsible for distributing 
EISs, and for providing additional copies of already distributed EISs, 
to the interested public for review. However, EPA will assist the 
public and other Federal agencies by providing agency contacts on, and 
information about, EISs.

3. Filing Draft, Final, and Supplemental EISs

    Federal agencies are required to prepare EISs in accordance with 40 
CFR part 1502, and to file the EISs with EPA as specified in 40 CFR 
1506.9. Federal agencies file an EIS by providing EPA with four copies 
of the complete EIS, including appendices. At least one copy of the 
entire EIS must be a paper copy; the remaining three (3) copies can be 
on appropriate electronic storage devices--e.g., compact discs (CDs), 
USB flash drives, or memory cards. Please note that if a Federal agency 
prepares an abbreviated Final EIS (as described in 40 CFR 1503.4(c)), 
it should include copies of the Draft EIS when filing the Final EIS.
    To file an EIS by using the U.S. Postal Service (including USPS 
Express Mail), please use the following address:

U.S. Environmental Protection Agency, Office of Federal Activities, EIS 
Filing Section, Mail Code 2252A, Ariel Rios Building (South Oval 
Lobby), 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

    To file an EIS in person or by commercial express service 
(including Federal Express or UPS), please use the following address:
    (If the documents are to be hand-delivered, you will need to ask 
the security guards to phone our office at (202) 564-5400, so you can 
be escorted to the EIS Filing Section.)

U.S. Environmental Protection Agency, Office of Federal Activities, EIS 
Filing Section, Ariel Rios Building (South Oval Lobby), Room 7220, 1200 
Pennsylvania Avenue, NW., Washington, DC 20004.

    Telephone inquiries can also be made to: (202) 564-1399 or (202) 
564-7146.
    EPA encourages Federal agencies to make their EISs available on the 
internet. Those that do should send EPA a copy of the Web address 
(i.e., URL) for the document. The appropriate information should be e-
mailed to: <a href="/cdn-cgi/l/email-protection#e6a3afb5cba08f8a8f8881a6839687c8818990"><span class="__cf_email__" data-cfemail="b4f1fde799f2ddd8dddad3f4d1c4d59ad3dbc2">[email protected]</span></a> concurrent with filing the EIS as 
required above.
    The EISs must be filed no earlier than they are transmitted to 
commenting agencies and made available to the public (40 CFR 1506.9). 
This will assure that the EIS is received by all interested parties by 
the time EPA's NOA appears in the Federal Register, and, therefore, 
allows for the full minimum comment and review periods.
    If EPA receives a request to file an EIS and transmittal of that 
EIS is not complete, it will not publish a NOA in the Federal Register 
until assurances have been given that the transmittal process is 
complete. Similarly, if EPA discovers that a filed EIS has not been 
transmitted, EPA will issue a notice with the weekly Notices of 
Availability retracting the EIS from public review of the EIS until the 
transmittal process is completed. Once the agency has fulfilled the 
requirements of 40 CFR 1506.9, and has completed the transmittal 
process, EPA will reestablish the filing date and the minimum time 
period, and will publish this information in the next NOA.
    Requirements for circulation of EISs appear in 40 CFR 1502.19. 
Please note that the four EISs submitted to the Office of Federal 
Activities are only for filing purposes; agencies will need to send a 
copy(s) of the EIS directly to the appropriate EPA Regional Office for 
review and comment in accordance with EPA's responsibilities under 
Section 309 of the Clean Air Act.
    EPA must be notified (by letter or email) when a Federal agency 
adopts an EIS in order to commence the appropriate comment or review 
period. If a Federal agency chooses to adopt an EIS written by another 
agency, and it was not a cooperating agency in the preparation of the 
original EIS, the EIS must be re-circulated and filed with EPA 
according to the requirements set forth in 40 CFR 1506.3(b). In turn, 
EPA will publish a NOA in the Federal Register announcing that the 
document will have an appropriate comment or review period. When an 
agency adopts

[[Page 2682]]

an EIS on which it served as a cooperating agency, the document does 
not need to be circulated for public comment or review; it is not 
necessary to file the EIS again with EPA. However, EPA should be 
notified in order to ensure that the official EIS record is accurate. 
EPA will publish an amended NOA in the Federal Register that states 
that an adoption has occurred. This will not establish a comment 
period, but will complete the public record.
    EPA should also be notified of all situations where an agency has 
decided to withdraw, delay, or reopen a review period on an EIS. All 
such notices to EPA will be reflected in EPA's weekly Notices of 
Availability published in the Federal Register. In the case of 
reopening EIS review periods, the lead agency should notify EPA as to 
what measures will be taken to ensure that the EIS is available to all 
interested parties. This is especially important for EIS reviews that 
are being reopened after a substantial amount of time has passed since 
the original review period closed.
    Once received by EPA, each EIS is stamped with an official filing 
date and checked for completeness and compliance with 40 CFR 1502.10. 
If the EIS is not ``complete'' (i.e., if the documents do not contain 
the required components), EPA will contact the lead agency to obtain 
the omitted information or to resolve any questions prior to publishing 
the NOA in the Federal Register.
    Agencies often publish (either in their EISs or individual notices 
to the public) a date by which all comments on an EIS are to be 
received; such actions are encouraged. However, agencies should ensure 
that the date they use is based on the date of publication of the NOA 
in the Federal Register. If the published date gives reviewers less 
than the minimum review time computed by EPA, EPA will send the agency 
contact a letter explaining how the review period is calculated and the 
correct date by which comments are due back to the lead agency. This 
letter also encourages agencies to notify all reviewers and interested 
parties of the corrected review periods.

4. EIS Filing Procedure for COOP Events

    In order to ensure official filing of EISs in the event of a COOP 
event, when EISs cannot be physically delivered to EPA, Federal 
agencies will need to send EPA a copy of the EIS cover sheet to the 
email address identified above. In turn, EPA will use the cover sheet 
information to publish the weekly EIS NOA in the Federal Register.
    During the COOP event, filing agencies should not submit the four 
copies of the EIS to the EPA. However, once the COOP event is over, 
filing agencies will have 14 days to submit the four copies of all EISs 
filed during the event to the EPA's Filing Section. If EPA does not 
receive the four copies of the EIS filed during the COOP event within 
14 days, it will publish a notice in the Federal Register retracting 
the NOA for that EIS.

5. Notice in the Federal Register

    EPA will prepare a weekly report of all EISs filed during the 
preceding week for publication each Friday under a NOA in the Federal 
Register. If the Friday is a Federal holiday the publication will be on 
Thursday. At the time EPA sends its weekly report for publication in 
the Federal Register, the report will also be sent to the CEQ. Amended 
notices may be added to the NOA to include corrections, changes in time 
periods of previously filed EISs, withdrawals of EISs by lead agencies, 
and retraction of EISs by EPA.

6. Time Periods

    The minimum time periods set forth in 40 CFR 1506.10 (b), (c), and 
(d) are calculated from the date EPA publishes the NOA in the Federal 
Register. Comment periods for draft EISs, draft supplements, and 
revised draft EISs will end 45 calendar days after publication of the 
NOA in the Federal Register; review periods for final EISs and final 
supplements will end 30 calendar days after publication of the NOA in 
the Federal Register. If a calculated time period would end on a non-
working day, the assigned time period will be the next working day 
(i.e., time periods will not end on weekends or Federal holidays). 
While these time periods are minimum time periods, a lead agency may 
establish longer time periods. If the lead agency employs a longer time 
period, it must notify EPA of the extended time period when either 
filing the EIS or when the lead agency extends the time period.
    It should be noted that 40 CFR 1506.10(b) allows for an exception 
to the rules of timing. An exception may be made in the case of an 
agency decision which is subject to a formal internal appeal. Agencies 
should assure that EPA is informed so that the situation is accurately 
reflected in the NOA.
    Moreover, under 40 CFR 1506.10(d), EPA has the authority to both 
extend and reduce the time periods on draft and final EISs based on a 
demonstration of ``compelling reasons of national policy.'' A lead 
agency request to EPA to reduce time periods or another Federal agency 
(not the lead agency) request to formally extend a time period should 
be submitted in writing to the Director, Office of Federal Activities, 
and outline the reasons for the request. EPA will accept telephone 
requests; however, agencies should follow up such requests in writing 
so that the documentation supporting the decision is complete. A 
meeting to discuss the consequences for the project and any decision to 
change time periods may be necessary. For this reason, EPA asks that it 
be made aware of any intent to submit requests of this type as early as 
possible in the NEPA process. This is to prevent the possibility of the 
time frame for the decision on the time period modification from 
interfering with the lead agency's schedule for the EIS. EPA will 
notify CEQ of any reduction or extension granted.

7. Retention

    Filed EISs are retained in the EPA Office of Federal Activities for 
a period of two years and are made available to office staff only. 
After two years the EISs are sent to the National Records Center. After 
a total of twenty (20) years the EISs are transferred to the National 
Archives Records Administration (NARA).

8. Soliciting Comments on Future Updates of the EIS Filing Guidelines

    In addition to the modifications to the filing guidelines outlined 
herein, EPA is considering additional modifications that may lead to 
the implementation of an electronic EIS filing process. With that in 
mind, EPA is soliciting comments from Federal agencies, other 
stakeholders and the public on the following questions.

For Federal Agencies

    1. Does your agency make its Draft, Final, and Supplemental EISs 
available for public review on the Internet?
    2. If so, how long do the Draft, Final, and Supplemental EISs 
remain available for review on the Internet?
    3. In a related matter, does your agency mandate how long EISs must 
be available for public review?
    4. If so, how long is that period?
    5. Also, does your agency mandate how long its EISs must be 
retained as official agency records?
    6. If so, how long is that period?

For Stakeholders and the Public

    1. At some point in the future, CEQ and EPA may eliminate the 
publication of weekly Notices of Availability for EISs in the Federal 
Register in favor of a central repository on the Internet

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(possibly on EPA's Web site). Would you find this approach more or less 
useful than the current process?
    2. Do you foresee any problems/issues with reviewing EISs that are 
made available only on the Internet?
    3. In your opinion, how long should EISs remain accessible to the 
public?
    Please submit your responses to the above questions to: Robert 
Hargrove, Director, NEPA Compliance Division, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW. (2252A), Washington, 
DC 20460; or <a href="/cdn-cgi/l/email-protection#1f777e6d786d70697a316d707d7a6d6b5f7a6f7e31787069"><span class="__cf_email__" data-cfemail="c1a9a0b3a6b3aeb7a4efb3aea3a4b3b581a4b1a0efa6aeb7">[email protected]</span></a>, by COB February 28, 2011.

    Dated: January 11, 2011.
Susan E. Bromm,
Director, Office of Federal Activities.
[FR Doc. 2011-758 Filed 1-13-11; 8:45 am]
BILLING CODE 6560-50-P


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