Subpart B-Procedures

§ 6.200 Criteria for determining when to prepare an EIS.

The following general criteria shall be used when reviewing a proposed EPA action to determine if it will have a significant impact on the environment and therefore require an EIS:

(a) Significant environmental effects. (1) An action with both beneficial and detrimental effects should be classified as having significant effects on the environment, even if EPA believes that the net effect will be beneficial. However, preference should be given to preparing EIS's on proposed actions which, on balance, have adverse effects.

(2) When determining the significance of a proposed action's impacts, the responsible official shall consider both its short term and long term effects as well as its primary and secondary effects as defined in § 6.304 (c). Particular attention should be given to changes in land use patterns; changes in energy supply and demand; increased development in floodplains; significant changes in ambient air and water quality or noise levels; potential violations of air quality, water quality and noise level standards; significant changes in surface or groundwater quality or quantity; and encroachments on wetlands, coastal zones, or fish and wildlife habitat, especially when threatened or endangered species may be affected.

(3) Minor actions which may set a precedent for future major actions with significant adverse impacts or a number of actions with individually insignificant but cumulatively significant adverse impacts shall be classified as having significant environmental impacts. If EPA is taking a number of minor, environmentally insignificant actions that are similar in execution and purpose, during a limited time span and in the same general geographic area, the cumulative environmental impact of all of these actions shall be evaluated.

(4) In determining the significance of a proposed action's impact, the unique characteristics of the project area should be carefully considered. For example, proximity to historic sites, parklands or wild and scenic rivers may make the impact significant. A project discharging into a drinking water aquifier may make the impact significant.

(5) A proposed EPA action which will have direct and significant adverse ef

fects on a property listed in or eligible for listing in the National Register of Historic Places or will cause irreparable loss or destruction of significant scientific, prehistoric, historic or archaeological data shall be classified as having significant environmental impacts.

(b) Controversial actions. An EIS shall be prepared when the environmental impact of a proposed EPA action is likely to be highly controversial.

(c) Additional criteria for specific programs. Additional criteria for various EPA programs are in Subpart E (Title II Wastewater Treatment Works Construction Grants Program), Subpart F (Research and Development Programs), Subpart G (Solid Waste Management Programs) and Subpart H (Construction of Special Facilities and Facility Renovations).

§ 6.202

Environmental assessment.

Environmental assessments must be submitted to EPA by its grantees and contractors as required in Subparts E, F, G, and H of this part. The assessment is to ensure that the applicant considers the environmental impacts of the proposed action at the earliest possible point in his planning process. The assessment and other relevant information are used by EPA to decide if an EIS is required. While EPA is responsible for ensuring that EIS's are factual and comprehensive, it expects assessments and other data submitted by grantees and contractors to be accurate and complete. The responsible official may request additional data and analyses from grantees or other sources any time he determines they are needed to comply adequately with NEPA.

§ 6.204 Environmental review.

Proposed EPA actions, as well as ongoing EPA actions listed in § 6.106(c), shall be subjected to an environmental review. This review shall be a continuing one, starting at the earliest possible point in the development of the project. It shall consist of a study of the proposed action, including a review of any environmental assessments received, to identify and evaluate the environmental impacts of the proposed action and feasible alternatives. The review will determine whether significant impacts are anticipated from the proposed action, whether any feasible alternatives can be adopted or changes can be made in project design to eliminate significant

adverse impacts, and whether an EIS or a negative declaration is required. The responsible official shall determine the proper scope of the environmental review. The responsible official may delay approval of related projects until the proposals can be reviewed together to allow EPA to properly evaluate their cumulative impacts.

§ 6.206 Notice of intent.

(a) General. (1) When an environmental review indicates a significant impact may occur and significant adverse impacts cannot be eliminated by making changes in the project, a notice of intent, announcing the preparation of a draft EIS, shall be issued by the responsible official. The notice shall briefly describe the EPA action, its location, and the issues involved (Exhibit 1).

(2) The purpose of a notice of intent is to involve other government agencies and interested persons as early as possible in the planning and evaluation of EPA actions which may have significant environmental impacts. This notice should encourage agency and public input to a draft EIS and assure that environmental values will be identified and weighed from the outset rather than accommodated by adjustments at the end of the decision-making process.

(b) Specific actions. The specific actions to be taken by the responsible official on notices of intent are:

(1) When the review process indicates a significant impact may occur and significant adverse impacts cannot be eliminated by making changes in the project, prepare a notice of intent immediately after the environmental review.

(2) Distribute copies of the notice of intent as required in Appendix C.

(3) Publish in a local newspaper, with adequate circulation to cover the area affected by the project, a brief public notice stating that an EIS will be prepared on a particular project, and the public may participate in preparing the EIS (Exhibit 2). News releases also may be submitted to other media.

(c) Regional office assistance to program offices. Regional offices will provide assistance to program offices in taking these specific actions when the EIS originates in a program office.

§ 6.208 Draft EIS's.

(a) General. (1) The responsible official shall assure that a draft EIS is prepared as soon as possible after the release

of the notice of intent. Before releasing the draft EIS to CEQ, a preliminary version may be circulated for review to other offices within EPA with interest in or technical expertise related to the action. Then the draft EIS shall be sent to CEQ and circulated to Federal, State, regional and local agencies with special expertise or jurisdiction by law, and to interested persons. If the responsible official determines that a public hearing on the proposed action is warranted, the hearing will be held after the draft EIS is prepared, according to the requirements of § 6.402.

(2) Draft EIS's should be prepared at the earliest possible point in the project development. If the project involves a grant applicant or potential contractor, he must submit any data EPA requests for preparing the EIS. Where a plan or program has been developed by EPA or submitted to EPA for approval, the relationship between the plan and the later projects encompassed by its shall be evaluated to determine the best time to prepare an EIS. Whenever possible, an EIS will be drafted for the total program at the initial planning stage. Then later component projects included in the plan will not require individual EIS's unless they differ substantially from the plan, or unless the overall plan did not provide enough detail to fully assess significant impacts of individual projects. Plans shall be reevaluated by the responsible official to monitor the cumulative impact of the component projects and to preclude the plans' obsolescence.

(b) Specific actions. The specific actions to be taken by the responsible official on draft EIS's are:

(1) Distribute the draft EIS according to the procedures in Appendix C.

(2) Inform the agencies to reply directly to the originating EPA office. Commenting agencies shall have at least forty-five (45) calendar days to reply, starting from the date of publication in the FEDERAL REGISTER of lists of statements received by CEQ. If no comments are received during the reply period and no time extension has been requested, it shall be presumed that the agency has no comment to make. EPA may grant extensions of fifteen (15) or more calendar days. The time limits for review and extensions for State and local agencies; State, regional, and metropolitan clearinghouses; and interested persons shall be the same as those available to Federal agencies.

(3) Publish a notice in local newspapers stating that the draft EIS is available for comment and listing where copies may be obtained (Exhibit 2), and submit news releases to other media.

(4) Include in the draft EIS a notice stating that only those Federal, State, regional, and local agencies and interested persons who make substantive comments on the draft EIS or request a copy of the final EIS will be sent a copy.

(c) Regional office assistance to program office. If requested, regional offices will provide assistance to program offices in taking these specific actions when the EIS originates in a program office.

§ 6.210 Final EIS's.

(a) Final EIS's shall respond to all substantive comments raised through the review of the draft EIS. Special care should be taken to respond fully to comments disagreeing with EPA's position. (See also § 6.304(g).)

(b) Distribution and other specific actions are described in Appendix C. If there is an applicant, he shall be sent a copy. When the number of comments on the draft EIS is so large that distribution of the final EIS to all commenting entities appears impractical, the program or regional office preparing the EIS shall consult with OFA, which will consult with CEQ about alternative arrangements for distribution of the EIS.

§ 6.212 Negative declaration and environmental impact appraisals.

(a) General. When an environmental review indicates there will be no significant impact or significant adverse impacts have been eliminated by making changes in the project, the responsible official shall prepare a negative declaration to allow public review of his decision before it becomes final. The negative declaration and news release must state that interested persons disagreeing with the decision may submit comments for consideration by EPA. EPA shall not take administrative action on the project for at least fifteen (15) working days after release of the negative declaration and may allow more time for response. The responsible official shall have an environmental impact appraisal supporting the negative declaration available for public review when the negative declaration is released for those cases given in Subparts E, F, G, and H.

(b) Specific actions. The responsible official shall take the following specific

actions on those projects for which both a negative declaration and an impact appraisal will be prepared:

(1) Negative declaration. (1) Prepare a negative declaration immediately after the environmental review. This document shall briefly summarize the purpose of the project, its location, the nature and extent of the land use changes related to the project, and the major primary and secondary impacts of the project. It shall describe how the more detailed environmental impact appraisal may be obtained at cost. (See Exhibit 3.) (ii) Distribute the negative declaration according to procedures in Appendix C. In addition, submit to local newspapers and other appropriate media a brief news release with a negative declaration attached, informing the public that a decision not to prepare an EIS has been made and a negative declaration and environmental impact appraisal are available for public review and comment (Exhibit 2).

(2) Environmental impact appraisal. (1) Prepare an environmental impact appraisal concurrently with the negative declaration. This document shall briefly describe the proposed action and feasible alternatives, environmental impacts of the proposed action, unavoidable adverse impacts of the proposed action, the relationship between short term uses of man's environment and the maintenance and enhancement of long term productivity, steps to minimize harm to the environment, irreversible and irretrievable commitments of resources to implement the action, comments and consultations on the project, and reasons for concluding there will be no significant impacts. (See Exhibit 4.)

(ii) Distribute the environmental impact appraisal according to procedures in Appendix C.

§ 6.214 Additional procedures.

(a) Historical and archaeological sites. EPA is subject to the requirements of section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq., Executive Order 11593, the Archaeological and Historic Preservation Act of 1974, 16 U.S.C. 469 et seq., and the regulations promulgated under this legislation. These statutes and regulations establish environmental review procedures which are independent of NEPA requirements.

(1) If an EPA action may affect properties with historic, architectural, archaeological or cultural value which

available, except for the Title II construction grants program. Specific application for the construction grants program is in § 6.504 (c). An EIS shall be prepared for each project found to have significant environmental effects as described in § 6.200.

(d) Application to legislative proposals. (1) As noted in paragraphs (a) (1) and (2) of this section, EIS's or negative declarations shall be prepared for legislative proposals or favorable reports relating to legislation which may significantly affect the environment. Because of the nature of the legislative process, EIS's for legislation must be prepared and reviewed according to the procedures followed in the development and review of the legislative matter. These procedures are described in Office of Management and Budget (OMB) Circular No. A-19.

(2) A working draft EIS shall be prepared by the EPA office responsible for preparing the legislative proposal or report on legislation. It shall be prepared concurrently with the development of the legislative proposal or report and shall contain the information required in § 6.304. The EIS shall be circulated for internal EPA review with the legislative proposal or report and other supporting documentation. The working draft EIS shall be modified to correspond with changes made in the proposal or report during the internal review. All major alternatives developed during the formulation and review of the proposal or report should be retained in the working draft EIS.

(i) The working draft EIS shall accompany the legislative proposal or report to OMB. EPA shall revise the working draft EIS to respond to comments from OMB and other Federal agencies.

(ii) Upon transmittal of the legislative proposal or report to Congress, the working draft EIS will be forwarded to CEQ and the Congress as a formal legislative EIS. Copies will be distributed according to procedures described in Appendix C.

(iii) Comments received by EPA on the legislative EIS shall be forwarded to the appropriate Congressional Committees. EPA also may respond to specific comments and forward its responses with the comments. Because legislation undergoes continuous changes in Congress beyond the control of EPA, no final EIS need be prepared by EPA.

(e) Applicability to the A-95 Review Process. Applicants applying for grants covered by these regulations must assure compliance with all applicable requirements of Office of Management and Budget (OMB) Circular A-95, pursuant to 30.305 of this Chapter.

[40 FR 16815, Apr. 14, 1975, as amended at 41 FR 20655, May 20, 1976]

§ 6.108 Completion of NEPA procedures before starting administrative action. (a) No administrative action shall be taken until the environmental review process, resulting in an EIS or a negative declaration with environmental appraisal, has been completed.

(b) When an EIS will be prepared. Except when requested by the responsible official in writing and approved by CEQ, no administrative action shall be taken sooner than ninety (90) calendar days after a draft EIS has been distributed or sooner than thirty (30) calendar days after the final EIS has been made public. If the final text of an EIS is filed within ninety (90) days after a draft EIS has been circulated for comment, furnished to CEQ and made public, the minimum thirty (30) day period and the ninety (90) day period may run concurrently if they overlap. The minimum periods for review and advance availability of EIS's shall begin on the date CEQ publishes the notice of receipt of the EIS in the FEDERAL REGISTER. In addition, the proposed action should be modified to conform with any changes EPA considers necessary before the final EIS is published.

(c) When an EIS will not be prepared. If EPA decides not to prepare an EIS on any action listed in this part for which a negative declaration with environmental appraisal has been prepared, no administrative action shall be taken for at least fifteen (15) working days after the negative declaration is issued to allow public review of the decision. If significant environmental issues are raised during the review period, the decision may be changed and a new environmental appraisal or an EIS may be prepared.

§ 6.200

Subpart B-Procedures

Criteria for determining when to prepare an EIS.

The following general criteria shall be used when reviewing a proposed EPA action to determine if it will have a significant impact on the environment and therefore require an EIS:

(a) Significant environmental effects. (1) An action with both beneficial and detrimental effects should be classified as having significant effects on the environment, even if EPA believes that the net effect will be beneficial. However, preference should be given to preparing EIS's on proposed actions which, on balance, have adverse effects.

(2) When determining the significance of a proposed action's impacts, the responsible official shall consider both its short term and long term effects as well as its primary and secondary effects as defined in § 6.304(c). Particular attention should be given to changes in land use patterns; changes in energy supply and demand; increased development in floodplains; significant changes in ambient air and water quality or noise levels; potential violations of air quality, water quality and noise level standards; significant changes in surface or groundwater quality or quantity; and encroachments on wetlands, coastal zones, or fish and wildlife habitat, especially when threatened or endangered species may be affected.

(3) Minor actions which may set a precedent for future major actions with significant adverse impacts or a number of actions with individually insignificant but cumulatively significant adverse impacts shall be classified as having significant environmental impacts. If EPA is taking a number of minor, environmentally insignificant actions that are similar in execution and purpose, during a limited time span and in the same general geographic area, the cumulative environmental impact of all of these actions shall be evaluated.

(4) In determining the significance of a proposed action's impact, the unique characteristics of the project area should be carefully considered. For example, proximity to historic sites, parklands or wild and scenic rivers may make the impact significant. A project discharging into a drinking water aquifier may make the impact significant.

(5) A proposed EPA action which will have direct and significant adverse ef

fects on a property listed in or eligible for listing in the National Register of Historic Places or will cause irreparable loss or destruction of significant scientific, prehistoric, historic or archaeological data shall be classified as having significant environmental impacts.

(b) Controversial actions. An EIS shall be prepared when the environmental impact of a proposed EPA action is likely to be highly controversial.

(c) Additional criteria for specific programs. Additional criteria for various EPA programs are in Subpart E (Title II Wastewater Treatment Works Construction Grants Program), Subpart F (Research and Development Programs), Subpart G (Solid Waste Management Programs) and Subpart H (Construction of Special Facilities and Facility Renovations).

§ 6.202 Environmental assessment.

Environmental assessments must be submitted to EPA by its grantees and contractors as required in Subparts E, F, G, and H of this part. The assessment is to ensure that the applicant considers the environmental impacts of the proposed action at the earliest possible point in his planning process. The assessment and other relevant information are used by EPA to decide if an EIS is required. While EPA is responsible for ensuring that EIS's are factual and comprehensive, it expects assessments and other data submitted by grantees and contractors to be accurate and complete. The responsible official may request additional data and analyses from grantees or other sources any time he determines they are needed to comply adequately with NEPA.

§ 6.204 Environmental review.

Proposed EPA actions, as well as ongoing EPA actions listed in § 6.106(c), shall be subjected to an environmental review. This review shall be a continuing one, starting at the earliest possible point in the development of the project. It shall consist of a study of the proposed action, including a review of any environmental assessments received, to identify and evaluate the environmental impacts of the proposed action and feasible alternatives. The review will determine whether significant impacts are anticipated from the proposed action, whether any feasible alternatives can be adopted or changes can be made in project design to eliminate significant