129 5 Exemptions and Categorical Exclusions Actions, including categorical exclusions (CATXs), that are exempt from the requirements of the National Environmental Policy Act (NEPA) are described in this chapter. This chapter begins with a comprehensive description of the CATX process and is followed by a discussion on the types of actions that are generally excluded from the requirements of NEPA. 5.1 CATEGORICAL EXCLUSIONS CATXs, briey described in Chapter 2, were not fully dened. Because of their clear importance to efciency, this section has been prepared to provide the reader with a thorough understanding of the entire CATX process. A CATX is dened as … a category of actions which do not individually or cumulatively have a signicant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. An agency may decide in its procedures or otherwise, to prepare environmental assessments for the reasons stated in § 1508.9 even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a signicant environmental effect (§ 1508.4). Since the impacts have already been determined to be nonsignicant, neither an environmental assessment (EA) nor an environmental impact statement (EIS) is required to be prepared for those actions qualifying for a CATX. Moreover, each agency is required to adopt implementing proce- dures that include specic criteria for, and identication of, typical classes of action that (ii) … normally do not require either an environmental impact statement or an environmental assess- ment (categorical exclusions). 1 The Council on Environmental Quality (CEQ) recently published draft guidance on establish- ing, revising, and using CATXs. 2 This guidance is intended to assist federal agencies in improving and modernizing their administration of CATXs under NEPA. The draft guidance recommends procedures and approaches for (1) establishing and revising CATXs; (2) involving the public; (3) documenting development, revision, and use of CATXs; and (4) periodically reviewing CATXs. Additional direction can be found in § 1500.4[p], § 1500.5[k], § 1501.4[a], § 1507.3[b], and § 1508.4. Although CATXs are one of the most important streamlining tools available to the NEPA practitioner, experience indicates their application is often underutilized. As far as NEPA’s requirements are concerned, once an action has been categorically excluded, the agency is free to pursue the action. The reader should note, however, that while a CATX satises NEPA’s requirements, it does not necessarily satisfy the requirements of other environmental stat- utes. Some representative examples of CATXs promulgated by the Department of Energy (DOE) are shown below. 3 B2.1 Modications of an existing structure to enhance workplace habitability (including, but not limited to, improvements to lighting, radiation shielding, or heating, ventilating, air conditioning and its instrumentation, and noise reduction). • CRC_7559_CH005.indd 129CRC_7559_CH005.indd 129 1/31/2008 4:31:21 PM1/31/2008 4:31:21 PM © 2008 by Taylor & Francis Group, LLC 130 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners B3.1 (a) Geological, geophysical (such as gravity, magnetic, electrical, seismic, and radar), geochemical, and engineering surveys and mapping, including the establishment of survey marks. B3.2 Aviation activities for survey, monitoring, or security purposes that comply with Federal Aviation Administration (FAA) regulations. B4.7 Adding ber optic cable to transmission structures or burying ber optic cable in existing transmission line rights-of-way. 5.1.1 EXTRAORDINARY CIRCUMSTANCES Occasionally, an action may be technically eligible for a CATX, but because of unusual circum- stances, its potential impacts may be signicant. The NEPA regulations (Regulations) provides for such “extraordinary circumstances.” Agencies are mandated to make provisions for situations (§ 1508.4) under which an EA or EIS must be prepared even though the proposed action technically falls within the scope of a CATX. The Regulations, however, do not dene what constitutes extraordinary circumstances. Consis- tent with the rule of reason, the author suggests that this requirement be interpreted to mean unique or unusual conditions in which a decision-maker, or responsible party, cannot conclude clearly and quickly that the action would result in an insignicant impact. The author suggests some basic factors that may be useful in devising specic criteria for dening extraordinary circumstances: Unresolved conicts concerning alternate uses of available resources within the meaning of NEPA (§ 102[2][E]) Actions that may involve effects that are highly controversial (§ 1508.28[b][4]) Proposals connected to other actions with potentially signicant impacts (§ 1508.25[a][1]) Actions with effects that are uncertain, unique, or involve unknown risks (§ 1508.27[b][5]) Actions that establish a precedent for future actions with signicant effects (§ 1508.27[b][6]) Again, consistent with the rule of reason, the author suggests some additional circumstances where the application of a CATX may be inappropriate: Where it has the potential to affect an undisturbed area When it is outside the size or scope of activities that would normally be excluded under a CATX When it involves the use of hazardous, toxic, or radioactive chemicals that could harm the environment When it involves unproven activities or technology When it could affect archaeological or cultural resource sites, ecologically critical areas or habitats, sensitive and endangered species, wild and scenic rivers, wetlands, oodplains, or coastal zones 5.1.2 ADOPTING CATXS Agencies are encouraged by the CEQ to review their list of exclusions periodically and where appropriate update them. The CEQ also encourages agencies to list out examples of activities that fall within these categories. 4 Agencies are expected to involve the CEQ in the review of proposed CATXs during the draft stage. A formal system should be established for screening proposed actions against CATX eligi- bility criteria and extraordinary circumstances. • • • • • • • • • • • • • CRC_7559_CH005.indd 130CRC_7559_CH005.indd 130 1/31/2008 4:31:22 PM1/31/2008 4:31:22 PM © 2008 by Taylor & Francis Group, LLC Exemptions and Categorical Exclusions 131 One approach for identifying potential CATXs involves reviewing EAs that have previously resulted in ndings of no signicant impact (FONSI). Conversely, CATXs should be revoked or revised if experience indicates a history of inappropriate use as follows: A scope that is excessively broad A potential for signicant impacts, either individually or cumulatively As one example, prior to the approval of a medication, the Food and Drug Administration (FDA) used to prepare an EA for each new drug brought to the market. Yet, after many years of practice, only one case had required the preparation of an EIS. Many years of experience demonstrated a general lack of signicant environmental impacts related to the approval of new drugs. Based on this record, the FDA established a rm basis to broaden its CATXs for future drug approvals. 5 The CEQ reviews and approves the adoption of CATXs to verify that they are consistent with NEPA’s regulatory requirements. Because NEPA is a public process, proposed CATXs are published prior to their formal adoption, so that the public is given an opportunity to review and comment on them. As the nal step in the adoption process, all CATXs must be published in the Federal Register. 4 5.1.3 APPLYING CATXS As depicted in Figure 5.1, proposed actions should be carefully reviewed to ensure that they fall appropriately within the scope of a CATX. 6 Agencies might wish to consider the use of a sliding- scale approach in reviewing an action’s eligibility for a CATX. Based on such an approach, activities considered routine or trivial in nature may receive only a cursory review, while more atypical or complex activities are scrutinized with an increasing level of attention. • • Review proposal against agency’s list of CATXs Does proposed action fit within an existing CATX? Perform any necessary reviews (e.g., biological, cultural) Extraordinary circumstances? Does use of the CATX need to be documented? Prepare documentation Proceed with the action Begin preparation of EA or EIS Yes No No Yes No Yes FIGURE 5.1 Generalized process for categorically excluding actions. CRC_7559_CH005.indd 131CRC_7559_CH005.indd 131 1/31/2008 4:31:22 PM1/31/2008 4:31:22 PM © 2008 by Taylor & Francis Group, LLC 132 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners If appropriate, a review is performed to conrm that the proposal does not trigger any of the 10 signicant criteria (§ 1508.27[b]) listed in the Regulations. Care should also be taken to ensure that the context (e.g., historic or cultural resource, or ecologically sensitive area) in which the action would occur is not overlooked (§ 1508.27[a]). Candidate actions with individually insignicant impacts should also be reviewed to ensure that they are not connected or related to other actions with potentially signicant impacts (§ 1508.25[a]). Finally, the review should ensure that no extraor- dinary circumstances are involved. Case law. The courts have tended to give agencies broad discretion over the interpretation and application of their CATXs. For example, in 1985 the City of Alexandria, Virginia, challenged the Federal Highway Administration over its decision in favor of a CATX for a highway ramp project. 7 The city claimed that the project involved signicant impacts. The court ruled that the agency’s interpretation of its own CATXs should be given greater weight than the interpretations of either the court or the city. The court went on to explain that it would defer to the agency’s interpretation of its own regulations as long as the agency followed its procedures appropriately. However, in a second case, a court found that an agency’s existing record indicated that a pro- posed CATX for increasing motorized boat trafc on a wild and scenic river had the potential to impact turtles and salmon and to cause conicts among user groups. 8 In a third case, the FAA made a decision allowing an airline to schedule passenger service to LaGuardia from a general aviation airport located in the vicinity of numerous historic parks. The FAA concluded that an additional 10 roundtrip ights per day would have a de minimus environ- mental impact and that a CATX was appropriate. The court concluded that the FAA’s failure to prepare an EA or to consult with historic preservation agencies was a harmless error. 9 5.1.4 DOCUMENTING CATXS Some agencies document the execution of their CATX processes to demonstrate that they were indeed reviewed, that the use of the CATX was appropriate, and that no unforeseen factors were present that could cause a signicant impact. For example, the Forest Service has used a decision memo, the DOE has used environmental checklists, and the Bureau of Reclamation has used a categorical exclusion checklist (CXC) consisting of a 1–2 page narrative of the action and a set of questions regarding its possible environmental impacts. One expert stated that, in his view, they amounted to “documenting the fact that an action does not have to be documented.” Former CEQ chairman Alan Hill stated that, in his view, “… an agency should rarely need to document the fact that an activity is categorically excluded from the NEPA process.” 10 In one case, an agency did not document its reliance on a CATX. The court noted that no docu- mentation existed in the record to show that the agency made the CATX determination at the time the action was approved. 11 As depicted by the third decision-making diamond in Figure 5.1, the author suggests that such practices be reserved for important or potentially controversial situations and for circumstances specied in the agency’s NEPA implementation procedures. 5.1.5 STREAMLINING RECOMMENDATIONS Methods that can be used to streamline an agency’s CATX process are described below. 5.1.5.1 Electronic CATX Management Database The DOE’s Westinghouse Savannah River Company has developed an electronic environmental evaluation checklist (EEC) database to manage in an efcient manner the large volume of CATXs that are generated at this site. 12 The database electronically transfers the CATX request form from the initial preparer (usually the project engineer) to the NEPA practitioner responsible for reviewing the request. CRC_7559_CH005.indd 132CRC_7559_CH005.indd 132 1/31/2008 4:31:22 PM1/31/2008 4:31:22 PM © 2008 by Taylor & Francis Group, LLC Exemptions and Categorical Exclusions 133 The electronic data ow mimics the hardcopy workow originally developed for the site. The electronic system totally replaces the original hardcopy paperwork that once took weeks to route through the review and approval process. Barton Marcy, a manager at Westinghouse, has reported that a CATX request was processed and approved in a time as short as an hour. The system is fully searchable and provides a graphical, real-time checklist status so that it can be quickly determined if the request for a project has been approved. A monthly activity report that includes a cover let- ter to the DOE NEPA Compliance Ofcer is automatically generated by the database at the end of each month. Figure 5.2 shows one design for such a system, depicting a system that could be designed to allow a requestor (e.g., project engineer) to log into the database and ll out a short request form Requestor (project engineer) identifies proposed action Requestor logs on to database system using password and fills out NEPA request form NEPA practitioner logs on to system and reviews the NEPA request form CATX is approved and archived in database system. System automatically generates approval notification with an electronic signature Monthly status report is automatically generated from database NEPA compliance officer receives monthly status report NEPA office approves CATX request? Database system notifies requestor of denied approval Notify requestor of approval (approval form is transmitted electronically to requestor) No Yes Pursue action Request form is electronically transmitted to NEPA office Electronic notice Electronic notice FIGURE 5.2 Example of an electronic database system for automating an agency’s categorical exclusion process. CRC_7559_CH005.indd 133CRC_7559_CH005.indd 133 1/31/2008 4:31:22 PM1/31/2008 4:31:22 PM © 2008 by Taylor & Francis Group, LLC 134 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners with information such as the nature of the action or even a proposed CATX that the action might t. On receiving the request, the NEPA practitioner would then use the system, which includes electronic signatures, to process and approve it automatically. A password is used to authenticate the signer’s identity and to place both the requestor’s and approver’s electronic signatures on the approval form. Electronic signatures can be scanned as pictures of actual signatures. 5.1.5.2 Additional Recommendations Additional recommendations are provided below for assisting agencies in streamlining their CATX processes. Practice of documenting CATXs by some agencies should be either eliminated or restricted to actions that are important or potentially controversial. Agency ofcials should periodically review their missions and, as appropriate, expand their supportive lists of exclusions. For example, agencies may want to consider reviewing their lists of CATXs at least every 5 years. Agencies have been criticized for adopting CATXs that are too narrow in scope. Prudence should be exercised in developing CATXs that are restrictive enough to prohibit activities that may be signicant, yet broad enough to provide coverage for the community of activi- ties that are nonsignicant. Agencies should prepare lists of examples of activities that fall within the scope of a CATX. Such examples can clarify the appropriate application of CATXs, reducing poten- tial abuses that may result from their inappropriate use. 5.2 EXEMPTIONS FROM NEPA NEPA’s mandate is both sweeping and comprehensive. With a few exceptions, all proposals for federal action are subject to NEPA’s requirements. Only two categories of federal activities were originally exempted from NEPA’s requirements (§ 1508.18[a]): 1. Funding assistance by general revenue bonds 2. Operation of the legal system A limited number of additional circumstances deemed to be exempt from all or some of NEPA’s requirements have been identied. Some of these exemptions are noted in Table 5.1. To respond effectively to such situations, federal ofcials and NEPA practitioners should be keenly aware of these exemptions. Five categories of actions normally considered to be either partially or completely exempt from NEPA are described below. For additional information, the reader is directed to papers by Schmidt and Swenson. 17 Presidential and executive ofce exemptions Congressional (explicit statutory) exemptions Functional equivalency exemptions Statutory conict (implicit) exemptions Emergency situations In practice, use of these exemptions is limited to a very narrow scope of actions. Prudence must be exercised to ensure that an action legitimately qualies for exclusion. Some exemptions involve complexities beyond the scope of this book. • • • • • • • • • CRC_7559_CH005.indd 134CRC_7559_CH005.indd 134 1/31/2008 4:31:23 PM1/31/2008 4:31:23 PM © 2008 by Taylor & Francis Group, LLC Exemptions and Categorical Exclusions 135 TABLE 5.1 Exemptions from the Requirements of NEPA Executive Order Exemptions Federal Actions Abroad For foreign countries when their environments are signicantly affected by major federal actions, agency procedures are to provide for the preparation of environmental review documents in the following situations …. Where the environmental effects of federal actions are within foreign countries, agencies have exibility under the Executive Order to prepare either concise environmental reviews of the issues involved or to undertake bilateral or multilateral environmental studies. Environmental impact statements will not be required in these circumstances. 13 For Nuclear Activities Abroad Unless not required … the Ofce of Export and Import Control shall promptly arrange for the preparation of an appropriate environmental document …. 14 Statutory Exemptions Clean Air Act Exemption for the EPA No action taken under the Clean Air Act shall be deemed a major federal action signicantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act. 15 Clean Water Act Exemption for EPA Except for the provision of Federal assistance for the purpose of assisting the construction of publicly owned treatment works … and the issuance of a permit … for the discharge of any pollutant by a new source … no action by the Administrator taken pursuant to this Act shall be deemed a major federal action signicantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act. 16 Regulatory Exemptions General Revenue Sharing (§ 1508.18[a] ) Actions do not include funding assistance solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31 USC 1221 et seq., with no Federal agency control over the subsequent use of such funds. Judicial and Administrative Enforcement Actions Actions do not include bringing judicial or administrative civil or criminal enforcement actions (§ 1508.18[a]). Inconsistency of NEPA with Other Statutory Requirements Parts § 1500–1508 of this title provide regulations applicable to and binding on all Federal agencies … except where compliance would be inconsistent with other statutory requirements … (§ 1500.3). The phrase “to the fullest extent possible” in Section 102 means that each agency of the Federal Government shall comply … unless existing law applicable to the agency’s operation expressly prohibits or makes compliance impossible (§ 1500.6). Legislative Proposals Preparation of a legislative environmental impact statement shall conform to the requirements of these regulations except as follows: (1) there need not be a scoping process; (2) the legislative statement shall be prepared in the same manner as a draft statement, but shall be considered the “detailed statement” required by statute (§ 1506.6). Timing Requirements An exception to the rules on timing may be made in the case of an agency decision which is subject to a formal internal appeal (§ 1506.10[b]). Emergencies Where emergency circumstances make it necessary to take an action with signicant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review (§ 1506.11). Inconsistency of Agency NEPA Procedures with Statutory Requirements Agency procedures shall comply with these regulations except where compliance would be inconsistent with statutory requirements … (§ 1507.3[b]). (Continued) CRC_7559_CH005.indd 135CRC_7559_CH005.indd 135 1/31/2008 4:31:23 PM1/31/2008 4:31:23 PM © 2008 by Taylor & Francis Group, LLC 136 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners 5.2.1 PRESIDENTIAL EXEMPTIONS As specied in Section 102 of the Act, NEPA applies to agencies of the federal government. The president is not a federal agency. Thus, decisions made directly by the president (i.e., not generated by a federal agency) are exempt from NEPA. Consistent with this interpretation, the term federal agency does not include the Congress, the judiciary, or the president. The Regulations also exclude “performance of staff functions for the President in his Executive Ofce” (§ 1508.12). Court cases involving this exemption have been split. Hence, there is some question concern- ing its precise scope and validity. Furthermore, some activities involving environmental impacts in foreign countries (including nuclear activities abroad) are exempted under an Executive Order. 5.2.2 EXPLICIT CONGRESSIONAL EXEMPTIONS Congress has the authority to exempt specic actions and legislation from NEPA’s requirements. For example, the Energy Supply and Coordination Act of 1974 granted an explicit statutory exemp- tion to the Environmental Protection Agency (EPA) from complying with NEPA when the agency undertook actions pursuant to the Clean Air Act (CAA) (see Table 5.1). Specically, this act stated, “No action taken under the Clean Air Act shall be deemed a major federal action signicantly affecting the quality of the human environment.” 18 Similarly, certain actions taken by the EPA under the Clean Water Act are exempt from NEPA. 19 Swenson reports several examples and states: In addition there are a number of emergency powers given to EPA by various environmental statutes that are intended to allow EPA to respond quickly, without formal regulatory ndings to various threats to the environment which will not wait for the normal process of regulation. 20 A number of statutory exemptions applying to agency programs other than those of the EPA are not shown in Table 5.1. Mandelker, who provides a partial list of such exemptions, reports: Other environmental protection programs administered by EPA do not contain express exemptions from NEPA. Whether these programs are exempted depends on whether a court determines that their environmental decision-making procedures are functionally equivalent to NEPA’s. 21 The Disaster Relief Act allows the president to declare an emergency situation so that imme- diate assistance can be provided. This act exempts a number of emergency relief activities from NEPA. For instance, the repair and restoration of federal facilities that existed prior to the disaster are exempt in cases where they are limited to restoring these facilities to the state. TABLE 5.1 (Continued) Exemptions from the Requirements of NEPA Classied Actions—National Security Agency procedures may include specic criteria for providing limited exceptions … for classied proposals. They are proposed actions which are specically authorized … to be kept secret in the interest of national defense or foreign policy …. Environmental assessments and environmental impact statements which address classied proposals may be safeguarded and restricted from public dissemination in accordance with agencies’ own regulations applicable to classied information. These documents may be organized so that the classied portions can be included in annexes, in order that the unclassied portions can be made available to the public (§ 1507.3[c]). When Effects Are Only Economic or Social This means that economic and social effects are not intended by themselves to require the preparation of an environmental impact statement (§ 1508.14). CRC_7559_CH005.indd 136CRC_7559_CH005.indd 136 1/31/2008 4:31:23 PM1/31/2008 4:31:23 PM © 2008 by Taylor & Francis Group, LLC Exemptions and Categorical Exclusions 137 Congress has also exempted from NEPA review controversial projects such as the Alaska pipe- line, the San Antonio freeway, and the logging in the Pacic Northwest. 21 In recent years, Congress has increasingly exempted various aspects of other projects and programs from NEPA. For example, in 2002, the Bush administration proposed a “Healthy Forests Initiative” that exempted loggers from the NEPA process in certain re-prone federal forests. Instead of ling individual NEPA statements for each concerned forest, the government would issue only one all- embracing large-scale forest thinning plan. More exemptions are in the works. Section 2055 of the proposed Energy Policy Act of 2005 (H.R. 6) would waive public participation and environmental review under NEPA for many oil and gas drilling activities. Sections 1808 and 2014 of H.R. 6 would allow oil and gas companies to per- form their own NEPA analyses and would reimburse the companies for doing so. This clause offers no criteria for ensuring that such analyses would be unbiased and objective. Title V of H.R. 6 would remove the application of federal laws such as NEPA and the National Historic Preservation Act from energy development decisions on tribal lands. Section 1702 of H.R. 6 limits the evaluation of alternatives to just two: the alternative proposed by the industry and a “no-action” alternative. 5.2.3 FUNCTIONAL EQUIVALENCY EXEMPTIONS In certain instances, the courts have upheld a doctrine known as functional equivalency. This con- cept does not appear in any statute, regulation, or executive order. The functional equivalency doc- trine is based on an argument referred to as statutory redundancy, originally advanced by the EPA with respect to its statutory mission. Under this argument, certain instances exist where NEPA’s requirements are essentially redundant when considered in conjunction with other applicable envi- ronmental statutes. That is, since other environmental statutes are essentially the functional equiva- lent of NEPA, the Act does not apply. Thus, the functional equivalency doctrine implies that … A statute is so compatible with the goals of NEPA that an EIS is not needed to ensure protection of the environment. 20 To say the least, the issue of functional equivalence has been controversial. Its legal foundation has been supported by the courts in some cases but rejected in others. Where courts have ruled in favor of the functional equivalency argument, case law indicates that three criteria have been estab- lished for its applicability: 22 1. Agency’s organic statute must provide “substantive and procedural standards that ensure full and adequate consideration of environmental issues.” 23 2. Agency must afford public participation before a nal alternative is selected. 24 3. Action must be undertaken by an agency engaged primarily in the examination of environ- mental issues. 25 5.2.4 THE EPA The courts have generally found that the EPA’s activities in furtherance of various environmental statutes are the functional equivalent of compliance with NEPA and that the agency is therefore not required to comply with NEPA in those circumstances. The following cases have concluded that, as a result of functional equivalency, the EPA did not have to comply with NEPA for actions under Clean Air Act; 26 Ocean Dumping Act; 24 Federal Insecticide, Fungicide, and Rodenticide Act; 27 Resource Conservation and Recovery Act; 28 and Safe Drinking Water Act. 29 • • • • • CRC_7559_CH005.indd 137CRC_7559_CH005.indd 137 1/31/2008 4:31:23 PM1/31/2008 4:31:23 PM © 2008 by Taylor & Francis Group, LLC 138 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners To date, however, the courts have generally declined to apply functional equivalency to any agency other than the EPA, including departments that have substantial environmental responsi- bilities. For example, one court declined to grant functional equivalency to the National Marine Fisheries Service: 30 The mere fact that an agency has been given the role of implementing an environmental statute is insufcient to invoke the functional equivalency exception. The question of functional equivalency exemptions has been raised most notably with respect to two major environmental laws administered by the EPA: Comprehensive Environmental Restoration, Compensation, and Liability Act (CERCLA) Resource Conservation and Recovery Act (RCRA) 5.2.5 FUNCTIONAL EQUIVALENCE WITH CERCLA Before discussing the applicability of functional equivalency to NEPA, it is instructive to sum- marize some basic differences between the requirements of the NEPA and CERCLA processes. For example, analysis of an affected environment is interpreted much more broadly under NEPA than CERCLA and may extend well beyond the boundaries of a contaminated site. Moreover, NEPA tends to require consideration of a much wider range of alternatives than does CERCLA. Under CERCLA, the public is afforded an opportunity to comment on the selected alternative for remediation. However, unlike NEPA, CERCLA does not require extensive public participation throughout the process. Moreover, CERCLA does not require indirect or cumulative impacts to be addressed. 22 Application of the functional equivalency doctrine to the cleanup of hazardous waste sites under CERCLA remains somewhat unclear and controversial. The EPA has argued that functional equiva- lency extends to its actions under CERCLA, since its basic or organic mission is to protect the envi- ronment. Thus, NEPA’s goals are inherent in the activities performed as part of that mission. Some courts have upheld EPA’s claim, granting it a de facto exemption from NEPA. 31 While the EPA has maintained that functional equivalency extends to its own activities, it has generally held that such equivalency does not extend to remediation activities performed by other federal agencies. The CEQ has also maintained that functional equivalency does not extend to agencies other than the EPA. As viewed by the CEQ, a dual NEPA/CERCLA process enhances environmental protection and provides the public with an opportunity to more fully participate in the decision-making process. 32 Opinions among various agencies have been mixed. The Department of Justice has issued an opinion generally supporting extension of the functional equivalency doctrine to other agencies involved in CERCLA cleanup actions at their facilities. In the past, some agencies such as the DOE have pursued a middle course. For example, rather than depending on functional equivalency, DOE has integrated NEPA values with CERCLA documents. Different departments within the DOD have been split on the issue. Generally, however, the courts have been reluctant to extend functional equivalency to agencies other than the EPA, even in instances where these other agencies have had signicant environmen- tal responsibilities. 5.2.6 FUNCTIONAL EQUIVALENCE WITH RCRA It has been argued that issuing RCRA permits for the treatment and storage of hazardous waste and for disposal facilities is the functional equivalent of NEPA. Such exemption is based on the fact • • CRC_7559_CH005.indd 138CRC_7559_CH005.indd 138 1/31/2008 4:31:23 PM1/31/2008 4:31:23 PM © 2008 by Taylor & Francis Group, LLC [...]... the CEQ and the Air Force designating the situation as an emergency response was reasonable, given the military’s operational and scheduling difficulties © 2008 by Taylor & Francis Group, LLC CRC_ 755 9_CH0 05. indd 141 1/31/2008 4:3 1:2 4 PM 142 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners PROBLEMS 1 Assume an agency has an established CATX for the construction and operation... will take place An action required by Congress for which an agency has no choice or administrative discretion is normally exempt from NEPA. 39 © 2008 by Taylor & Francis Group, LLC CRC_ 755 9_CH0 05. indd 139 1/31/2008 4:3 1:2 3 PM 140 NEPA and Environmental Planning: Tools, Techniques, and Approaches for Practitioners One example involves the siting of a high-level radioactive waste repository at Yucca Mountain... Supply and Environmental Coordination Act of 1974 15 USC § 793(c)(1) 19 33 USC § 1371(c)(1) © 2008 by Taylor & Francis Group, LLC CRC_ 755 9_CH0 05. indd 142 1/31/2008 4:3 1:2 4 PM Exemptions and Categorical Exclusions 143 20 Swenson R T., Desert Storm, desert flood: a guide to emergency and other exemptions from NEPA and other environmental laws, Federal Facilities Environmental Journal, Spring 1991 21 Mandelker... on Environmental Quality, Memorandum: Guidance Regarding NEPA Regulations, 48 Federal Register, 34263, July 28, 1983 5 Yost N C., Testimony before the Committee on Resources United States House of Representatives, Hearing on NEPA: Lessons Learned and Next Steps, November 17, 20 05 6 Lillie T H and Lindenhofen H E., NEPA as a tool for reducing risk to programs and program managers, Federal Facilities Environmental. .. communications 42 CEQ, Preamble to Final CEQ NEPA Regulations, 43 Federal Register 55 978, November 29, 1978, Comments on § 150 6.11 43 Council on Environmental Quality, Memorandum for Federal NEPA Contacts, Emergency Actions and NEPA, Attachment #1, Emergency Alternative Arrangements Under the National Environmental Policy Act, September 8, 20 05 44 Valley Citizens for a Safe Environment v Vest (D Mass 1991)... your headquarters’ NEPA contacts in the event you are unable to reach them (see http://ceq.eh.doe.gov /nepa/ contacts.cfm) 2 Alternative arrangements take the place of an environmental impact statement and only apply to federal actions with significant environmental impacts Lesser actions may be © 2008 by Taylor & Francis Group, LLC CRC_ 755 9_CH0 05. indd 140 1/31/2008 4:3 1:2 4 PM Exemptions and Categorical... 1211 4-4 4 FR 220, November 13, 1979 15 Energy Supply and Coordination Act, 15 USC 793[c][1] 16 USC 1371[c][1] 17 Swenson R T., Desert storm, desert flood: A guide to emergency and other exemptions from NEPA and other environmental laws, Federal Facilities Environmental Journal, Spring 1991; Schmidt O.L., Eight Good Reasons not to Prepare an EIS: Eight Thresholds to the Preparation of an EIS, The NEPA. .. Association, 426 U.S.C 776 (1976) 35 Mandelker D R., NEPA Law and Litigation, Section 5. 03 (5) (b), Clark Boardman Callaghan, New York, 1998 36 Jones v Gordon, 792 F.2d 821, 826 (9th Cir 1986) 37 Gulf Oil Corporation v Simon, 373 F Supp 1102 (D.C 1974), affirmed, 50 2 F.2d 1 154 (Emerg Ct App 1974) 38 Pacific Legal Foundation v Andrus, 657 F.2d 829 (6th Cir 1981) 39 South Dakota v Andrus, 614 F.2d 1190, 1193... conflicts in the processes used for formulating decisions For example, the Endangered Species Act provides a set of decision-making factors to be used in listing endangered species and does not allow NEPA factors to be taken into consideration.38 5. 2.7.1 Ministerial An agency is mandated to perform a ministerial action at the insistence of some authority such as Congress and has no discretion as to whether... Conference, Washington, D.C., 1991 32 Swartz L L., Memorandum on Applicability of NEPA to Federal Agency Actions under CERCLA, Council on Environmental Quality, July 30, 1990 33 Hansen R P and Theodore A W., NEPA/ CERCLA/RCRA Integration: Policy Versus Practice, Current and Future Priorities for Environmental Management, National Association of Environmental Professionals, 18 Annual Conference Proceedings, . process. CRC_ 755 9_CH0 05. indd 133CRC_ 755 9_CH0 05. indd 133 1/31/2008 4:3 1:2 2 PM1/31/2008 4:3 1:2 2 PM © 2008 by Taylor & Francis Group, LLC 134 NEPA and Environmental Planning: Tools, Techniques, and Approaches. 150 7.3[b]). (Continued) CRC_ 755 9_CH0 05. indd 135CRC_ 755 9_CH0 05. indd 1 35 1/31/2008 4:3 1:2 3 PM1/31/2008 4:3 1:2 3 PM © 2008 by Taylor & Francis Group, LLC 136 NEPA and Environmental Planning: Tools,. Act. 29 • • • • • CRC_ 755 9_CH0 05. indd 137CRC_ 755 9_CH0 05. indd 137 1/31/2008 4:3 1:2 3 PM1/31/2008 4:3 1:2 3 PM © 2008 by Taylor & Francis Group, LLC 138 NEPA and Environmental Planning: Tools, Techniques, and Approaches