U.S. DEPARTMENT OF THE INTERIORBUREAU OF LAND MANAGEMENT
UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
October 9, 2011
In Reply Refer To:
1790, 2800, 3100 (210/310350) P
EMS TRANSMISSION 10/14/2011
Instruction Memorandum No. 2012-003
To: All Washington Office and Field Officials
Subject: Environmental Protection Agency Review of BLM Environmental Impact Statements
Program Areas: National Environmental Policy Act (NEPA)
Purpose: This Instruction Memorandum (IM) provides guidance on the Environmental Protection Agency’s (EPA) review of BLM Environmental Impact Statements (EIS) pursuant to Section 309 of the Clean Air Act (CAA). This IM describes EPA’s process and the expected roles of the BLM field, state and Washington offices in that process. It also outlines steps that can be taken by the BLM to engage EPA in the NEPA process to identify and resolve issues and concerns at the earliest possible stages of project development.
Policy/Action: Section 309 of the CAA, requires the EPA to review and comment in writing on the EISs of all other Federal agencies. The BLM field, state and Washington offices are instructed to follow the guidance in this IM to improve communications and outcomes related to EPA’s Section 309 review process for BLM EISs. All requests for copies of correspondences and participation by the Washington office outlined in this IM should be directed to the Division Chief of the Division of Decision Support, Planning and NEPA (referred to throughout this IM as WO-210).
Inviting EPA to be a Cooperating Agency
Independent of its Section 309 review authority, EPA may participate in the development of BLM NEPA documents as a cooperating agency. Engaging EPA as a cooperating agency can help to identify and resolve matters of concern early in the process and prior to the release of the draft EIS and Section 309 review. To this end, the BLM will invite the EPA to serve as a cooperating agency on NEPA documents where the EPA has jurisdiction by law or special expertise – e.g., actions requiring a permit pursuant to Section 404 of the Clean Water Act and actions requiring the assessment of air quality impacts (see BLM NEPA Handbook, Chapter 12;
BLM Cooperating Agency Desk Guide). As with any other cooperating agency, EPA would be expected to provide information in those areas where it has special expertise as related to EPA’s duties and responsibilities or those areas where it has regulatory responsibilities. The EPA can accept or decline the BLM’s invitation to be a cooperating agency. EPA’s status as a cooperating agency does not affect its independent responsibilities under Section 309 of the CAA to review and comment on Federal agency EISs.
Cooperating agency invitations should be sent to the respective EPA regional office (see http://www.epa.gov/compliance/contact/nepa_regional.html) with a copy to the Director of EPA Headquarters’ NEPA Compliance Division. Field offices should document any requests made to EPA for cooperating agency status and EPA’s response or non-response as part of the administrative file for the proposed project. Each field office should forward EPA’s response, through its state office, to WO-210 with a copy to the Director of EPA Headquarters’ NEPA Compliance Division.
Engaging EPA in Scoping
Field offices should send scoping requests in writing to the EPA regional office for all NEPA efforts involving EISs. In accordance with their existing policy and procedures, EPA must respond in writing to all scoping requests made specifically to them (EPA 1640, 1984). Scoping responses from EPA will typically include 1) information on potential environmental issues, 2) information or data related to the project area, 3) assessment techniques and methodologies, 4) reasonable alternatives to the proposed action that may avoid or reduce potential adverse impacts, and 5) mitigation measures. As with any other scoping comments, EPA’s input should be considered in the development of the BLM’s NEPA analysis. The BLM offices are encouraged to follow-up with EPA early in the NEPA process in order to fully understand and/or clarify the concerns underlying EPA’s scoping comments.
Field offices should document any scoping requests made to EPA and EPA’s response as part of the administrative file for the proposed project. Any follow-up communications with EPA also should be documented as part of the administrative file.
Issue Draft EIS
The BLM is required to file all draft EISs with EPA Headquarters (see EPA’s Amended EIS Filing System Guidelines (January 2011) http://www.epa.gov/oecaerth/nepa/submiteis/ index.html). Copies also must be provided to applicable EPA regional offices for review. Unless a different deadline is officially established for receiving comments, EPA will provide the results of its Section 309 review in writing to the BLM within 45 days from the EPA’s publication of the Notice of Availability (NOA) of the draft EIS in the Federal Register.
EPA’s Review of Draft EISs
The objective of EPA’s environmental review is to improve decision making by ensuring that its environmental expertise is considered by the action agency (EPA 1640, 1984). After completing its review of a draft EIS, EPA will provide its comments in writing and categorize or “rate” the EIS according to an alphanumeric system. EPA’s comment letters are also published on the EPA website (see: http://www.epa.gov/compliance/nepa/eisdata.html). The alphabetical categories Lack of Objections (LO), Environmental Concerns (EC), Environmental Objections (EO), and Environmentally Unsatisfactory (EU) signify EPA’s relative concerns about the environmental impacts of a proposal. Numerical categories 1, 2, and 3 signify an evaluation of the adequacy of the draft EIS. The ratings are issued in combination, for example EC2, EO2, EO3, EU3, etc. (For more information, refer to Attachment 1 to this IM, which includes definitions for each of EPA’s ratings.) The purpose of the rating system is to summarize the level of EPA’s overall concern with a proposal and identify associated follow-up that will be conducted with the BLM. In general, the rating will correspond to the BLM’s preferred alternative. When a draft EIS does not identify a preferred alternative, EPA will rate all alternatives and provide comments to the BLM based on the alternative receiving the most adverse rating.
In accordance with their existing policy and procedures, EPA will contact the BLM based on the nature of the rating (EPA 1640, 1984). For ratings that include an EO, EU, and/or 3 component, EPA will notify the BLM of its general concerns prior to receipt of EPA’s comment letter. For ratings that include an EU and/or 3 component, the EPA also must attempt to meet with the BLM to discuss EPA’s concerns prior to submission of the comment letter. There is no specified period of advance notice associated with EPA’s requirements to advise the BLM of an adverse rating or to attempt to meet with the BLM. The purpose of such a meeting is to describe the specific EPA concerns and discuss ways to resolve those concerns, ensure that the EPA review correctly interpreted the proposal and supporting information, and inform the EPA of any ongoing action that might resolve the EPA’s concerns.
Each field office must provide copies of all EPA comment/rating letters on draft EISs, through its state office, to WO-210. WO-210 will review and retain the letters in the Washington Office. In addition, each field office, through its respective state office, must notify WO-210 of any rating or potential rating that includes an EU and/or 3 component, and of subsequent meetings scheduled with EPA.
BLM’s Response to EPA’s Comments and Rating
The BLM must address EPA’s comments and rating in the preparation of the final EIS or in the preparation of a supplemental or revised draft EIS, if one is warranted. Field offices are encouraged to conduct follow-up discussions with EPA to ensure that EPA’s concerns are understood and adequately addressed.
As described above, WO-210 will participate in any ongoing communications related to ratings that include an EU and/or 3 component. Field and state offices also should consider engaging WO-210 in any cases where negotiations or discussion with EPA have become unproductive. Field offices should document all post draft communications with EPA as part of the administrative record for the proposed project.
EPA’s Review of Final EISs
EPA will conduct detailed reviews and submit comments to the BLM for those final EISs which had significant issues raised by EPA at the draft stage, including those actions rated EO, EU, or 3. A detailed review of other final EISs may be conducted if the EPA determines that conditions warrant it. Each field office must provide copies of all EPA comment letters on final EISs, through its state office to WO-210. WO-210 will include these letters as part of the Washington Office file.
Pursuant to Section 309(b) of the CAA, if EPA determines the action is “environmentally unsatisfactory,” it must refer the matter to the Council on Environmental Quality (CEQ). Please note that EPA’s referral authority is not limited to actions on which EISs are prepared; EPA can and has referred non-EIS actions to CEQ. In general, the EPA has 25 days after it publishes the NOA for the final EIS in the Federal Register to notify the BLM of a referral to CEQ.
Field and state offices immediately should notify WO-210, if EPA intends to make a referral to CEQ or indicates that it is considering such a referral. WO-210 will meet with EPA to attempt to resolve the issues raised, and will expeditiously notify the Department of the Interior’s Assistant Secretary for Land and Minerals Management, Office of the Solicitor, and Office of Environmental Policy and Compliance. Field and state offices will participate in these discussions as necessary and/or provide timely information. In the event that issues cannot be resolved between EPA and the BLM and referral to CEQ occurs, 516 DM 2.2 outlines the procedures to follow.
Timeframe: This IM is effective immediately.
Budget Impact: This policy will result in minor budgetary impacts. However, successful collaboration with EPA for certain projects may take substantial resources.
Background: The EPA is required to review and comment in writing on all Federal actions affecting the quality of the environment (i.e., other Federal agency EISs) pursuant to Section 309 of the CAA, 42 U.S.C. § 7609. In addition to submitting formal comments, the EPA assigns each EIS an alphanumeric rating that describes its level of concern over potential environmental impacts of the action and the adequacy of the NEPA analysis. EPA also may review and comment in writing on environmental assessments when it believes the action may lead to significant environmental effects (EPA 1640, 1984). Federal agencies must respond to EPA’s input as part of the NEPA process. The appropriate method of responding will depend on the nature of the comments raised and the rating assigned to a given EIS. Unresolved adverse ratings can result in referral to the CEQ. It is the BLM’s goal to engage EPA early in the NEPA process to identify and resolve any comments and concerns prior to the publication of the draft EIS, or at a minimum, in the final EIS.
Manual/Handbook Sections Affected: None.
Coordination: The policy expressed in this IM was coordinated with the Department of the Interior Office of the Solicitor and EPA Headquarters’ NEPA Compliance Division.
Contact: If there are any questions concerning this IM, please contact Shannon Stewart, Senior Planning and Environmental Analyst, Washington Office Division of Decision Support, Planning and NEPA (WO-210) at 202-912-7219; or Marci Todd, Division Chief, Washington Office Division of Decision Support, Planning and NEPA (WO-210) at 202-912-7292.
Signed by: Authenticated by:
Robert V. Abbey Robert M. Williams
Director Division of IRM Governance,WO-560
 Director, NEPA Compliance Division; U.S. Environmental Protection Agency; 1200 Pennsylvania Ave., NW; Room 7241A (MC 2252A); Washington, D.C. 20460-0001