[Federal Register Volume 79, Number 153 (Friday, August 8, 2014)]
[Notices]
[Pages 46410-46419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18730]
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DEPARTMENT OF DEFENSE
Office of the Secretary
[Docket ID DoD-2014-OS-0062]
National Environmental Policy Act Implementation Procedures
AGENCY: Missile Defense Agency, Department of Defense.
ACTION: Final guidance.
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SUMMARY: The Missile Defense Agency (MDA or the Agency) is issuing
procedures to implement the National Environmental Policy Act (NEPA),
Executive Order (E.O.) 11514, and Council on Environmental Quality
(CEQ) regulations on implementing NEPA.
DATES: This final guidance document is effective August 8, 2014.
FOR FURTHER INFORMATION CONTACT: Mr. Eric Sorrells, Chief,
Environmental Management, at (256) 450-2677 or by email at
[email protected].
SUPPLEMENTARY INFORMATION: MDA published its proposed procedures to
implement the National Environmental Policy Act (NEPA), Executive Order
(E.O.) 11514, and Council on Environmental Quality (CEQ) regulations on
implementing NEPA (Code of Federal Regulations (CFR) parts 1500-1508)
in the Federal Register on May 7, 2014 (79 FR 26213-26223). The 30-day
public comment period closed on June 6, 2014 and MDA did not receive
any public comments.
MDA is responsible for developing, testing, and fielding an
integrated, layered, Ballistic Missile Defense System (BMDS) to defend
the United States, its deployed forces, allies, and friends against all
ranges of enemy ballistic missiles in all phases of flight. Using
complementary interceptors; land-, sea-, air-, and space-based sensors;
and battle management, command and control, and communications systems,
the planned BMDS is intended to engage and negate all classes and
ranges of ballistic missile threats.
MDA and its predecessor organizations prepared several programmatic
BMDS National Environmental Policy Act (NEPA) documents to analyze the
environmental impacts of its actions. In addition, MDA has prepared or
been a cooperating agency for over 70 environmental assessments (EAs)
or environmental impact statements (EISs) for specific program
activities. These NEPA documents cover activities including research
and development, site preparation and construction,
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maintenance and sustainment, manufacture of test articles (prototypes),
test and evaluation, fielding of missile defense systems and
components, and the ultimate decommissioning and disposal or transfer
of BMDS components and assets at many DoD installations, other agency
sites, and industrial sites around the globe. Additionally, MDA has
carefully considered over 200 records of environmental consideration
(RECs)/records of categorical exclusion/Air Force Form 813s documenting
the use of the respective military Service's Categorical Exclusions
(CATEXs) for minor actions occurring on host installations or ranges.
As a DoD agency, the MDA does not own real property. Because most
MDA actions typically occur on host military service installations or
ranges, or other Federal agency properties, MDA has historically relied
upon our host installation or Federal agency's NEPA implementation,
including their implementing procedures and CATEXs, to address the
environmental impacts of MDA actions.
With the issuance of CEQ guidance ``Establishing, Applying, and
Revising Categorical Exclusions under the National Environmental Policy
Act'' (2010) and after consulting informally with the CEQ, MDA
determined the need to establish NEPA implementing procedures and
CATEXs specific to MDA projects and actions. The information that MDA
assembled while developing our CATEXs is described in the
``Administrative Record for Missile Defense Agency Proposed Categorical
Exclusions'' and is available on the MDA Web site at: http://www.mda.mil//news/environmental_reports.html.
MDA's CATEXs describe the categories of actions that the Agency
determined will not normally have a potential significant effect,
individually or cumulatively on the human environment; and together
with these implementing procedures will guide MDA organizations in
carrying out the procedural requirements of NEPA.
The text of the complete final Guidance document appears below.
Dated: August 4, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
Table of Contents
MISSILE DEFENSE AGENCY NATIONAL ENVIRONMENTAL POLICY ACT PROCEDURES
Purpose
Scope
Policy
Responsibilities
Public Involvement
Environmental Review Categories
Categorical Exclusions (CATEX)
Environmental Assessment (EA)
Finding of No Significant Impact (FONSI)
Environmental Impact Statement (EIS)
Scoping
Draft Environmental Impact Statement (DEIS)
Final Environmental Impact Statement (FEIS)
Record of Decision (ROD)
Memorandum for Record (MFR)
Administrative Record
Mitigation and Monitoring
Cumulative Impacts
Supplemental EAs or EISs
Cooperating Agencies
Adoption of EA or EIS
Incorporation by Reference
Tiering
Classified Actions
Actions Occurring on Host Installations or Ranges
Appendix A--Abbreviations and Acronyms
Appendix B--Categorical Exclusions
Appendix C--Record of Environmental Consideration (REC)
The National Environmental Policy Act Procedures for the Missile
Defense Agency
1. Purpose
These procedures implement the provisions of the NEPA, 42 U.S.C.
4321 et seq. They adopt and supplement the CEQ regulations implementing
NEPA, 40 CFR parts 1500-1508, by establishing policy, directing
environmental planning, and assigning responsibilities in the MDA to
prepare, review, and approve environmental documents that comply with
NEPA.
2. Scope
The policies and responsibilities in these procedures apply to
activities conducted by MDA and its executing agents in the United
States, its possessions, and territories. The potential environmental
effects of MDA proposed activities in foreign countries and global
commons will be considered in accordance with Executive Order 12114,
``Environmental Effects Abroad of Major Federal Activities,'' DoD
directives, host nation final governing standards, overseas
environmental baseline guidance documents, status of forces agreements,
and other international agreements.
3. Policy
(a) It is MDA policy regarding NEPA, consistent with our mission
and regulations and the environmental laws and regulations of the
United States, to: (1) Start the NEPA process at the earliest possible
time as an effective decision-making tool while evaluating a proposed
action; (2) develop and carefully consider a range of reasonable
alternatives to achieve the proposed actions; (3) write environmental
analyses in plain English; and (4) to the maximum extent practical: (i)
Include pollution prevention alternatives, (ii) consider sustainable
transportation, greenhouse gas emissions, and energy choices, and (iii)
ensure that, consistent with other national policies and national
security requirements, we use practical means and measures to protect,
restore, and enhance the quality of the environment and mitigate
adverse consequences. MDA lacks projects or programs where actions are
planned by private applicants or other non-Federal entities. Therefore,
these procedures do not include the provision (as specified at 40 CFR
Sec. 1501.2(d)) to account for actions planned by private applicants
or other non-Federal entities.
(b) MDA will promote efficiency in its NEPA process through: (1)
Being aware and involved with the MDA project advocate (or MDA
proponent) in the NEPA process; (2) using programmatic analyses and
``tiering,'' where appropriate, to make sure that decisions are made at
the right levels, eliminating repetitive discussion, considering
cumulative effects, and focusing on issues that are important and
appropriate for discussion at each level; (3) using scoping and public
involvement processes to ensure the analysis of issues of interest to
the public and/or important to decision making; (4) eliminating
needless paperwork by focusing documents on the major environmental
issues affecting those decisions, including the use of adoption or
incorporation by reference of previous, relevant NEPA analyses prepared
by other agencies; (5) early integration of the NEPA process into all
aspects of MDA planning to prevent disruption in decision making; (6)
partnering or coordinating with agencies, organizations, and
individuals whose specialized expertise improves the NEPA process; (7)
clear and concise communication of data, documentation, and
information; and (8) execution of the NEPA compliance process within
the framework of the MDA's Environmental Management System.
(c) MDA will periodically (at least every seven years) review the
effectiveness of its NEPA program and these implementing procedures,
the appropriateness and usefulness of our categorical exclusions
(CATEXs), the accuracy of predicted findings of no significant impact,
the effectiveness of mitigation, the ramifications of actions both
individually and cumulatively, and
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the currency of the BMDS 2008 Programmatic Environmental Impact
Statement.
(d) MDA will post NEPA implementing procedures, CATEXs, and summary
information on our use of CATEXs for proposed actions on its public Web
site.
4. Responsibilities
(a) The MDA Director has overall authority to ensure MDA activities
comply with NEPA and has final approval authority regarding EIS records
of decision (RODs).
(b) The Agency Environmental Executive (EE) acts as the principal
MDA advisor on NEPA-related requirements. The EE will: (1) Ensure NEPA
compliance of MDA activities in accordance with MDA NEPA implementing
procedures and other applicable NEPA guidance and regulations; (2)
coordinate with MDA stakeholders for NEPA issues regarding program/
element activities; (3) provide intra-agency and inter-agency liaison
and coordination on NEPA-related matters; and (4) have signature
authority for EA findings of no significant impact (FONSIs).
(c) The Chief, Environmental Management will: (1) Educate and train
MDA staff to implement NEPA; (2) coordinate with MDA's EE to maintain a
record of the MDA's environmental activities and advance the national
environmental policy articulated in NEPA, other Federal statutes,
regulations, and Executive Orders; (3) prepare MDA NEPA reviews; (4)
submit Federal Register (FR) notices for draft and final NEPA documents
(as appropriate); (5) represent the MDA in NEPA-related matters with
outside groups; (6) ensure applicable NEPA requirements are met on
schedule during planning for any MDA action; (7) coordinate NEPA
compliance actions at the proposal stage with MDA organizations; (8)
ensure required NEPA mitigation measures are performed; and (9) ensure
all documents being prepared by MDA are properly cleared for public
release prior to the release or posting of the documents on any
publicly accessible Web site or location.
5. Public Involvement
MDA will make diligent efforts to involve the public in
implementing its NEPA procedures in accordance with 40 CFR 1501.4(b),
1506.6 and part 1503. When developing a plan to include the public and
affected parties in the environmental analysis process, MDA will
consider the following factors: (1) The magnitude of the environmental
considerations associated with the proposed action; (2) the extent of
expected public interest; and (3) any relevant questions of national
concern.
6. Environmental Review Categories
A proposed action may fall into these five broad categories for
environmental review:
(a) Exemption by law. To use an exemption by law, the law must
apply to MDA and must prohibit, exempt, or make impossible full
compliance with NEPA.
(b) Emergencies. If an emergency requires MDA to take immediate
actions for national defense or security or to protect life or
property, the following provisions apply. (1) The responsible official
may take actions necessary to control the immediate impacts of the
emergency and are urgently needed to mitigate harm to life, property,
or important natural or cultural resources. When taking such actions,
the responsible official must take into account the probable
environmental consequences of the emergency action and mitigate
foreseeable adverse environmental effects to the extent practical. (2)
For emergency actions other than those actions in paragraph (b)(1), if
the responsible official responding to the emergency and the
Environmental Management Division jointly conclude the emergency
actions qualify for a CATEX and do not involve extraordinary
circumstances that prevent using a CATEX as defined in these
procedures, no further analysis is required to comply with NEPA before
proceeding with emergency actions. The Environmental Management
Division will prepare a Record of Environmental Consideration (REC) to
document this conclusion. (3) If the responsible official proposes
emergency actions other than those in paragraph (b)(1), and the actions
do not qualify for a CATEX but will not likely have significant
environmental impacts, MDA will document that determination in an
Environmental Assessment (EA) and Finding of No Significant Impact
(FONSI) prepared in accordance with these procedures. If the
responsible official determines that the proposed emergency actions
must be undertaken before preparing an EA and FONSI, the Chief,
Environmental Management will consult with the MDA EE about alternative
arrangements for NEPA compliance. The EE may grant emergency
alternative arrangements that meet the intent of NEPA, to the extent
possible. To the maximum extent practical, these alternative
arrangements will ensure public notification and involvement. They will
focus on minimizing the adverse environmental consequences of the MDA
response action and emergency. Any alternative arrangements must be
documented. The Chief, Environmental Management will inform the Council
on Environmental Quality (CEQ) of these arrangements at the earliest
opportunity. (4) If the responsible official proposes emergency actions
other than those in paragraph (b)(1) and those actions are likely to
have significant environmental impacts, then the Chief, Environmental
Management must consult with CEQ about alternative arrangements in
accordance with CEQ regulations at 40 CFR 1506.11 as soon as possible.
(c) Categorical Exclusions (CATEXs). These are categories of Agency
actions (listed in Appendix B) that MDA has determined do not
individually or cumulatively have a significant impact on the human
environment. MDA may use CATEXs for a proposed action when there are no
extraordinary circumstances that warrant further analysis in an EA or
EIS.
MDA will document designated CATEXs in writing using a REC
(Appendix C). An MDA REC is a signed statement submitted with project
documentation that concisely documents that an MDA action has received
environmental review. The REC briefly describes the proposed action and
time period, identifies the MDA proponent and approving official(s),
addresses the use of screening criteria, and demonstrates that a review
was conducted to ensure that no extraordinary circumstances indicate
the need for further analysis. Qualifications for a CATEX are described
later in this section.
(d) Environmental Assessment (EA). Proposed MDA actions not covered
in the first three categories must be analyzed to determine their
potential environmental effects. An EA is used to determine whether to
prepare an EIS or a FONSI (40 CFR Sec. Sec. 1501.4 and 1508.9);
however, MDA is not required to prepare an EA if we have decided to
prepare an EIS. (See 40 CFR 1501.3(a)). The requirements for the EA are
addressed later in these procedures.
(e) Environmental Impact Statement (EIS). When a proposed action
has the potential for significant impacts or when an EA cannot support
a FONSI, an EIS will be prepared (40 CFR 1501.4). An EIS is initiated
by the notice of intent (NOI) and examines the potential significant
environmental effects of the proposed action plus measures to mitigate
those impacts. This process requires formal interaction with the
public, a formal scoping process, specified timelines for public review
of the documentation, and incorporation of
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public comments as well as any comments made by Federal, State, local,
and tribal agencies. Requirements for the EIS are addressed later in
these procedures.
7. CATEX
(a) If the proposed action qualifies as a CATEX and the screening
criteria are met, the action can proceed. Appendix B lists MDA's
CATEXs. Appendix C shows an MDA REC form to be used to document
designated CATEXs.
(b) MDA may use a CATEX only when the following screening criteria
are met: (1) The proposed action is a Federal action over which we have
primary responsibility and, as described in its entirety, is covered by
one or more CATEXs listed in Appendix B; (2) the proposed action does
not involve any of the extraordinary circumstances described in
paragraph (d) below; and (3) the proposed action does not involve using
unproven technology that could potentially result in unknown impacts.
(c) Applying a CATEX to an action does not eliminate the need to
meet other statutory or regulatory requirements including general
conformity, federally-listed threatened or endangered species or their
designated critical habitat, historic and cultural preservation, and
safe drinking water requirements or other applicable Federal, state, or
local regulatory requirements.
(d) ``Extraordinary circumstances'' arise when a typically
categorically-excluded action has the reasonable likelihood to result
in individually or cumulatively significant impacts on public health,
safety, or the environment, based on the specific situation where the
CATEX is applied. Extraordinary circumstances that preclude using a
CATEX include: (1) A reasonable likelihood the proposed action would
result in uncertain, unique, or unknown environmental risks, or is
scientifically controversial; (2) a reasonable likelihood the proposed
action would establish precedents or commit MDA to future actions with
potential for significant impacts; (3) a reasonable likelihood the
proposed action would threaten to violate Federal, state, or local
environmental laws; (4) a reasonable likelihood the proposed action
would adversely affect environmentally sensitive resources, such as,
but not limited to, Federally-listed threatened and endangered species,
their designated critical habitat, wilderness areas, floodplains,
wetlands, aquifer recharge areas, coastal zones, wild and scenic
rivers, and significant fish or wildlife habitat, unless the impact was
permitted, mitigated, or addressed through another environmental review
process, for example, the Clean Water Act or Coastal Zone Management
Act; (5) a reasonable likelihood the proposed action would adversely
affect known national natural landmarks, or cultural or historic
resources, including, but not limited to, property listed on or
eligible for the National Register of Historic Places, unless the
impact was permitted, mitigated, or addressed through another
environmental review process, such as the National Historic
Preservation Act; or (6) a reasonable likelihood of causing an increase
in surface transportation congestion that would exceed capacity of the
supporting infrastructure or otherwise cause significant impacts to the
human environment.
(e) MDA will review its CATEXs at least every seven years to
determine whether modifications, additions, or deletions are
appropriate, based on our experience and determination that
environmental impacts of certain activities are not significant. If MDA
acquires new responsibilities through legislation or administrative
restructuring, we may propose new or modified CATEXs after gaining
sufficient experience with the new activities to make a reasoned
determination that any resulting environmental impacts are not
significant. MDA will submit recommendations for modifications,
additions, or deletions to CEQ for informal consultation and
discussion.
8. Environmental Assessment (EA)
(a) An EA is a concise public document agencies/services prepare to
inform decision makers and determine if the proposed action has the
potential to significantly impact the environment (which then would
require the preparation of an EIS). In cases when no potentially
significant impact is expected, an agency/service documents this
determination with a FONSI. An EA may be prepared at any time to help
agencies/services plan and make decisions. Typical MDA actions normally
requiring an EA include: (1) New construction of facilities that
involves more than five cumulative acres of new surface disturbance;
(2) proposed actions that potentially result in significant changes to
established land use; or (3) actions substantially altering ongoing MDA
operations which could potentially lead directly, indirectly, or
cumulatively to substantial environmental impacts.
(b) An EA is prepared to assess the extent of potential
environmental impacts resulting from a proposed action and
alternatives, and to determine whether or not the impacts are likely to
be significant. The EA must include, at a minimum, the following
information and analyses: (1) Purpose and need for the proposed action
or activity; (2) description of the proposed action; (3) brief
discussion of the alternatives considered, including the ``no action''
alternative and the ``proposed action;'' (4) brief discussion of the
affected environment and region of influence; (5) analysis of the
potential environmental impacts of the proposed action and
alternatives; (6) list of preparers, agencies and persons consulted;
and (7) references.
(c) The analysis of potential environmental impacts (item (b)(5)
above) includes an assessment of the direct, indirect, and cumulative
impacts that can reasonably be expected from taking the proposed action
or reasonable alternatives. When there are direct or indirect effects
on an aspect of the environment from the proposed action, then MDA must
also consider cumulative effects. Cumulative effects are impacts on the
environment resulting from the incremental impact of the action when
added to other past, present, and reasonably foreseeable future
actions. Actions by Federal agencies, non-Federal agencies and private
parties must be included when considering cumulative effects, as
specified in 40 CFR 1508.7.
(d) The analysis for an EA leads to a determination to either issue
a FONSI or a NOI to prepare an EIS.
(e) MDA should coordinate preparing the EA with other agencies
(e.g., Federal, state, local, or tribal governments) when the action
involves resources they manage or protect. MDA may invite agencies with
jurisdiction by law and with special expertise, to participate as
cooperating agencies (40 CFR 1501.6, 1508.5, 1508.15, and 1508.26).
Factors for determining whether to invite, decline, or end cooperating
agency status are in Attachment 1 of the CEQ Memorandum for Heads of
Federal Agencies: Cooperating Agencies in Implementing the Procedural
Requirements of the National Environmental Policy Act (January 30,
2002).
(f) MDA may request public involvement in preparing the EA or
revising or supplementing the EA, or choose to involve the public after
the EA is prepared. MDA may use scoping but, would not publish the
notice in the FR unless the proposed action was of national interest.
MDA will select the type and format for public involvement to best
support on-time and meaningful public input and coordinate it with the
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host range/installation where applicable.
9. Finding of No Significant Impact (FONSI)
(a) MDA will prepare a FONSI as specified in 40 CFR 1508.13 to
briefly describe why a proposed action will not have a significant
effect on the environment and thus will not require an EIS.
(b) MDA will make the proposed final EA and proposed FONSI
available to the affected public, organizations, and individuals
requesting them, and to whomever we have reason to believe is
interested in the action through the various methods outlined in 40 CFR
1506.6 as we deem appropriate. The public, other Federal, tribal, and
state agencies and other government entities will be given an
opportunity to review and comment on the proposed final EA and unsigned
FONSI. The time period for public review will reflect the magnitude of
the proposed action and its potential for controversy about
environmental effects. A 30-day public review is normal, unless it is
unwarranted due to the limited scope of the proposed action and/or lack
of potential controversy about environmental effects. MDA will make EAs
and FONSIs available on our public Web site and provide an electronic
copy upon request. When MDA determines that it will enhance the
opportunity for public review, we will provide hard copies to local
public libraries or other public depositories.
(c) After closure of the public review period and considering the
comments received, the MDA Environmental Executive will determine
whether to revise the EA, sign the FONSI, start preparing an EIS, or
modify or stop considering the proposed action.
(d) MDA will make the final EA and signed FONSI available on our
public Web site.
10. Environmental Impact Statement (EIS)
(a) Classes of activities that normally require an EIS (40 CFR
1501.4) are: (1) Construction and operations of a major new deployment
site or test range, and (2) development, testing and employment of a
major new missile defense technology with unknown or potentially
significant effects on the environment.
(b) A draft and final EIS will include: (1) The purpose and need
for the proposed action and reasonable alternatives (as specified in 40
CFR 1502.13); (2) reasonable alternatives, including the preferred
alternative and no-action alternative and designation of the preferred
alternative (as specified in 40 CFR 1502.14); (3) the environment
affected or created by the alternatives (as specified in 40 CFR
1502.15); (4) the probable environmental impacts from alternatives
including the proposed action and measures (if any) to minimize impacts
(as specified in 40 CFR 1502.16); and (5) a list of the major preparers
of the EIS (as specified in 40 CFR 1502.17). EIS scope and detail
should be reasonably related to the scope and the probable
environmental impacts of the proposed action and alternative actions
(40 CFR part 1502).
(c) Once MDA decides to prepare an EIS, we will start scoping (as
specified in 40 CFR 1501.7). During scoping, participants help identify
the range of actions, alternatives and impacts to consider (40 CFR
1508.25). MDA will invite affected agencies and interested persons to
help determine the significant issues and alternatives to be addressed.
The scoping phase of the NEPA process, as part of project planning,
will include identifying aspects of the proposal that may have a
significant effect or involve controversy concerning environmental
effects. Scoping will ensure the NEPA analyses are useful for the
decision maker.
(d) As soon as practical after deciding to prepare an EIS and
before scoping, MDA will publish a notice of intent (NOI) to prepare an
EIS in the FR (as specified in 40 CFR 1501.7). This NOI (as specified
in 40 CFR 1508.22) will describe the purpose and need for the proposed
action, and any reasonable alternatives and potential environmental
impacts associated with the action that are available at this early
stage of the NEPA process. Those impacts that tentatively are
determined not to be significant and not warrant discussion in detail
in the EIS may be identified. If a public scoping meeting will be held,
the notice will state when and where. The NOI will identify the MDA
point of contact who can supply more information about the action and
to whom comments should be sent. There will normally be a public input
period of 30 days from the date of publication of the NOI in the FR to
allow other interested agencies and the public an opportunity to review
and comment. Based on input received, MDA will determine if any
additions or modifications to the schedule or scope of the EIS are
appropriate. MDA will consider, in scoping the NEPA analysis and
developing a draft EIS, the extent to which the greenhouse gas
emissions caused by a proposed action should be estimated and
evaluated.
(e) Analyzing potential environmental impacts includes assessing
the direct, indirect, and cumulative impacts that can reasonably be
expected from taking the proposed action or reasonable alternatives.
When there are direct or indirect effects on an aspect of the
environment, then MDA must also consider cumulative effects. Cumulative
effects are impacts on the environment resulting from the incremental
impact of the action when added to other past, present, and reasonably
foreseeable future actions. Actions by Federal and non-federal agencies
and private parties must be included when considering cumulative
effects (as specified in 40 CFR 1508.7).
(f) MDA should coordinate preparing the EIS with other agencies
when the action involves resources they manage or protect. MDA
generally will invite those agencies with jurisdiction by law to
participate as cooperating agencies. MDA may also invite them if they
lack such jurisdiction, in addition to other agencies with special
expertise, as cooperating agencies (40 CFR 1501.6 and 1508.5). Factors
for determining whether to invite, decline, or end cooperating agency
status are in Attachment 1 of the CEQ Memorandum for Heads of Federal
Agencies: Cooperating Agencies in Implementing the Procedural
Requirements of the National Environmental Policy Act (January 30,
2002).
10.1 Draft Environmental Impact Statement (DEIS)
(a) MDA will prepare a draft environmental impact statement (DEIS)
(as specified in 40 CFR 1502.9) in the format recommended in the CEQ
regulations at 40 CFR 1502.10 unless there is a compelling reason to
use another format.
(b) MDA will electronically file the DEIS with the Environmental
Protection Agency (EPA) and request comments from any Federal agency
that has jurisdiction by law, the public, native American tribes, or
other interested Federal, state, and local agencies (as specified in 40
CFR 1503.1). MDA will provide a minimum of 45 days for public comment
on the DEIS. The comment period will begin on the day of publication of
the EPA-issued Notice of Availability (NOA) in the FR (40 CFR 1506.10).
10.2 Final Environmental Impact Statements (FEIS)
After MDA internal approval, we will circulate the final
environmental impact statement (FEIS) (as specified in 40 CFR 1502.19).
MDA will transmit the FEIS to every person, organization, or agency
from which we received substantive comments on the draft and file the
FEIS
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electronically with the EPA (40 CFR 1506.9).
11. Record of Decision (ROD)
(a) After filing the FEIS with the EPA, a ROD will be prepared (as
specified in 40 CFR 1505.2) unless MDA announces that we are
withdrawing the proposed action.
(b) MDA will make the ROD available on the MDA public Web site. MDA
will also make the ROD available to the public through the various
methods outlined in 40 CFR 1506.6, as appropriate.
(c) An action for which an EIS was approved will not start until:
(1) 30 days after the EPA-issued notice of availability (NOA) that the
final EIS was published in the FR; or (2) 90 days after the DEIS NOA
was published in the FR by the EPA, whichever provides the public with
the most notice.
12. Memorandum for Record (MFR)
When MDA reviews actions covered in an existing EA or EIS that we
prepared, we may write a memorandum for record (MFR) to document that
review. When MDA is a cooperating agency in preparing an EIS, we may
adopt the lead agency's EIS without recirculating the EIS as a draft or
as a final EIS. MDA may do this when, after an independent review, we
conclude and document in an MFR that the lead agency adequately
addressed the adopting agency's comments and suggestions. Similarly,
when MDA is a cooperating agency in preparing an EA, we may adopt the
EA without recirculating the EA when, after an independent review, we
conclude and document in an MFR that the lead agency adequately
addressed the adopting agency's comments and suggestions (CEQ Guidance
Memorandum for Heads of Federal Department and Agencies: Improving the
Process for Preparing Efficient and Timely Environmental Reviews under
the National Environmental Policy Act, March 6, 2012; 40 CFR 1506.3).
13. Administrative Record
MDA must maintain the administrative record for the environmental
analysis performed. The administrative record must be retained by MDA
for seven years after completing the action, unless the action involves
controversy concerning environmental effects or is of a nature that
warrants keeping it longer. The administrative record includes all
supporting documents and information used to make the decision. This
administrative record should include, but is not limited to: (1) Maps
and or documents relevant to developing an EA or EIS; (2) formal
communication by a consulting or coordinating agency office; (3)
studies and inventories of affected environmental resources; (4)
correspondence with regulatory agencies; (5) correspondence with and
comments from, private citizens, tribes, local governments, and other
individuals and agencies contacted during public involvement; and (6)
confirmation of publications and transcripts of any public hearing. MDA
will prepare and maintain an index or table of contents for the
administrative record.
14. Mitigation and Monitoring
(a) MDA will indicate whether mitigation measures (as described in
40 CFR 1508.20) will be implemented for the alternative selected in
either the FONSI or ROD, what commitments MDA considered and selected,
and who will be responsible for implementing, funding, and monitoring
the mitigation measures.
(b) Where possible and appropriate because of amount, MDA will
include the cost of mitigation as a line item in the budget for a
proposed project. Upon request, MDA will also make the results of
mitigation monitoring available to the public.
(c) MDA may ``mitigate to insignificance'' potentially significant
environmental impacts found during preparation of an EA, instead of
preparing an EIS. The FONSI for the EA will include these mitigation
measures, which will be carried out as the project is implemented. If,
for any reason, MDA later abandons or does not meet the mitigation
commitments upon which the FONSI relied, we will prepare a supplemental
environmental document before continuing the project. If potentially
significant environmental impacts might result from any project
revisions, MDA will prepare an EIS if we used an EA for the decision to
proceed, or we will prepare a supplemental EIS, if we used an EIS for
the decision to proceed.
15. Supplemental EAs or EISs
(a) MDA will prepare a supplement to an EA or EIS in accordance
with 40 CFR 1502.9(c), when there are substantial or significant new
circumstances or information related to the proposed action, or to the
environmental concerns of the proposed actions, which bear on the
proposed action or its impacts. MDA may also prepare a supplement when
the purposes of NEPA will be furthered by doing so.
(b) MDA prepares supplemental documents following the same general
process as the original EA or EIS. No new scoping is required for a
supplemental EIS; however, we may choose to conduct scoping (40 CFR
1502.9(c)(4)).
(c) When a supplemental EA or EIS is prepared, MDA will issue a new
FONSI or ROD as appropriate.
16. Cooperating Agencies
When MDA is the lead agency (40 CFR 1501.5), we will invite Federal
agencies with jurisdiction by law to serve as cooperating agencies. MDA
may invite Federal, tribal, state and local agencies with special
expertise to serve as cooperating agencies. The roles of lead and
cooperating agencies are found in 40 CFR 1501.5, 1501.6, and 1508.5,
and the definitions of jurisdiction by law and special expertise are
found at 40 CFR 1508.15 and 1508.5.
17. Adoption of EA or EIS
The MDA may adopt an EA or EIS, or portion thereof, prepared by
another agency where the MDA proposed action is substantially the same
as the action described in the EA, in accordance with CEQ Guidance
Memorandum for Heads of Federal Departments and Agencies: Improving the
Process for Preparing Efficient and Timely Environmental Reviews under
the National Environmental Policy Act, March 6, 2012, or EIS, in
accordance with 40 CFR 1506.3(b). MDA will independently review the EA
or EIS and determine whether it is current, satisfies the requirements
of NEPA, and covers the proposed action. If the actions covered by the
original NEPA analysis and the MDA proposed action are substantially
the same, and MDA was not a cooperating agency, then we will reissue
the EA or EIS as a final document and prepare its own FONSI or ROD, as
appropriate.
18. Incorporation by Reference
MDA will incorporate material by reference to reduce paperwork and
bulk. MDA will incorporate previous NEPA analyses or relevant material
in an EA or EIS by citing and briefly describing the material, and
ensuring that any material incorporated by reference will be made
reasonably available for inspection by potentially interested persons
within the time allowed for comment either in the EA, EIS, or on our
Web site as specified in 40 CFR 1502.21.
19. Tiering
MDA will use tiered environmental documents to eliminate repetitive
discussions of the same issues and to focus on those issues relating to
specific
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MDA actions (40 CFR 1502.20 and 1508.28). If MDA adopts another Federal
agency's environmental document, we may also tier our subsequent MDA
environmental documents from the adopted document.
20. Classified Actions
(a) Classification of an action for national security does not
relieve MDA from the requirements of NEPA. MDA will prepare, safeguard,
and disseminate NEPA documents in accordance with MDA and DoD
requirements for classified information (i.e., MDA Manual 5200.02-M
``Information Security Program,'' DoD Manual 5200.01 ``DoD Information
Security Program,'' or current issuance).
(b) In accordance with DoD and MDA Security Policy, NEPA documents
that include classified information/actions will be written so that the
classified information/actions are included in separate appendix(es) so
that the unclassified portions of the documents can be made available
to the public.
(c) When classified information is such an integral part of the
analysis of a proposal that MDA cannot produce a meaningful
unclassified NEPA analysis, the MDA proponent, in consultation with the
appropriate environmental offices, will form a team to review the
classified NEPA analysis. This team will include environmental
professionals to ensure the consideration of environmental effects is
consistent with the letter and intent of NEPA, including public
participation requirements for unclassified aspects.
21. Actions Occurring on Host Installations or Ranges
MDA as a tenant will work with the host agency/service to fulfill
MDA and the host's implementing regulations (or procedures) and
guidance in complying with NEPA and related Executive Orders. The
specific requirements of the agency/service making a decision supported
by the NEPA analysis and documentation will apply. If multiple agencies
will use the NEPA analysis and documentation, then the process followed
in developing it will comply with the most stringent requirement in the
respective NEPA implementing procedures and regulations.
Appendix A--Abbreviations and Acronyms
ACM Asbestos-containing material
ANSI American National Standards Institute
BMDS Ballistic Missile Defense System
CATEX Categorical Exclusion
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
DEIS Draft Environmental Impact Statement
DPF Facilities, Military Construction, & Environmental Management
Division
EA Environmental Assessment
EE Environmental Executive
EIS Environmental Impact Statement
E.O. Executive Order
EPA Environmental Protection Agency
FEIS Final Environmental Impact Statement
FR Federal Register
FONSI Finding of No Significant Impact
IEEE Institute of Electrical and Electronics Engineers
LBP Lead-based paint
MDA Missile Defense Agency
MFR Memorandum for Record
NEPA National Environmental Policy Act
NOA Notice of Availability
NOI Notice of Intent
OSHA Occupational Safety and Health Administration
PCB Polychlorinated biphenyl
RCRA Resource Conservation and Recovery Act
REC Record of Environmental Consideration
ROD Record of Decision
SPCC Spill Prevention, Control and Countermeasure
U.S.C. United State Code
Appendix B--Categorical Exclusions (CATEXs)
Actions categorically excluded in the absence of extraordinary
circumstances are listed below.
CATEX List:
B-1. Normal personnel, fiscal or budgeting, and administrative
activities and decisions including those involving military and
civilian personnel (for example, recruiting, processing, paying, and
recordkeeping).
B-2. Preparing, revising, or adopting regulations, instructions,
directives, or guidance documents including those that implement
without substantial change the regulations, instructions,
directives, or guidance documents from higher headquarters or other
Federal agencies.
B-3. Decreases, increases, relocation, and realignment of
personnel into existing Federally-owned or commercially-leased space
that does not involve a substantial change affecting the supporting
infrastructure or use of space (e.g., no increase in traffic beyond
the capacity of the supporting network to accommodate such an
increase).
B-4. Routine procurement of goods and services conducted in
accordance with applicable procurement regulations, Executive
Orders, and policies to support operations and infrastructure,
including routine utility services and contracts.
B-5. Administrative study efforts involving no commitment of
resources other than personnel and funding allocations. If any of
these study efforts result in proposals for further action, those
proposals must be considered separately by an appropriate CATEX or
NEPA analysis. Examples include, but are not limited to: Studies to
further administrative, personnel-related, architectural,
engineering, safety, security, siting, and facility audit
activities.
B-6. Studies, monitoring, data and sample collection, and
information gathering that involve no permanent physical change to
the environment. If any of these activities result in proposals for
further action, those proposals must be considered by an appropriate
CATEX or NEPA analysis. Examples include, but are not limited to:
a. Surveys for threatened and endangered species, wildlife and
wildlife habitat, historic properties and archeological sites;
wetland delineations; minimal water, air, waste, material, and soil
sampling (e.g., grab samples).
b. Vulnerability, risk, and structural integrity assessments of
infrastructure.
c. Environmental Baseline Surveys or Environmental Condition of
Property Surveys.
d. Topographical surveying and mapping that does not require
cutting and/or removal of trees.
B-7. Sampling, well drilling and installation, analytical
testing, site preparation, and minimally intrusive physical testing.
These activities could involve minor clearing and grubbing or
movement of heavy equipment such as drill rigs. If any of these
actions result in proposals for further actions, those proposals
must be considered by an appropriate CATEX or NEPA analysis.
Examples include, but are not limited to:
a. Sampling for asbestos-containing materials (ACMs),
polychlorinated biphenyls (PCBs), and lead-based paint (LBP).
b. Topographical surveys and surveys for unexploded ordnance.
c. Minimally-intrusive geological, geophysical surveys, geo-
technical activities, and seismic studies.
d. Minimally-intrusive sampling to determine if hazardous
wastes, contaminants, pollutants, or special hazards are present.
e. Ground water monitoring wells, subsurface soil sampling, and
soil borings (REC required).
B-8. Immediate response to the release or discharge of oil or
hazardous materials in accordance with an approved Spill Prevention,
Control, and Countermeasure (SPCC) Plan or Spill Contingency Plan,
or that is otherwise consistent with the requirements of the EPA
National Contingency Plan.
B-9. Temporary use of transportable power generators or
operational support equipment when located in a previously disturbed
area and when operated in compliance with applicable regulatory
requirements.
B-10. Routine movement, handling, use, and distribution of
materials, including hazardous materials or wastes moved, handled,
or distributed in accordance with applicable regulations, such as
the Resource Conservation and Recovery Act (RCRA), Occupational
Safety and Health Administration (OSHA), and Hazardous Materials
Transportation Act (HMTA).
B-11. Routine movement of mobile test assets (such as ships,
aircraft, mobile sensors, telemetry, etc.) for routine missile
defense test and evaluation; repair, overhaul or maintenance; or
home port reassignments where no new support facilities are
required.
B-12. Activities and operations to be conducted in an existing
non-historic structure which are within the scope of and are
compatible with the present functional
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use of the building, will not cause a substantial increase in waste
discharged to the environment, will not result in substantially
different waste discharges from current or previous activities, and
emissions will remain within established permit limits, if any.
B-13. Acquisition, installation, modification, routine repair
and replacement, and operation of utility (e.g., water, sewer, and
electrical) and communication systems, mobile antennas, data
processing cable and similar electronic equipment that use existing
rights-of-way, easements, distribution systems, facilities, or
previously disturbed land (REC required).
B-14. Acquisition, installation or minor relocation, operation
and maintenance, or evaluation of physical security devices or
controls to protect human or animal life and to enhance the physical
security of existing critical assets in compliance with applicable
Federal, tribal, state and local requirements to protect the
environment. Examples include, but are not limited to:
a. Motion detection systems.
b. Raptor electrocution prevention devices.
c. Lighting.
d. Remote video surveillance systems.
e. Access controls.
f. Physical barriers, fences, grating, on or adjacent to
existing facilities (REC required).
B-15. Maintenance of archaeological, historical, and endangered
or threatened species avoidance markers, fencing, and signs.
B-16. Road or trail construction and repair on existing rights-
of-ways or in previously disturbed areas which do not result in a
change in functional use. Runoff, erosion, and sedimentation are
controlled through implementation of best management practices (REC
required).
B-17. Routine repair and maintenance of buildings, vessels,
aircraft, grounds, and other facilities and equipment which do not
result in a change in functional use or a significant impact on a
historically significant element or setting. Examples include, but
are not limited to: Repair of roofs, doors, windows, or fixtures,
localized pest management, and minor erosion control measures.
B-18. New construction or equipment installation or alterations
(interior and exterior) to or construction of an addition to an
existing structure that is similar to existing land use if the area
to be disturbed has no more than 5.0 cumulative acres of new surface
disturbance. The following conditions must be met:
a. The structure and proposed use are compatible with applicable
Federal, tribal, state, and local planning and zoning standards.
b. The site and scale of construction or improvement is
consistent with those of existing, adjacent, or nearby buildings.
c. The construction or improvement will not result in uses that
exceed existing support infrastructure capacities (roads, sewer,
water, parking, etc.).
This does not include construction of facilities for the
transportation, distribution, use, storage, treatment, and disposal
of solid waste or hazardous waste (REC required).
B-19. Demolition of non-historic buildings, structures, or other
improvements and repairs that result in disposal of debris there-
from, or removal of a part thereof for disposal, in accordance with
applicable regulations, including those regulations applying to
removal of ACM, PCBs, LBP, and other special hazard items (REC
required).
B-20. Research, testing, and operations conducted at existing
facilities and plants or laboratories (including contractor-operated
laboratories and plants) and in compliance with all applicable
safety, environmental, and natural conservation laws. Examples
include, but are not limited to: Wind tunnels, high-energy lasers,
remote-sensing instruments, vacuum chambers, high-altitude simulator
facilities, and propellant testing facilities.
B-21. Routine installation and use of radars, telemetry systems,
communications equipment, and other essentially similar facilities
and equipment within a launch facility, mobile platform, military
installation, training area, or previously disturbed area that
conform to current American National Standards Institute/Institute
of Electrical and Electronics Engineers (ANSI/IEEE) guidelines for
maximum permissible exposure to electromagnetic fields (REC
required).
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