[Federal Register Volume 60, Number 15 (Tuesday, January 24, 1995)]
[Rules and Regulations]
[Pages 4545-4560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1607]
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DEPARTMENT OF DEFENSE
Department of the Air Force
32 CFR Part 989
RIN 0701-AA36
Environmental Impact Analysis Process (EIAP)
AGENCY: Department of the Air Force, DoD.
ACTION: Final rule.
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SUMMARY: The Department of the Air Force revised its regulations to
update the Air Force process for compliance with the National
Environmental Policy Act and Executive Order 12114, Environmental
Effects Abroad of Major Federal Actions. This revision provides policy
and guidance for consideration of environmental matters in the Air
Force decision-making process. It implements the Council on
Environmental Quality regulations and 32 CFR Part 188 as well as
Executive Order 12114.
EFFECTIVE DATE: January 24, 1995.
FOR FURTHER INFORMATION CONTACT: Mr. Kenneth L. Reinertson or Mr. Jack
C. Bush, (HQ USAF/CEVP), 1260 Air Force Pentagon, Washington, DC 20330-
1260, telephone, (703) 695-8942.
SUPPLEMENTARY INFORMATION:
Discussion of Major Issues
Unless otherwise noted, the discussions in the following paragraphs
only address issues where public comments were received and
clarification is required. For portions of the final rule where
comments were not received, the final rule is consistent with the
proposed rule, and no further discussions are included. Portions of the
proposed rule have also been changed so the final rule more clearly
states the intended meaning. Some of these changes are based on public
input, but are not addressed in a specific discussion.
Readers should note that as part of a reduction of bulk and
clarification of this rule, specific reformatting has been
accomplished. Section 989.9, formerly titled, Lead and cooperating
agency, is now titled, Cooperation and adoption.
Section 989.32, Definitions, has now changed to, Attachment 1--
Glossary of References, Abbreviations, Acronyms, and Terms. Section
989.32 is now titled, Procedures for analysis abroad, and Sec. 989.33,
Categorical exclusions, is now, Attachment 2--Categorical Exclusions.
Environmental considerations-- global commons, Sec. 989.34 and,
Environmental considerations--foreign nations and protected global
resources, Sec. 989.35, have been reorganized as Sec. 989.32,
Procedures for analysis abroad, [[Page 4546]] and Sec. 989.33,
Requirements for analysis abroad. This reorganization of the rule was
accomplished to show that Air Force environmental planning abroad is
part of the EIAP, but is not considered a part of the Air Force's NEPA
compliance. Air Force analysis abroad is strictly driven by 32 CFR Part
187, Environmental effects abroad of major DOD actions. Title 32 CFR
Part 187 implements Executive Order 12114, Environmental Effects Abroad
of Major Federal Actions.
The former Sec. 989.36, Procedures for holding public hearings, has
been reformatted as Attachment 3--Procedures for Holding Public
Hearings on Draft Environmental Impact Statements.
1. Combining Documents
Comments: Commenters indicated that comprehensive planning is based
upon a solid information base, quite similar to the information base
required for the EIAP. Commenters further indicated that comprehensive
plans should support good economic, environmental and social management
goals, and the Air Force EIAP should be applied to comprehensive
planning.
Response: Sections 1500.4(o), 1500.5(i) and 1506.4 of the CEQ
regulations address combining environmental documents to reduce
duplication and paperwork. This combination could include any other
type of document so long as the actual NEPA document is in compliance
with that law and the CEQ regulations. Air Force comprehensive planning
includes as a fundamental planning component, environmental constraints
and opportunities. It also incorporates operational, urban planning,
and capital improvement programs, to identify and assess development
alternatives and ensure compliance with applicable federal, state, and
local laws, regulations and policies. No further changes will be made
to this regulation with reference to wording addressing combining
documents.
2. Environmental Assessments (EA)
Comment: Several commenters disagreed with Air Force's ``non-
involvement'' of the public or oversight agencies in preparation of
draft EAs. Further, commenters suggested that draft EAs be made
available to the public for review and comment in the same manner as
draft EISs. Commenters major concerns revolved around the potential for
the Air Force to ``hide'' potential impacts and to take actions that
would otherwise require an EIS and therefore require public hearings.
Response: CEQ has indicated their intent as to when public review
of EAs is necessary. For example: borderline cases (reasonable argument
for preparation of an EIS); unusual, new, or precedent setting cases;
public controversy; or when the action is one which would normally
require an EIS. CEQ has also indicated that where the proposal itself
integrates mitigation from the beginning and it is impossible to define
the proposal without including the mitigation, the agency may then rely
on mitigation measures in determining if overall effects would not be
significant. In those instances, agencies should make the FONSI and EA
available for 30 days of public comment before taking action.
The Air Force has identified specific actions where a 30 day public
review is required. Section 989.14 of this rule has been modified to
identify procedures for public involvement in the development of an EA.
The Air Force has included the public in the review of appropriate EAs,
where the public input would assist in better decision-making.
The Air Force has specifically modified Sec. 989.14(g) by adding a
subparagraph (5) which will require all EAs that mitigate impacts to
insignificance in lieu of an EIS, to be the subject of a public review
period. Section 989.14(j) has been revised to define how to initiate a
public review period for specified actions. The extent of public
involvement will typically coincide with the magnitude and complexity
of the proposed action and its potential effect on the area in
question.
3. Finding of No Significant Impact (FONSI)
Comment: Commenters suggested that the final rule should provide
provisions for public dissemination and comment on all FONSIs.
Commenters also suggested that a public review period should be
provided for all NEPA documentation.
Response: The Air Force considers all NEPA compliance documents
public documents, unless classified for operational reasons. These
documents are available to the public, upon request or as part of
previously established mailing list. They are also available through
regional offices of federal agencies having responsibility for a
certain area of environmental protection, the state single point of
contact and state agencies. The amount of time provided for review of
an EA/FONSI is directly related to the magnitude of the action and
potential environmental controversy. Section 989.15(e)(l) has been
edited to clarify intent and to ensure that all Air Force organizations
understand that a public review is the norm unless clearly unnecessary.
Section 989.15(f) has been modified by adding subparagraph (4) in
cases where potential significant environmental impacts found during
preparation of an EA/FONSI are mitigated to insignificance in lieu of
preparing an EIS, as defined in Sec. 989.22(c).
4. Public Involvement in the Environmental Impact Analysis Process
(EIAP) (Air Force NEPA Compliance Process) Notice of Intent (NOI):
Scoping and Review and Comments of Documentation
Comment: Commenters were concerned that the Air Force would attempt
to keep the public involvement in a proposal to a minimum by not
releasing information or ignoring public concerns. Commenters suggested
that the Air Force would attempt to hide potential significant impacts
related to a proposal. Further, commenters indicated that when a
federal agency holds a public scoping meeting in a given community they
must return to that same community to hold hearings on the DEIS.
Response: The Air Force includes the affected public in all its
NEPA compliance actions (see 2 and 3 above) for the initiation of a
proposal through the final decision (initial scoping process, the
public review and comment process and responding to concerns raised by
individuals, organizations and other federal agencies).
Section 1506.6. of the CEQ regulations requires agencies to make
``diligent efforts'' to involve the public in the agency's NEPA
procedures. The Air Force includes the public as fully as is
practicable in the NEPA decision-making process. Section 989.23, Public
notification mandates not only legally required public involvement, but
also encourages equally effective means for including public
participation in the Air Force's NEPA process.
When the Air Force is preparing an EIS for an action that could
potentially impact on a specific community, it is the Air Force's
intent to fully incorporate the community in the process of scoping and
public hearings. In the case where the action was carried no further
than the scoping stage, because it may have been discontinued, the Air
Force would not hold a public hearing. For continuing actions the Air
Force will return to the scoping venue to hold public hearings on the
DEIS, unless the scoping process has indicated a lack of interest. On
the other hand, if [[Page 4547]] decision-making for a proposal was the
subject of an EA, a determination as to whether or not a scoping
meeting or public hearing will be held would be made based upon
criteria provided in Sec. 989.14(j). The Air Force has identified
specific procedures for holding public hearings on draft EISs (see
Attachment 3).
5. Draft Environmental Impact Statement (DEIS)
Comments: Commenters indicated that wording be revised to make
clear what is being stated regarding distribution of summary
documentation when the DEIS is unusually long. Commenters suggested
that wording, to address unusually long DEISs, should be circulated
which would include a list of locations (such as public libraries)
where the entire DEIS may be reviewed. If the agency receives a timely
request for the entire statement and for additional time to comment,
the time for that requester only shall be extended by at least 15 days
beyond the minimum review period.
Commenters suggested that when responding to comments the agency
should, in the comment section of the document, refer the reader to the
appropriate modified text. This would allow the reviewer to quickly
find the appropriate response.
Response: Section 989.19(d) has been edited to clarify procedures
for handling summary documents and making lengthy DEISs available for
public review at specific locations. Section 989.19(e) has been added
to provide guidance as to when and how to seek additional comments from
the interested public. Guidance in sub-section (e) will be followed
when there has been a significant change in circumstances, development
of new information or where there is substantial controversy concerning
a proposal.
Section 989.21(a) has been revised to reflect the correct
procedural requirements for EPA filing of notices of availability.
Section 989.28 has been revised to better discuss issues relative to
air quality in NEPA documentation.
6. Final Environmental Impact Statement (FEIS)
Comments: Commenters suggested that the distribution process for
the FEIS should be clarified to clearly indicate that FEISs must be
furnished to any person, organization, or agencies that made comments
on the DEIS. Commenters also indicated that a new section should be
added which would give guidance as to when reevaluation of a completed
NEPA analysis should occur.
Response: Section 989.20(a) has been modified to reflect concerns
related to distribution of the FEIS. Also, a new subsection
Sec. 989.20(c) has been added. This section describes when, due to the
lack of advancement of a proposal, reevaluation of the NEPA
documentation should be accomplished to ensure its validity.
7. Mitigation
Comments: Commenters indicated that the regulation should mandate
the inclusion of the cost of mitigation as a line item in the budget
for a proposed action versus the currently existing ``where possible''
language. Commenters also indicated that the Air Force may burden
proponents of actions by requiring them to prepare mitigation plans as
described in Sec. 989.22(d).
Response: The Air Force uses mitigations to reduce or eliminate
potential impacts. Commitment to the use of mitigations, as defined
both in the text of a NEPA analysis and the FONSI or ROD, are
considered by the Air Force to be legally required and will be
fulfilled. Mitigations are placed into a computer tracking system at HQ
Air Force, with periodic status updates/validations being accomplished.
Section 989.15(e)(2)(iv) has been added to require a 30-day review
period for EA/FONSIs where potential impacts will be mitigated to
insignificance. Also Sec. 989.22(d) has been modified to better reflect
Air Force intent relative to execution of mitigations.
8. Classified Actions
Comments: Commenters indicated that classifying NEPA compliance
documentation should not be allowed. Commenters perceived that the Air
Force would classify programs that released chemical toxins or
radioactive materials into the environment, without informing the
public because of the classified nature of the program producing the
pollutants. Commenters further indicated that the Air Force would
classify a program just to hide its environmental impacts or to avert
Congressional scrutiny.
Response: As stated earlier, it is the Air Force's intent to
include the public in all of its NEPA compliance actions. Classifying
of an action will not be accomplished to ``hide'' potential
environmental controversy. However, environmental documentation will be
classified to safeguard issues of national security. Although an action
may be classified, the Air Force intends to comply with NEPA, for
classified actions, as described in Sec. 989.25, and will make
available, unclassified portions of environmental documents for public
review.
9. Airspace
Comments: Commenters referred to an inter-agency agreement between
the National Park Service (NPS), the Fish and Wildlife Service (FWS),
the Bureau of Land Management (BLM), and the Federal Aviation
Administration (FAA), where the FAA, recognizing the values for which
the NPS, FWS, and BLM lands are managed, has established a 2,000' Above
Ground Level (AGL) advisory as the requested minimum altitude for
aircraft flying over lands administered by these agencies. These
agencies seek voluntary cooperation with the 2,000' AGL minimum
altitude advisory. Commenters expressed a concern regarding airspace
reviews being considered in relation to potential impacts of over
flights of the National Wildlife Refuge System. Commenters also
indicated the Air Force should fully integrate land management agencies
in development of NEPA documents.
Response: The Air Force has entered into a Memorandum of
Understanding that outlines various airspace responsibilities, (see
Sec. 989.27, ``Airspace proposals.'' Further, the Air Force has
identified 3000' AGL as the base altitude to apply a CATEX (see
Attachment 2 A.2.3.35). Any airspace proposal below 3000' AGL will
trigger the requirement to prepare a more in-depth level of NEPA
analysis. The Air Force includes all land management agencies in NEPA
compliance. Where necessary, the Air Force invites these agencies to
act as ``Cooperating Agency'' for that agency's decision making
purposes. For NEPA compliance documents related to airspace issues, a
full analysis will be accomplished with input from the public and
responsible agencies. The Air Force has added Sec. 989.15(e)(1)(v) to
require a 30-day review period for EAs analyzing proposed changes in
airspace use or designation.
10. Categorical Exclusion (CATEX)
Comments: Commenters indicated that the list of actual CATEXes
should be placed under Sec. 989.13 so all requirements are found under
one heading. Commenters also indicated that some of the Air Force
CATEXes are too broad in scope.
Response: Due to the length of the CATEX list, it will remain as a
separate section (now, Attachment 2--Categorical Exclusions). Although
the initial perception may be that a CATEX is too broad, the Air Force
believes that proper procedural application of the EIAP will provide
for adequate scoping [[Page 4548]] of issues. The Air Force
accomplishes this initial scoping via the Air Force Form 813, Request
for Environmental Impact Analysis, as described in Sec. 989.12. When
this Form is applied as intended and filled out accurately, the
determination of scope and whether or not a CATEX will apply, will be
better determined.
The Department of the Air Force has determined that this rule is
not a major rule because it will not have an annual effect on the
economy of $100 million or more. The Secretary of the Air Force has
certified that this rule is exempt from the requirements of the
Regulatory Flexibility Act, 5 U.S.C. 601-612, because this rule does
not have a significant economic impact on small entities as defined by
the Act, and does not impose any obligatory information requirements
beyond internal Air Force use. This rule revises and replaces Air Force
Regulation (AFR) 19-2, Environmental Impact Analysis Process (EIAP), 10
August 1982, and AFR 19-3, Environmental Impact Analysis Process
Overseas, 23 September 1981.
List of Subjects in 32 CFR Part 989
Environmental protection, Environmental impact statements.
Therefore 32 CFR Part 989 is revised to read as follows:
PART 989-ENVIRONMENTAL IMPACT ANALYSIS PROCESS (EIAP)
Sec.
989.1 Purpose.
989.2 Concept.
989.3 Responsibilities.
989.4 Initial considerations.
989.5 Organizational relationships.
989.6 Budgeting and funding.
989.7 Requests from non-Air Force agencies or entities.
989.8 Analysis of alternatives.
989.9 Cooperation and adoption.
989.10 Tiering.
989.11 Combining EIAP with other documentation.
989.12 Air Force Form 813, Request for Environmental Impact
Analysis.
989.13 Categorical exclusion.
989.14 Environmental assessment.
989.15 Finding of no significant impact.
989.16 Environmental impact statement.
989.17 Notice of intent.
989.18 Scoping.
989.19 Draft EIS.
989.20 Final EIS.
989.21 Record of decision.
989.22 Mitigation.
989.23 Public notification.
989.24 Base closure and realignment.
989.25 Classified actions (40 CFR 1507.3(e)).
989.26 Occupational safety and health.
989.27 Airspace proposals.
989.28 Air quality.
989.29 Pollution prevention.
989.30 Special and emergency procedures.
989.31 Reporting requirements.
989.32 Procedures for analysis abroad.
989.33 Requirements for analysis abroad.
Attachment 1 to Part 989--Glossary of References, Abbreviations,
Acronyms, and Terms.
Attachment 2 to Part 989--Categorical Exclusions.
Attachment 3 to Part 989--Procedures for Holding Public Hearings on
Draft Environmental Impact Statements (EIS)
Authority: 10 U.S.C. 8013.
Sec. 989.1 Purpose.
(a) This part implements the Air Force Environmental Impact
Analysis Process and provides procedures for environmental impact
analysis both within the United States and abroad. Because the
authority for, and rules governing, each aspect of the Environmental
Impact Analysis Process differ depending on whether the action takes
place in the United States or outside the United States, this part
provides largely separate procedures for each type of action.
Consequently, the main body of this part deals primarily with
environmental impact analysis under the authority of the National
Environmental Policy Act of 1969 (NEPA) (Public Law 91-190, 42 U.S.C.
4321-4347), while the primary procedures for environmental impact
analysis of actions outside the United States in accordance with
Executive Order 12114, Environmental Effects Abroad of Major Federal
Actions, are contained in Secs. 989.32 and 989.33.
(b) The procedures in this part are essential to achieve and
maintain compliance with NEPA and the Council on Environmental Quality
(CEQ) Regulations for Implementing the Procedural Provisions of the
NEPA (40 CFR Parts 1500-1508, referred to as the ``CEQ Regulations'').
Further requirements are contained in 32 CFR Part 188 (Department of
Defense Directive (DoDD) 6050.1, Environmental Effects in the United
States of DoD Actions, July 30, 1979), and DoD Instruction 5000.2,
Defense Acquisition Management Policies and Procedures, February 23,
1991, with Change 11 and Air Force Supplement 1, Acquisition
Management Policies, 31 August 1993, with Change 1. To comply with NEPA
and complete the EIAP, the CEQ Regulations and this part must be used
together.
\1\Copies of the publications are available, at cost, from the
National Technical Information Service, U.S. Department of Commerce,
5285 Port Royal Road, Springfield, VA 22161.
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(c) Air Force activities abroad will comply with this part,
Executive Order 12114, and 32 CFR Part 187 (DoDD 6050.7, Environmental
Effects Abroad of Major Department of Defense Actions, March 31, 1979).
To comply with Executive Order 12114 and complete the EIAP, the
Executive Order, 32 CFR Part 187, and this part must be used together.
(d) Attachment 1 of this part is a glossary of references,
abbreviations, acronyms, and terms. Refer to 40 CFR Part 1508 for other
terminology used in this part.
Sec. 989.2 Concept.
(a) This part provides a framework on how to comply with NEPA and
Executive Order 12114 according to Air Force Policy Directive (AFPD)
32-702.
\2\See footnote 1 to Sec. 989.1.
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(b) Major commands (MAJCOM) provide additional implementing
guidance in their supplemental publications to this part. MAJCOM
supplements must identify the specific offices that have implementation
responsibility and include any guidance needed to comply with this
part. All references to MAJCOMs in this part include the Air National
Guard Readiness Center (ANGRC) and other agencies designated as
``MAJCOM equivalent'' by HQ USAF.
Sec. 989.3 Responsibilities.
(a) Office of the Secretary of the Air Force. (1) The Assistant
Secretary of the Air Force for Manpower, Reserve Affairs,
Installations, and Environment (SAF/MI):
(i) Promulgates and oversees policy to ensure integration of
environmental considerations.
(ii) Determines the level of environmental analysis required for
especially important, visible, or controversial Air Force proposals and
approves selected Environmental Assessments (EA) and Findings of No
Significant Impact (FONSI).
(iii) Is the liaison on environmental matters with Federal agencies
and national-level public interest organizations.
(iv) Is the approval authority for all Environmental Impact
Statements (EIS) prepared for Air Force actions, whether classified or
unclassified.
(2) The General Counsel (SAF/GC). Provides final legal advice to
SAF/MI, HQ USAF, and HQ USAF Environmental Protection Committee (EPC)
on EIAP questions.
(3) Office of Legislative Liaison (SAF/LL):
(i) Distributes draft and final EISs to congressional delegations.
(ii) Reviews and provides the Office of the Secretary of Defense
(OSD) with [[Page 4549]] analyses of the Air Force position on proposed
and enrolled legislation and executive department testimony dealing
with EIAP issues.
(4) Office of Public Affairs (SAF/PA):
(i) Reviews environmental documents requiring Office of the
Secretary of the Air Force approval prior to public release.
(ii) Assists the environmental planning function and the Air Force
Legal Services Agency, Trial Judiciary Division (AFLSA/JAJT), in
planning and conducting public scoping meetings and hearings.
(iii) Ensures that public affairs aspects of all EIAP actions are
conducted in accordance with this part and Air Force Instruction (AFI)
35-202, Environmental Community Involvement3.
\3\See footnote 1 to Sec. 989.1.
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(iv) The National Guard Bureau, Office of Public Affairs (NGB-PA),
will assume the responsibilities of SAF/PA for the EIAP involving the
National Guard Bureau, Air Directorate.
(b) Headquarters US Air Force (HQ USAF). The Civil Engineer (HQ
USAF/CE) formulates and oversees execution of EIAP policy. The National
Guard Bureau Air Directorate (NGB-CF) oversees the EIAP for Air
National Guard actions.
(c) MAJCOMs, Air Force Reserve (AFRES), ANG, and Field Operating
Agencies (FOA). These organizations establish procedures that comply
with this part wherever they are the host unit for preparing and using
required environmental documentation in making decisions about proposed
actions and programs within their commands.
(1) Air Force Center for Environmental Excellence (AFCEE). The
AFCEE Environmental Conservation and Planning Directorate (AFCEE/EC)
provides technical assistance to major commands and the Air Force Base
Conversion Agency.
(2) Air Force Regional Compliance Offices (RCO). RCOs review other
agency environmental documents that may have an impact on the Air
Force. Requests for review of such documents should be directed to the
proper RCO (Atlanta, Dallas, or San Francisco) along with any relevant
comments. The RCO:
(i) Notifies the proponent, after receipt, that the RCO is the
single point of contact for the Air Force review of the document.
(ii) Requests comments from potentially affected installations,
MAJCOMs, the ANG, and HQ USAF, as required.
(iii) Consolidates comments into the Air Force official response
and submits the final response to the proponent.
(iv) Provides to HQ USAF, the appropriate MAJCOMs and installations
a copy of the final response and a complete set of all review comments.
(3) Headquarters Air Force Materiel Command (HQ AFMC). HQ AFMC is
responsible for applying EIAP to all proposed Air Force weapons systems
and modifications to existing systems. These documents may be used as a
basis for tiering documents in subsequent system beddown environmental
analyses (see Sec. 989.10). HQ AFMC ensures that:
(i) Environmental documents for acquisition of systems required for
Defense Acquisition Board (DAB) decisions are completed prior to DAB
milestone decisions.
(ii) Detailed guidance on the EIAP for acquisition programs,
contained in DoD Instruction 5000.2 with Change 1, (part 6, Section I)
and Air Force Supplement 7 with Change 1; DoD Manual 5000.2-M, Defense
Acquisition Management Documentation and Reports, February 1991, with
Change 1 (part 4, section F, Integrated Program Summary) and Air Force
Supplement 1 with Change 1,4 is complied with or is followed.
Analysis requirements in this instruction apply where the Air Force is
the sole acquisition agent or the lead service for joint programs.
\4\See footnote 1 to Sec. 989.1.
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(iii) EIAP studies involving real property, facilities, personnel,
and training to support acquisition programs are coordinated through
the HQ AFMC environmental planning function.
(d) Environmental Planning Function (EPF). The EPF is the
interdisciplinary staff, at any level of command, responsible for the
EIAP. The EPF:
(1) Assists the proponent in preparing a Description of Proposed
Action and Alternatives (DOPAA) and actively supports the proponent
during all phases of the EIAP.
(2) Evaluates proposed actions and completes Sections II and III of
AF Form 813, Request for Environmental Impact Analysis, subsequent to
submission by the proponent and determines whether a Categorical
Exclusion (CATEX) applies. The EPF responsible official signs the AF
Form 813 certification.
(3) Identifies and documents, with technical advice from the
bioenvironmental engineer and other staff members, environmental
quality standards that relate to the action under evaluation.
(4) Prepares environmental documents, or obtains technical
assistance through Air Force channels or contract support and adopts
the documents as official Air Force papers when completed and approved.
(5) Ensures the EIAP is conducted on base- and MAJCOM-level plans,
including contingency plans for the training, movement, and operations
of Air Force personnel and equipment.
(6) Prepares the Notice of Intent (NOI) to prepare an EIS with
assistance from the proponent and the Public Affairs Office.
(7) Prepares applicable portions of the Certificate of Compliance
for each military construction project according to AFI 32-1021,
Planning and Programming of Facility Construction Projects.5
\5\See footnote 1 to Sec. 989.1.
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(e) Proponent. Each office, unit, or activity at any level that
initiates Air Force actions is responsible for:
(1) Notifying the EPF of a pending action and completing Section I
of the AF Form 813, including a DOPAA, for submittal to the EPF.
(2) Identifying key decision points and coordinating with the EPF
on EIAP phasing to ensure that environmental documents are available to
the decision-maker before the final decision is made and ensuring that,
until the EIAP is complete, resources are not committed prejudicing the
selection of alternatives nor actions taken having an adverse
environmental impact or limiting the choice of reasonable alternatives.
(3) Integrating the EIAP into the planning stages of a proposed
program or action and, with the EPF, determining as early as possible
whether to prepare an EIS.
(4) Presenting the DOPAA to the EPC for review and comment.
(5) Coordinating with the EPF prior to organizing public or
interagency meetings which deal with EIAP elements of a proposed action
and involving persons or agencies outside the Air Force.
(6) Subsequent to the decision to prepare an EIS, assisting the EPF
and Public Affairs Office in preparing a draft NOI to prepare an EIS.
All NOIs must be forwarded to HQ USAF/CEV for review and publication in
the Federal Register.
(f) Environmental Protection Committee (EPC). The EPC helps
commanders assess, review and approve EIAP documents.
(g) Staff Judge Advocate (SJA). The Staff Judge Advocate:
(1) Advises the command-level proponent EPF and EPC on CATEX
determinations and the legal sufficiency of environmental documents.
[[Page 4550]]
(2) Advises the EPF during the scoping process of issues that
should be addressed in EISs and on procedures for the conduct of public
hearings.
(3) Coordinates the appointment of the independent hearing officer
with AFLSA/JAJT (or NGB-JA) and provides support for the hearing
officer in cases of public hearings on the draft EIS. The proponent
pays administrative and TDY costs. The hearing officer presides at
hearings and makes final decisions regarding hearing procedures, with
concurrence from HQ USAF/CEV (or ANGRC/CEV).
(4) Promptly refers all matters causing or likely to cause
substantial public controversy or litigation through channels to AFLSA/
JACE (or NGB-JA).
(h) Public Affairs Officer. This officer:
(1) Advises the EPF, the EPC, and the proponent on public affairs
implications of proposed actions and reviews environmental documents
for public affairs issues.
(2) Advises the EPF during the scoping process of issues that
should be addressed in the EIS.
(3) Prepares, coordinates, and distributes news releases related to
the proposal and associated EIAP documents.
(4) Notifies the media (television, radio, newspaper) and purchases
advertisements when newspapers will not run notices free of charge.
(5) For more comprehensive instructions about public affairs
activities in environmental matters, see AFI 35-202.6
\6\See footnote 1 to Sec. 989.1.
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(i) Medical Service. The Medical Service, represented by the
bioenvironmental engineer, provides technical assistance to EPFs in the
areas of environmental health standards, environmental effects, and
environmental monitoring capabilities. The Air Force Armstrong
Laboratory, Occupational and Environmental Health Directorate, provides
additional technical support.
(j) Safety Office. The Safety Office provides technical assistance
to EPFs to ensure consideration of safety standards and requirements.
Sec. 989.4 Initial considerations.
Air Force personnel will:
(a) Consider and document environmental effects of proposed Air
Force actions through AF Forms 813, EAs, FONSIs, EISs, EIS Records of
Decision (ROD), and documents prepared according to Executive Order
(E.O.) 12114.
(b) Evaluate proposed actions for possible categorical exclusion
(CATEX) from environmental impact analysis (attachment 2 of this part).
CATEXs may apply to actions in the United States, its territories and
possessions, and abroad.
(c) Make environmental documents, comments, and responses,
including those of other Federal, state, and local agencies and the
public, part of the record available for review and use at all levels
of decision making.
(d) Review the specific alternatives analyzed in the EIAP when
evaluating the proposal prior to decision making.
(e) Ensure that alternatives considered by the decision-maker are
both reasonable and within the range of alternatives analyzed in the
environmental documents.
(f) Pursue the objective of furthering foreign policy and national
security interests while at the same time considering important
environmental factors.
(g) Consider the environmental effects of actions that affect the
global commons.
(h) Carry out actions that affect the environment of a foreign
nation in a way that allows consideration of the environment, existing
international agreements, and the sovereignty of other nations.
(i) Determine whether any foreign government should be informed of
the availability of environmental documents. Formal arrangements with
foreign governments concerning environmental matters and communications
with foreign governments concerning environmental agreements will be
coordinated with the Department of State by the Deputy Assistant
Secretary of the Air Force for Environment, Safety, and Occupational
Health (SAF/MIQ) through the Assistant Secretary of Defense. This
coordination requirement does not apply to informal working-level
communications and arrangements.
Sec. 989.5 Organizational relationships.
The host EPF manages the EIAP using an interdisciplinary team
approach. This is especially important for tenant-proposed actions,
because the host command is responsible for the EIAP for actions
related to the host command's installations.
(a) The host command prepares environmental documents internally or
directs the host base to prepare the environmental documents.
Environmental document preparation may be by contract (requiring the
tenant to fund the EIAP), or by the tenant unit. Regardless of the
preparation method, the host command will ensure the required
environmental analysis is accomplished before a decision is made on the
proposal and an action is undertaken. Host/tenant agreements should
provide specific procedures to ensure host oversight of tenant
compliance.
(b) For aircraft beddown and unit realignment actions, program
elements are identified in the Program Objective Memorandum. Subsequent
Program Change Requests must include AF Form 813. When a program for a
given year has sufficient support, HQ USAF/XOO notifies the host
command or NGB-XO to initiate the EIAP. For classified actions, MAJCOMs
and ANG begin reporting monthly EIAP status to HQ USAF/XO (copy to SAF/
MIQ and HQ USAF/CEV) while the proposal is still classified, and upon
declassification, to HQ USAF/CEV. MAJCOMs and ANG continue reporting
until the EIAP is complete for all projects.
(c) To ensure timely initiation of the EIAP, SAF/AQ forwards
information copies of all Mission Need Statements and System
Operational Requirements Documents to SAF/MIQ, HQ USAF/CEV (or ANGRC/
CEV), the Air Force Medical Operations Agency, Aerospace Medicine
Office (AFMOA/SG), and the affected MAJCOM EPFs.
(d) The MAJCOM of the scheduling unit managing affected airspace is
responsible for preparing and approving environmental analyses. The
scheduling unit's higher headquarters may choose whether to prepare the
environmental document, but is ultimately responsible for EIAP document
accomplishment and approval.
Sec. 989.6 Budgeting and funding.
Contract EIAP efforts are proponent MAJCOM responsibilities. Each
year, the EPF budgets for the anticipated EIAP workload based on
reports of command proponents. If proponent offices exceed the budget
in a given year or identify unforeseen requirements, the proponent
offices must provide the remaining funding. For HQ AFMC, the system
program office or project office budgets and funds EIAP efforts
relating to research, development, testing, and evaluation activities.
Sec. 989.7 Requests from non-Air Force agencies or entities.
Non-Air Force agencies or entities may request the Air Force to
undertake an action, such as issuing a permit or outleasing Air Force
property, that may primarily benefit the requester or an agency other
than the Air Force. The EPF and other Air Force staff elements must
identify such requests and coordinate with the proponent of the non-Air
Force proposal, as well as with [[Page 4551]] concerned state, local,
and tribal authorities.
(a) Air Force decisions on such proposals must take into
consideration the potential environmental impacts of the applicant's
proposed activity (as described in an Air Force environmental
document), insofar as the proposed action involves Air Force property
or programs, or requires Air Force approval.
(b) The Air Force may require the requester to prepare, at the
requester's expense, an analysis of environmental impacts (40 CFR
1506.5), or the requester may be required to pay for an EA or EIS to be
prepared by a contractor selected and supervised by the Air Force. The
EPF may permit requesters to submit draft EAs for their proposed
actions, except for actions described in Sec. 989.16 (a) and (b), or
for actions the EPF has reason to believe will ultimately require an
EIS. For EISs, the EPF has the responsibility to prepare the
environmental document, although responsibility for funding remains
with the requester. The fact that the requester has prepared
environmental documents at its own expense does not commit the Air
Force to allow or undertake the proposed action or its alternatives.
The requester is not entitled to any preference over other potential
parties with whom the Air Force might contract or make similar
arrangements.
(c) In no event is the requester who prepares or funds an
environmental analysis entitled to reimbursement from the Air Force.
When requesters prepare environmental documents outside the Air Force,
the Air Force must independently evaluate and approve the scope and
content of the environmental analyses before using the analyses to
fulfill EIAP requirements. Any outside environmental analysis must
evaluate reasonable alternatives as defined in Sec. 989.8.
Sec. 989.8 Analysis of alternatives.
The Air Force must analyze reasonable alternatives to the proposed
action and the ``no action'' alternative in all EAs and EISs, as fully
as the proposed action alternative.
(a) ``Reasonable'' alternatives are those that meet the underlying
purpose and need for the proposed action and that would cause a
reasonable person to inquire further before choosing a particular
course of action. Reasonable alternatives are not limited to those
directly within the power of the Air Force to implement. They may
involve another government agency or military service to assist in the
project or even to become the lead agency. The Air Force must also
consider reasonable alternatives raised during the scoping process (see
Sec. 989.18) or suggested by others, as well as combinations of
alternatives. The Air Force need not analyze highly speculative
alternatives, such as those requiring a major, unlikely change in law
or governmental policy. If the Air Force identifies a large number of
reasonable alternatives, it may limit alternatives selected for
detailed environmental analysis to a reasonable range or to a
reasonable number of examples covering the full spectrum of
alternatives.
(b) The Air Force may expressly eliminate alternatives from
detailed analysis, based on reasonable selection standards (for
example, operational, technical, or environmental standards suitable to
a particular project). Proponents may develop written selection
standards to firmly establish what is a ``reasonable'' alternative for
a particular project, but they must not so narrowly define these
standards that they unnecessarily limit consideration to the proposal
initially favored by proponents. This discussion of reasonable
alternatives applies equally to EAs and EISs.
(c) Except where excused by law, the Air Force must always consider
and assess the environmental impacts of the ``no action'' alternative.
``No action'' may mean either that current management practice will not
change or that the proposed action will not take place. If no action
would result in other predictable actions, those actions should be
discussed within the no action alternative section. The discussion of
the no action alternative and the other alternatives should be
comparable in detail to that of the proposed action.
Sec. 989.9 Cooperation and adoption.
(a) Lead and Cooperating Agency (40 CFR 1501.5-1501.6). When the
Air Force is a cooperating agency in the preparation of an EIS, the Air
Force reviews and approves principal environmental documents within the
EIAP as if they were prepared by the Air Force. The Air Force executes
a Record of Decision for its program decisions that are based on an EIS
for which the Air Force is a cooperating agency. The Air Force may also
be a lead or cooperating agency on an EA using similar procedures, but
the MAJCOM EPC retains approval authority unless otherwise directed by
HQ USAF. Before invoking provisions of 40 CFR 1501.5(e), the lowest
authority level possible resolves disputes concerning which agency is
the lead or cooperating agency.
(b) Adoption of EA or EIS. The Air Force, even though not a
cooperating agency, may adopt an EA or EIS prepared by another entity
where the proposed action is substantially the same as the action
described in the EA or EIS. In this case, the EA or EIS must be
recirculated as a final EA or EIS but the Air Force must independently
review the EA or EIS and determine that it is current and that it
satisfies the requirements of this part. The Air Force then prepares
its own FONSI or ROD, as the case may be. In the situation where the
proposed action is not substantially the same as that described in the
EA or the EIS, the Air Force may adopt the EA or EIS, or a portion
thereof, by circulating the EA or EIS as a draft and then preparing the
final EA or EIS.
Sec. 989.10 Tiering.
The Air Force should use tiered (40 CFR 1502.20) environmental
documents, and environmental documents prepared by other agencies, to
eliminate repetitive discussions of the same issues and to focus on the
issues relating to specific actions. If the Air Force adopts another
Federal agency's environmental document, subsequent Air Force
environmental documents may also be tiered.
Sec. 989.11 Combining EIAP with other documentation.
(a) The EPF combines environmental analysis with other related
documentation when practicable (40 CFR 1506.4) following the procedures
prescribed by the CEQ regulations and this part.
(b) The EPF must integrate comprehensive planning (AFI 32-7062, Air
Force Comprehensive Planning)7 with the requirements of NEPA and
the EIAP. Prior to making a decision to proceed, the EPF must analyze
the environmental impacts that could result from implementation of a
proposal identified in the comprehensive plan.
\7\See footnote 1 to Sec. 989.1.
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Sec. 989.12 Air Force Form 813, request for environmental impact
analysis.
The Air Force uses AF Form 813 to document the need for
environmental analysis or for certain CATEX determinations for proposed
actions. The form helps narrow and focus the issues to potential
environmental impacts. AF Form 813 must be retained with the EA or EIS
to record the focusing of environmental issues. The rationale for not
addressing environmental issues must also be recorded in the EA or EIS.
[[Page 4552]]
Sec. 989.13 Categorical exclusion.
(a) CATEXs apply to those classes of actions that do not
individually or cumulatively have potential for significant effect on
the environment and do not, therefore, require further environmental
analysis in an EA or an EIS. The list of Air Force-approved CATEXs is
in attachment 2 of this part. Command supplements to this part may not
add CATEXs or expand the scope of the CATEXs in attachment 2 of this
part.
(b) Characteristics of categories of actions that usually do not
require either an EIS or an EA (in the absence of extraordinary
circumstances) include:
(1) Minimal adverse effect on environmental quality.
(2) No significant change to existing environmental conditions.
(3) No significant cumulative environmental impact.
(4) Socioeconomic effects only.
(5) Similarity to actions previously assessed and found to have no
significant environmental impacts.
(c) CATEXs apply to actions in the United States and abroad.
General exemptions specific to actions abroad are in 32 CFR Part 187.
The EPF or other decision-maker forwards requests for additional
exemption determinations for actions abroad to HQ USAF/CEV with a
justification letter.
(d) Normally, any decision-making level may determine the
applicability of a CATEX and need not formally record the determination
on AF Form 813 or elsewhere, except as noted in the CATEX list.
(e) Application of a CATEX to an action does not eliminate the need
to meet air conformity requirements (see Sec. 989.28).
Sec. 989.14 Environmental assessment.
(a) When a proposed action is one not usually requiring an EIS but
is not categorically excluded, the EPF must prepare an EA (40 CFR
1508.9). Every EA must lead to either a FONSI, a decision to prepare an
EIS, or no decision on the proposal.
(b) Whenever a proposed action usually requires an EIS, the EPF
responsible for the EIAP may prepare an EA to definitively determine if
an EIS is required based on the analysis of environmental impacts.
Alternatively, the EPF may choose to bypass the EA and proceed with
preparation of an EIS.
(c) An EA is a written analysis that:
(1) Provides analysis sufficient to determine whether to prepare an
EIS or a FONSI.
(2) Aids the Air Force in complying with the NEPA when no EIS is
required.
(d) An EA discusses the need for the proposed action, reasonable
alternatives to the proposed action, the affected environment, the
environmental impacts of the proposed action and alternatives
(including the ``no action'' alternative), and a listing of agencies
and persons consulted during preparation.
(e) The format for the EA is the same as the EIS. The alternatives
section of an EA and an EIS are similar and should follow the
alternatives analysis guidance outlined in Sec. 989.8.
(f) The EPF should design the EA to facilitate rapidly transforming
the document into an EIS if the environmental analysis reveals a
significant impact.
(g) Certain EAs require SAF/MIQ approval because they involve
topics of special importance or interest. Unless directed otherwise by
SAF/MIQ, the EPF must forward the following types of EAs to SAF/MIQ
through HQ USAF/CEV (copy to AFCEE/EC for technical review), along with
an unsigned FONSI:
(1) EAs for actions where the Air Force has wetlands or floodplains
compliance responsibilities (E.O. 11988 and E.O. 11990). A Finding of
No Practicable Alternative (FONPA) must be submitted to HQ USAF/CEV
when the alternative selected is located in wetlands or floodplains,
and must discuss why no other practical alternative exists to avoid
impacts. See AFI 32-7064, Integrated Resources Management.8
\8\See footnote 1 to Sec. 989.1.
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(2) System acquisition EAs.
(3) All EAs on non-Air Force agency proposals that require an Air
Force decision, such as use of Air Force property for highways and
joint-use proposals.
(4) EAs for actions that require the Air Force to make conformity
determinations pursuant to the Clean Air Act, as amended, and the
implementing rules. Conformity determinations are made by SAF/MIQ, see
Sec. 989.28.
(5) EAs where mitigation to insignificance is accomplished in lieu
of initiating an EIS (Sec. 989.22(c)).
(h) A few examples of actions that normally require preparation of
an EA (except as indicated in the CATEX list) include:
(1) Public land withdrawals of less than 5,000 acres.
(2) Minor mission realignments and aircraft beddowns.
(3) Building construction on base within developed areas.
(4) Minor modifications to Military Operating Areas (MOA), air-to-
ground weapons ranges, and military training routes.
(5) Remediation of hazardous waste disposal sites.
(i) Abbreviated Environmental Assessment. In special circumstances,
when the potential environmental impacts of a proposed action are
clearly insignificant (as documented on AF Form 813) and none of the
CATEXs in attachment 2 of this part apply, the EPF can use an
abbreviated EA to assess the action. At a minimum, the abbreviated EA
will consist of:
(1) AF Form 813 with attachments analyzing the environmental
impacts of the proposed action and reasonable alternatives.
(2) A concise description of the affected environment.
(3) A concise FONSI (see Sec. 989.15).
(j) The Air Force should involve environmental agencies,
applicants, and the public in the preparation of EAs (40 CFR
1501.4(b)). The extent of involvement usually coincides with the
magnitude and complexity of the proposed action and its potential
environmental effect on the area. For proposed actions described in
Sec. 989.15(e)(2), use either the scoping process described in
Sec. 989.18 or the public notice process in Sec. 989.23(b) and (c).
Sec. 989.15 Finding of no significant impact.
(a) The FONSI (40 CFR 1508.13) briefly describes why an action
would not have a significant effect on the environment and thus will
not be the subject of an EIS. The FONSI must summarize the EA or,
preferably, have it attached and incorporated by reference, and must
note any other environmental documents related to the action.
(b) If the EA is not attached, the FONSI must include:
(1) Name of the action.
(2) Brief description of the action (including alternatives
considered and the chosen alternative).
(3) Brief discussion of anticipated environmental effects.
(4) Conclusions leading to the FONSI.
(5) All mitigation actions that will be adopted with implementation
of the proposal (see Sec. 989.22).
(c) Keep FONSIs as brief as possible. Most FONSIs should not exceed
two typewritten pages. Stand-alone FONSIs without an attached EA may be
longer.
(d) For actions of regional or local interest, disseminate the
FONSI according to Sec. 989.23. The MAJCOM and NGB are responsible for
release of FONSIs to regional offices of Federal agencies, the state
single point of contact (SPOC), and state agencies concurrent with
local release by the installations. [[Page 4553]]
(e) The EPF must provide the FONSI and complete EA to organizations
and individuals requesting them and to whomever the proponent or the
EPF has reason to believe is interested in the action. The EPF provides
a copy of the documents without cost to organizations and individuals
requesting them. The earliest of the FONSI transmittal date (date of
letter of transmittal) to the SPOC or other interested party is the
official notification date.
(1) The EPF must make the draft EA/FONSI available to the affected
public unless disclosure is precluded for security classification
reasons. Before the FONSI is signed and the action is implemented, the
EPF should allow sufficient time to receive comments from the public.
The time period will reflect the magnitude of the proposed action and
its potential for controversy. The greater the magnitude of the
proposed action or its potential for controversy, the longer the time
that must be allowed for public review. Mandatory review periods for
certain defined actions are contained in Sec. 989.15(e)(2). These are
not all inclusive but merely specific examples. In every case where an
EA/FONSI is prepared, the proponent and EPF must determine how much
time will be allowed for public review. In all cases, other than
classified actions, a public review period should be the norm unless
clearly unnecessary due to the lack of potential controversy.
(2) In the following circumstances, the EA and draft FONSI are made
available for public review for at least 30 days before FONSI approval
and implementing the action (40 CFR 1501.4(e)(2)):
(i) When the proposed action is, or is closely similar to, one that
usually requires preparation of an EIS (see Sec. 989.16).
(ii) If it is an unusual case, a new kind of action, or a
precedent-setting case in terms of its potential environmental impacts.
(iii) If the proposed action would be located in a floodplain or
wetland.
(iv) If the action is mitigated to insignificance in the FONSI, in
lieu of an EIS (Sec. 989.22(c)).
(v) If the proposed action is a change to airspace use or
designation.
(f) As a rule, the same organizational level that prepares the EA
reviews and recommends the FONSI for approval by the EPC. MAJCOMs may
decide the level of EA approval and FONSI signature, except as provided
in Sec. 989.14(g).
(g) Air Force staff must get permission to deviate from the
procedures outlined in this part from SAF/MIQ in accordance with
Sec. 989.30.
Sec. 989.16 Environmental impact statement.
(a) Certain classes of environmental impacts require preparation of
an EIS (40 CFR Part 1502). These include, but are not limited to:
(1) Potential for significant degradation of the environment.
(2) Potential for significant threat or hazard to public health or
safety.
(3) Substantial environmental controversy concerning the
significance or nature of the environmental impact of a proposed
action.
(b) Certain other actions normally, but not always, require an EIS.
These include, but are not limited to:
(1) Public land withdrawals of over 5,000 acres (Engle Act, 43
U.S.C. 155-158).
(2) Establishment of new air-to-ground weapons ranges.
(3) Site selection of new airfields.
(4) Site selection of major installations.
(5) Development of major new weapons systems (at decision points
that involve demonstration, validation, production, deployment, and
area or site selection for deployment).
(6) Establishing or expanding supersonic training areas over land
below 30,000 feet MSL (mean sea level).
(7) Disposal and reuse of closing installations.
Sec. 989.17 Notice of intent.
The EPF must furnish to HQ USAF/CEV the NOI (40 CFR 1508.22)
describing the proposed action for publication in the Federal Register.
The EPF, through the host base public affairs office, will also provide
the NOI to newspapers and other media in the area potentially affected
by the proposed action. The EPF must provide copies of the notice to
the proper state SPOC (E.O. 12372) and must also distribute it to
requesting agencies, organizations, and individuals. Along with the
draft NOI, the EPF must also forward the completed DOPAA to HQ USAF for
review.
Sec. 989.18 Scoping.
After publication of the NOI for an EIS, the EPF must initiate the
public scoping process (40 CFR 1501.7) to determine the scope of issues
to be addressed and to help identify significant environmental issues
to be analyzed in depth. Methods of scoping range from soliciting
written comments to conducting public scoping meetings (see 40 CFR
1501.7 and 1506.6(e)). The purpose of this process is to de-emphasize
insignificant issues and focus the scope of the environmental analysis
on significant issues (40 CFR 1500.4(g)). The result of scoping is that
the proponent and EPF determine the range of actions, alternatives, and
impacts to be considered in the EIS (40 CFR 1508.25). The EPF must send
meeting plans for scoping meetings to AF/CEV (or ANGRC/CEV) for SAF/MIQ
concurrence no later than 30 days before the first scoping meeting.
Scoping meeting plans are similar in content to public hearing plans
(see attachment 3 of this part).
Sec. 989.19 Draft EIS.
(a) Preliminary draft. The EPF prepares a Preliminary draft EIS
(PDEIS) (40 CFR 1502.9) based on the scope of issues decided on during
the scoping process. The format of the EIS must be in accordance with
the format recommended in the CEQ regulations (40 CFR 1502.10 and
1502.11). The CEQ regulations indicate that EISs are normally fewer
than 150 pages (300 pages for proposals of unusual complexity). The EPF
provides a sufficient number of copies of the PDEIS to HQ USAF/CEV for
HQ USAF EPC review and to AFCEE/EC for technical review.
(b) Review of draft EIS. After the HQ USAF EPC review, the EPF
makes any necessary revisions to the PDEIS and forwards it to HQ USAF/
CEV as a draft EIS for security and policy review. Once the draft EIS
is approved, HQ USAF/CEV notifies the EPF to print sufficient copies of
the draft EIS for distribution to congressional delegations and
interested agencies. After congressional distribution, the EPF sends
the draft EIS to all others on the distribution list. HQ USAF/CEV then
files the document with the Environmental Protection Agency (EPA) and
provides a copy to the Deputy Under Secretary of Defense for
Environmental Security.
(c) Public review of draft EIS (40 CFR 1502.19). (1) The public
comment period for the draft EIS is at least 45 days from the
publication date of the notice of availability (NOA) of the draft EIS
in the Federal Register. EPA publishes in the Federal Register, each
week, NOAs of EISs filed during the preceding week. This public comment
period may be extended an additional 15 days, at the request of the
EPF. If the draft EIS is unusually long, the EPF may distribute a
summary to the public with an attached list of locations (such as
public libraries) where the entire draft EIS may be reviewed. The EPF
must distribute the full draft EIS to certain entities, for example
agencies with jurisdiction by law or agencies with special expertise in
evaluating the [[Page 4554]] environmental impacts, and anyone else
requesting the entire draft EIS (40 CFR 1502.19).
(2) The EPF holds public hearings on the draft EIS according to the
procedures in 40 CFR 1506.6(c) and (d). Hearings take place no sooner
than 15 days after the Federal Register NOA and at least 15 days before
the end of the comment period. Scheduling hearings toward the end of
the comment period is encouraged to allow the public to obtain and more
thoroughly review the draft EIS. The EPF must provide hearing plans to
HQ USAF/CEV (or ANGRC/CEV) for SAF/MIQ concurrence no later than 30
days prior to the first public hearing. See attachment 3 of this part
for public hearing procedures.
(d) Response to comments (40 CFR 1503.4). The EPF must incorporate
its responses to comments in the final EIS by either modifying the text
and referring in the appendix to where the appropriate modification is
addressed or providing a written explanation in the comments section,
or both. The EPF may group comments of a similar nature together to
allow a common response and may also respond to individuals separately.
(e) Seeking additional comments. The EPF may, at any time during
the EIS process, seek additional public comments, such as when there
has been a significant change in circumstances, development of
significant new information of a relevant nature, or where there is
substantial environmental controversy concerning the proposed action.
Significant new information leading to public controversy regarding the
scope after the scoping process is such a changed circumstance. An
additional public comment period may also be necessary after the
publication of the draft EIS due to public controversy or changes made
as the result of previous public comments. Such periods when additional
public comments are sought shall last for at least 30 days.
Sec. 989.20 Final EIS.
(a) If changes in the draft EIS are minor or limited to factual
corrections and responses to comments, the proponent may, with the
prior approval of SAF/MIQ, prepare a document containing only draft EIS
comments, Air Force responses, and errata sheets of changes staffed to
the HQ USAF EPC for coordination. However, the proponent must submit
the draft EIS and all of the above documents, with a new cover sheet
indicating that it is a final EIS (40 CFR 1503.4(c)), to HQ USAF/CEV
for filing with the EPA (40 CFR 1506.9). If more extensive
modifications are required, the EPF must prepare a preliminary final
EIS incorporating these modifications for coordination within the Air
Force. Regardless of which procedure is followed, the final EIS must be
processed in the same way as the draft EIS, except that the public need
not be invited to comment during the 30-day post-filing waiting period.
The final EIS should be furnished to every person, organization, or
agency that made substantive comments on the draft EIS or requested a
copy. Although the EPF is not required to respond to public comments
received during this period, comments received must be considered in
determining final decisions such as identifying the preferred
alternative, appropriate mitigations, or if a supplemental analysis is
required.
(b) The EPF processes all necessary supplements to EISs (40 CFR
1502.9) in the same way as the original draft and final EIS, except
that a new scoping process is not required.
(c) If major steps to advance the proposal have not occurred within
5 years from the date of the FEIS approval, reevaluation of the
documentation should be accomplished to ensure its continued validity.
Sec. 989.21 Record of decision.
(a) The MAJCOM prepares draft RODs, formally staffs them to HQ
USAF/CEV for verification of adequacy, and forwards them to the final
decision-maker for signature. A ROD (40 CFR 1505.2) is a concise public
document stating what an agency's decision is on a specific action. The
ROD may be integrated into any other document required to implement the
agency's decision. A decision on a course of action may not be made
until 30 days after publication of the NOA of the final EIS in the
Federal Register. EPA publishes NOAs each Friday; when Friday is a
holiday, the notice is published on Thursday.
(b) The Air Force must announce the ROD to the affected public as
specified in Sec. 989.23, except for classified portions. The ROD
should be concise and should explain the conclusion, the reason for the
selection, and the alternatives considered. The ROD must identify the
course of action (proposed action or an alternative) that is considered
environmentally preferable regardless of whether it is the alternative
selected for implementation. The ROD should summarize all the major
factors the agency weighed in making its decision, including essential
considerations of national policy.
(c) The ROD must state whether the selected alternative employs all
practicable means to avoid, minimize, or mitigate environmental impacts
and, if not, explain why.
Sec. 989.22 Mitigation.
(a) When preparing EIAP documents, indicate clearly whether
mitigation measures (40 CFR 1508.20) must be implemented for the
alternative selected. Discuss mitigation measures in terms of ``will''
and ``would'' when such measures have already been incorporated into
the proposal. Use terms like ``may'' and ``could'' when proposing or
suggesting mitigation measures. Both the public and the Air Force
community need to know what commitments are being considered and
selected, and who will be responsible for implementing, funding, and
monitoring the mitigation measures.
(b) The proponent funds and implements mitigation measures in the
mitigation plan that are approved by the decision-maker. Where possible
and appropriate because of amount, the proponent should include the
cost of mitigation as a line item in the budget for a proposed project.
The proponent must keep the EPF informed of the status of mitigation
measures when the proponent implements the action. The EPF monitors the
progress of mitigation implementation and reports its status to HQ
USAF/CEV on a periodic basis. Upon request, the EPF must also provide
the results of relevant mitigation monitoring to the public.
(c) The proponent may ``mitigate to insignificance'' potentially
significant environmental impacts found during preparation of an EA, in
lieu of preparing an EIS. The FONSI for the EA must include these
mitigation measures. Such mitigations are legally binding and must be
carried out as the proponent implements the project. If, for any
reason, the project proponent later abandons or revises in
environmentally-adverse ways the mitigation commitments made in the
FONSI, the proponent must prepare a supplemental EIAP document before
continuing the project. If potentially significant environmental
impacts would result from any project revisions, the proponent must
prepare an EIS.
(d) For each FONSI or ROD containing mitigation measures, the
proponent publishes a plan specifically identifying each mitigation,
discussing how the proponent will execute the mitigations, identifying
who will fund and implement the mitigations, and stating when the
proponent will complete the mitigation. The mitigation plan will be
forwarded to HQ USAF/CEV for review within 90 days from the date of
signature of the FONSI or ROD.
[[Page 4555]]
Sec. 989.23 Public notification.
Except as provided in Sec. 989.25, public notification is required
for various aspects of the EIAP.
(a) Activities that require public notification include:
(1) The FONSI for an EA.
(2) An EIS NOI.
(3) Public scoping meetings.
(4) Availability of the draft EIS.
(5) Public hearings on the draft EIS (which should be included in
the NOA for the draft EIS).
(6) Availability of the final EIS.
(7) The ROD for an EIS.
(b) For actions of local concern, the list of possible notification
methods in 40 CFR 1506.6(b)(3) is only illustrative. The EPF may use
other equally effective means of notification as a substitute for any
of the methods listed. Because many Air Force actions are of limited
interest to persons or organizations outside the Air Force, the EPF may
limit local notification to the SPOC, local government representatives,
and local news media. For all FONSI or EIS notices, if the news media
fail to carry the story and, in the case of a FONSI, if the action
requires that, after public notice of the FONSI, 30 days must pass
before a decision or any action is permissible (see Sec. 989.15(e)(2)),
the public affairs officer must purchase an advertisement in the local
newspaper(s) of general circulation (not ``legal'' newspapers or
``legal section'' of general newspapers).
(c) For the purpose of EIAP, the EPF begins the time period of
local notification when it sends written notification to the state SPOC
or other organization (date of letter of notification) or when the
local media carries the story (date of story), whichever occurs first.
Operations and maintenance funds pay for the advertisements.
Sec. 989.24 Base closure and realignment.
Base closure or realignment may entail special requirements for
environmental analysis. The permanent base closure and realignment law,
10 U.S.C. 2687, requires a report to the Congress when an installation
where at least 300 DoD civilian personnel are authorized to be employed
is closed, or when a realignment reduces such an installation by at
least 50 percent or 1,000 of such personnel, whichever is less. In
addition, other base closure laws may be in effect during particular
periods. Such non-permanent closure laws frequently contain provisions
limiting the extent of environmental analysis required for actions
taken under them. Such provisions may also add requirements for studies
not necessarily required by NEPA. When dealing with base closure or
realignment EIAP documents, MAJCOMs and HQ USAF offices should obtain
legal advice on special congressional requirements. Consult with HQ
USAF/XOO, the HQ USAF focal point for the realignment process, decision
documents, and congressional requirements.
Sec. 989.25 Classified actions (40 CFR 1507.3(c)).
(a) Classification of an action for national defense or foreign
policy purposes does not relieve the requirement of complying with
NEPA. In classified matters, the Air Force must prepare and make
available normal NEPA environmental analysis documents to aid in the
decision making process; however, Air Force staff must prepare,
safeguard and disseminate these documents according to established
procedures for protecting classified documents. If an EIAP document
must be classified, the Air Force may modify or eliminate associated
requirements for public notice (including publication in the Federal
Register) or public involvement in the EIAP. However, the Air Force
should obtain comments on classified proposed actions or classified
aspects of generally unclassified actions, from public agencies having
jurisdiction by law or special expertise, to the extent that such
review and comment is consistent with security requirements. Where
feasible, the EPF may need to help appropriate personnel from those
agencies obtain necessary security clearances to gain access to
documents so they can comment on scoping or review the documents.
(b) Where the proposed action is classified and unavailable to the
public, the Air Force may keep the entire NEPA process classified and
protected under the applicable procedures for the classification level
pertinent to the particular information. At times (for example, during
weapons system development and base closures and realignments), certain
but not all aspects of NEPA documents may later be declassified. In
those cases, the EPF should organize the EIAP documents, to the extent
practicable, in a way that keeps the most sensitive classified
information (which is not expected to be released at any early date) in
a separate annex that can remain classified; the rest of the EIAP
documents, when declassified, will then be comprehensible as a unit and
suitable for release to the public. Thus, the documents will reflect,
as much as possible, the nature of the action and its environmental
impacts, as well as Air Force compliance with NEPA requirements.
(c) Where the proposed action is not classified, but certain
aspects of it need to be protected by security classification, the EPF
should tailor the EIAP for a proposed action to permit as normal a
level of public involvement as possible, but also fully protect the
classified part of the action and environmental analysis. In some
instances, the EPF can do this by keeping the classified sections of
the EIAP documents in a separate, classified annex.
(d) For Sec. 989.25(b) actions, an NOI or NOA will not be published
in the Federal Register until the proposed action is declassified. For
Sec. 989.25(c) actions, the Federal Register will run an unclassified
NOA which will advise the public that at some time in the future the
Air Force may or will publicly release a declassified document.
(e) The EPF similarly protects classified aspects of FONSIs, RODs,
or other environmental documents that are part of the EIAP for a
proposed action, such as by preparing separate classified annexes to
unclassified documents, as necessary.
(f) Whenever a proponent believes that EIAP documents should be
kept classified, the EPF must make a report of the matter to SAF/MIQ,
including proposed modifications of the normal EIAP to protect
classified information. The EPF may make such submissions at whatever
level of security classification is needed to provide a comprehensive
understanding of the issues. SAF/MIQ, with support from SAF/GC and
other staff elements as necessary, makes final decisions on EIAP
procedures for classified actions.
Sec. 989.26 Occupational safety and health.
Assess direct and indirect impacts of proposed actions on the
safety and health of Air Force employees and others at a work site.
Normally, compliance with Occupational Safety and Health Administration
(OSHA) standards will mitigate hazards. The EIAP document does not need
to specify such compliance procedures. However, the EIAP documents
should discuss impacts that require a change in work practices to
achieve an adequate level of health and safety.
Sec. 989.27 Airspace proposals.
The DoD and the Federal Aviation Administration (FAA) have entered
into a Memorandum of Understanding (MOU) that outlines various airspace
responsibilities. For purposes of compliance with NEPA, the DoD is the
``lead agency'' for all proposals initiated [[Page 4556]] by DoD, with
the FAA acting as the ``cooperating agency.'' Where airspace proposals
initiated by the FAA affect military use, the roles are reversed. The
proponent's action officers (civil engineering and local airspace
management) must ensure that the FAA is fully integrated into the
airspace proposal and related EIAP from the very beginning and that the
action officers review the FAA's responsibilities as a cooperating
agency. The proponent's airspace manager develops the preliminary
airspace proposal per appropriate FAA handbooks and the FAA-DoD MOU.
The preliminary airspace proposal is the basis for initial dialogue
between DoD and the FAA on the proposed action. A close working
relationship between DoD and the FAA, through the FAA regional Air
Force representative, greatly facilitates the airspace proposal process
and helps resolve many NEPA issues during the EIAP.
Sec. 989.28 Air quality.
Section 176(c) of the Clean Air Act Amendments of 1990, 42 U.S.C.
7506(c), establishes a conformity requirement for Federal agencies
which has been implemented by regulation, 40 CFR Part 93, Subpart B.
All EIAP documents must address applicable conformity requirements and
the status of compliance. Conformity applicability analyses and
determinations are separate and distinct requirements and should be
documented separately. To increase the utility of a conformity
determination in performing the EIAP, the conformity determination
should be completed prior to the completion of the EIAP so as to allow
incorporation of the information from the conformity determination into
the EIAP.
Sec. 989.29 Pollution prevention.
The Pollution Prevention Act of 1990, 42 U.S.C. 13101(b),
established a national policy to prevent or reduce pollution at the
source, whenever feasible. Pollution prevention approaches should be
applied to all pollution-generating activities. The environmental
document should analyze potential pollution that may result from the
proposed action and alternatives and must incorporate pollution
prevention measures whenever feasible. Where pollution cannot be
prevented, the environmental analysis and proposed mitigation measures
should include, wherever possible, recycling, energy recovery,
treatment, and environmentally safe disposal actions (see AFI 32-7080,
Pollution Prevention Program9).
\9\See footnote 1 to Sec. 989.1.
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Sec. 989.30 Special and emergency procedures.
(a) Special procedures. During the EIAP, unique situations may
arise that require EIAP strategies different than those set forth in
this part. These situations may warrant modification of the procedures
in this part. EPFs should only consider procedural deviations when the
resulting process would benefit the Air Force and still comply with
NEPA and CEQ regulations. EPFs must forward all requests for procedural
deviations to HQ USAF/CEV (or ANGRC/CEV) for review and approval by
SAF/MIQ.
(b) Emergency procedures (40 CFR 1506.11). Certain emergency
situations may make it necessary to take immediate action having
significant environmental impact, without observing all the provisions
of the CEQ regulations or this part. If possible, promptly notify HQ
USAF/CEV, for SAF/MIQ coordination and CEQ consultation, before
undertaking emergency actions that would otherwise not comply with NEPA
or this part. The immediate notification requirement does not apply
where emergency action must be taken without delay. Coordination in
this instance must take place as soon as practicable.
Sec. 989.31 Reporting requirements.
(a) EAs, EISs, and mitigation measures will be tracked through the
Work Information Management System-Environmental Subsystem (WIMS-ES),
as required by AFI 32-7002, Environmental Information Management
System.10 ANGRC/CE will provide EIAP updates to HQ USAF/CEV
through the WIMS-ES.
\10\See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------
(b) All documentation will be disposed of according to AFMAN 37-
139, Records Disposition--Standards (formerly AFR 4-20, Volume
211).
\11\See footnote 1 to Sec. 989.1.
---------------------------------------------------------------------------
Sec. 989.32 Procedures for analysis abroad.
Procedures for analysis of environmental actions abroad are
contained in 32 CFR Part 187. That directive provides comprehensive
policies, definitions, and procedures for implementing E.O. 12114,
Environmental Effects Abroad of Major Federal Actions. For analysis of
Air Force actions abroad, 32 CFR Part 187 will be followed. Also, refer
to Environmental Defense Fund v. Massey, 986 F. 2d 528.
Sec. 989.33 Requirements for analysis abroad.
The EPF will generally perform the same functions for analysis of
actions abroad that it performs in the United States. In addition to
the requirements of 32 CFR Part 187, the following Air Force specific
rules apply:
(a) For EAs dealing with global commons, HQ USAF/CEV will review
actions that are above the MAJCOM approval authority. In this instance,
approval authority refers to the same approval authority that would
apply to an EA in the United States. The EPF documents a decision not
to do an EIS.
(b) For EISs dealing with the global commons, the EPF provides
sufficient copies to HQ USAF/CEV for the HQ USAF EPC review and AFCEE/
EC technical review. After EPC review, the EPF makes a recommendation
as to whether the proposed draft EIS will be released as a draft EIS.
(c) For environmental studies and environmental reviews, forward
all environmental studies and reviews to HQ USAF/CEV for coordination
among appropriate Federal agencies. HQ USAF/CEV makes environmental
studies and reviews available to the Department of State and other
interested Federal agencies, and, on request, to the United States
public, in accordance with 32 CFR Part 187. HQ USAF/CEV also may inform
interested foreign governments or furnish copies of studies, in
accordance with 32 CFR Part 187.
Attachment 1 to Part 989--Glossary of References, Abbreviations,
Acronyms, and Terms
References
Legislative
10 U.S.C. 2687, Base closures and realignments
42 U.S.C. 4321-4347, National Environmental Policy Act of 1969
42 U.S.C. 7506(c), Clean Air Act Amendments of 1990
42 U.S.C. 13101(b), Pollution Prevention Act of 1990
43 U.S.C. 155-158, Engle Act
Executive Orders
Executive Order 11988, Floodplain Management, May 24, 1977 (3 CFR,
1977 Comp., p. 117)
Executive Order 11990, Protection of Wetlands, May 24, 1977 (3 CFR,
1977 Comp., p. 121)
Executive Order 12114, Environmental Effects Abroad of Major Federal
Actions, January 4, 1979 (3 CFR, 1979 Comp., p. 356)
Executive Order 12372, Intergovernmental Review of Federal Programs,
July 14, 1982 (3 CFR, 1982 Comp., p. 197)
US Government Agency Publications
Council on Environmental Quality Regulations for Implementing the
Procedural Provisions of the National [[Page 4557]] Environmental
Policy Act, 40 CFR Parts 1500-1508
DoD Instruction 5000.2, Defense Acquisition Management Policies and
Procedures, February 23, 1991, with Change 1, and Air Force
Supplement 1, Acquisition Management Policies, 31 August 1993, with
Change 1
DoD Manual 5000.2-M, Defense Acquisition Management Documentation
and Reports, February 1991
DoD Directive 6050.1, Environmental Effects in the United States of
DoD Actions, July 30, 1979 (32 CFR Part 188)
DoD Directive 6050.7, Environmental Effects Abroad of Major
Department of Defense Actions, March 31, 1979 (32 CFR Part 187)
Air Force Publications
AFPD 32-70, Environmental Quality
AFI 32-1021, Planning and Programming of Facility Construction
Projects
AFI 32-7002, Environmental Information Management System
AFI 32-7062, Air Force Comprehensive Planning
AFI 32-7064, Integrated Resources Management
AFI 32-7080, Pollution Prevention Program
AFI 35-202, Environmental Community Involvement
AFMAN 37-139, Records Disposition--Standards
Abbreviations and Acronyms
Abbreviation or acronym Definition
AFCEE Air Force Center for Environmental Excellence
AFCEE/EC Air Force Center for Environmental Excellence/
Environmental Conservation and Planning Directorate
AFI Air Force Instruction
AFLSA/JACE Air Force Legal Services Agency/Environmental Law and
Litigation Division
AFLSA/JAJT Air Force Legal Services Agency/Trial Judiciary Division
AFMAN Air Force Manual
AFMOA/SG Air Force Medical Operations Agency/Aerospace Medicine
Office
AFPD Air Force Policy Directive
AFRES Air Force Reserve
ANG Air National Guard
ANGRC Air National Guard Readiness Center
CATEX Categorical Exclusion
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
DAB Defense Acquisition Board
DoD Department of Defense
DoDD Department of Defense Directive
DoDM Department of Defense Manual
DOPAA Description of Proposed Action and Alternatives
EA Environmental Assessment
EIAP Environmental Impact Analysis Process
EIS Environmental Impact Statement
E.O. Executive Order
EPA Environmental Protection Agency
EPC Environmental Protection Committee
EPF Environmental Planning Function
FAA Federal Aviation Administration
FEIS Final Environmental Impact Statement
FOA Field Operating Agency
FONPA Finding of No Practicable Alternative
FONSI Finding of No Significant Impact
GSA General Services Administration
HQ AFMC Headquarters, Air Force Materiel Command
HQ USAF Headquarters, United States Air Force
HQ USAF/CE The Air Force Civil Engineer
MAJCOM Major Command
MOA Military Operating Area
MOU Memorandum of Understanding
MSL Mean Sea Level
NEPA National Environmental Policy Act of 1969
NGB-CF National Guard Bureau Air Directorate
NGB-JA National Guard Bureau Office of the Staff Judge Advocate
NGB-PA National Guard Bureau Office of Public Affairs
NOA Notice of Availability
NOI Notice of Intent
OSD Office of the Secretary of Defense
OSHA Occupational Safety and Health Administration
PDEIS Preliminary Draft Environmental Impact Statement
RCO Air Force Regional Compliance Office
ROD Record of Decision
SAF/GC Air Force General Counsel
SAF/LL Air Force Office of Legislative Liaison
SAF/MI Assistant Secretary of the Air Force for Manpower, Reserve
Affairs, Installations, and Environment
SAF/MIQ Deputy Assistant Secretary of the Air Force (Environment,
Safety, and Occupational Health)
SAF/PA Air Force Office of Public Affairs
SJA Staff Judge Advocate
SPOC Single Point of Contact
TDY Temporary Duty
U.S.C. United States Code
WIMS-ES Work Information Management System-Environmental Subsystem
Terms
Note: All terms listed in the CEQ Regulations, 40 CFR Part 1508,
apply to this part. In addition, the following terms apply:
Description of Proposed Action and Alternatives (DOPAA)--An Air
Force document that is the framework for assessing the environmental
impact of a proposal. It describes the purpose and need for the
action, the alternatives to be considered, and the rationale used to
arrive at the proposed action.
Environmental Impact Analysis Process (EIAP)--The Air Force
program that implements the requirements of NEPA and requirements
for analysis of environmental effects abroad under E.O. 12114.
Finding of No Practicable Alternative (FONPA)--Documentation
according to Executive Orders 11988 and 11990 that explains why
there are no practicable alternatives to an action affecting a
wetland or floodplain, based on appropriate EIAP analysis or other
documentation.
Interdisciplinary--An approach to environmental analysis
involving more than one discipline or branch of learning.
National Environmental Policy Act of 1969 (NEPA)--The basic
national charter to protect the environment that requires all
Federal agencies to consider environmental impacts when making
decisions regarding proposed actions.
Pollution Prevention--``Source reduction'', as defined under the
Pollution Prevention Act, and other practices that reduce or
eliminate pollutants through increased efficiency in the use of raw
materials, energy, water, or other resources, or in the protection
of natural resources by conservation.
Proponent--Any office, unit, or activity that proposes to
initiate an action.
Scoping--A public process for proposing alternatives to be
addressed and for identifying the significant issues related to a
proposed action.
United States--All states, commonwealths, the District of
Columbia, territories and possessions of the United States, and all
waters and airspace subject to the territorial jurisdiction of the
United States. The territories and possessions of the United States
include the Virgin Islands, American Samoa, Wake Island, Midway
Island, Guam, Palmyra Island, Johnston Atoll, Navassa Island, and
Kingman Reef.
Attachment 2 to Part 989--Categorical Exclusions
A2.1. Proponent/EPF Responsibility. Although a proposed action
may qualify for a categorical exclusion from the requirements for
environmental impact analysis under NEPA, this exclusion does not
relieve the EPF or the proponent of responsibility for complying
with all other environmental requirements related to the proposal,
including requirements for permits, state regulatory agency review
of plans, and so on.
A2.2. Additional Analysis. Circumstances may arise in which
usually categorically excluded actions may have a significant
environmental impact and, therefore, may generate a requirement for
further environmental analysis. Examples of situations where such
unique circumstances may be present include:
A.2.2.1. Actions of greater scope or size than generally
experienced for a particular category of action.
A2.2.2. Potential for degradation (even though slight) of
already marginal or poor environmental conditions.
A2.2.3. Initiating a degrading influence, activity, or effect in
areas not already significantly modified from their natural
condition.
A2.2.4. Use of unproven technology.
A2.2.5. Use of hazardous or toxic substances that may come in
contact with the surrounding environment.
A2.2.6. Presence of threatened or endangered species,
archaeological remains, historical sites, or other protected
resources.
A2.2.7. Proposals adversely affecting areas of critical
environmental concern, such as prime or unique agricultural lands,
wetlands, coastal zones, wilderness areas, floodplains, or wild and
scenic river areas.
A2.3. CATEX List. Actions that are categorically excluded in the
absence of unique circumstances are:
A2.3.1. Routine procurement of goods and services.
A2.3.2. Routine Commissary and Exchange operations.
A2.3.3. Routine recreational and welfare activities.
A2.3.4. Normal personnel, fiscal or budgeting, and
administrative activities and [[Page 4558]] decisions including
those involving military and civilian personnel (for example,
recruiting, processing, paying, and records keeping).
A2.3.5. Preparing, revising, or adopting regulations,
instructions, directives, or guidance documents that do not,
themselves, result in an action being taken.
A2.3.6. Preparing, revising, or adopting regulations,
instructions, directives, or guidance documents that implement
(without substantial change) the regulations, instructions,
directives, or guidance documents from higher headquarters or other
Federal agencies with superior subject matter jurisdiction.
A2.3.7. Continuation or resumption of pre-existing actions,
where there is no substantial change in existing conditions or
existing land uses and where the actions were originally evaluated
in accordance with applicable law and regulations, and surrounding
circumstances have not changed.
A2.3.8. Performing interior and exterior construction within the
5-foot line of a building without changing the land use of the
existing building.
A2.3.9. Repairing and replacing real property installed
equipment.
A2.3.10. Routine facility maintenance and repair that does not
involve disturbing significant quantities of hazardous materials
such as asbestos.
A2.3.11. Actions similar to other actions which have been
determined to have an insignificant impact in a similar setting as
established in an EIS or an EA resulting in a FONSI. The EPF must
document application of this CATEX on AF Form 813, specifically
identifying the previous Air Force approved environmental document
which provides the basis for this determination.
A2.3.12. Installing, operating, modifying, and routinely
repairing and replacing utility and communications systems, data
processing cable, and similar electronic equipment that use existing
rights of way, easements, distribution systems, or facilities.
A2.3.13. Installing or modifying airfield operational equipment
(such as runway visual range equipment, visual glide path systems,
and remote transmitter or receiver facilities) on airfield property
and usually accessible only to maintenance personnel.
A2.3.14. Installing on previously developed land, equipment that
does not substantially alter land use (i.e., land use of more than
one acre). This includes outgrants to private lessees for similar
construction. The EPF must document application of this CATEX on AF
Form 813.
A2.3.15. Laying-away or mothballing a production facility or
adopting a reduced maintenance level at a closing installation when
(1) agreement on any required historic preservation effort has been
reached with the state historic preservation officer and the
Advisory Council on Historic Preservation, and (2) no degradation in
the environmental restoration program will occur.
A2.3.16. Acquiring land and ingrants (50 acres or less) for
activities otherwise subject to CATEX. The EPF must document
application of this CATEX on AF Form 813.
A2.3.17. Transferring land, facilities, and personal property
for which the General Services Administration (GSA) is the action
agency. Such transfers are excluded only if there is no change in
land use and GSA complies with its NEPA requirements.
A2.3.18. Transferring administrative control of real property
within the Air Force or to another military department or to another
Federal agency, including returning public domain lands to the
Department of the Interior.
A2.3.19. Granting easements, leases, licenses, rights of entry,
and permits to use Air Force controlled property for activities
that, if conducted by the Air Force, could be categorically excluded
in accordance with this attachment. The EPF must document
application of this CATEX on AF Form 813.
A2.3.20. Converting in-house services to contract services.
A2.3.21. Routine personnel decreases and increases, including
work force conversion to either on-base contractor operation or to
military operation from contractor operation (excluding base closure
and realignment actions which are subject to congressional reporting
under 10 U.S.C. Sec. 2687).
A2.3.22. Routine, temporary movement of personnel, including
deployments of personnel on a temporary duty (TDY) basis where
existing facilities are used.
A2.3.23. Personnel reductions resulting from workload
adjustments, reduced personnel funding levels, skill imbalances, or
other similar causes.
A2.3.24. Study efforts that involve no commitment of resources
other than personnel and funding allocations.
A2.3.25. The analysis and assessment of the natural environment
without altering it (inspections, audits, surveys, investigations).
This CATEX includes the granting of any permits necessary for such
surveys, provided that the technology or procedure involved is well
understood and there are no adverse environmental impacts
anticipated from it. The EPF must document application of this CATEX
on AF Form 813.
A2.3.26. Undertaking specific investigatory activities to
support remedial action activities for purposes of cleanup of
hazardous spillage or waste sites or contaminated groundwater or
soil. These activities include soil borings and sampling,
installation, and operation of test or monitoring wells. This CATEX
applies to studies that assist in determining final cleanup actions
when they are conducted in accordance with interagency agreements,
administrative orders, or work plans previously agreed to by EPA or
state regulators. Note: This CATEX does not apply to the selection
of the remedial action.
A2.3.27. Normal or routine basic and applied scientific research
confined to the laboratory and in compliance with all applicable
safety, environmental, and natural resource conservation laws.
A2.3.28. Routine transporting of hazardous materials and wastes
in accordance with applicable Federal, state, interstate, and local
laws.
A2.3.29. Emergency handling and transporting of small quantities
of chemical surety material or suspected chemical surety material,
whether or not classified as hazardous or toxic waste, from a
discovery site to a permitted storage, treatment, or disposal
facility.
A2.3.30. Immediate responses to the release or discharge of oil
or hazardous materials in accordance with an approved Spill
Prevention and Response Plan or Spill Contingency Plan or that are
otherwise consistent with the requirements of the National
Contingency Plan. Long-term cleanup and remediation activities
should be evaluated separately.
A2.3.31. Relocating a small number of aircraft to an
installation with similar aircraft that does not result in a
significant increase of total flying hours or the total number of
aircraft operations, a change in flight tracks, or an increase in
permanent personnel or logistics support requirements at the
receiving installation.
A2.3.32. Temporary (for less than 30 days) increases in air
operations up to 50 percent of the typical installation aircraft
operation rate or increases of 50 operations a day, whichever is
greater.
A2.3.33. Flying activities that comply with the Federal aviation
regulations, that are dispersed over a wide area and that do not
frequently (more than once a day) pass near the same ground points.
This CATEX does not cover regular activity on established routes or
within special use airspace.
A2.3.34. Supersonic flying operations over land and above 30,000
feet MSL, or over water and above 10,000 feet MSL and more than 15
nautical miles from land.
A2.3.35. Formal requests to the FAA, or host-nation equivalent
agency, to establish or modify special use airspace (for example,
restricted areas, warning areas, military operating areas) and
military training routes for subsonic operations that have a base
altitude of 3,000 feet above ground level or higher. The EPF must
document application of this CATEX on AF Form 813, which must
accompany the request to the FAA.
A2.3.36. Adopting airfield approach, departure, and en route
procedures that do not route air traffic over noise-sensitive areas,
including residential neighborhoods or cultural, historical, and
outdoor recreational areas. The EPF may categorically exclude such
air traffic patterns at or greater than 3,000 feet above ground
level regardless of underlying land use.
A2.3.37. Participating in ``air shows'' and fly-overs by Air
Force aircraft at non-Air Force public events after obtaining FAA
coordination and approval.
A2.3.38. Conducting Air Force ``open houses'' and similar
events, including air shows, golf tournaments, home shows, and the
like, where crowds gather at an Air Force installation, so long as
crowd and traffic control, etc., have not in the past presented
significant safety or environmental impacts.
Attachment 3 to Part 989--Procedures for Holding Public Hearings on
Draft Environmental Impact Statements (EIS)
A.3.1. General Information:
A.3.1.1. The Air Force solicits the views of the public and
special interest groups and, in appropriate cases, holds public
hearings on the draft EIS.
A3.1.2. The Office of the Judge Advocate General, through the
Air Force Legal Services [[Page 4559]] Agency/Trial Judiciary
Division (AFLSA/JAJT) and its field organization, is responsible for
conducting public hearings.
A3.1.3. The proponent EPF establishes the date and location,
arranges for hiring the court reporter, funds temporary duty costs
for the hearing officer, makes logistical arrangements (for example,
publishing notices, arranging for press coverage, obtaining tables
and chairs, etc.), and forwards the transcripts of the hearings to
AFLSA/JAJT.
A3.2. Notice of Hearing (40 CFR 1506.6):
A3.2.1. Public Affairs officers:
A3.2.1.1. Announce public hearings and assemble a mailing list
of individuals to be invited.
A3.2.1.2. Distribute announcements of a hearing to all
interested individuals and agencies, including the print and
electronic media.
A3.2.1.3. Under certain circumstances, purchase an advertisement
announcing the time and place of the hearing as well as other
pertinent particulars.
A3.2.1.4. Distribute the notice in a timely manner so it will
reach recipients or be published at least 15 days before the hearing
date. Distribute notices fewer than 15 days before the hearing date
when you have substantial justification and if the justification for
a shortened notice period appears in the notice.
A3.2.2. If an action has effects of national concern, publish
notices in the Federal Register and mail notices to national
organizations that have an interest in the matter.
A3.2.2.1. Because of the longer lead time required by the
Federal Register, send out notices for publication in the Federal
Register to arrive at HQ USAF/CEV no later than 30 days before the
hearing date.
A3.2.3. The notice should include:
A3.2.3.1. Date, time, place, and subject of the hearing.
A3.2.3.2. A description of the general format of the hearing.
A3.2.3.3. The name and telephone number of a person to contact
for more information.
A3.2.3.4. The request that speakers submit (in writing or by
return call) their intention to participate, with an indication of
which environmental impact (or impacts) they wish to address.
A3.2.3.5. Any limitation on the length of oral statements.
A3.2.3.6. A suggestion that speakers submit statements of
considerable length in writing.
A3.2.3.7. A summary of the proposed action.
A3.2.3.8. The offices or location where the Draft EIS and any
appendices are available for examination.
A.3.3. Availability of the Draft EIS to the Public. The EPF
makes copies of the Draft EIS available to the public at an Air
Force installation or other suitable place in the vicinity of the
proposed action and public hearing.
A3.4. Place of the Hearing. The EPF arranges to hold the hearing
at a time and place and in an area readily accessible to military
and civilian organizations and individuals interested in the
proposed action. Generally, the EPF should arrange to hold the
hearing in an off-base civilian facility, which is more accessible
to the public.
A3.5. Hearing Officer:
A3.5.1. The AFLSA/JAJT selects a judge advocate, who is a
military judge with experience in conducting public meetings, to
preside over hearings. The hearing officer does not need to have
personal knowledge of the project, other than familiarity with the
Draft EIS. In no event should the hearing officer be the Staff Judge
Advocate of the proponent command, have participated personally in
the development of the project, or have rendered legal advice or
assistance with respect to it (or be expected to do so in the
future). The principal qualification of the hearing officer should
be the ability to conduct a hearing as an impartial participant.
A3.5.2. The primary duties of the hearing officer are to make
sure that the hearing is orderly, is recorded, and that interested
parties have a reasonable opportunity to speak. The presiding
officer should direct the speakers' attention to the purpose of the
hearing, which is to consider the environmental impacts of the
proposed project. Each speaker should have a time limit to provide
maximum public input to the decision-maker.
A3.6. Record of the Hearing. The hearing officer must make sure
a verbatim transcribed record of the hearing is prepared, including
all stated positions, all questions, and all responses. The hearing
officer should append all written submissions that parties provide
to the hearing officer during the hearing to the record as
attachments. The hearing officer should also append a list of
persons who spoke at the hearing and submitted written comments and
a list of the organizations or interests they represent with
addresses. The hearing officer must make sure a verbatim transcript
of the hearing is provided to the EPF for inclusion as an appendix
to the Final EIS. The officer should also ensure that all persons
who request a copy of the transcript get a copy when it is
completed. Copying charges are determined according to 40 CFR
1506.6(f).
A3.7. Hearing Format. Use the format outlined below as a general
guideline for conducting a hearing. Hearing officers should tailor
the format to meet the hearing objectives. These objectives provide
information to the public, record opinions of interested persons on
environmental impacts of the proposed action, and set out
alternatives for improving the EIS and for later consideration.
A3.7.1. Organizing Speakers by Subject. If time and
circumstances permit, the hearing officer should group speakers by
subject matter. For example, all persons wishing to address water
quality issues should make their presentations one after the other
so the EIS preparation team can review the transcript and make
summaries from it more easily.
A3.7.2. Record of Attendees. The hearing officer should make a
list of all persons who wish to speak at the hearing to help the
hearing officer in calling on these individuals, to ensure an
accurate transcript of the hearing, and to enable the officer to
send a copy of the Final EIS (40 CFR Sec. 1502.19) to any person,
organization, or agency that provided substantive comments at the
hearing. The hearing officer should assign assistants to the
entrance of the hearing room to provide cards on which individuals
can voluntarily write their names, addresses, telephone numbers,
organizations they represent, and titles; whether they desire to
make a statement at the hearing; and what environmental area(s) they
wish to address. The hearing officer can then use the cards to call
on individuals who desire to make statements. However, the hearing
officer will not deny entry to the hearing or the right to speak to
people who decline to submit this information on cards.
A3.7.3. Introductory Remarks. The hearing officer should first
introduce himself or herself and the EIS preparation team. Then the
hearing officer should make a brief statement on the purpose of the
hearing and give the general ground rules on how it will be
conducted. This is the proper time to welcome any dignitaries who
are present. The hearing officer should explain that he or she does
not make any recommendation or decision on whether the proposed
project should be continued, modified, or abandoned or how the EIS
should be prepared.
A3.7.4. Explanation of the Proposed Action. The Air Force EIS
preparation team representative should next explain the proposed
action, the alternatives, the potential environmental consequences,
and the EIAP.
A3.7.5. Questions by Attendees. After the EIS team
representative explains the proposed action, alternatives, and
consequences, the hearing officer should give attendees a chance to
ask questions to clarify points they may not have understood. The
hearing officer may have to reply in writing, at a later date, to
some of the questions. While the Air Force EIS preparation team
should be as responsive as possible in answering questions about the
proposal, they should not become involved in debate with questioners
over the merits of the proposed action. Cross-examination of
speakers, either those of the Air Force or the public, is not the
purpose of an informal hearing. If necessary, the hearing officer
may limit questioning or conduct portions of the hearing to ensure
proper lines of inquiry. However, the hearing officer should include
all questions in the hearing record.
A3.7.6. Statement of Attendees. The hearing officer must give
the persons attending the hearing a chance to present oral or
written statements. The hearing officer should be sure the recorder
has the name and address of each person who submits an oral or
written statement. The officer should also permit the attendees to
submit written statements within a reasonable time, usually two
weeks, following the hearing. The officer should allot a reasonable
length of time at the hearing for receiving oral statements. The
officer may waive any announced time limit at his or her discretion.
The hearing officer may allow those who have not previously
indicated a desire to speak to identify themselves and be recognized
only after those who have previously indicated their intentions to
speak have spoken.
A3.7.7. Ending or Extending a Hearing. The hearing officer has
the power to end the [[Page 4560]] hearing if the hearing becomes
disorderly, if the speakers become repetitive, or for other good
cause. In any such case, the hearing officer must make a statement
for the record on the reasons for terminating the hearing. The
hearing officer may also extend the hearing beyond the originally
announced date and time. The officer should announce the extension
to a later date or time during the hearing and prior to the hearing
if possible.
A3.8. Adjourning the Hearing. After all persons have had a
chance to speak, when the hearing has culled a representative view
of public opinion, or when the time set for the hearing and any
reasonable extension of time has ended, the hearing officer adjourns
the hearing. In certain circumstances (for example, if the hearing
officer believes it is likely that some participants will introduce
new and relevant information), the hearing officer may justify
scheduling an additional, separate hearing session. If the hearing
officer makes the decision to hold another hearing while presiding
over the original hearing he or she should announce that another
public hearing will be scheduled or is under consideration. The
officer gives notice of a decision to continue these hearings in
essentially the same way he or she announced the original hearing,
time permitting. The Public Affairs officer provides the required
public notices and directs notices to interested parties in
coordination with the hearing officer. Because of lead time
constraints, SAF/MIQ may waive Federal Register notice requirements
or advertisements in local publications. At the conclusion of the
hearing, the hearing officer should inform the attendees of the
deadline (usually 2 weeks) to submit additional written remarks in
the hearing record. The officer should also notify attendees of the
deadline for the commenting period of the Draft EIS.
Patsy J. Conner,
Air Force Federal Register Liaison Officer.
[FR Doc. 95-1607 Filed 1-23-95; 8:45 am]
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