[Federal Register Volume 64, Number 6 (Monday, January 11, 1999)]
[Notices]
[Pages 1656-1710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9]
[[Page 1655]]
_______________________________________________________________________
Part II
Department of Health and Human Services
_______________________________________________________________________
Revision of HHS National Environmental Policy Act Compliance Procedures
and Procedures for Environmental Protection; Notice
Federal Register / Vol. 64, No. 6 / Monday, January 11, 1999 /
Notices
[[Page 1656]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Revision of HHS National Environmental Policy Act Compliance
Procedures and Procedures for Environmental Protection
AGENCY: Department of Health and Human Services, Office of the
Secretary.
ACTION: Notice of proposed revision of HHS NEPA Procedures.
-----------------------------------------------------------------------
DATES: Written comments must be received on or before February 10,
1999.
SUMMARY: In accordance with the provisions of the National
Environmental Policy Act of 1969 (NEPA), as amended, and other related
environmental laws, executive orders, and regulations, the Department
of Health and Human Services published procedures in 1980 for
conducting environmental reviews, preparing necessary documentation and
making program decisions to ensure that environmental protection is an
integral part of HHS operations. These procedures have recently been
revised and updated. Comments from interested parties are solicited.
FOR FURTHER INFORMATION CONTACT: Dick Green, Office of Facilities
Services, Department of Health and Human Services, Hubert H. Humphrey
Building, Room 729D, 200 Independence Avenue, SW, Washington, DC,
20201. Telephone (202) 619-1994, FAX (202) 619-2692, E-mail Address:
[email protected].
Dated: December 23, 1998.
John J. Callahan,
Assistant Secretary for Management and Budget.
HHS Chapter 30--General Administration Manual; HHS Transmittal 98.2
PART 30--ENVIRONMENTAL PROTECTION
Contents
Chapter and Title
30-00 Environmental Protection
30-10 Policy
30-20 Administrative Requirements
30-30 General Environmental Review Procedures
30-40 Natural Asset Review
30-50 National Environmental Policy Act (NEPA) Review
30-60 Energency Planning and Community Right-To-Know Act of 1986
(EPCRA) Requirements
30-70 Pollution Prevention Act of 1990 (PPA) Requirements
30-80 Executive Order 12856, Federal Compliance with Right-To-Know
Laws and Pollution Prevention Requirements
30-90 Executive Order 13101, Greening the Government Through Waste
Prevention, Recycling, and Federal Acquisition
HHS Chapter 30-00--General Administration Manual; HHS Transmittal
98.2
Subject: Environmental Protection
30-00-00....................................... Purpose
10....................................... Chapter Organization
and Content
20....................................... Environmental Statutes
and Executive Orders
30....................................... Definitions
30-00-00 Purpose
This Chapter summarizes and provides guidance on many current
statutory, regulatory and Executive Order environmental authorities. It
does not create or confer any rights on any person and it is not
intended to be used as the sole source of information for any of the
referenced environmental compliance requirements. The Department
recognizes that any of the authorities described herein may be revised
after the issuance of the Chapter. The current specific environmental
statute, regulation or Executive Order should be reviewed when
questions arise. To the extent that any statement in this chapter
should conflict with a current applicable statutory, regulatory or
Executive Order requirement, that statutory, regulatory or Executive
Order requirement shall supersede any inconsistent provision of this
GAM Chapter. Additional questions should be referred to the OPDIV
environmental officer, the Departmental environmental program manager,
and/or the Office of the General Counsel.
Part 30 of the General Administration Manual establishes
Departmental policy and procedures with respect to protection of the
environment and the preservation of natural resources. Under Federal
statutes, regulations, and Executive Orders, all Federal Departments
and agencies are required to comply with all applicable Federal, State
and local environmental statutes, laws and regulations and must take
into account the environmental consequences of their activities. In
many cases, the activities of non-Federal organizations which operate
under the authority or with the support of Federal Departments or
agencies are also included.
This Part supersedes Part 30, Environmental Protection, 1980, with
the exception that Part 30, Chapter 30-40, Cultural Asset Review
(Historical Preservation) remains in effect until a separate revised
Chapter dealing with this subject is published.
30-00-10 Chapter Organization and Content
The chapters of Part 30 are organized as follows:
Chapter 30-00 provides a list and summary descriptions of
certain environmental laws and Executive Orders, and a list of
definitions.
Chapter 30-10 and 30-20 provide overall Departmental
policy with respect to environmental protection and a summary of
internal administrative procedures which Departmental organizations
must implement.
Chapter 30-30 provides a general summary of the
environmental review process for Departmental activities under the
National Environmental Policy Act and statutes and Executive Orders
that require protection and preservation of natural and cultural
assets.
Chapters 30-40 through 30-90 provide detailed requirements
for certain environmental statutes and Executive Orders covered by Part
30.
30-00-20 Environmental Statutes and Executive Orders
Federal agencies are potentially subject to more than 150 Federal
statutes and Executive Orders governing the environment. Many of these
laws are noted in Table 1.
Environmental laws and implementing regulations that significantly
impact the Department are summarized in the following subsections.
Detailed guidance is contained in other chapters of Part 30 for certain
environmental statutes and Executive Orders. Table 1, as follows,
indicated the location of statutes or Executive Orders that are
discussed in Part 30.
Table 1.--Statutes and Executive Orders
----------------------------------------------------------------------------------------------------------------
Environmental statute or executive order Citation Part 30 location
----------------------------------------------------------------------------------------------------------------
Acid Precipitation Act of 1980............... 42 U.S.C. Secs. 8901 to ......................................
8912.
Act to Prevent Pollution From Ships.......... 33 U.S.C. Secs. 1901 to ......................................
1912.
Agricultural Act of 1970..................... 16 U.S.C. Secs. 1501 to ......................................
1510.
American Indian Religious Freedom Act........ 42 U.S.C. Sec. 1996..... ......................................
[[Page 1657]]
Antarctic Protection Act of 1990............. 16 U.S.C. Secs. 2461 to ......................................
2466.
Antiquities Act of 1906...................... 16 U.S.C. Secs. 431 to 30-00-20K
433.
Archeological and Historic Preservation Act 16 U.S.C. Secs. 469 to 30-00-20K
of 1974. 469c-1.
Archeological Resources Protection Act of 16 U.S.C. Secs. 470aa to ......................................
1979. 470mm.
Asbestos Hazard Emergency Response Act of 15 U.S.C. Secs. 2641 to ......................................
1986. 2656.
Atomic Energy Act of 1954.................... 42 U.S.C. Secs. 2011 to ......................................
2297g-4.
Aviation Safety and Noise Abatement Act of 49 U.S.C. app. Secs. ......................................
1979. 2101 to 2125.
Clean Air Act................................ 42 U.S.C. Secs. 7401 to 30-00-20A
7671q.
Clean Vessel Act of 1992..................... 33 U.S.C. Sec. 1322 note ......................................
Clean Water Act [Federal Water Pollution 33 U.S.C. Secs. 1251 to 30-00-20B
Control Act]. 1387.
Coastal Barrier Resources Act................ 16 U.S.C. Secs. 3501 to ......................................
3510.
Coastal Wetlands Planning Protection, and 16 U.S.C. Secs. 3951 to ......................................
Restoration Act. 3956.
Coastal Zone Management Act of 1972.......... 16 U.S.C. Secs. 1451 to 30-00-20C; Ch. 30-40
1464.
Community Environmental Response Facilitation 42 U.S.C. Secs. 9620 ......................................
Act. note.
Comprehensive Environmental Response, 42 U.S.C. Secs. 9601 to 30-00-20D
Compensation, and Liability Act of 1980 9675.
[``Superfund''].
Emergency Planning and Community Right-to- 42 U.S.C. Secs. 11001 to 30-00-20E; Ch. 30-60
Know Act of 1986. 11050.
Emergency Wetlands Resources Act of 1986..... 16 U.S.C. Secs. 3901 to ......................................
3932.
Endangered Species Act of 1973............... 16 U.S.C. Secs. 1531 to 30-00-20F; Ch. 30-40
1544.
Energy Policy Act of 1992.................... 42 U.S.C. Secs. 13201 to 30-00-20G
13556.
Energy Policy and Conservation Act........... 42 U.S.C. Secs. 6201 to ......................................
6422.
Energy Reorganization Act of 1974............ 42 U.S.C. Secs. 5801 to ......................................
5891.
Energy Supply and Environmental Coordination 15 U.S.C. Secs. 791 to ......................................
Act of 1974. 798.
Environmental Programs Assistance Act of 1984 42 U.S.C. Sec. 4368a.... ......................................
Environmental Quality Improvement Act of 1970 42 U.S.C. Secs. 4371 to ......................................
4375.
Farmland Protection Policy Act............... 7 U.S.C. Secs. 4201 to ......................................
4209.
Federal Facility Compliance Act of 1992...... 42 U.S.C. Secs. 6903, ......................................
6908, 6924, 6927, 6939c,
6939d, 6961, 6965.
Federal Food, Drug, and Cosmetic Act......... 21 U.S.C. Secs. 301 to ......................................
397.
Federal Insecticide, Fungicide, and 7 U.S.C. Secs. 136 to 30-00-20H
Rodenticide Act. 136y.
Federal Land Policy and Management Act of 43 U.S.C. Secs. 1701 to ......................................
1976. 1784.
Federal Oil and Gas Royalty Management Act of 30 U.S.C. Secs. 1701 to ......................................
1982. 1757.
Fish and Wildlife Act of 1956................ 16 U.S.C. Secs. 742a to ......................................
742d, 742e to 742j-2.
Fish and Wildlife Coordination Act........... 16 U.S.C. Secs. 661 to 30-00-20I; Ch. 30-40
666c.
Flood Disaster Protection Act of 1973........ 42 U.S.C. Secs. 2414, ......................................
4001 to 4129.
Forest and Rangeland Renewable Resources 16 U.S.C. Secs. 1600 to ......................................
Planning Act of 1974. 1614.
Forest and Rangeland Renewable Resources 16 U.S.C. Secs. 1641 to ......................................
Research Act of 1978. 1649.
Forest Ecosystems and Atmospheric Pollution 16 U.S.C. Secs. 1642,
Research Act of 1988. 1642 note.
Geothermal Energy Research, Development and 30 U.S.C. Secs. 1101 to
Demonstration Act of 1974. 1164.
Global Change Research Act of 1990........... 15 U.S.C. Secs. 2921 to
2961.
Global Climate Protection Act of 1987........ 15 U.S.C. Sec. 2901 note
Hazardous Substance Response Revenue Act of 26 U.S.C. Secs. 4611-
1980. 4612, 4661-4662.
Historic Sites Act of 1935 [Historic Sites, 16 U.S.C. Secs. 461 to 30-00-20J
Buildings, and Antiquities Act]. 467.
Indian Environmental General Assistance 42 U.S.C. Sec. 4368b....
Program Act of 1992.
Lead-Based Paint Exposure Reduction Act...... 15 U.S.C. Secs. 2681 to
2692.
Lead-Based Paint Poisoning Prevention Act.... 42 U.S.C. Secs. 4821 to
4846.
Lead Contamination Control Act of 1988....... 42 U.S.C. Secs. 300j-21
to 300j-26.
Low-Level Radioactive Waste Policy Act....... 42 U.S.C. Secs. 2021b to
2021j.
Marine Mammal Protection Act of 1972......... 16 U.S.C. Secs. 1361 to
1421h.
Marine Protection, Research, and Sanctuaries 16 U.S.C. Secs. 1431 to 30-00-20K; Ch. 30-40
Act of 1972. 1445a; 33 U.S.C. Secs.
1401 to 1445.
Medical Waste Tracking Act of 1988........... 42 U.S.C. Secs. 6992 to
6992K.
Migratory Bird Treaty Act.................... 16 U.S.C. Secs. 703 to
712.
Mining and Mineral Resources Research 30 U.S.C. Secs. 1221 to
Institute Act of 1984. 1230a.
Multiple-Use Sustained-Yield Act of 1960..... 16 U.S.C. Secs. 528 to
531.
National Climate Program Act................. 15 U.S.C. Secs. 2901 to
2908.
National Contaminated Sediment Assessment and 33 U.S.C. Sec. 1271 note
Management Act.
National Environmental Policy Act of 1969.... 42 U.S.C. Secs. 4321 to 30-00-20L; Ch. 30-50
4370d.
National Forest Management Act of 1976....... 16 U.S.C. Secs. 472a,
521b, 1600, 1611 to 1614.
National Environmental Education Act......... 20 U.S.C. Secs. 5501 to
5510.
National Historic Preservation Act........... 16 U.S.C. Secs. 470 to 30-00-20J
470x-6.
Native American Graves Protection & 25 U.S.C. Secs. 3001 to ......................................
Repatriation Act. 3013.
Noise Control Act of 1972.................... 42 U.S.C. Secs. 4901 to ......................................
4918.
Nonindigenous Aquatic Nuisance Prevention and 16 U.S.C. Secs. 4701 to ......................................
Control Act of 1990. 4751.
Nuclear Waste Policy Act of 1982............. 42 U.S.C. Secs. 10101 to ......................................
10270.
Occupational Safety and Health Act of 1970... 29 U.S.C. Secs. 651 to 30-00-20M
678.
Ocean Dumping Ban Act of 1988................ 33 U.S.C. Secs. 1412a, ......................................
1414a to 1414c.
Oil Pollution Act of 1990.................... 33 U.S.C. Secs. 2701 to ......................................
2761.
Organotin Antifouling Paint Control Act of 33 U.S.C. Secs. 2401 to ......................................
1988. 2410.
[[Page 1658]]
Outer Continental Shelf Lands Act............ 43 U.S.C. Secs. 1331 to ......................................
1356.
Outer Continental Shelf Lands Act Amendments 43 U.S.C. Secs. 1344 to ......................................
of 1978. 1356, 1801 to 1866; 30
U.S.C. Sec. 237.
Pollution Prevention Act of 1990............. 42 U.S.C. Secs. 13101 to 30-00-20N; Ch. 30-70
13109.
Pollution Prosecution Act of 1990............ 42 U.S.C. Sec. 4321 note ......................................
Powerplant and Industrial Fuel Use Act of 42 U.S.C. Secs. 8301 to ......................................
1978. 8483.
Refuse Act of 1899........................... 33 U.S.C. Sec. 407...... ......................................
Renewable Resources Extension Act of 1978.... 16 U.S.C. Secs. 1671 to ......................................
1676.
Residential Lead-Based Paint Hazard Reduction 42 U.S.C. Secs. 4851 to ......................................
Act of 1992. 4856.
Resource Conservation and Recovery Act of 42 U.S.C. Secs. 6901 to 30-00-20O
1976 [Solid Waste Disposal Act]. 6991i.
Rivers and Harbors Appropriation Acts 33 U.S.C. Secs. 401 to
(Selected sections). 426p and 441 to 454.
Safe Drinking Water Act...................... 42 U.S.C. Secs. 300F to 30-00-20P; Ch. 30-40
300j-26.
Shore Protection Act of 1988................. 33 U.S.C. Secs. 2601 to ......................................
2609, 2621 to 2623.
Soil and Water Resources Conservation Act of 16 U.S.C. Secs. 2001 to ......................................
1977. 2009.
Surface Mining Control and Reclamation Act of 30 U.S.C. Secs. 1201 to
1977. 1328.
Toxic Substances Control Act................. 15 U.S.C. Secs. 2601 to 30-00-20Q
2692.
United States Public Vessel Medical Waste 33 U.S.C. Secs. 2501 to ......................................
Antidumping Act of 1988. 2504.
Uranium Mill Tailings Radiation Control Act 42 U.S.C. Secs. 7901 to ......................................
of 1978. 7942.
Water Resources Research Act of 1984......... 42 U.S.C. Secs. 10301 to ......................................
10309.
Wild and Scenic Rivers Act................... 16 U.S.C. Secs. 1271 to 30-00-20R; Ch. 30-40
1287.
Wild Bird Conservation Act of 1992........... 16 U.S.C. Secs. 4901 to ......................................
4916.
Wild Free-Roaming Horses and Burros Act...... 16 U.S.C. Secs. 1331 to ......................................
1340.
Wilderness Act............................... 16 U.S.C. Secs. 1131 to ......................................
1136.
Wood Residue Utilization Act of 1980......... 16 U.S.C. Secs. 1681 to ......................................
1687.
Executive Order 13007, Indian Sacred Sites... 61 FR 26771 (1996)....... ......................................
Executive Order 12902, Energy Efficiency and 59 FR 11463 (1994)....... ......................................
Water Conservation at Federal Facilities.
Executive Order 12898, Federal Actions To 59 FR 7629 (1994)........ 30-00-20S
Address Environmental Justice in Minority
Populations and Low-Income Populations.
Executive Order 13101, Greening the 63 FR 49644 (1998)....... 30-00-20N; Ch. 30-90
Government Through Waste Prevention,
Recycling, and Federal Acquisition.
Executive Order 12866, Regulatory Planning 58 FR 51735 (1993)....... ......................................
and Review.
Executive Order 12856, Federal Compliance 58 FR 41981 (1993)....... 30-00-20E; Ch. 30-80
With Right-to-Know Law and Pollution
Prevention Requirements.
Executive Order 12852, President's Council on 58 FR 35841 (1993), as ......................................
Sustainable Development. amended by E.O. 12855,
58 FR 39107 (1993); 42
U.S.C. Sec. 4321 note.
Executive Order 12845, Requiring Agencies To 58 FR 21887 (1993)....... ......................................
Purchase Energy-Efficient Computer Equipment.
Executive Order 12844, Federal Use of 58 FR 21885 (1993)....... ......................................
Alternative Fueled Vehicles.
Executive Order 12843, Procurement 58 FR 21881 (1993)....... ......................................
Requirements and Policies for Agencies for
Ozone-Depleting Substances.
Executive Order 12778, Civil Justice Reform.. 56 FR 55195 (1991); 28 ......................................
U.S.C. Sec. 519 note.
Executive Order 12777, Implementation of 56 FR 54757 (1991); 33 ......................................
Section 311 of the Federal Water Pollution U.S.C. Sec. 1321 note.
Control Act of October 18, 1972, As Amended,
and the Oil Pollution Act of 1990.
Executive Order 12761, Establishment of 56 FR 23645 (1991); 42 ......................................
President's Environment and Conservation U.S.C. Sec. 4321 note.
Challenge Awards.
Executive Order 12759, Federal Energy 56 FR 16256 (1991); 42 ......................................
Management. U.S.C. Sec. 6201 note.
Executive Order 12630, Governmental Actions 53 FR 8859 (1988); 5 ......................................
and Interference With Constitutionally U.S.C. Sec. 601 note.
Protected Property Rights.
Executive Order 12612, Federalism 54 FR 41685 (1987); 5 ......................................
Considerations in Policy Formulation and U.S.C. Sec. 601 note.
Implementation.
Executive Order 12580, Superfund 52 FR 2923 (1987), as 30-00-20D
Implementation. amended by E.O. 12777,
56 FR 54757 (1991); 42
U.S.C. Secs. 9615 note.
Executvie Order 12114, Environmental Affects 44 FR 1957 (1979); 42 30-00-20M; Ch. 30-50
Abroad of Major Federal Actions. U.S.C. Sec. 4321 note.
Executive Order 12088, Federal Compliance 43 FR 47707 (1978), as 30-00-20T
With Pollution Control Standards. amended by E.O. 12580,
52 FR 2923 (1987); 42
U.S.C. Sec. 4321 note.
Executive Order 11990, Protection of Wetlands 42 FR 26961 (1977), as 30-00-20L; Ch. 30-40
amended by E.O. 12608,
52 FR 34617 (1987); 42
U.S.C. Sec. 4321 note.
Executive Order 11988, Floodplain Management. 42 FR 26951 (1977), as 30-00-20L; Ch. 30-40
amended by E.O. 12148,
44 FR 43239 (1979); 42
U.S.C. Sec. 4321 note.
[[Page 1659]]
Executive Order 11987, Exotic Organisms...... 42 FR 26949 (1977); 42 30-00-20L
U.S.C. Sec. 4321 note.
Executive Order 11912, Delegation of 41 FR 15825 (1976), as ......................................
Authorities Relating to Energy Policy and amended by E.O. 12003,
Conservation. 42 FR 37523 (1977), E.O.
12038, 43 FR 4957
(1978), E.O. 12148, 44
FR 43239 (1979), E.O.
12375, 47 FR 34105
(1982); 42 U.S.C. Sec.
6201 note.
Executive Order 11738, Administration of the 38 FR 25161 (1973); 42
Clean Air Act and the Federal Water U.S.C. Sec. 7606 note.
Pollution Control Act with Respect to
Federal Contracts, Grants or Loans.
Executive Order 11644, Use of Off-Road 37 FR 2877 (1972), as
Vehicles on Public Lands. amended by E.O. 11989,
42 FR 26959 (1977), E.O.
12608, 52 FR 34617
(1987); 42 U.S.C. Sec.
4321 note.
Executive Order 11593, Protection and 36 FR 8921 (1971); 16 30-00-20J
Enhancement of the Cultural Environment. U.S.C. Sec. 470 note.
Executive Order 11514, Protection and 35 FR 4247 (1970), as 30-00-20L
Enhancement of Environmental Quality. amended by E.O. 11991,
42 FR 26967 (1977); 42
U.S.C. Sec. 4321 note.
----------------------------------------------------------------------------------------------------------------
A. Clean Air Act (CAA). The CAA of 1970, 42 U.S.C. Secs. 7401-
7671q, as amended, establishes five major programs that cover (1) The
attainment and maintenance of air quality standards; (2) reduction of
hazardous air pollutants; (3) development of emission standards for
motor vehicles and fuels; (4) protection of the stratospheric ozone;
and (5) reduction of acid rain deposition.
1. National Ambient Air Quality Standards Program (NAAQS). All new
and existing sources of air pollution are subject to ambient air
quality regulation. The Clean Air Act directs the Environmental
Protection Agency (EPA) Administrator to identify pollutants which
``may reasonably be anticipated to endanger public health and welfare''
and to issue air quality criteria for them. EPA is also required to
publish primary and secondary NAAQS for the identified pollutants.
Primary NAAQS are designed to protect public health with an adequate
margin of safety, and secondary NAAQS are designed to protect the
public welfare. In 40 CFR Part 50, EPA has promulgated NAAQS for six
pollutants: sulfur dioxide (SO2), particulate matter,
nitrogen dioxide (NO2), carbon monoxide, ozone, and lead.
Each State is given primary responsibility for assuring that air
quality within its borders is maintained at a level consistent with the
NAAQS. The NAAQs's are implemented through source-specific emission
limitations established by States in State Implementation Plans (SIPs).
SIPs must meet minimum criteria set forth in the Clean Air Act and are
reviewed by EPA. A SIP may be enforced by the State or EPA. EPA must
promulgate a Federal Implementation Plan (FIP) if a State fails to make
a required submission or if a SIP submission is disapproved and the
State does not remedy the deficiency within a specified period.
(a) Nonattainment Areas. SIPs must adopt, at a minimum, reasonably
available control technology (RACT) for existing sources and provide
for annual incremental reductions in emissions of nonattainment
pollutants. The CAA also contains additional requirements for SIPs in
areas that do not attain the NAAQS, including specific requirements for
certain pollutants.
(b) New Source Performance Standards (NSPS). New sources of
pollution are subject to more stringent control technology and
permitting requirements than existing sources. EPA is authorized to
establish new source performance standards, which impose Federal
technology-based requirements on emissions from new or modified major
stationary sources of pollution. The Clean Air Act directs EPA to
establish standards for new sources that reflect the degree of emission
limitation achievable through the application of the best system of
emission reduction which the EPA Administrator determines has been
adequately demonstrated to be the best. These standards may be
promulgated as design, equipment, work practice, or operational
standards where numerical emission limitations are not feasible. EPA
has developed NSPS standards for a number of industry categories which
are published at 40 CFR part 60. Each NSPS identifies the types of
facilities to which the standards apply.
(c) Prevention of Significant Deterioration Program (PSD). A permit
must be obtained under the PSD program before a ``major'' new source
may be constructed or ``major modification'' made to an existing major
source in an area that attains the NAAQS or is designed unclassifiable.
The CAA requires each SIP to ``contain emission limitations and such
other measures as may be necessary * * * to prevent significant
deterioration of air quality'' in each region of the state in which the
air quality exceeds national standards. EPA's PSD regulations are
codified at 40 CFR part 51.
(d) Nonattainment Program. Regions that have failed to meet the
NAAQS for one or more criteria pollutants are designated as
``nonattainment'' areas. New or modified major stationary sources
proposed for nonattainment areas are required to comply with stringent
permitting requirements, including a showing that the decrease in
emissions from existing sources in the area is sufficient to offset the
increase in emissions from the new or modified source and achievement
of the ``lowest achievable emission rate'' (LAER).
2. National Emission Standards for Hazardous Air Pollutants
(NESHAP). The 1970 Clean Air Act authorized EPA to establish health-
based national emission standards for hazardous air pollutants (NESHAP)
to protect the public from these pollutants. EPA has established
standards for seven hazardous substances. EPA's NESHAP regulations are
published at 40 CFR part 61. The 1990 CAA amendments directed EPA to
establish technology-based standards for 189 hazardous substances
[[Page 1660]]
based on the use of ``maximum achievable control technology'' (MACT).
3. Emission Standards for Mobile Sources and Fuel-Related Programs.
EPA is authorized to establish allowable levels of auto emissions and
to control fuels and fuel additives. The 1990 CAA amendments establish
lower emission standards for automobiles and other vehicles and provide
for the use of ``clean'' alternative fuels and ``clean fuel'' vehicles.
4. Stratospheric Ozone Protection. Title VI of the Act, added in
1990, addresses scientific concerns related to stratospheric ozone
depletion and global warming by providing for the phase-out of ozone-
depleting substances. Title VI calls for the phase-out of most ozone-
depleting substances by the year 2000 and the imposition of other
controls designed to minimize the emissions of such substances prior to
their elimination.
5. Acidic Deposition. The 1990 CAA amendments added Title IV of the
Act which authorizes EPA to establish an acid rain program to reduce
the adverse effects of acidic deposition. The program imposes sulphur
dioxide (SO2) and nitrogen oxide (NOX) controls
on existing and new electric utility plants.
6. Permits. The 1990 CAA amendments added Title V which establishes
an operating permit program for existing stationary sources. The permit
program is modeled on the Clean Water Act permit program (NPDES
program--see 30-00-20B). Each State must develop and implement a Clean
Air Act operating permit program. EPA is required to issue permit
program regulations that are to be followed by the States in
establishing their programs; approve each State's permit program; and
establish a Federal permit program if a State fails to implement an
approved program. EPA is also authorized to review each permit issued
by a State. EPA regulations addressing the minimum requirements for
State operating permit programs are contained in 40 CFR part 70.
7. Civil and Criminal Penalties. EPA is authorized to seek
compliance with the Act's provisions through administrative, civil, and
criminal enforcement sanctions. The maximum penalties that may be
imposed for violation of the CAA are contained in Table 2.
----------------------------------------------------------------------------------------------------------------
Violation Administrative penalty Civil penalty Criminal penalty
----------------------------------------------------------------------------------------------------------------
Violation of CAA requirement......... $25,000 per day $25,000 per violation.. Up to $250,000 per day
(maximum $200,000 may and/or up to 5 yrs.
be waived by EPA and imprisonment.
DOJ jointly). Corporations subject to
Alternative: recovery $500,000 per
of projected economic violation.
value of noncompliance. Penalty doubled after
first offense.
``Field citation'' for minor $5,000 per day
violations.
False statement or failure to file or ....................... ....................... Up to $250,000 and/or
maintain records or reports. up to 2 yrs.
imprisonment; $500,000
for corporation.
Penalty doubled after
first offense.
Knowing failure to pay fee........... ....................... ....................... Up to $250,000 and/or
up to 1 yr.
imprisonment; $1
million per day for
corporations. Penalty
doubled after first
offense.
Knowing release of HAP or ``extremely ....................... ....................... Up to $25,000 per day
hazardous substance'' placing and/or up to 15 yrs.
another in ``imminent danger of imprisonment; $1
death or serious bodily injury''. million per day for
corporations. Penalty
doubled after first
offense.
Negligent release of air toxic ....................... ....................... Up to $100,000 and/or
placing another in ``imminent danger up to 1 yr.
of death or serious bodily injury''. imprisonment;
corporations subject
to $200,000. Penalty
doubled after first
offense.
----------------------------------------------------------------------------------------------------------------
B. Clean Water Act (CWA). The Clean Water Act, 33 U.S.C. 1251-1387,
was originally enacted as the Federal Water Pollution Control Act of
1972. The Act was substantially amended in 1977 and became the Clean
Water Act. The objective of the CWA is to ``restore and maintain the
chemical, physical and biological integrity of the Nation's waters.''
The Act establishes as a national policy ``that the discharge of toxic
pollutants in toxic amounts be prohibited.'' Among the goals
established by the Act are achievement of a level of water quality
which ``provides for the protection and propagation of fish, shellfish
and wildlife * * * [and] * * * for recreation in and on the water'' and
elimination of the discharge of pollutants into navigable waters.
1. Water Quality Standards. A water quality standard defines the
water quality goals of a water body by designating the uses to be made
of the water and by setting criteria necessary to protect the uses.
States are responsible for establishing water quality standards. The
standards are designed to protect public health or welfare, enhance the
quality of water, and serve the other purposes of the Clean Water Act.
States are required to review their water quality standards at least
once every three years. EPA reviews and approves or disapproves State-
adopted water quality standards in accordance with regulations codified
at 40 CFR part 131.
(a) Water Uses. Each State must specify appropriate water uses to
be achieved and protected. The classification of the waters of the
State, must take into consideration the use and value of waters for
public water supplies, protection and propagation of fish, shellfish
and wildlife, recreation in and on the water, agricultural, industrial,
and other purposes including navigation. In no case shall a State adopt
waste transport or waste assimilation as a designated use for any
waters of the United States.
(b) Water Quality Criteria. States must adopt those water quality
criteria that protect the designated uses. Criteria are elements of
State water quality standards, expressed as constituent concentrations,
levels, or narrative statements, representing a quality of water that
supports a particular use.
(c) Toxic Pollutants. The Water Quality Act of 1987 amended the CWA
[[Page 1661]]
to require States to identify those waters that are adversely affected
by toxic, conventional, and nonconventional pollutants; to identify
where additional controls are needed; and to prepare individual control
strategies. States must review water quality data and information on
discharges to identify specific water bodies where toxic pollutants may
be adversely affecting water quality or the attainment of the
designated water use, or where the levels of toxic pollutants are at a
level to warrant concern, and must adopt criteria for such toxic
pollutants applicable to the water body sufficient to protect the
designated use.
2. Effluent Limitations. The CWA directs EPA to issue effluent
limitation guidelines, pretreatment standards, and new source
performance standards for industrial discharges. The EPA implementing
regulations are based principally on the degree of effluent reduction
attainable through the application of control technologies. To ensure
that effluent guidelines remain current with the state of the industry
and with available control technologies, EPA is required to revise the
effluent guidelines at least annually if appropriate.
(a) Direct Dischargers. The effluent guidelines promulgated by EPA
reflect the several levels of regulatory stringency specified in the
Act, and they also focus on different types of pollutants.
(i) Best Practicable Control Technology (BPT). The CWA directs the
achievement of effluent limitations requiring applications of Best
Practicable Control Technology (BPT). In general, effluent limitations
that are based on Best Practicable Control Technology (BPT) represent
the average of the best treatment performance for an industrial
category.
(ii) Conventional Pollutants--Best Conventional Pollutant Control
Practical Technology (BCT). For conventional pollutants listed in the
Act, the CWA directs the achievement of effluent limitations based on
the performance of best conventional pollutant control technology
(BCT).
(iii) Toxic Pollutants--Best Available Technology (BAT). For the
toxic pollutants listed in the CWA and for nonconventional pollutants,
the Act directs the achievement of effluent limitations requiring
application of Best Available Technology Economically Achievable (BAT).
Effluent limitations based on BAT are to represent at a minimum the
best control technology performance in the industrial category that is
technologically and economically achievable.
(iv) New Source Performance Standards (NSPS). In addition to
limitations for existing direct dischargers, EPA has established New
Source Performance Standards (NSPS) for new direct dischargers. NSPS
limitations must be as stringent, or more stringent, than BAT
limitations for existing sources within the industry category or
subcategory.
(v) National Pollutant Discharge Elimination (NPDES) Permit. The
limitations and standards for direct dischargers are implemented in
permits issued through the National Pollutant Discharge Elimination
System (NPDES).
(b) Indirect Dischargers
(I) Conventional Pollutants. In general, EPA does not develop
regulations to control conventional pollutants discharged by indirect
dischargers because the publicly-owned treatment works (POTWs)
receiving those wastes normally provide adequate treatment of these
types of pollutants or they can be adequately controlled through local
pretreatment limits.
(ii) Pretreatment Standards. Indirect dischargers are regulated by
the general pretreatment regulations (40 CFR Part 403), local discharge
limits developed pursuant to Part 403, and categorical pretreatment
standards for new and existing sources covering specific industrial
categories. These categorical standards apply to the discharge of
pollutants from non-domestic sources which interfere with or pass
through POTWs, and are enforced by POTWs or by State or Federal
authorities. The categorical pretreatment standards for existing
sources covering specific industries are generally analogous to the BAT
limitations imposed on direct dischargers. The standards for new
sources are generally analogous to NSPS.
3. National Pollutant Discharge Elimination System (NPDES) Permit.
(a) Requirement. The CWA states that a permit is required for the
discharge of pollutants from a point source into waters of the United
States. Under the NPDES, permits are required whenever a pollutant is:
(1) discharged (2) by a person (3) from a point source (4) into
navigable waters of the United States.
(b) Waters of the United States. The Clean Water Act applies to
``navigable water'', which are in turn defined as ``waters of the
United States, including the territorial seas.'' (33 U.S.C. 1362(7)).
Navigable waters are broadly defined and are not limited to
``navigability in fact''. Waters of the United States include
interstate waters and wetlands; all other waters such as intrastate
lakes, rivers, streams (including intermittent steams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa
lakes, or natural ponds, the use, degradation or destruction of which
could affect interstate or foreign commerce; all impoundments of
waters; tributaries; the territorial seas; and wetlands adjacent to
other waters of the United States. (33 CFR 328.3(a)).
(c) Storm Water Discharges. Section 402(p) of the CWA clarifies
that storm water discharges associated with industrial activity,
including construction activity, to waters of the United States must be
authorized by a NPDES permit. The CWA requires EPA to issue regulations
establishing general permit standards for industrial storm water
dischargers. Facility operators have to file notices of intent to be
covered by the general permit and are required to develop pollution
prevention plans to keep contaminants out of storm water. The general
permits also establish special requirements for facilities that are
subject to the Emergency Planning and Community Right-To-Know Act
(EPCRA) section 313 reporting (see Chapters 30-60 and 30-80). The
regulations are codified at 40 CFR 122.26.
(d) Recordkeeping and Monitoring. The NPDES permits require holders
to keep updated records and to install and maintain monitoring
equipment, to take samples of effluents, and to report their findings
to the EPA. The results must be in the form of a discharge monitoring
report, which is a uniform method devised by the EPA for the self-
monitoring of permitted facilities.
4. Spills of Oil and Hazardous Substances. Under section 311,
spills of listed hazardous substances in ``Reportable Quantities''
established by regulation must be reported to the National Response
Center and promptly cleaned up. See 40 CFR parts 116-117 for
designations of hazardous substances and reportable quantities. Spill
Prevention Control and Countermeasure (SPCC) Plans must be adopted so
as to prevent discharge of oil from onshore and offshore facilities
into the navigable waters or adjoining shores. Requirements are set
forth at 40 CFR part 112.
5. Civil and Criminal Penalties. Administrative, civil, or criminal
penalties may be imposed by EPA or a federal court for violation of the
Act.
C. Coastal Zone and Management Act (CZMA). The Coastal Zone
Management Act, 16 U.S.C. 1451 to 1464, requires that Federal
activities in coastal areas be consistent with approved State Coastal
Zone Management Programs, to the maximum extent possible. Procedures
for consistency determinations under the CZMA requirements are codified
at
[[Page 1662]]
15 CFR part 930 and are described in Chapter 30-40.
D. Comprehensive Environmental, Response, Compensation and
Liability Act (CERCLA). The Comprehensive Environmental, Response,
Compensation and Liability Act (``CERCLA''), 42 U.S.C. 9601 to 9675, is
popularly known as the ``Superfund'' Act. The statute provides for a
fund to address the problems of ``cleaning up'' abandoned or leaking
hazardous waste sites. The 1980 statute was substantially revised in
1986 by the Superfund Amendments and Reauthorization Act of 1986
(SARA). It is implemented for federal agencies by Executive Order
12580.
CERCLA authorizes the Environmental Protection Agency (EPA) to:
Utilize the Hazardous Substance Superfund (``Superfund'')
to study and clean up sites that are listed on the National Priorities
List (NPL);
To recover costs expended from parties responsible; and,
To order such parties to perform work.
1. Hazardous Substance Superfund. The Hazardous Substance Superfund
is established through the imposition of taxes on certain industries
and from general tax revenues. The Superfund is used to pay EPA's
clean-up and enforcement costs, natural resource damage, and claims of
private parties. Federal agencies are not eligible for funds from the
Superfund.
2. National Contingency Plan (NCP). The National Oil and Hazardous
Substances Pollution Contingency Plan (NCP) provides the organizational
structure and procedures for preparing for and responding to discharges
of oil and releases of hazardous substances, pollutants, and
contaminants. The NCP is required by CERCLA section 105 and section
311(c)(2) of the CWA. In Executive Order 12580, 52 FR 2923 (1987), the
President delegated to EPA the responsibility for the amendment of the
NCP.
National Priorities List (NPL). CERCLA requires that the NCP
include a list of national priorities among the known releases or
threatened releases of hazardous substances, pollutants, or
contaminants throughout the United States. The National Priorities List
(NPL) constitutes this list. The identification of a site for the NPL
is intended primarily to guide the Environmental Protection Agency
(EPA) in determining which sites warrant further investigation to
assess the nature and extent of public health and environmental risks
associated with the site and to determine what CERCLA-financed remedial
action(s), if any, may be appropriate. Pursuant to section 105(a)(8)(B)
of CERCLA, as amended by SARA, EPA has promulgated a list of national
priorities among the known or threatened releases of hazardous
substances, pollutants, or contaminants throughout the United States.
That list which is Appendix B of 40 CFR part 300, is the National
Priorities List (``NPL'').
The NPL includes two sections, one of sites that are evaluated and
cleaned up by EPA (the ``General Superfund Section''), and one of sites
being addressed by other Federal agencies (the ``Federal Facilities
Section'').
Federal Facilities. Under Executive Order 12580 (52 FR 2923,
January 29, 1987) and CERCLA section 120, each Federal agency is
responsible for carrying out most response actions at facilities under
its own jurisdiction, custody, or control, although EPA is responsible
for preparing a Hazard Ranking System (HRS) score and determining
whether the facility is placed on the NPL. The HRS is a screening tool
used by the EPA to evaluate risks associated with abandoned or
uncontrolled or hazardous waste sites. EPA is not the lead agency at
these sites, and its role at such sites is accordingly less extensive
than at other sites. The Federal Facilities Section includes those
facilities at which EPA is not the lead agency.
3. Response and Remediation. Sections 106 and 107 provide the
primary authority for EPA, States, and private parties to recover the
costs of cleanup or to abate an endangerment to public health, welfare,
or the environment. Section 106 authorizes EPA to seek judicial relief
requiring a responsible party to abate an imminent and substantial
endangerment to the public health or welfare or the environment because
of an actual or threatened release of a hazardous substance from a
facility. Section 107 imposes liability for cleanup and other response
costs [costs incurred in responding to a release or a threatened
release of a hazardous substance] upon (1) a ``responsible party'' for
the (2) release or ``threatened release'' of (3) a hazardous substance
from (4) a facility or vessel.
(a) Potentially Responsible Party. Section 107(a) of CERCLA, 42
U.S.C. 9607(a), sets forth four categories of parties that are
potentially subject to liability:
(1) Current owner or operator: owner or operator of a facility from
which there is a release of a hazardous substance, or is the operator
or owner when cleanup is performed or litigation initiated;
(2) fomer owner or operator: a person who operated or owned a
facility when the hazardous substance was disposed of at the facility;
(3) arranger: any person who ``arranged for disposal or treatment''
at a facility; and
(4) transporter: a person who accepted hazardous substances for
transport to a disposal or treatment facility or site that was selected
by the transporter ``from which there is a release or threatened
release.'' (107(a)(4)).
Note: A current owner or operator may be liable even if it did
not handle, dispose of, or treat hazardous wastes at the facility,
and without regard to whether hazardous substances were disposed of
at the facility during the period of ownership or operation.
(b) Release or ``Substantial Threat of Release.'' The term
``release'' is defined broadly in the Act. A ``release'' includes ``any
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing into the
environment * * *'' The release of any quantity of a hazardous
substance qualifies as a release under CERCLA. Certain types of
releases are excluded from the definition: engine exhaust, nuclear
material and fertilizer application. 42 U.S.C. 9601(22).
(c) Hazardous Substance. ``Hazardous substances'' are defined in
CERCLA section 101(14). A list of these substances can be found at 40
CFR part 302. The definition of ``hazardous substances'' incorporates
lists of hazardous pollutants that have been developed under other
Federal environmental statues and wastes that exhibit characteristics
of a hazardous waste under the Resource Conservation and Recovery Act
(``RCRA''). Table 3, following, outlines hazardous pollutants
considered to be hazardous substances under CERCLA.
------------------------------------------------------------------------
Type of pollutant Statutory definition
------------------------------------------------------------------------
Hazardous Air Pollutants.................. CAA, Section 112
Hazardous Substances...................... CWA, Section 311
Toxic Pollutants.......................... CWA, Section 307
Substances which ``may present substantial CERCLA, Section 102
danger to public health or welfare or the
environment''.
Listed Hazardous Wastes; Characteristic RCRA, Section 3001
hazardous wastes.
[[Page 1663]]
Imminently Hazardous Chemical Substances TSCA, Section 7
or Mixtures.
------------------------------------------------------------------------
(1) Petroleum Exclusion. Petroleum, ``including crude oil or any
fraction thereof,'' is excluded from the definition of ``hazardous
substance.''
(2) Pollutants or Contaminants. EPA may clean up a site polluted by
either a ``hazardous substance'' or a ``pollutant or contaminant,'' but
CERCLA does not authorize EPA to recover its cleanup costs from private
parties or to issue an order directing the parties to perform a cleanup
when the substance involved is only a ``pollutant or contaminant.''
(d) Response Costs. CERCLA permits the recovery of ``response
costs'', which includes the costs of removal, remedial action, and
enforcement activities related thereto. In addition to liability for
costs and damages related to response actions stemming from a release
of a hazardous substance, liability may also be imposed for costs
associated with the loss of a contaminated area's natural resources.
(e) Application of Liability. The statute does not set forth
liability standards. The courts have consistently applied the following
standards.
(1) Strict liability;
(2) Joint and Several Liability; and
(3) Retroactive Liability.
(f) Defense to Liability. The statute permits liability to be
defended when the release was caused by:
(1) an act of God;
(2) an act of war; or
(3) the act or omission of a third party other than an employee or
agent or one in a contractual relationship with the party being sought
to be held liable.
4. Penalties. A party that refuses or fails to comply with a
Section 106 order from EPA may be assessed up to $25,000 per day of the
violation of the order. Additional penalties may also be imposed.
5. Executive Order 12580. Executive Order 12580, Superfund
Implementation, 52 FR 2923 (1987), as amended by Executive Order 12777,
56 FR 54757 (1991), 42 U.S.C. 9615 note, implements CERCLA by
delegating functions under the Act vested in the President to Federal
agencies.
E. Emergency Planning and Community Right-To-Know (EPCRA)
1. EPCRA. The Emergency Planning and Community Right-To-Know Act of
1986 (EPCRA), 42 U.S.C. 11001-11050, establishes a mechanism for
providing the public with important information on the hazardous and
toxic chemicals in their communities, and it creates emergency planning
and notification requirements to protect the public in the event of a
release of extremely hazardous substances. The Act requires owners and
operators of certain facilities to annually submit toxic chemical
release inventories to EPA, affected States, and Indian tribes. EPCRA
requirements are set forth in chapter 30-60. Because it was enacted as
Title III of the Superfund Amendments and Reauthorization Act of 1986
(SARA), the statue is sometimes referred to as ``SARA, Title III''.
2. Executive Order 12856. Executive Order 12856, Federal Compliance
With Right-to-Know Law and Pollution Prevention Requirements, 58 FR
41981 (1993), applies the requirements of EPCRA to Federal agencies.
The requirements of the Order are described in chapter 30-80.
F. Endangered Species Act (ESA). The Endangered Species Act, 16
U.S.C. 1531-1543, directs Federal agencies to conserve endangered and
threatened species and their critical habitats. Federal agencies must
insure, in consultation with the Secretary of the Interior or the
Secretary of Commerce, that any action authorized, funded, or carried
out by the agency is not likely to jeopardize the continued existence
of any endangered species or threatened species, or result in the
destruction or adverse modification of critical habitat unless the
agency has been granted an exemption under ESA. Environmental review
requirements under ESA are covered in chapter 30-40.
G. Energy Conservation
1. Energy Policy Act. The Energy Policy Act of 1992, 42 U.S.C.
13201 to 13556, requires the Secretary of Energy to work with other
Federal agencies to significantly reduce the use of energy and reduce
the related environmental impacts by promoting use of energy efficient
and renewable energy technologies.
2. Energy Policy and Conservation Act. The Energy Policy and
Conservation Act, 42 U.S.C. 6201-6422, authorizes the Secretary of
Energy to promote energy efficiency and encourage conservation.
3. Executive Order 12902. Executive Order 12902, Energy Efficiency
and Water Conservation at Federal Facilities, 59 FR 11463 (1994),
requires each federal agency to develop and implement a program with
the intent of reducing energy consumption by 30 percent by the year
2005. Each agency must develop and implement a program for its
industrial facilities with the intent of increasing energy efficiency
by at least 20 percent by the year 2005 and shall implement all cost-
effective water conservation projects.
The Order directs each agency responsible for managing Federal
facilities to develop and begin implementing a 10-year plan to conduct
or obtain comprehensive facility audits, based on prioritization
surveys on each of the facilities the agency manages. All agencies are
to develop and implement programs to reduce the use of petroleum in
their buildings and facilities by switching to a less-polluting and
nonpetroleum-based energy source, such as natural gas or solar and
other renewable energy sources. The head of each agency shall report
annually to the Secretary of Energy and OMB in achieving the goals of
this order. Each agency head shall designate a senior official, at the
Assistant Secretary level or above, to be responsible for achieving the
requirements of Executive Order 12902. The agency senior official must
coordinate implementation of the Order with the Federal Environmental
Executive and Agency Environmental Executives established under
Executive Order No. 12873 (see chapter 30-90).
H. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.
136 to 136y, requires the registration of a pesticide before it may be
sold and authorizes the EPA Administrator to limit the distribution,
sale or use of unregistered pesticides. EPA is prohibited from
registering a pesticide that will clause ``unreasonable adverse effects
on the environment.'' Regulations implementing FIFRA govern the use,
storage, and disposal of registered pesticides. Additionally, these
regulations govern the requirements for training and certification of
applicators, container labeling, and worker protection.
1. Fish and Wildlife Coordination Act. The Fish and Wildlife
Coordination Act, 16 U.S.C. 661-666c, requires Federal agencies to
protect fish and wildlife resources which may be affected by an agency
plan to control or modify a natural stream or body of water for any
purpose. The agency also must provide for the development and
improvement of wildlife resources that will be affected by its action.
Before taking action, the agency must consult with the United States
Fish and Wildlife Service, Department of the Interior, and with the
head of the State agency exercising administration over the wildlife
resources that will be affected to determine means and measures that
should be adopted to prevent the loss of or damage to such wildlife
resources, as well as to provide concurrently for the
[[Page 1664]]
development and improvement of such resources. Consultation
requirements under the Fish and Wildlife Coordination Act are described
in chapter 30-40.
J. Historic Preservation
1. Antiquities Act of 1906. The Antiquities Act of 1906, 16 U.S.C.
431-433, authorizes the President to declare historic landmarks,
historic and pre-historic structures, and other objects of historic and
scientific interest that are located on Federal lands to be national
monuments.
2. Archeological and Historic Preservation Act of 1974. The
Archaeological and Historic Preservation Act of 1974, 16 U.S.C. 469 to
469c-1, directs Federal agencies to preserve significant scientific,
prehistorical, historical and archaeological data.
3. Historic Sites Act of 1935. The Historic Sites Act of 1935, 16
U.S.C. 461 to 467, states that it is a national policy to preserve for
public use historic sites, buildings, and objects of national
significance for the inspiration and benefit of the public. The Act is
also popularly called ``The Historic Sites, Buildings, and Antiquities
Act.''
4. National Historic Preservation Act. The National Historic
Preservation Act, 16 U.S.C. 470 to 470x-6, directs heads of Federal
agencies to assume responsibility for the preservation of historic
properties which are owned or controlled by such agencies.
5. Executive Order 11593. Executive Order 11593, Protection and
Enhancement of the Cultural Environment, 36 FR 8921 (1971), 16 U.S.C.
470 note, requires Federal agencies to initiate measures and procedures
to provide for the maintenance, through preservation, rehabilitation,
or restoration of Federally-owned sites that are listed on the National
Register of Historic Places.
K. Marine Protection, Research and Sanctuaries Act. The Marine
Protection, Research and Sanctuaries Act of 1972, 16 U.S.C. 1431 to
1445a, 33 U.S.C. 1401 to 1445, provides for establishment of marine
sanctuaries and directs Federal agencies to ensure that their actions
are consistent with the intended use of such areas.
L. National Environmental Policy (NEPA).
1. NEPA. The National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. 4321-4306d, establishes a comprehensive policy for protection
and enhancement of the environment by the Federal government; creates
the Council on Environmental Quality; and directs Federal agencies to
carry out the policies and procedures of the act. NEPA is covered in
chapter 30-50.
2. Executive Order 12114. Executive Order 12114, Environmental
Effects Abroad of Major Federal Actions, 44 FR 1957 (1979), enables
responsible officials of Federal agencies having ultimate
responsibility for authorizing and approving certain Federal activities
significantly affecting the environment of the global commons, or a
foreign nation, or certain major Federal actions outside the United
States which significantly affect natural or ecological resources of
global importance, to be informed of pertinent environmental
considerations and to take such considerations into account in making
decisions regarding such actions. Executive Order 12114 is implemented
for HHS in chapter 30-50.
3. Executive Order 11990. Executive Order 11990, Protection of
Wetlands, 42 FR 26961 (1977), as amended by Executive Order 12608, 52
FR 34617 (1987) 42 U.S.C. 4321 note, directs Federal agencies to avoid,
to the extent possible, the long and short term adverse impacts
associated with the destruction or modification of wetlands and direct
or indirect support of new construction in wetlands wherever there is a
practical alternative. Executive Order 11990 is covered in chapter 30-
40.
4. Executive Order 11988. Executive Order 11988, Floodplain
Management, 42 FR 26951 (1977), as amended by Executive Order 12148, 44
FR 43239 (1979), 42 U.S.C. 4321 note, directs Federal agencies to take
action to avoid, to the extent possible, the long and short term
adverse impacts associated with the occupancy and modification of
floodplains and to avoid direct or indirect support of floodplain
development whenever there is a practical alternative. Executive Order
11988 is implemented for HHS in chapter 30-40.
5. Executiver Order 11514. Executive Order 11514, Protection and
Enhancement of Environmental Quality, 35 FR 4247 (1970), as amended by
Executive Order 11991, 42 FR 26967 (1977), 42 U.S.C. note, requires
Federal agencies to initiate measures needed to direct their policies,
plans, and programs to meet national environmental goals. Federal
agencies must develop procedures to ensure the fullest practicable
provision of timely public information and understanding of Federal
plans and programs with environmental impact in order to obtain the
views of interested parties. In carrying out their responsibilities
under NEPA and Executive Order 11514, Federal agencies are to comply
with regulations issued by the Council on Environmental Quality, except
where compliance would be inconsistent with statutory requirements.
M. Occupational Safety and Health Act (OSHA). The Occupational
Safety and Health Act of 1970, 29 U.S.C. 651 to 658, regulates the use,
storage, and handling of hazardous materials in the workplace and
provides for the Department of Labor to establish standards governing
workplace safety and health requirements.
N. Pollution Prevention and Recycling
1. Pollution Prevention Act (PPA). The Pollution Prevention Act of
1990, 42 U.S.C. 13101-13109, requires the reporting of efforts to
reduce toxic chemical releases through source reduction and recycling.
The PPA establishes national policy that pollution is to be prevented
or reduced at the source, and the Act requires the Environmental
Protection Agency (EPA) to submit biennial reports to Congress that
analyze the source reduction and recycling date submitted to it and
provide other pollution prevention information that has been gathered
from private businesses and Federal agencies. The Act also requires the
Administrator of EPA to develop a strategy to promote source reduction;
to make matching grants to States to promote the use of source
reduction techniques by businesses; and to establish a Source Reduction
Clearinghouse. The requirements of the PPA are described in more detail
in chapter 30-70.
2. Executiver Order 13101. Executive Order 13101, Greening the
Government Through Waste Prevention, Recycling, and Federal
Acquisition, Sep 1998, requires Federal agencies to strive to increase
the procurement of productions that are environmentally preferable or
that are made wit recovered materials and to set annual goals to
maximize the number of recycled products purchased, relative to non-
recycled alternatives. Each agency is to establish goals for solid
waste prevention and for recycling to be achieved by the years 2000,
2005 and 2010 and to annually report progress in attaining the goals.
Executive Order 13101 is implemented for HHS in chapter 30-90.
O. Resource Conservation and Recovery Act (RCRA) The Resource
Conservation ad Recovery Act of 1976, 42 U.S.C. 6901 to 6991i, governs
the generation, storage, and disposal of hazardous waste, and amends
the Solid Waste Disposal Act.
P. Safe Drinking Water Act (SDWA). The Safe Drinking Water Act, 42
U.S.C. 300f to 33j-26, is intended to protect drinking water sources.
The statute
[[Page 1665]]
authorizes EPA to determine if an action which will have an
environmental effect on a sole or principal drinking water source would
also constitute a significant hazard to a human population and, if so,
to prohibit such an action.
Q. Toxic Substances Control Act (TSCA). The Toxic Substances
Control Act of 1976 (TSCA), 15 U.S.C. 2601 to 2692, provides controls
over the manufacture process, use, distribution and disposal of certain
toxic materials e.g., polychlorinated biphenyls, lead-based paint,
asbestos containing materials and radon.
R. Wild and Scenic Rivers Act. The Wild and Scenic Rivers Act, 16
U.S.C. 1271 to 1287, directs Federal agencies to consider and preserve
the values of wild and scenic areas in the use and development of water
and land resources.
S. Executive Orders
1. Executive Order 12898. Executive Order 12898, Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations, 59 FR 7629 (1994), requires each Federal agency to make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minority populations and low-income populations. Each
Federal agency must develop an agency-wide environmental justice
strategy that identifies and addresses disproportionately high and
adverse human health or environmental effects of its programs,
policies, and activities on minority populations and low-income
populations.
The environmental justice strategy must list programs, policies,
planning and public participation processes, enforcement, and/or
rulemakings related to human health or the environment that should be
revised to, at a minimum: (a) promote enforcement of all health and
environmental statutes in areas with minority populations and low-
income populations; (b) ensure greater public participation; (c)
improve research and data collection relating to the health of and
environment of minority populations and low-income populations; and (b)
identify differential patterns of consumption of natural resources
among minority populations and low-income populations. In addition, the
environmental justice strategy must include, where appropriate, a
timetable for undertaking identified revisions and consideration of
economic and social implications of the revisions.
2. Executive Order 12088. Executive Order 12088, Federal Compliance
with Pollution Control Standards, 43 FR 47707 (1978), as amended by
Executive Order 12580, 52 FR 2923 (1987), 42 U.S.C. 4321 note, makes
the head of each Federal agency responsible for ensuring that all
necessary actions are taken for the prevention, control, and abatement
of environmental pollution with respect to Federal facilities and
activities under the control of the agency.
3. Executive Order 11987. Executive Order 11987, Exotic Organisms,
42 FR 26949, 42 U.S.C. 4321 note, directs Federal agencies, to the
extent permitted by law, to restrict the introduction of exotic species
into the natural ecosystems on lands and waters which they own, lease,
or administer.
30-00-30 Definitions
The following terms are defined solely for the purpose of
implementing the supplemental procedures provided by this chapter and
are not necessarily applicable to any statutory or regulatory
requirements. To the extent that a definition of one of these terms
should conflict with a definition in an applicable statute, regulation
or Executive Order, that statute, regulation or Executive Order
definition shall supersede the GAM definition.
A. Action--a signed decision by a responsible Department official
resulting in:
1. Approval, award, modification, cancellation, termination, use or
commitment of Federal funds or property by means of a grant, contract,
purchase, loan, guarantee, deed, lease, license or by any other means;
2. Approval, amendment or revocation of any official policy,
procedures or regulations including the establishment or elimination of
a Department program; or
3. Submission to Congress of proposed legislation which, if
enacted, the Department would administer.
B. Asset--an entity, group of entities or specific environment as
defined in the individual related acts and which the individual related
acts seek to protect or preserve. Assets include cultural assets (e.g.,
historic properties) and natural assets (e.g., wild and scenic rivers,
and endangered species).
C. Environmental Acts--all authorities listed in Section 30-00-20
or authorities that might be designated under other statutes or
Executive Orders.
D. Environmental Assessment--a concise public document, as defined
in the regulations implementing NEPA, that serves to provide sufficient
evidence and analysis for determining whether to prepare an
environmental impact statement of a finding of no significant impact.
E. Environmental Effects--effects, as defined under NEPA, include
direct effects, which are caused by the action and occur at the same
time and place and indirect effects, which are caused by the action and
are later in time or farther removed in distance, but are still
reasonably foreseeable.
F. Environmental Impact Statement--a detailed written statement, as
required under NEPA, on: (i) the environmental impact of the proposed
action, ii) any adverse environmental effects which cannot be avoided
if the action is implemented, (iii) alternatives to the proposed
action, (iv) the relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity and (v) any irreversible and irretrievable commitments of
resources which would be involved in the proposed action should it be
implemented.
G. Environmental Review--the process, including necessary
documentation, which a Departmental organization uses to determine
whether a proposed action will cause an environmental effect.
H. Finding of No Significant Impact--a document by a federal
agency, as required under NEPA, briefly presenting the reasons why an
action will not have a significant effect on the human environment and
for which an environmental impact statement therefore will not be
prepared.
I. Major Federal Action--includes actions, as defined by NEPA, with
effects that may be major and which are potentially subject to federal
control and responsibility.
J. OPDIV--HHS Operating Division. The following is a current
listing (which may change at some future date) of OPDIVs:
Administration on Aging (AoA), Administration for Children and Families
(ACF), Agency for Health Care Policy and Research (AHCPR), Centers for
Disease Control and Agency for Toxic Substances and Disease Registry
(CDC/ATSDR), Food and Drug Administration (FDA), Health Care Financing
Administration (HCFA), Health Resources and Services Administration
(HRSA), Indian Health Service (IHS), National Institutes of Health
(NIH), Office of the Secretary (OS), Program Support Center (PSC), and
Substance Abuse and Mental Health Services Administration (SAMHSA),
K. STAFFDIV--HHS Staff Division. The following is a current listing
(which
[[Page 1666]]
may change at some future date) of STAFFDIVs: Office of the Assistant
Secretary for Legislation (ASL), Office of the Assistant Secretary for
Management and Budget (ASMB), Office of the Assistant Secretary for
Planning and Evaluation (ASPE), Office of the Assistant Secretary for
Public Affairs (ASPA), Departmental Appeals Board (DAB), Office for
Civil Rights (OCR), Office of General Counsel (OGC), Office of
Inspector General (OIG), and Office of Public Health and Sciences
(OPHS).
L. Program Review--a review by OPDIVs/STAFFDIVs of all their
actions to determine:
1. Those categories of actions which normally do not individually
or cumulatively cause significant environmental effects and therefore
may be categorically excluded from further environmental review; and
2. Those categories of actions which require an environmental
review because they may cause significant environmental effects under
NEPA; and
3. Those categories of actions which require an environmental
review because they normally do cause significant environmental effects
under NEPA.
HHS Chapter 30-10--General Administration Manual; HHS Transmittal
98.2
Subject: Department of Health and Human Services Environmental Policy
30-10-00.... Policy Statement
10.... Vision Statement
20.... Goal and Objectives
30.... Strategy
30-10-00 Policy Statement
The Department of Health and Human Services is committed to
complying with all applicable Federal, state and local environmental
laws, statutes and regulations, protecting the environment, and
conserving our environmental resources by being proactive and cost
effective in our environmental stewardship. It is HHS policy that
pollution be prevented or reduced at the source. All HHS organizations
shall give first priority to avoiding or reducing the generation of
hazardous substances, pollutants, and contaminants at the source.
Pollution that cannot be prevented or recycled must be treated in an
environmentally safe manner to reduce volume, toxicity, and/or
mobility. Only as a last resort should disposal or other release into
the environment be employed, and such disposal or release must be
conducted in accordance with all applicable authorities and in an
environmentally safe manner. Managers and employees are expected to
execute their responsibilities in a way that is proactive and cost
effective in the protection and conservation of our environmental
resources and in a manner that complies with all applicable Federal,
state, and local environmental laws, statutes and regulations.
30-10-10 Vision Statement
All HHS managers and employees are guardians of the environment
when carrying out their responsibilities. Proactive efforts at all
organizational levels must be focused on managing environmental risks
to ensure that the environment is always protected and our
environmental resources are conserved.
OPDIVs/STAFFDIVs must give weight to preservation of the
environment and protection of historic or cultural assets in reaching
substantive program decisions. All HHS organizations shall assess
environmental costs and benefits as well as program goals and
objectives in determining a particular course of action. In conducting
this assessment, OPDIVs/STAFFDIVs should devote reasonable time,
effort, and resources to consideration of enviormental risks associated
with a program-related course of action.
30-10-20 Goal and Objectives
The goal of our environmental efforts is to prevent harm to the
environment, and enhance the quality of human health by conserving our
environmental resources.
This goal is satisfied by meeting the following objectives:
1. Compliance--To comply with all applicable Federal, State, and
local environmental laws, statutes and regulations;
2. Conservation--To protect and conserve our environmental
resources through pollution prevention, waste reduction and recycling;
3. Pollution Prevention--To protect and conserve our environmental
resources through source reduction in facility management and
acquisition, where practicable, as the primary means of achieving and
maintaining compliance with applicable Federal, State and local
environmental laws, statutes and regulations; and
4. Restoration--To restore, when possible, facilities, land, and
waters damaged through past practices.
30-10-30 Strategy
HHS has adopted and will adhere to a Code of Environmental
Management Principles (CEMP) to help achieve the goals of the HHS
environmental protection program. As part of the effort to implement
these principles throughout HHS, all OPDIVS/STAFFDIVS will integrate
the following principles into their environmental protection programs:
1. Management Commitment--Written top management commitment to
improve environmental performance by establishing policies which
emphasize pollution prevention and the need to ensure compliance with
environmental requirements.
2. Compliance Assurance and Pollution Prevention--Proactive
programs that aggressively identify and address potential compliance
problem areas and utilize pollution prevention approaches to correct
deficiencies and improve environmental performance.
3. Enabling Systems--Necessary systems to enable personnel to
perform their functions consistent with regulatory requirements, HHS
environmental policies, and the HHS overall mission.
4. Performance and Accountability--Measures to address employee
environmental performance and ensure full accountability of
environmental functions.
5. Measurement and Improvement--A program to assess progress toward
meeting organization environmental goals, and which uses the results of
that assessment to improve environmental performance.
HHS Chapter 30-20--General Administration Manual; HHS Transmittal
98.2
Subject: Administrative Requirements
30-20-00.... Background
10.... Responsibilities
20.... Approval Authority and Delegations of Authority
30.... Process for Establishing Categorical Exclusions
40.... Categories of Exclusion
50.... Environmental Review Procedures
30-20-00 Background
This chapter establishes an administrative framework in the
Department for environmentally-related activities. Specifically, this
chapter (1) describes the assignment of relative responsibilities in
the Department regarding environmental activities; (2) establishes
procedures for program reviews; and (3) establishes other on-going
administrative requirements.
30-20-10 Responsibilities
A. Office of the Secretary. The Secretary shall designate an
official as the Department Environmental Officer, who will be
responsible for:
1. Preparing Departmental guidelines and other policy documents for
issuance
[[Page 1667]]
by the Secretary or other appropriate Department official pertaining to
environmental protection and preservation of natural or cultural
assets;
2. Approving lead agency agreements having Department-wide
applicability;
3. Providing training to HHS program officials with respect to
carrying out the requirements of environmental statutes and Executive
Orders;
4. Maintaining liaison with the Council on Environmental Quality
(CEQ), Environmental Protection Agency (EPA), and other Federal
agencies charged with direct responsibility for administering
environmental statutes and Executive Orders;
5. Coordinating the review of environmental statements originating
from outside of HHS. This responsibility is delegated to the Centers
for Disease Control and Prevention, National Center for Environmental
Health (FR, Vol. 43 no. 164, Aug. 23, 1978); and
6. Reviewing and making recommendations to the Assistant Secretary
for Management and Budget with respect to determinations by OPDIVs/
STAFFDIVs that certain activities are categorically excluded from
environmental review.
B. OPDIVs/STAFFDIVs. Heads of OPDIVs/STAFFDIVs are responsible for
ensuring that organizational units under their authority comply with
all provisions of all applicable Federal, State, and local
environmental laws, statues, regulations and Executive Orders and with
the procedures of part 30. An OPDIV/STAFFDIV head may designate an
environmental officer, who may act in either a full-time capacity or in
addition to other duties, to assist in fulfilling these
responsibilities.
C. Regional Offices. Regional Directors are responsible for
complying with all provisions of all applicable Federal, State, and
local environmental laws, statutes, regulations and Executive Orders
and the policies in part 30 for those specific program responsibilities
delegated to them. In addition, the Regional Director shall:
1. Serve as principal HHS regional liaison official with other
Federal, State, and local agencies on matters pertaining to
environmental preservation or protecting environmental, cultural, or
natural assets;
2. Coordinate the timely review by regional program personnel of
environmental impact statements forwarded to HHS by other agencies; and
3. Periodically verify that their regional program staff are aware
of and are complying with the requirements of part 30.
30-20-20 Approval Authority and Delegations of Authority
A. Delegation of Authority. The OPDIV/STAFFDIV head and Regional
Director may redelegate all of their environmental responsibilities to
subordinate program managers except for the authority of an OPDIV/
STAFFDIV head to approve the designation of actions as categorically
excluded. OPDIV/STAFFDIV heads shall obtain concurrence from the
Assistant Secretary for Management and Budget with respect to
activities designated to be categorically excluded from environmental
reviews.
B. Excluded Material. The exclusion of material from environmental
impact statements on the basis of national security and trade secrets
requires approval by the HHS General Counsel. (See Section 30-30-40.)
C. Natural Assets. Proposed actions which will have an effect on
certain natural assets may require concurrence or approval from other
Federal agencies and/or entities prior to taking the action. (See
chapter 30-40.)
D. Floodplains/Wetlands. OPDIV/STAFFDIV heads shall sign
determinations pursuant to Executive Order 11988, Floodplain
Management, and Executive Order 11990, Protection of Wetlands, except:
1. The Secretary shall approve proposed actions requiring
environmental impact statements on projects affecting floodplains; and
2. The Secretary shall approve proposed actions requiring
environmental assessments or environmental impact statements for new
construction in wetlands.
30-20-30 Program Reviews
A. Actions Requiring Environmental Review. All HHS activities will
be evaluated to determine whether such activities are actions that
require environmental review.
In a program review, an OPDIV/STAFFDIV evaluates actions it will be
taking in order to determine the potential of these actions to cause an
environmental effect under an applicable environmental statute or
Executive Order. OPDIVs/STAFFDIVs should have already completed an
initial review. OPDIVs/STAFFDIVs may undertake additional program
reviews subsequently whenever they deem it appropriate.
As a result of program review, an OPDIV/STAFFDIV shall divide each
of its actions in one of three groups:
Group 1 (categorically excluded)--Those actions which do not
individually or cumulatively have a significant effect on the human
environment or affect a natural or cultural asset protected by an
environmental statute or Executive Order
Group 2--Those actions which require an environmental review
because they may cause a significant environmental effect under NEPA or
may affect a protected cultural or natural asset protected by an
environmental statute or Executive Order.
Group 3--Those actions which normally do cause a significant
environmental effect under NEPA or affect a cultural or natural asset
protected by an environmental statute or Executive Order.
In grouping each of its actions, OPDIVs/STAFFDIVs shall use the
exclusion categories described in Section 30-20-40. If an action falls
within one of these exclusion categories, then it may be included in
Group 1. Such actions do not require environmental reviews, except in
circumstances described in 30-20-40. If an action does not fall within
one of these exclusion categories, then an OPDIV/STAFFDIV must perform
an environmental review prior to taking the action. Chapters 30-30 and
30-50 describe the procedures for conducting an environmental review.
Each OPDIV/STAFFDIV shall maintain as part of its organizational
guidance documents lists of those actions which it has determined fall
under Groups 1, 2, and 3 or shall have regulations that address such
actions. These lists shall supplement other internal directives or
instructions relating to environment-related responsibilities.
B. Approval. A determination by an OPDIV/STAFFDIV that an action
falls within Group 1 (Categorically Excluded) is effective upon
approval by the OPDIV/STAFFDIV head or, as required, after the issuance
of a regulation. However, OPDIVs/STAFFDIVs must forward these
determinations to the Assistant Secretary for Management and Budget for
concurrence. Determination that an action falls within Group 1
(Categorically Excluded) is effective until rendered inapplicable
because of changes in the underlying program authority or regulation.
C. Publication of Additional Categorical Exclusions by OPDIVs/
STAFFDIVs. An OPDIV/STAFFDIV may establish additional categorical
exclusions that pertain to the actions of that OPDIV/STAFFDIV after
approval
[[Page 1668]]
by the Assistant Secretary for Management and Budget and publication
for public comment in the Federal Register, in accordance with the
procedures established by that OPDIV/STAFFDIV. All categorical
exclusions not covered by the general listing in Section 30-20-40(B)(2)
must be published in the Federal Register.
30-30-40 Categories of Exclusion
A. Application of Categorical Exclusions
1. Required Determinations. To find that a proposal is
categorically excluded, an OPDIV/STAFFDIV shall determine the
following:
(a) Falls Within Exclusion Category. The proposed action falls
within one of the four exclusion categories described in this section.
This determination may take place as the result of a program review of
an OPDIV's/STAFFDIV's actions, in which case the action is listed in
the OPDIV's/STAFFDIV's administrative issuance system as being
categorically excluded from further environmental reviews.
(b) Absence of Extraordinary Circumstances. There are no
extraordinary circumstances related to the proposal that may affect the
significance of the environmental effects of the proposal.
Extraordinary circumstances are unique situations presented by specific
proposals, such as scientific controversy about the environmental
effects of the proposal; uncertain effects or effects involving unique
or unknown risks; or unresolved conflicts concerning alternate uses of
available resources within the meaning of section 102(2)(E) of NEPA;
and where it is reasonable to anticipate a cumulatively significant
impact on the environment. See 40 CFR 1508.27 for examples.
2. All categorical exclusions in this Part may be applied by any
organizational element of HHS.
3. A class of actions includes activities foreseeably necessary to
proposals encompassed within the class of actions (such as associated
transportation activities and award of implementing grants and
contracts).
B. Categories of Actions Which May Be Excluded From Environmental
Review. Categories of actions which may be excluded from environmental
review include, but are not limited to the following:
1. Category No. 1--General Exclusions:
(a) When a law or regulation grants an exception, unless precluded
by an OPDIV/STAFFDIV regulation.
(b) When the courts have found that the action does not require
environmental review; and
(c) When an action implements actions outside the territorial
jurisdiction of the United States and such actions are excluded from
review by Executive Order 12114.
2. Category No. 2--Functional Exclusions:
(a) Routine administrative and management support, including legal
counsel, public affairs, program evaluation, monitoring and individual
personnel actions;
(b) Appellate reviews when HHS was the plaintiff in the lower court
decision (e.g., a case involving failure by a nursing home to comply
with fire and safety regulations);
(c) Data processing and systems analysis;
(d) Education and training grants and contracts (e.g., grants for
remedial training programs or teacher training) except projects
involving construction, renovation, or changes in land use;
(e) Grants for administrative overhead support (e.g., regional
health or income maintenance program administration);
(f) Grants for social services (e.g., support for Head Start,
senior citizen programs or drug treatment programs) except projects
involving construction, renovation, or changes in land use;
(g) Liaison functions (e.g., serving on task forces, ad hoc
committees or representing HHS interests in specific functional areas
in relationship with other governmental and non-governmental entities);
(h) Maintenance (e.g., undertaking repairs necessary to ensure the
functioning of an existing facility), except for properties on or
eligible for listing on the National Register of Historic Places;
(i) Statistics and information collection and dissemination (e.g.,
collection of health and demographic data and publication of
compilations and summaries);
(j) Technical assistance by HHS program personnel, e.g., providing
assistance in methods for reducing error rates in State public
assistance programs or in determining the cause of a disease outbreak);
and
(k) Adoption of regulations and guidelines pertaining to the above
activities (except technical assistance and those resulting in
population changes).
3. Category 3--Program Exclusions. These exclusions, when
applicable, result from a substantive review and determination by an
OPDIV/STAFFDIV that certain programs or certain activities within a
program will not normally (a) significantly affect the human
environment (as defined by NEPA) or (b) affect an asset (as defined in
an applicable environmental statute or Executive Order) regardless of
the location or magnitude of the action. For example, an OPDIV/
STAFFDIV, following its review, might determine that the following are
unlikely to cause an environmental effect: assigning a member of the
Health Service Corps to a locality to supplemental existing medical
personnel or providing funds to support expansion of emergency medical
services in existing hospitals.
30-20-50 Environmental Review Procedures
An OPDIV/STAFFDIV must conduct environmental reviews with respect
to all proposed actions that are subject to an environmental statute or
Executive Order which do not fall under categorical exclusions 1, 2, or
3. Chapters 30-30 and 30-50 discuss the process for conducting an
environmental review with respect to a specific proposed action and for
fulfilling documentation and other requirements. Each OPDIV/STAFFDIV
shall ensure that its programs have appropriate procedures for
conducting environmental reviews, for completing required
documentation, and for ensuring public involvement and
intergovernmental consultation. These procedures must be in writing and
be included in the internal organizational guidance documents or
regulations. These procedures must, at a minimum, address the
following:
A. A list of those actions which the OPDIV/STAFFDIV has
categorically excluded from further environmental review requirements.
B. A list of those actions or circumstances when actions require an
environmental review prior to taking the action.
C. Designation of officials responsible for environment-related
activities including determinations as to whether to prepare an
environmental impact statement or an environmental assessment, if one
is required.
D. Procedures for preparing and circulating environmental
statements (including data required by the applicable environmental
statute or Executive Order for the type of action covered).
E. Procedures for ensuring the coordination of environmental review
with program decision-making, including concurrent development and
circulation of environmental documents with program documents and the
identification of key decision-making points.
[[Page 1669]]
F. Procedures for consulting with other Federal agencies
responsible for the environmental statutes or Executive Orders, if
necessary.
G. Procedures for developing lead agency agreements (as described
in 30-30-20B and 30-50).
H. A prohibition against precluding or prejudicing selection of
alternatives in an environmental impact statement without regard to
environmental risks.
I. Procedures for establishing a reviewable record, including
making environmental statements and related decision-making materials
part of the record of formal rule-making and adjudicatory proceedings.
J. Provisions for early consultation and assistance to potential
applicants and non-Federal entities in planning actions and developing
information necessary for later Federal involvement (as described in
30-30-20C and 30-50).
K. Descriptions of circumstances which preclude completion of
environmental reviews within reasonable time frames because of public
health and safety considerations and procedures for after-the-fact
completion.
L. Provision for ensuring that applications and other materials
from potential grantees or other recipients of Departmental funds, on a
program-by-program basis, include information necessary to conduct an
environmental review. Such information shall include the identification
of any properties which may be eligible for listing on the National
Register of Historic Places.
M. Provision for identifying cultural assets which a program
controls through leases or Federal ownership, and for nominating such
historic properties to the National Register of Historic Places.
HHS Chapter 30-30--General Administration Manual; HHS Transmittal
98.2
Subject: General Environmental Review Procedures
30-30-00.... Overview
10.... Summary Description
20.... Environmental Review
30.... Environmental Statements
40.... Intergovernmental Consultation and Document Review.
30-30-00 Overview
Certain environmental statutes and Executive orders require an
environmental review of proposed Federal actions to determine whether
such actions will have environmental effects.
The purpose of this chapter is to describe overall the steps which
Department officials must take in conducting environmental reviews of
specific proposed actions. Within these general steps, the individual
environmental acts differ significantly with respect to public
involvement, intergovernmental consultation, and documentation
required. The chapters at 30-40 and 30-50 following (entitled Natural
Asset Review and NEPA Review) discuss these specific requirements in
greater detail.
Note: The procedures and requirements in chapters 30-40 and 30-
50 take precedence over the general statements in this chapter and
must be consulted before determining the steps that must be taken
with regard to a specific action. The discussion in this chapter
generally does not apply to chapters 30-60 to 30-90.
30-30-10 Summary Description
The following is a summary description of the general types and
sequence of activities which Departmental officials should carry out in
reviewing specific proposed actions under this Part.
A. Determine that a proposed activity constitutes an action as
defined under Section 30-00-30 (Definitions) that is subject to an
environmental statute or Executive Order.
B. Determine whether the proposed action is categorically excluded
from all environmental review requirements. If it is excluded, no
further environmental review is necessary.
C. For proposed actions not categorically excluded, conduct an
environmental review in accordance with applicable program
environmental review procedures to determine whether the proposed
action will cause an environmental effect under one or more of the
environmental statutes or Executive Orders.
D. Determine whether it is necessary to prepare an environmental
document, e.g., an environmental assessment, and if necessary, an
environmental impact statement under NEPA. Circulate the environmental
document among the public, Federal, State and local agencies, and other
interested parties, as appropriate.
E. Carry out the requirements for public involvement and
intergovernmental consultation as required under the applicable
environmental statutes or Executive Orders, including any necessary
approvals.
F. Prepare the necessary environmental documentation and proceed
with the program decision-making process.
30-30-20 Environmental Review
A. General. OPDIVs/STAFFDIVs must perform an environmental review
for each proposed action not categorically excluded in accordance with
the OPDIV's/STAFFDIV's environmental procedures. The purpose of an
environmental review is to answer the following general questions:
(Individual environmental acts differ with respect to the specific
scope and methodology required in conducting an environmental review.)
1. Which environmental statutes or Executive Orders apply to the
proposed action?
2. Will a proposed action have an environmental effect under any of
the environmental statutes or Executive Orders, as defined in
regulation or by court interpretation?
3. Should the HHS OPDIV/STAFFDIV prepare an environmental
assessment or an environmental impact statement, given the
environmental statutes and Executive Orders involved and the kinds and
degree of environmental effects anticipated?
B. Agreements with Other Agencies. When two or more agencies are
engaged in the same action, a lead agency agreement provides one agency
with the authority to conduct the environmental review. These
agreements determine the content and type of statement and specify
which Federal agency will prepare it. The agreement includes a schedule
for the preparation and circulation of the document, as well as an
assignment of important tasks among the agencies involved. Lead agency
agreements may be signed with other agencies for individual actions or
for a particular type of action.
C. Non-Federal Agencies. Whenever an HHS program requests or
permits a non-Federal agency to perform an environmental review, the
program shall outline the type of information required, perform an
independent evaluation, and assume responsibility for the scope and
content of the material.
30-30-30 Environmental Documents
A. On the basis of the environmental review, OPDIVs/STAFFDIVs shall
determine what type of environmental document to prepare. Under NEPA,
either an environmental assessment and finding of no significant impact
or an environmental impact statement would generally be required.
Environmental impact statements are prepared in two stages: draft and
final. A final statement includes a consideration of comments submitted
by persons or organizations reviewing the draft statement. Under some
laws covered by this Part, an environmental assessment may also have to
be prepared in draft for review and comment before being finalized.
[[Page 1670]]
The chapters at 30-40 and 30-50 following (Natural Asset Review and
NEPA Review) discuss these different requirements in greater detail and
must be consulted to ascertain the specific requirements of NEPA and
each of the related statutes and Executive Orders.
B. Description
1. Environmental Impact Statements. An environmental impact
statement is a detailed written statement on (i) The environmental
impact of the proposed action, (ii) any adverse environmental effects
which cannot be avoided, (iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity and (v) any irreversible and irretrievable commitments of
resources which would be involved in the proposed action should it be
implemented. Draft environmental impact statements shall not exhibit
biases in favor of the proposed action. A final statement may include a
recommendation with a rationale for a preferred action (see chapter 30-
50 for correct NEPA terminology and process).
2. Environmental Assessments. An environmental assessment is
generally a concise document which provides sufficient evidence and
analysis for determining whether to prepare an environmental impact
statement or a finding of no significant impact. It shall include, in
detail, the environmental impact of reasonable alternatives. OPDIVs/
STAFFDIVs generally can use an environmental assessment in order to
satisfy any review, consultation, and public notice requirements of the
applicable environmental statutes and Executive Orders and to otherwise
inform individuals and organizations who may be interested in or
affected by the proposed action (see chapter 30-50 for correct NEPA
terminology and process).
C. Alternatives. Environmental impact statements must explore and
evaluate reasonable alternatives to the proposed action in terms of
their environmental consequences, benefits and costs, and contribution
to the underlying purpose or goal. Discussion of alternatives must be
sufficiently in-depth to permit a meaningful comparison of alternative
courses of action.
Environmental impact statements shall consider the following
categories of alternatives, as appropriate:
1. No Action by Any Organization. This alternative serves as a
baseline against which to measure the environmental consequences,
costs, and benefits of the proposed action and other alternatives.
2. Action Alternatives. One or more alternative courses of action
directed at achieving the underlying purpose or goal. The environmental
impact statement cannot automatically exclude actions.
Outside the expertise or jurisdiction of Departmental
organizations, e.g., examining the possible use of other real
properties other than that proposed for transfer by HHS; or
Which only partially achieve an underlying goal or
objective, e.g., funding a health care facility at a lower capacity for
patient care. However, action alternatives considered must be
reasonably available, practicable, and be related to the underlying
purpose or goal. An environmental impact statement must include all
reasonable alternatives.
3. Alternative Safeguards. These are alternative actions which
could mitigate the adverse environmental consequences of one or more of
the action alternatives.
4. Delayed Action Alternative. This alternative is to postpone or
delay a proposed action in order to conduct more research or for other
reasons.
5. Alternative Uses. When a proposed action would affect a scarce
or valuable resource (e.g., prime agricultural farmland), the potential
alternative uses of the resource must be identified so that they may be
compared with the value of the proposed action.
30-30-40 Intergovernmental Consultation and Document Review
OPDIVs/STAFFDIVs are responsible for meeting the various
requirements under environmental statutes and Executive Orders for
intergovernmental consultation and public involvement. These
requirements differ significantly. OPDIVs/STAFFDIVs must refer to the
more detailed descriptions in 30-40 and 30-50 and should consult an
environmental officer for guidance.
As required, OPDIVs/STAFFDIVs shall circulate draft environmental
impact statements for review and comment, and otherwise make then
available to the public upon request to the extent such statements are
not protected from disclosure by existing law applicable to the
agency's operation. Statements should be circulated to the Federal
agency responsible for administering the applicable environmental act,
involved non-Federal agencies at the State or local level, and
interested public persons or groups within the geographic area of the
environment affected. The review period is generally no less than 30
days for a draft environmental assessment and no less than 60 days for
a draft environmental impact statement. Whenever a draft environmental
impact statement is significantly revised because of comments received
or because the nature or scope of the proposed action changes
significantly, OPDIVs/STAFFDIVs shall prepare a new draft environmental
impact statement for circulation. Circulation of certain portions of
the document is not necessary when it involves the following:
A. National Security. Circulation of classified sections of
environmental documents is subject to regulations pertaining to matters
of national security.
B. Trade Secrets. Circulation of sections of environmental
documents that disclose a trade secret is subject to 18 U.S.C. 1905 or
21 U.S.C. 331(j) governing the protection and disclosure of trade
secrets.
HHS Chapter 30-40--General Administration Manual; HHS Transmittal
98.2
Subject: Natural Asset Review
30-40-00.... Applicability of Consultation Requirements
05.... Integration with NEPA Review Process
10.... Coastal Zone Management Act of 1972
20.... Endangered Species Act of 1973
30.... Fish and Wildlife Coordination Act
40.... Floodplain Management
50.... Marine Protection, Research, and Sanctuaries Act of 1972
60.... Safe Drinking Water Act (Sole Source Aquifers)
70.... Wetlands Protection
80.... Wild and Scenic Rivers Act
30-40-00 Applicability of Consultation Requirements
The environmental statutes and Executive Orders described in this
chapter require consideration of the effects of a proposed action on
specific types of places or species. Generally, they prohibit further
action until the Federal agency proposing to take action has consulted
with the Federal or State agency responsible for administering the law.
The species requiring consideration are listed by the Department of the
Interior. The places requiring consideration are:
A. Coastal Zones (as identified in a State coastal zone management
plan);
B. Habitats of Endangered Species (as identified by the Department
of the Interior);
C. Streams and other bodies of water;
[[Page 1671]]
D. Floodplains (as identified on HUD floodplain maps);
E. Marine Sanctuaries (as identified by the Secretary of Commerce);
F. Sole Source Aquifers (as identified by the Environmental
Protection Agency);
G. Wetlands (all); and
H. Wild and Scenic Rivers (as identified by the Departments of the
Interior and Agriculture).
Tables 1 indicates whether the administering agency has published
regulations implementing the consultation requirement. OPDIVs/STAFFDIVs
are responsible for consulting with the appropriate Federal or State
agency before taking action in accordance with the procedures in this
chapter and in the applicable statute, Executive Order, or implementing
regulation.
Table 1.--Agency Consultation Procedures
------------------------------------------------------------------------
Natural asset statute or Consultation
executive order Citation procedures
------------------------------------------------------------------------
Coastal Zone Management Act 16 U.S.C. Secs. 15 CFR Part 930.
of 1972. 1451-1464.
Endangered Species Act of 16 U.S.C. Secs. 50 CFR Part 402.
1973. 1531-1544.
Fish and Wildlife 16 U.S.C. Secs. 661- 16 U.S.C. Sec. 662.
Coordination Act. 666c.
Executive Order 11988, 42 FR 26951 (1977), Floodplain
Floodplain Management. as amended by E.O. Management
12148, 44 FR 43239 Guidelines, U.S.
(1979); 16 U.S.C. Water Resources
Sec. 4321 note. Council, 43 FR 6030
(1978).
Marine Protection, Research, 16 U.S.C. Secs. ....................
and Sanctuaries Act of 1972. 1431-1445a, 33
U.S.C. Secs. 1401-
1445..
Safe Drinking Water Act..... 42 U.S.C. Secs. 42 U.S.C. Sec. 300h-
300F-300J-26. 3, 40 CFR Part 149.
Executive Order 11990, 42 FR 26961 (1977), ....................
Protection of Wetlands. as amended by E.O.
12608, 52 FR 34617
(1987), 42 U.S.C.
Sec. 4321 note.
Wild and Scenic Rivers Act.. 16 U.S.C. Secs. 36 CFR Part 297.
1271-1287.
------------------------------------------------------------------------
30-40-05 Integration With NEPA Review Process
OPDIVs/STAFFDIVs are responsible for reviewing all proposed actions
to determine whether they will affect places and species described in
this chapter. OPDIVs/STAFFDIVs are to evaluate the potential effects of
a proposed action in accordance with the procedures for National
Environmental Policy Act (NEPA) review in chapter 30-50. If an
environmental assessment (EA) or environmental impact statement (EIS)
is required to be prepared for the proposed action, the documentation
required by the applicable statute or Executive Order and the
administrating agency regulations are to be included in the EA or EIS.
In addition, the consultation procedures required by the environmental
statute or Executive Orders shall be followed.
30-40-10 Coastal Zone Management Act of 1972
A. Purpose. The Coastal Zone Management Act of 1972 (CZMA), 16
U.S.C 1451-1464, declares that it is the national policy ``to preserve,
protect, develop, and where possible, to restore or enhance, the
resources of the Nation's coastal zone...'' In furtherance of this
policy, the Act provides Federal assistance to State for developing and
implementing coastal zone management programs. Section 307(c)(1)(A) of
the CZMA (16 U.S.C. 1456(c)(1)(A)) provides that ``[e]ach Federal
agency activity within or outside the coastal zone that affects any
land or water use or natural resource of the coastal zone shall be
carried out in a manner which is consistent to the maximum extent
practicable with the enforceable policies of approved State management
programs.''
National Oceanic and Atmospheric Administration (NOAA) regulations
codified at 15 CFR Part 930, Subpart C--Consistency for Federal
Activities, implements section 307 of the CZMA. These ``consistency''
regulations are designed to assure that all Federally conducted or
supported activities, including development projects, directly
affecting the coastal zone are undertaken in a manner consistent to the
maximum extent practicable with approved State coastal management
programs.
B. Definitions
1. Federal activity. The term ``Federal activity'' means any
functions performed by or on behalf of a Federal agency in the exercise
of its statutory responsibilities. The term ``Federal activity'' does
not include the issuance of a Federal license or permit to an applicant
or person or the granting of Federal assistance to an applicant agency.
2. Federal development project. The term ``Federal development
project'' means a Federal activity involving the planning,
construction, modification, or removal of public works, facilities, or
other structures, and the acquisition, utilization, or disposal of land
or water resources.
3. Coastal Zone. The CZMA defines the term ``coastal zone'' as
``the coastal waters (including the lands therein and thereunder) and
the adjacent shorelands (including the waters therein and thereunder),
strongly influenced by each other and in proximity to the shorelines of
the several coastal states, and includes islands, transitional and
intertidal areas, salt marshes, wetlands, and beaches.'' Zone
boundaries are described in 16 U.S.C. 1453(1). The CZMA excludes from
the definition of coastal zone lands the use of which is by law subject
solely to the discretion of or which is held in trust by the Federal
Government, its officers, or agents (e.g., nonterminated California
Indian rancherias).
4. ``Consistent to the maximum extent practicable.'' The term
``consistent to the maximum extent practicable'' describes the
requirement for Federal activities, including development projects,
directly affecting the coastal zone of States with approved management
programs to be fully consistent with such programs unless compliance is
prohibited based upon the requirements of existing law applicable to
the Federal agency's operations.
C. Requirement. An OPDIV/STAFFDIV undertaking any development
project in the coastal zone of a State shall ensure that the project
is, to the maximum extent practicable, consistent with the enforceable
policies of approved State management programs.
OPDIVs/STAFFDIVs shall determine which of their activities directly
affect the coastal zone of States with approved management programs.
OPDIVs/STAFFDIVs shall consider all development projects within the
coastal
[[Page 1672]]
zone to be activities directly affecting the coastal zone. All other
types of activities within the coastal zone are subject to OPDIV/
STAFFDIV review to determine whether they directly affect the coastal
zone. Federal activities outside of the coastal zone are subject to
OPDIV/STAFFDIV review to determine whether they directly affect the
coastal zone.
D. Integration with NEPA. OPDIVs/STAFFDIVs are to evaluate the
potential effects of a proposed action affecting a coastal zone in
accordance with the procedures for National Environmental Policy Act
(NEPA) review in Chapter 30-50. If an environmental assessment (EA) or
environmental impact statement (EIS) is required to be prepared for the
proposed action, a consistency determination, described in 30-40-10E,
shall be included in the EA or EIS.
E. Consistency Determination. OPDIVs/STAFFDIVs shall provide State
agencies with consistency determinations for all Federal activities
directly affecting the coastal zone. OPDIVs/STAFFDIVs are encouraged to
consult with State agencies during their efforts to assess whether an
action will be consistent to the maximum extent practicable with a
State management program.
A consistency determination should be prepared following
development of sufficient information to determine reasonably the
consistency of the activity with the State's management program, but
before the OPDIV/STAFFDIV reaches a significant point of decision-
making in its review process. An OPDIV/STAFFDIV shall provide a
consistency determination to the relevant State agency designated under
section 306(d)(6) of the CZMA (16 U.S.C. 1455(d)(6)) at the earliest
practicable time in the planning or reassessment of the activity, but
in no case later than 90 days before final approval of the Federal
activity, unless both the OPDIV/STAFFDIV and the State agency agree to
a different schedule.
OPDIVs/STAFFDIVs must ensure that their activities are consistent
to the maximum extent practicable with the enforceable, mandatory
policies of the management program. However, OPDIVs/STAFFDIVs need only
give adequate consideration to management program provisions which are
in the nature of recommendations. Finally, OPDIVs/STAFFDIVs do not have
to evaluate coastal zone effects for which the management program does
not contain mandatory or recommended policies because, in the absence
of such provisions, there is no basis for making a consistency
determination with respect to such effects.
F. Negative Determination. If a OPDIV/STAFFDIV asserts that
compliance with the management program is prohibited, it must clearly
describe to the State agency the statutory provisions, legislative
history, or other legal authority which limits the OPDIV's/STAFFDIV's
discretion to comply with the provisions of the management program.
If a OPDIV/STAFFDIV decides that a consistency determination is not
required for a Federal activity (1) identified by a State agency on its
list or through case-by-case monitoring, (2) which is the same as or
similar to activities for which consistency determinations have been
prepared in the past, or (3) for which the OPDIV/STAFFDIV undertook a
thorough consistency assessment and developed initial findings on the
effects of the activity on the coastal zone, the OPDIV/STAFFDIV shall
provide the State agency with a notification, at the earliest
practicable time in the planning of the activity, briefly setting forth
the reasons for its negative determination. A negative determination
shall be provided to the State agency at least 90 days before final
approval of the activity, unless both the OPDIV/STAFFDIV and the State
agency agree to an alternative notification schedule.
G. Content of a consistency determination. The consistency
determination shall include a brief statement indicating whether or not
the proposed activity will be undertaken in a manner consistent to the
maximum extent practicable with the management program. The statement
must be based upon an evaluation of the relevant provisions of the
management program. The consistency determination shall also include a
detailed description of the activity, its associated facilities, and
their coastal zone effects, and comprehensive data and information
sufficient to support the consistency statement. The amount of detail
in the statement evaluation, activity description, and supporting
information shall be commensurate with the expected effects of the
activity on the coastal zone.
If HHS standards are more restrictive than standards or
requirements contained in the State's management program, the State
should be informed in the consistency determination of the statutory,
regulatory, or other basis for the application of the stricter
standards.
If an OPDIV/STAFFDIV asserts that compliance with the management
program is prohibited, it must clearly describe to the State agency the
statutory provisions, legislative history, or other legal authority
which limits the OPDIV's/STAFFDIV's discretion to comply with the
provisions of the management program.
H. State Review Period. A state agency is required to inform the
OPDIV/STAFFDIV of its agreement or disagreement with the consistency
determination at the earliest practicable time. OPDIVs/STAFFDIVs may
presume State agency agreement if the State agency fails to provide a
response within 45 days from receipt of the consistency determination.
State agency agreements shall not be presumed in cases where the State
agency, within the 45 day period, requests an extension of time to
review the matter.
OPDIVs/STAFFDIVs shall approve one request for an extension period
of 15 days or less. In considering whether a longer or additional
extension period is appropriate, consideration should be given by the
OPDIV/STAFFDIV to the magnitude and complexity of the information
contained in the consistency determination.
1. Final Action. An OPDIV/STAFFDIV shall not undertake final
action sooner than 90 days from the issuance of the consistency or
negative determination to the State agency unless both the OPDIV/
STAFFDIV and the State agency agree to an alternative period.
J. Mediation by Secretary of Commerce. In the event of a serious
disagreement between an OPDIV/STAFFDIV and a State agency regarding a
determination related to whether a proposed activity directly affects
the coastal zone, either party may seek the Secretarial mediation
services provided for in Subpart G of 15 CFR Part 930.
K. Licenses, permits. OPDIVs/STAFFDIVs shall follow the procedures
in 15 CFR part 930 when the action involves an applicant for a
Departmental license or permit.
L. Excluded Actions. The requirements in this section shall not
apply to those types of actions which are specifically excluded by the
approved CZM plan.
30-40-20 Endangered Species Act of 1973
A. Purpose. The Endangered Species Act of 1973, 16 U.S.C. 1531-
1544, directs Federal agencies, in consultation with either the
Secretary of the Interior or of Commerce, as appropriate, to carry out
conservation programs for endangered or threatened species of fish,
wildlife, or plants (``listed species'') and habitat of such species
that has been designated as critical (``critical habitat'').
[[Page 1673]]
Such affirmative conservation programs must comply with applicable
permit requirements for listed species and should be coordinated with
the appropriate Secretary.
Section 7(a)(2) of the Act (16 U.S.C. 1536(a)(2)) requires every
Federal agency, in consultation with the assistance of the appropriate
Secretary, to ensure that any action it authorizes, funds, or carries
out, is not likely to jeopardize the continued existence of any listed
species or result in the destruction or adverse modification of
critical habitat. The Act also requires Federal agencies to confer with
the Secretary of the Interior or of Commerce on any action that is
likely to jeopardize the continued existence of a proposed species or
result in the destruction or adverse modification of a proposed
critical habitat. The Act prohibits Federal agencies from making any
irreversible or irretrievable commitment of resources which has the
effect of foreclosing the formulation or implementation of reasonable
and prudent alternatives which would avoid jeopardizing the continued
existence of listed species or the destruction or adverse modification
of critical habitat. The U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS) share responsibilities for
administering the Act.
B. Governing Regulations and Organization Responsible for
Consultation. Interagency consultation procedures under the Endangered
Species Act are codified at 50 CFR part 402. The Lists of Endangered
and Threatened Wildlife and Plants are found in 50 CFR 17.11 and 17.12.
The designated critical habitats are found in 50 CFR 17.95 and 17.96
and 50 CFR part 226. Endangered or threatened species under the
jurisdiction of the NMFS are located in 50 CFR 222.23(a) and 227.4. If
the subject species is cited in 50 CFR 222.23(a) or 227.4, an OPDIV/
STAFFDIV shall contact the NMFS. For all other listed species, an
OPDIV/STAFFDIV shall contact the FWS.
C. Definitions. The regulations governing interagency cooperation
and consultation under the ESA in 50 CFR part 402 define many of the
terms and phrases that are used in the regulations and this section.
1. Biological Assessment. A biological assessment is a document,
prepared by or under the direction of a Federal agency, concerning
listed and proposed species and designated and proposed critical
habitat that may be present in the action area and the evaluation of
potential effects of the action on such species and habitat.
2. Biological Opinion. A biological opinion is the document that
states the Service's opinion as to whether or not a proposed Federal
agency action is likely to jeopardize the continued existence of listed
species or result in the destruction or adverse modification of
critical habitat. The Service may issue one of two types of opinions:
(a) Jeopardy Biological Opinion. An opinion by the Service that the
proposed Federal agency action is likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of critical habitat is called a ``jeopardy biological
opinion''.
(b) No Jeopardy Biological Opinion. An opinion by the Service that
the proposed Federal agency action is not likely to jeopardize the
continued existence of a listed species or result in the destruction or
adverse modification of critical habitat is called a ``no jeopardy''
biological opinion.
3. Director. The term ``Director'' refers to, as appropriate, the:
(a) Assistant Administrator for Fisheries for the National Oceanic
and Atmospheric Administration or an authorized representative; or
(b) Fish and Wildlife Service Regional Director, or authorized
representative, for the region where the action would be carried out.
4. Listed Species. Listed species means any species of fish,
wildlife, or plant which has been determined to be endangered or
threatened under Section 4 of the Act. Listed species are found in 50
CFR 17.11-17.12.
5. Service. The term ``Service'' means the U.S. Fish and Wildlife
Service or the National Marine Fisheries Service, as appropriate.
D. Integration with NEPA. The consultation, conference, and
biological assessment procedures required by section 7 of ESA that are
summarized in this section may be consolidated with interagency
cooperation procedures required by other statutes, such as the National
Environmental Policy Act (NEPA) (Chapter 30-50) or the Fish and
Wildlife Coordination Act (FWCA) (Chapter 30-40). Satisfying the
requirements of these other statutes, however, does not in itself
relieve an OPDIV/STAFFDIV of its obligations to comply with the
procedures set forth in 50 CFR part 402 or the substantive requirements
of section 7 of ESA. Where the consultation or conference has been
consolidated with the interagency cooperation procedures required by
other statutes such as NEPA or FWCA, the results should be included in
the documents required by those statutes.
E. Conference Regarding Proposed Species or Critical Habitat. An
OPDIV/STAFFDIV shall confer with the Director of the Service on any
action which is likely to jeopardize the continued existence of any
proposed species or result in the destruction or adverse modification
of proposed critical habitat. The conference is an informal process
that is designed to assist in identifying and resolving potential
conflicts at an early stage in the planning process and can result in
advisory recommendations from the Service regarding ways to minimize or
avoid adverse effects from the proposed action. If the proposed species
is subsequently listed or the proposed critical habitat is designated
prior to completion of an HHS action, the responsible OPDIV/STAFFDIV
shall review the action to determine whether formal consultation is
required. An OPDIV/STAFFDIV may request that a conference be conducted
in accordance with the formal consultation procedures in 50 CFR 402.14.
The conclusions reached during a conference and any recommendations
will be documented by the Service and provided to the OPDIV/STAFFDIV.
The results of the conference shall be included in the HHS
organization's appropriate documentation if the proposed action is
being reviewed in accordance with NEPA procedures in Chapter 30-50.
F. Biological Assessment.
1. Purpose. An OPDIV/STAFFDIV shall use the biological assessment
in determining whether a conference is required with the Service. If
the biological assessment indicates that the action is not likely to
jeopardize the continued existence of proposed species or result in the
destruction or adverse modification of proposed critical habitat, and
the Director concurs, then a conference is not required. The Director
may use the results of the biological assessment in (1) determining
whether to request the OPDIV/STAFFDIV to initiate a conference, (2)
formulating a biological opinion, or (3) formulating a preliminary
biological opinion.
2. Requirement. A biological assessment shall be prepared for all
major construction activities. The biological assessment shall be
completed before any contract for construction is entered into and
before construction is begun.
3. Request for information. The OPDIV/STAFFDIV shall convey to the
Director either (1) a written request for a list of any listed or
proposed species or designated or proposed critical habitat that may be
present in the action
[[Page 1674]]
area; or (2) a written notification of the species and critical habitat
that are being included in the biological assessment. Within 30 days of
receipt of the notification of, or the request for, a species list, the
Director shall either concur with or revise the list. If the Director
advises that no listed species or critical habitat may be present, a
biological assessment and further consultation is not required. If only
proposed species or proposed critical habitat may be present in the
action area, the OPDIV/STAFFDIV must confer with the Service if
required under 50 CFR 402.10, but preparation of a biological
assessment is not required unless the proposed listing and/or
designation becomes final.
4. Contents. The contents of a biological assessment are at the
discretion of the submitter and will depend on the nature of the
Federal action. The following may be considered for inclusion:
(a) The results of an on-site inspection of the area affected by
the action to determine if listed or proposed species are present or
occur seasonally;
(b) The views of recognized experts on the species at issue;
(c) A review of the literature and other information;
(d) An analysis of the effects of the action on the species and
habitat, including consideration of cumulative effects, and the results
of any related studies;
(e) An analysis of alternate actions considered by the Federal
agency for the proposed action.
5. Submission of Biological Assessment. The OPDIV/STAFFDIV shall
submit the completed biological assessment to the Director for review
within 180 days after its initiation. The Director will respond in
writing within 30 days as to whether or not the Director concurs with
the findings of the biological assessment. An OPDIV/STAFFDIV, at its
option, may request that formal consultation be initiated concurrently
with the submission of the assessment.
G. Formal Consultation Process for Listed Species and Critical
Habitat.
1. Consultation Requirement. An OPDIV/STAFFDIV shall review its
actions at the earliest possible time to determine whether any action
may affect listed species or critical habitat. If such a determination
is made, formal consultation is required, except as noted in this
subsection. An OPDIV/STAFFDIV need not initiate formal consultation if,
as a result of the preparation of a biological assessment under 50 CFR
402.12 or as a result of information consultation with the Service
under 50 CFR 402.13, the OPDIV/STAFFDIV determines, with the written
concurrence of the Director of the Service, that the proposed action is
not likely to adversely affect any listed species or critical habitat.
Formal consultation shall not be initiated by an OPDIV/STAFFDIV until
any required biological assessment has been completed and submitted to
the Director in accordance with 50 CFR 402.12.
2. Contents of Request. A written request to initiate formal
consultation shall be submitted to the Director of the Service and
shall include:
(a) A description of the action to be considered;
(b) A description of the specific area that may be affected by the
action;
(c) A description of any listed species or critical habitat that
may be affected by the action;
(d) A description of the manner in which the action may affect any
listed species or critical habitat and an analysis of any cumulative
effects;
(e) Relevant reports, including any environmental impact statement,
environmental assessment, or biological assessment prepared; and
(f) Any other relevant available information on the action, the
affected listed species, or critical habitat.
An OPDIV/STAFFDIV that requests formal consultation shall provide
the Service with the best scientific and commercial data available or
which can be obtained during the consultation for an adequate review of
the effects that an action may have upon listed species or critical
habitat.
H. Irreversible or Irretrievable Commitment of Resources. After
initiation or reinitiation of consultation required under ESA, an
OPDIV/STAFFDIV shall make no irreversible or irretrievable commitment
of resources with respect to the proposed action which has the effect
of foreclosing the formulation or implementation of any reasonable and
prudent alternatives which would avoid violating ESA. This prohibition
remains in force during the consultation process and continues until
the requirements of section 7(a)(2) of ESA are satisfied.
Note: The prohibition in this subsection does not apply to the
conference requirement for proposed species or proposed critical
habitat under Section 7(a)(4) of the Act.
I. Duration and Extension of Formal Consultation. Formal
consultation concludes within 90 days after its initiation unless
extended in accordance with 50 CFR 402.14(e). If the Service does not
respond within 90 days, the Department may reach its own conclusion
with respect to whether the proposed action will jeopardize the
continued existence of a species or result in the destruction or
adverse modification of a critical habitat.
J. Issuance of Biological Opinion. The Service will provide a
biological opinion to the OPDIV/STAFFDIV at the end of the consultation
process as to whether the proposed action, taken together with
cumulative effects, would be likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of a critical habitat. A ``jeopardy'' biological opinion
by the Service will include reasonable and prudent alternatives, if
any, to the proposed agency action that can be taken by the OPDIV/
STAFFDIV to avoid violation of ESA. If the Service is unable to develop
such alternatives, it will indicate that to the best of its knowledge,
there are no reasonable and prudent alternatives. The Service may also
formulate discretionary conservation recommendations, if any, which
will assist the OPDIV/STAFFDIV in reducing or eliminating the impacts
that its proposed action may have on listed species or critical
habitat.
The Service's ``no jeopardy'' or ``jeopardy'' biological opinion
shall be included in any documentation required under NEPA procedures
if the proposed action is being assessed in accordance with NEPA and
the procedures in Chapter 30-50.
K. Termination of Consultation Process. Formal consultation is
terminated with the issuance of the biological opinion or if, during
any stage of consultation, an OPDIV/STAFFDIV determines, with the
concurrence of the Director, that its proposed action is not likely to
adversely affect any listed species or critical habitat. If an OPDIV/
STAFFDIV determines that its proposed action is not likely to occur, it
may terminate the consultation process by written notice to the
Service.
L. Responsibilities After Issuance of Biological Opinion. Following
the issuance of a biological opinion, an OPDIV/STAFFDIV shall determine
whether and in what manner to proceed with the action in light of its
ESA Section 7 obligations and the Service's biological opinion.
If a jeopardy biological opinion is issued, the OPDIV/STAFFDIV
shall notify the Service of its final decision on the action. If the
OPDIV/STAFFDIV determines that it cannot comply with the requirements
of section 7(a)(2) of ESA after consultation with the Service, it may
apply for an exemption. Procedures for exemption applications by
Federal agencies and others are found in 50 CFR part 451. No action
[[Page 1675]]
shall occur unless or until the OPDIV/STAFFDIV has received approval
of the exemption.
M. Emergencies. The interagency cooperation regulation in 50 CFR
part 402 provides that where emergency circumstances mandate the need
to consult in an expedited manner, consultation may be conducted
informally through alternative procedures that the Director determines
to be consistent with the requirements of sections 7(a)-(d) of the Act.
This provision applies to situations involving acts of God, disasters,
casualties, national defense or security emergencies. An OPDIV/STAFFDIV
may request expedited consultation by submitting information on the
nature of the emergency action(s), the justification for the expedited
consultation, and the impacts to endangered or threatened species and
their habitats. Formal consultation is to be initiated as soon as
practicable after the emergency is under control.
N. Exemptions. ESA provides procedures for granting exemptions from
the requirements of section 7(a)(2). Regulations governing the
submission of exemption applications are found at 50 CFR part 451, and
regulations governing the exemption process are found at 50 CFR parts
450, 452, and 453.
O. Applicant Procedures. ESA and the implementing procedures in 50
CFR part 402 provide for participation in the conference and
consultation processes by any person (as defined in Section 3 (13) of
the Act) who requires formal approval or authorization from HHS as a
prerequisite to conducting the action.
30-40-30 Fish and Wildlife Coordination Act
A. Purpose. The Fish and Wildlife Coordination Act, 16 U.S.C. 661-
666c, provides for equal consideration of wildlife with other features
of water resource development programs with a view toward conservation
of wildlife resources. The Act requires Federal agencies involved in
actions that will result in the control or modification of any natural
stream or body of water, for any purpose, to take action to protect the
fish and wildlife resources which may be affected by the action and to
affirmatively provide development and improvement of the wildlife
resources in connection with the proposed action.
B. Responsibilities and Consultation Requirements.
1. An OPDIV/STAFFDIV shall consult, in accordance with 16 U.S.C.
662, with the United States Fish and Wildlife Service, Department of
the Interior, and with the head of the State agency exercising
administration over wildlife resources, before taking or approving an
action that would control or modify any natural stream or other body of
water for any purpose.
2. As part of the consultative process, OPDIVs/STAFFDIVs shall
submit to the United States Fish and Wildlife Service and the State
wildlife agency the appropriate environmental documentation, if needed
for the consultation, that describes the possible effects of the
proposed action on a natural stream or body of water.
3. An OPDIV/STAFFDIV shall determine, through the consultative
process, the means and measures necessary to conserve wildlife
resources by preventing loss of and damage to such resources, as well
as providing for the development and improvement of the wildlife
resources in connection with the proposed action.
4. OPDIVs/STAFFDIVs shall give full consideration to the report and
recommendations of the U.S. Fish and Wildlife Service and to any report
of the State agency on the wildlife aspects of a proposed action. Any
plans for the proposed action shall include such justifiable means and
measures for wildlife purposes as the OPDIV/STAFFDIV finds should be
adopted to obtain maximum overall project benefits. All reports and
recommendations of the U.S. Fish and Wildlife Service wildlife agencies
shall constitute an integral part of any environmental report prepared
pursuant to the action.
5. Reports and recommendations of the Secretary of Interior or
State wildlife agencies shall be incorporated into any environmental
documents that may be associated with the proposed action. 16 U.S.C.
662(b).
6. No further action shall take place pending receipt of a report
from the U.S. Fish and Wildlife Service and State wildlife agency.
30-40-40 Floodplains Management
A. Purpose. Executive Order 11988, Floodplain Management, 42 FR
26951 (1977), as amended by Executive Order 12148, 44 FR 43239 (1979),
42 U.S.C. 4321 note, directs each Federal agency to avoid the long and
short term adverse impacts associated with the occupancy and
modification of floodplains, including the direct and indirect support
of floodplain development, whenever there is a practicable alternative.
Floodplains are those areas identified as such according to a Federal
Emergency Management Agency (FEMA) floodplain map. Guidance for
implementation of Executive Order 11988 is provided in the U.S. Water
Resources Council Floodplain Management Guidelines, 43 FR 6030. See
also FEMA's ``Further Advice on Executive Order 11988 Floodplain
Management'' (GPO 1987).
B. Definitions
1. Base Flood. ``Base Flood'' means that flood which has a one
percent of greater chance of occurrence in any given year.
2. Floodplain. ``Floodplain'' means the lowland and relatively flat
areas adjoining inland and coastal waters, including flood-prone areas
of offshore islands, including at a minimum, that area subject to a one
percent or greater chance of flooding in any given year.
3. Critical Action. ``Critical Action'' means any activity for
which even a slight chance of flooding is too great, e.g. elderly
housing proposals.
C. Responsibilities. Each OPDIV/STAFFDIV has the responsibility
under Executive Order 11988 to take action to reduce the risk of flood
loss, to minimize the impact of floods on human safety, health, and
welfare, and to restore and preserve the natural and beneficial values
served by floodplains in carrying out its responsibilities for:
1. Acquiring, managing, and disposing of Federal lands and
facilities;
2. Providing Federally undertaken, financed, or assisted
construction and improvements; and
3. Conducting Federal activities and programs affected land use,
including but not limited to, water and related land resources
planning, regulating, and licensing activities.
Each OPDIV/STAFFDIV shall evaluate the potential effects of any
actions it may take in a floodplain in accordance with the procedures
in this section. It must also ensure that its planning programs and
budget requests reflect consideration of flood hazards and floodplain
management.
D. Floodplain Determination. Before taking an action, each OPDIV/
STAFFDIV shall determine whether the proposed action will occur in a
floodplain. OPDIVs/STAFFDIVs shall utilize the Flood Insurance Rate
Maps (FIRMs) or the Flood Hazard Boundary Maps (FHBMs) prepared by the
Federal Insurance Administration of FEMA to determine if a proposed
action is located in a base or critical action floodplain. When a
proposed action would be located in an area of predominantly Federal or
State land holdings, and FIRM or FHBM maps are not available, OPDIVs/
STAFFDIVs shall obtain information from the land administering agency
(e.g., Bureau of Land Management or Soil Conservation Service) or from
agencies with floodplain analysis expertise.
[[Page 1676]]
E. Integration with NEPA. OPDIVs/STAFFDIVs are to evaluate the
potential effects of a proposed action in a floodplain in accordance
with the procedures for National Environmental Policy Act (NEPA) review
in Chapter 30-50. If an environmental assessment (EA) or environmental
impact statement (EIS) is required to be prepared for the proposed
action, a floodplain assessment, described in 30-40-40D, shall be
included in the EA or EIS.
F. Floodplain Assessment (Executive Order 11988).
1. Proposed Action. The floodplain assessment shall describe the
nature and purpose of the proposed action and the reasons for locating
the action in the floodplain.
2. Floodplain Map. A map of the affected floodplain indicating the
location of the proposed action shall be included in the assessment.
3. High Hazard Areas. High hazard areas in the floodplain shall be
delineated and the nature and extent of the proposed hazard shall be
discussed.
4. Floodplain Effects. The effects of the proposed action on the
floodplain shall be discussed in the assessment. The discussion shall
include an evaluation of the long- and short-term effects of the
proposed action on people, property, natural and beneficial floodplain
values, and any other relevant direct or indirect effects.
5. Alternatives and Mitigation Measures. The floodplain assessment
shall discuss alternatives to the proposed action that may avoid
adverse effects and incompatible development in the floodplain,
including the alternatives of no action or location at an alternate
site. The assessment shall also discuss measures that mitigate the
adverse effects of the proposed action.
6. Conformity to Applicable State or Local Standards. The
floodplain assessment shall include a statement indicating whether the
proposed action conforms to applicable State or local floodplain
protection standards.
7. Flood Insurance Program Standards. An action taken in a
floodplain must incorporate design features consistent with the
standards in the Flood Insurance Program of the Federal Insurance
Administration to minimize substantial harm to the floodplain.
G. Public Review. Circulation of draft environmental impact
statements shall include the public and other interested individuals,
including concerned Federal, non-Federal and private organizations.
Interested parties shall have a period of 60 days for review and
comment on draft environmental impact statements.
H. Secretarial Approval. No action shall take place without a
finding by the HHS Secretary that the only practicable alternative
consistent with the law and with the policy set forth in Executive
Order 11988 requires siting in a floodplain. The action proposed for
Secretarial approval shall be designed to minimize potential harm to or
within the floodplain. The Secretary shall approve proposed actions
requiring environmental impact statements on projects affecting
floodplains.
I. Notice of Finding.
1. Contents. After Secretarial approval and prior to taking action,
an OPDIV/STAFFDIV shall prepare and circulate a notice of finding
containing an explanation of why the action is proposed to be located
in a floodplain. The notice shall not exceed three pages and shall
include a location map. The notice shall include (a) the reasons why
the action is proposed to be located in a floodplain; (b) a statement
indicating whether the action conforms to applicable State or local
floodplain protection standards; and (c) a list of the alternatives
considered.
2. Public Review. For programs subject to Executive Order 12372,
the notice of finding shall be sent to the appropriate state and local
reviewing agencies the geographic areas affected. A public review
period of 30 days after the issuance of notice of finding shall be
allotted before any action is taken.
J. Licenses, permits, loans, or grants. Each OPDIV/STAFFDIV shall
take floodplain management into account when formulating or evaluating
any water and land use plans and shall require land and water resources
use appropriate to the degree of hazard involved. Adequate provision
shall be made for the evaluation and consideration of flood hazards in
the regulations and operating procedures for the licenses, permits,
loan, or grant-in-aid programs that an OPDIV/STAFFDIV administers.
OPDIVs/STAFFDIVs shall also encourage and provide appropriate guidance
to applicants to evaluate the effects of their proposal in floodplains
prior to submitting applications for Federal licenses, permits, loans,
or grants.
K. Authorization or Appropriation Requests. OPDIVs/STAFFDIVs shall
indicate in any requests for new authorizations or appropriations
whether the proposed action is in accord with Executive Order 11988 if
the proposed action will be located in a floodplain.
30-40-50 Marine Protection, Research, and Sanctuaries Act of 1972
A. Purpose. Title III of the Marine Protection, Research and
Sanctuaries Act prohibits Federal Departments from taking actions which
will affect a Marine Sanctuary unless the Secretary of Commerce
certifies that the activity is consistent with the purposes of the Act.
Listings of sanctuaries are designated by the Secretary of Commerce and
maps of sanctuaries appear in the Federal Register.
B. Responsibilities and Consultation Requirements.
1. If the proposed action will create an environmental effect on a
marine sanctuary, OPDIVs/STAFFDIVs shall prepare an appropriate
environmental document and forward it to the Secretary of Commerce.
2. No further action shall take place unless and until the
Secretary certifies that the action is consistent with the purposes of
the Act.
30-40-60 Safe Drinking Water Act (Sole Source Aquifers)
A. Requirement. Section 1424(e) of the Safe Drinking Water Act (42
U.S.C. 300h-3(e)), provides for the protection of those aquifers which
have been designated by the Administrator of the EPA as the sole or
principal source of drinking water for an area. No commitment for
Federal financial assistance (through a grant, contract, loan
guarantee, or otherwise) may be entered into for any project which the
Administrator determines may contaminate such aquifer through a
recharge zone so as to create a significant hazard to public health. A
commitment for Federal financial assistance may, if authorized under
another provision of law, be entered into to plan or design the project
to assure that it will not so contaminate the aquifer.
B. Responsibilities and Consultation Requirements.
1. OPDIVs/STAFFDIVs shall determine if a proposed action will
directly or indirectly affect a sole or principal source aquifer
designated by the Administrator of EPA in accordance with section
1424(e) of the Safe Drinking Water Act (42 U.S.C. 300h-3(e)).
2. If the action will affect a designated aquifer, OPDIVs/STAFFDIVs
shall send the appropriate environmental document to the EPA Regional
Administrator for a determination as to whether the proposed action may
potentially contaminate the aquifer through its recharge zone so as to
create a significant hazard to public health.
[[Page 1677]]
3. The action shall not proceed unless and until the Administrator
of the Environmental Protection Agency determines that the proposed
action will not contaminate the designated aquifer so as to create a
significant hazard to public health.
30-40-70 Wetlands Protection
A. Purpose. Executive Order 11990, Protection of Wetlands, 42 FR
26961 (1977), as amended by Executive Order 12608, 52 F 34617 (1987),
42 U.S.C. 4321 note, directs each Federal agency to minimize the
destruction, loss, or degradation of wetlands and to preserve and
enhance such wetlands in carrying out their program responsibilities.
Consideration must include a variety of factors, such as water supply,
erosion and flood prevention, maintenance of natural systems, and
potential scientific benefits.
B. Definitions
Wetlands. The term ``wetlands'' means those areas that are
inundated or saturated by surface or ground water at a frequency and
duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation or aquatic life that requires
saturated or seasonally saturated soil conditions for growth and
reproduction. Wetlands generally include swamps, marshes, bogs, and
similar areas.
C. Wetlands Determination. OPDIVs/STAFFDIVs shall utilize
information available from the following sources when appropriate to
determine the applicability of the wetlands protection requirements of
this section:
1. U.S. Department of Agriculture Soil Conservation Service Local
Identification Maps;
2. U.S. Fish and Wildlife Service National Wetlands Inventory;
3. U.S. Geological Survey Topographic Maps;
4. State wetlands inventories; and
5. Regional or local government-sponsored wetland or land use
inventories.
D. Responsibilities. OPDIVs/STAFFDIVs are to evaluate the potential
effects of a proposed action in wetlands in accordance with the
procedures for National Environmental Policy Act (NEPA) review in
Chapter 30-50. If an environmental assessment (EA) or environmental
impact statement (EIS) is required to be prepared for the proposed
action, a wetlands assessment, described in 30-40-70E, shall be
included in the EA or EIS.
E. Wetlands Assessment (Executive Order 11990)
1. Proposed Action. The wetlands assessment shall describe the
nature and purpose of the proposed action and the reasons for locating
the action in the wetlands.
2. Wetlands Map. A map of the affected wetlands indicating the
location of the proposed action shall be included in the assessment.
3. Wetlands Effects. The effects of the proposed action on the
wetlands shall be discussed in the assessment. The discussion shall
include an evaluation of the long- and short-term effects of the
proposed action on the survival, quality, and natural and beneficial
values of the wetlands, and any other relevant direct or indirect
effects.
4. Alternatives and Mitigation Measures. The wetlands assessment
shall discuss alternatives to the proposed action that may avoid
adverse effects and incompatible development in the wetlands, including
the alternatives of no action or location at an alternate site. The
assessment shall also discuss measures that mitigate the adverse
effects of the proposed action. No further action shall take place
until the OPDIV/STAFFDIV makes a decision that the proposed action
includes all reasonable measures to minimize harm to the wetlands as a
result of the proposed action.
5. Conformity to Applicable State or Local Standards. The wetlands
assessment shall include a statement indicating whether the proposed
action conforms to applicable State or local wetlands protection
standards.
F. Public Review. Circulation of draft environmental impact
statements shall include the public and other interested individuals,
including concerned Federal, non-Federal and private organizations.
Interested parties shall have a period of 60 days for review and
comment on daft environmental impact statements.
G. Secretarial Review. No further action shall take place until the
Secretary of HHS determines that there is no practicable alternative to
construction in wetlands and that the proposed action includes all
practicable measures to minimize harm to the wetlands. The Secretary
shall approve proposed actions requiring environmental impact
statements for new construction in wetlands.
H. Licenses and Permits. These requirements do not apply to the
issuance to individuals of permits and licenses and the allocation of
funds made to individuals.
30-40-80 Wild and Scenic Rivers Act
A. Purpose. The purpose of the Act is to preserve selected free-
flowing rivers, along with their immediate environments, for the
benefit of immediate and future generations. These include river
components and potential components of the National Wild and Scenic
River System and study areas designated by the Secretaries of
Agriculture and Interior. (Environmental officers keep a list of these
rivers and related study areas). Designations used to describe these
components, or parts thereof, include the following: (1) wild; (2)
scenic; and (3) recreational.
B. Requirement. Section 7 of the Wild and Scenic Rivers Act (16
U.S.C. 1278), provides for the protection of the free-flowing, scenic,
and natural values of rivers designated as components or potential
components of the National Wild and Scenic Rivers Systems from the
effects of construction of any water resources project. The Wild and
Scenic Rivers Act provides that no license, permit, or other
authorization can be issued for a Federally assisted water resources
project on any portion of a Wild and Scenic River or Study River (nor
can appropriations be requested to begin construction of such projects)
without prior notice to the Secretary of Agriculture and the Secretary
of the Interior, and a determination in accordance with section 7 of
the Act. The Secretary of Agriculture and the Secretary of the Interior
have issued Federal agency consultation procedures that are codified at
36 CFR part 297.
C. Definitions
1. Free-flowing. ``Free-flowing'' is defined by section 16(b) of
the Act as ``existing or flowing in natural condition without
impoundment, diversion, straightening, riprapping, or other
modification of the waterway'' (16 U.S.C. 1286(b)).
2. Study Period. ``Study period'' means the time during which a
river is being studied as a potential component of the Wild and Scenic
Rivers System and such additional time as provided in section 7(b)(ii)
of the Act not to exceed 3 additional years during which a report
recommending designation is before Congress, or such additional time as
may be provided by statute.
3. Study River. ``Study river'' means a river and the adjacent area
within one quarter mile of the banks of the river which is designated
for study as a potential addition to the National Wild and Scenic
Rivers System pursuant to section 5(a) of the Act.
4. Water Resources Project. ``Water resources project'' means any
dam, water conduit, reservoir, powerhouse, transmission line, or other
project works under the Federal Power Act (41 Stat. 1063) as amended,
or other construction of developments which would affect the
[[Page 1678]]
free-flowing characteristics of a Wild and Scenic River or Study River.
5. Wild and Scenic River. ``Wild and scenic river'' means a river
and the adjacent area within the boundaries of a component of the
National Wild and Scenic Rivers System pursuant to section 3(a) or
2(a)(ii) of the Act.
D. Responsibilities and Consultation Requirements. When a proposed
action will have an effect upon an environment within or including a
portion of a component, potential component, or study area, program
personnel shall send a notice to the Secretary of the Interior for
review.
E. Contents of Notice. The notice shall include the following
information:
1. Name and location of affected river;
2. Location of the project;
3. Nature of the permit or other authorization proposed for
issuance;
4. A description of the proposed activity; and
5. Any relevant information; such as plans, maps, and environmental
studies, assessments, or environmental impact statements.
6. The notice shall also provide any additional factual information
that will assist the Secretary in determining whether:
(a) the water resources project will have a direct and adverse
effect on the values for which a Wild and Scenic River or Study River
was designated, when any portion of the project is within the
boundaries of said river; or,
(b) The effects of the water resources project will invade or
unreasonably diminish the scenic, recreational, and fish and wildlife
values of a Wild and Scenic River, when any portion of the project is
located above, below, or outside the Wild and Scenic River; or,
(c) whether the effects of the water resources project will invade
or diminish the scenic, recreational, and fish and wildlife values of a
Study River when the project is located above, below, or outside the
Study River during the study period.
F. Examples. The following are examples of circumstances which can
affect a river component or study area;
1. Destruction or alteration to all or part of the free-flowing
nature of the river;
2. Introduction of visual, audible, or other sensory intrusions
which are out of character with the river or alter its setting;
3. Deterioration of water quality; or
4. Transfer of sale of property adjacent to an inventories river
without adequate conditions or restrictions for protecting the river
and its surrounding environment.
G. Response. If the Department of the Interior does not respond
within 30 calendar days or states that the proposed action will not
directly or adversely affect the area, the Department is in compliance
with the review requirements of the Act. However, in those instances
where the Department of the Interior does not respond, programs shall
take care to always avoid or mitigate adverse effects on river
components and study areas.
If the Department of the Interior determines that the proposed
action will directly and adversely affect the area, no further action
shall take place whenever the proposed action involves the construction
of a water resources project.
The above requirements do not apply to types of actions excluded
from the review process by appropriate Department of Interior or
Agriculture regulations.
H. Integration with NEPA. The determination of the effects of a
proposed water resources project shall be made in compliance with the
National Environmental Policy Act (NEPA). To the extent possible,
OPDIVs/STAFFDIVs should ensure that any environmental studies,
assessments, or environmental impact statements prepared for a water
resources project adequately address the environmental effects on
resources protected by the Wild and Scenic Rivers Act, and that the
Department of Agriculture is apprised of ongoing analyses so as to
facilitate coordination and identification of Wild and Scenic River
related issues.
To the extent practicable, impacts on Wild and Scenic River values
will be considered in the context of other review procedures as
provided by law. OPDIVs/STAFFDIVs are encouraged to consult with the
Forest Service in order to identify measures which could eliminate any
direct and adverse effects, thereby increasing the likelihood of
securing consent.
HHS Chapter 30-50--General Administration Manual; HHS Transmittal
98.2
Subject: National Environmental Policy Act (NEPA) Review
30-50-00.... Background
05....... Definitions and Acronyms
10....... Applicability
15....... Responsibilities
20....... Purpose, Content, and Availability of Environmental
Documents
25....... Actions That Are Excluded from the Requirement to Prepare
an Environmental Assessment
30....... Actions Requiring Preparation of an Environmental
Assessment
35....... Categories of Actions Requiring Preparation of an
Environmental Impact Statement
40....... Environmental Assessments
45....... Findings of No Significant Impact
50....... Public Availability of Environmental Assessments and
Findings of No Significant Impact
55....... Notice of Intent and Scooping
60....... Environmental Impact Statements
65.......... Contents of an Environmental Impact Statement
70.......... Public Involvement and Circulation of Environmental Impact
Statements
75.......... Environmental Effects Abroad of Major Agency Actions
80.......... Reviewing External Environmental Impact Statements
30-50-00 Background
The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4321-4370d, establishes policy and requirements governing all Federal
Departments and agencies with respect to protecting the environment.
This chapter supplements specific requirements established by NEPA and
by the associated implementing regulations promulgated by the Council
on Environmental Quality (CEQ) (40 CFR 1500-1508). This chapter also
establishes Department policy and procedures with respect to the
implementation of NEPA and provides guidance to HHS Staff Divisions
(STAFFDIVs) and Operating Divisions (OPDIVs) in establishing additional
regulations for implementing NEPA that are unique to each OPDIV/
STAFFDIV.
NEPA requires all Federal Departments and agencies to assess, as an
integral part of their decision making process, the potential
environmental impacts of their actions prior to initiation of those
actions. NEPA establishes environmental policy, sets goals (Section
101), and provides procedures (Section 102) for carrying out the
policy. Specifically, section 102(2)(C) of NEPA requires all agencies
of the Federal Government to include an environmental statement ``in
every recommendation or report on proposals for legislation and other
major Federal actions significantly affecting the quality of the human
environment * * *.'' The purpose of this and other requirements is to
ensure that environmental information is available to public officials
and citizens before Federal agencies make decisions to take actions
which could significantly affect the quality of the human environment.
[[Page 1679]]
30-50-05 Definitions and Acronyms
A. CEQ Regulations Definitions. Definitions that apply to the terms
used in this chapter are set forth in the CEQ regulations under 40 CFR
part 1508. The terms and the sections of 40 CFR part 1508 in which they
are defined follow:
Categorical Exclusion (40 CFR 1508.4)
Cooperating Agency (40 CFR 1508.5)
Cumulative Impact (40 CFR 1508.7)
Effects (40 CFR 1508.8)
Environmental Assessment (EA) (40 CFR 1508.9)
Environmental Document (40 CFR 1508.10)
Environmental Impact Statement (EIS) (40 CFR 1508.11)
Federal Agency (40 CFR 1508.12)
Finding of No Significant Impact (FONSI) (40 CFR 1508.13)
Human Environment (40 CFR 1508.14)
Jurisdiction by Law (40 CFR 1508.15)
Lead Agency (40 CFR 1508.16)
Legislation (40 CFR 1508.17)
Major Federal Action (40 CFR 1508.18)
Mitigation (40 CFR 1508.20)
NEPA Process (40 CFR 1508.21)
Notice of Intent (40 CFR 1508.22)
Proposal (40 CFR 1508.23)
Scope (40 CFR 1508.25)
Significantly (40 CFR 1508.27)
B. Chapter 30-50 Definitions. The following terms are defined
solely for the purpose of implementing the supplemental procedures
provided by this chapter and are not necessarily applicable to any
other statutory or regulatory requirements. To the extent that a
definition of one of these terms should conflict with a definition in
an applicable statute, regulation or Executive Order, that statute,
regulation or Executive Order definition shall supersede the GAM
definition.
``Department'' means the U.S. Department of Health and Human
Services (HHS).
``Pollution Prevention'' includes, but is not limited to, reducing
or eliminating hazardous or other polluting inputs, which can
contribute to both point and non-point source pollution, modifying
manufacturing, maintenance, or other industrial practices; modifying
product designs; recycling (especially in-process, closed loop
recycling); preventing the disposal and transfer of pollution from one
media to another; and increasing energy efficiency and conservation.
Pollution prevention can be implemented at any stage--input, use or
generation, and treatment--and may involve any technique--process
modification, waste stream segregation, inventory control, good
housekeeping or best management practices, employee training,
recycling, and substitution. Any reasonable mechanism which
successfully avoids, prevents, or reduces pollutant discharges or
emissions other than by the traditional method of treating pollution at
the discharge end of a pipe or stack should, for purposes of this
chapter, be considered pollution prevention. (This definition of
``pollution prevention'' has been adopted by CEQ. See Council on
Environmental Quality, ``Memorandum to Heads of Federal Departments and
Agencies Regarding Pollution Prevention and the National Environmental
Policy Act,'' 58 FR 6478 (1993).)
Note: A definition of ``pollution prevention'' that has been
developed by the U.S. Environmental Protection Agency is used in
Chapters 30-60 through 30-90.
``Responsible official'' means the Secretary, the Departmental
decisionmaker designated by the Secretary of Health and Human Services
or the Secretary's designated representative, or the Head of an OPDIV/
STAFF or the Head of an OPDIV/STAFFDIV, or an official designated by
the Head of an OPDIV/STAFFDIV, or the Federal agency official who makes
the decision to irreversibly and irretrievably commit the agency's
resources to execute the proposed action.
C. Acronyms: The following acronyms are used in this chapter:
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
EA--Environmental Assessment
EIS--Environmental Impact Statement
EPA--Environmental Protection Agency
FONSI--Finding of No Significant Impact
HHS--U.S. Department of Health and Human Services
NEPA--National Environmental Policy Act of 1969
NOI--Notice of Intent
OPDIV--HHS Operating Division
ROD--Record of Decision
STAFFDIV--HHS Staff Division
U.S.C.--United States Code
30-50-10 Applicability
This chapter applies to all organizational elements of HHS. This
chapter applies to any HHS action affecting the quality of the
environment of the United States, its territories, or possessions. HHS
actions having environmental effects outside of the United States, its
territories or possessions are subject to the provisions of Executive
Order 12114, Environmental Effects Abroad of Major Federal Actions, 44
FR 1957 (1979), 42 U.S.C. 4321 note. HHS guidelines implementing
Executive Order 12114 are located at Section 30-50-75.
30-50-15 Responsibilities
All HHS policies and programs will be planned, developed, and
implemented so as to achieve the policies declared by NEPA and required
by the CEQ regulations to ensure responsible stewardship of the
environment for present and future generations.
Environmental impact consideration is an integral part of HHS's
planning and decisionmaking process. For actions initiated by the
Department of one of its OPDIVs/STAFFDIVs, the process begins when an
issue is identified that requires action under the statutes it
administers. The identifying organization also may issue a public call
for environmental data or otherwise consult with affected individuals
or groups when a contemplated action in which it is or may be involved
poses potentially significant environmental impacts.
Assessment of environmental factors continues throughout planning
and is integrated with other program planning at the earliest possible
time. Assessment of environmental factors includes the identification
of the parts of the environment that may be affected by the action, the
evaluation of pertinent environmental data, and the consideration of
alternatives consistent with 40 CFR 1502.14.
NEPA and the CEQ regulations establish a mechanism for building
environmental considerations into federal agency decision-making. This
mechanism will be used to incorporate pollution prevention into the
early planning stages of a proposal.
OPDIVs/STAFFDIVs shall determine, utilizing the procedures in the
CEQ regulations and this chapter, whether any HHS proposal:
1. Is categorically excluded from preparation of an EIS or an EA
(30-50-25; 30-20-40);
2. Requires preparation of an EA (30-50-30);
3. Requires preparation of an EIS (30-50-35);
OPDIVs/STAFFDIVs may choose to prepare a NEPA document for any HHS
action at any time to further the purposes of NEPA.
OPDIVs/STAFFDIVs shall determine for each major federal action
(hereinafter ``action'') not categorically excluded, the data needed
for an environmental assessment and a system for acquiring such data.
OPDIVs/STAFFDIVs shall prepare an environmental assessment for each
proposed action not categorically excluded and, as a result of its
findings prepare a Finding of No Significant Impact (FONSI) or an
Environmental Impact Statement (EIS).
[[Page 1680]]
30-50-20 Purpose, Content, and Availability of Environmental
Documents
Sections 30-50-40 through 30-50-65 describe the environmental
documents that may be required during the process of considering the
environmental aspects of an action. These sections describe the various
types of NEPA documents including their purposes and contents. OPDIVs/
STAFFDIVs may publish in the Federal Register additional requirements
for the preparation of environmental documents under their
responsibility.
Data and information that are protected from disclosure by 18
U.S.C. 1905 or 21 U.S.C. 331(j) or 360j(c) or other applicable laws
shall not be included in environmental documents prepared under this
chapter. When such data and information are pertinent to the
environmental review of a proposed action, an applicant or petitioner
shall submit such data and information separately as a confidential
section of the application or petition, but shall summarize the
confidential data and information in the environmental document to the
extent possible.
30-50-25 Actions That May Be Excluded From the Requirement To
Prepare an Environmental Assessment or an Environmental Impact
Statement
Categorical Exclusions. Actions within a class that individually or
cumulatively have been determined under Section 30-20-40 not to
significantly affect the quality of the human environment ordinarily
are excluded from the preparation of an EA or EIS. To find that a
proposed action is categorically excluded, OPDIVs/STAFFDIVs shall
determine if:
1. The proposal fits within a class of actions described in 30-20-
40 or a categorical exclusion developed by the OPDIV/STAFFDIV in
accordance with 30-20-30; and
2. No extraordinary circumstances are related to the proposed
action that may affect the significance of the environmental effects of
the proposal.
30-50-30 Other Actions Requiring Preparation of an Environmental
Assessment (EA) or an Environmental Impact Statement (EIS)
Any proposed action of a type specified in this section ordinarily
requires the preparation of an EA, unless it qualifies for exclusion
under section 30-20-40. Such actions include:
1. Major recommendations or reports made to Congress on proposals
for legislation in instances where the Department or OPDIV/STAFFDIV has
primary responsibility for the subject matter involved; and
2. Actions Involving Extraordinary Circumstances. As provided by 40
CFR 1508.4, an EA will be required for any specific action that
ordinarily is excluded if the OPVID/STAFFDIV has sufficient evidence to
establish that the specific proposed action may significantly affect
the quality of the human environment. OPDIVs/STAFFDIVs shall prepare an
EA when there are extraordinary circumstances in which a normally
excluded action may have a significant environmental effect.
Extraordinary circumstances include the following:
(a) Unique situations presented by specific proposals, such as
scientific controversy about the environmental effects of the proposal;
(b) Uncertain effects or effects involving unique or unknown risks;
or
(c) Unresolved conflicts concerning alternate uses of available
resources within the meaning of Section 102(2)(E) of NEPA.
3. Actions Involving Cumulative Impacts. The CEQ regulations
require consideration of three types of actions when determining the
scope of environmental impact statements. These actions are: (1)
Connected actions; (2) cumulative actions; and (3) similar actions. An
action may have three types of impacts: (1) direct; (2) indirect; or
(3) cumulative. A determination that an action is categorically
excluded will be precluded if the action is connected to another action
that may require an environmental impact statement or when viewed with
other proposed actions may have cumulatively significant impacts. CEQ
defines ``connected actions'' and ``cumulative actions'', at 40 CFR
1508.25, as follows:
(a) Connected Actions. ``Connected'' actions means actions that are
closely related and therefore should be discussed in the same impact
statement. Actions are connected if they:
(i) Automatically trigger other actions which may require
environmental impact statements;
(ii) Cannot or will not proceed unless other actions are taken
previously or simultaneously; or
(iii) Are interdependent parts of a larger action and depend on the
larger action for their justification.
(b) Cumulative Actions. ``Cumulative actions'' are actions which,
when viewed with other proposed actions, have cumulatively significant
impacts and should therefore be discussed in the same impact statement.
30-50-35 Categories of Actions Requiring Preparation of an
Environmental Impact Statement (EIS)
EIS's are prepared for HHS organization actions when:
1. Evaluation of data in an Environmental Assessment (EA) leads to
a finding by the responsible official that a proposed action may
significantly affect the quality of the human environment under the
criteria in 40 CFR 1508.14 and 1508.27; or
2. Initial evaluation by the responsible official of any action,
including any action for which an EA would otherwise be required,
establishes that significant environmental effects may be associated
with one or more of the probable courses of action being considered.
30-50-40 Environmental Assessments
A. Purpose. As defined by CEQ in 40 CFR 1508.9, an Environmental
Assessment (EA) is the public document in which environmental and other
pertinent information on a proposed action are presented, providing a
basis for a determination whether to prepare an Environmental Impact
Statement (EIS) or a Finding of No Significant Impact (FONSI).
An EA shall be prepared for each action not excluded pursuant to
Section 30-20-40. The EA shall be a complete, objective, and well-
balanced document that allows the public to understand the HHS
organization's decision.
B. Contents. The EA shall:
1. Briefly provide sufficient evidence and analysis for determining
whether to prepare an EIS or FONSI;
2. Briefly discuss the need for the proposed action;
3. Describe the potential environmental impacts of the proposed
action;
4. Describe measures, including suitable pollution prevention
techniques, which would be taken to avoid or mitigate potential
environmental impacts associated with the proposed action;
5. Describe in detail the environmental impact of reasonable
alternatives to the proposed action (including no action), particularly
those that will enhance the quality of the environment and avoid some
or all of the adverse environmental effects of the proposed action;
6. Include a comparative analysis of environmental benefits and
risks of the proposed action and alternatives, identifying the
preferred action based on environmental factors;
7. Include, if appropriate, a floodplain/wetlands assessment
prepared under Sections 30-40-40 or
[[Page 1681]]
30-40-70 and analyses needed for other environmental determinations;
8. List those persons preparing the assessment and their areas of
expertise and persons and agencies consulted; and
9. List complete citations for all referenced documents and include
copies of referenced articles that are not generally available.
Consistent with 40 CFR 1500.4(j) and 1502.21, EAs may incorporate
by reference information presented in other documents that are
reasonably available to HHS and to the public within the time to
comment.
OPDIVs/STAFFDIVs may specify formats and additional content of EAs
that are required to be prepared for proposed actions within their
responsibility. A notice of the availability of OPDIV/STAFFDIV formats
and instructions for preparation of environmental assessments shall be
published in the Federal Register.
C. Criteria. In determining whether a proposed action will or will
not ``significantly affect the quality of the human environment,''
OPDIVs/STAFFDIVs should evaluate the expected environmental
consequences of a proposed action by means of the following steps,
utilizing the guidance provided in 40 CFR 1508.27:
Step One--Identify those things that will happen as a result of the
proposed action. An action normally produces a number of consequences.
For example, a grant to construct a hospital may terminate human
services; will involve destruction and construction; will provide a
service. Actions may be connected, cumulative, or similar (see 40 CFR
1508.25(a)).
Step Two--Identify the ``human environments'' that the proposed
action will affect. In accordance with 40 CFR 1508.27, the significance
of an action must be analyzed in several contexts, such as society as a
whole (human, national), the affected region, the affected interests,
and the locality. The significance of an action will vary with the
setting of the proposed action. Environments may include terrestrial,
aquatic, subterranean, and aerial environments, such as islands,
cities, rivers or parts thereof.
Step Three--Identify the kinds of effects that the proposed action
will cause on these ``human environments.'' A change occurs when a
proposed action causes the ``human environment'' to be different in the
future than it would have been, absent the proposed action. These
changes involve the introduction of various ``resources'' (including
those often characterized as waste).
Example: A decrease in the amount of soil entering a stream; the
introduction of a new chemical compound to natural environments.
In addition to organisms, substances, and compounds, the term
``resources'' include energy (in various forms), elements, structures,
and systems (such as a trash collection service in a city). Present
environmental impacts and reasonably foreseeable future environmental
impacts must be considered.
In identifying changes caused by the proposed action, OPDIVs/
STAFFDIVs should identify the magnitude of the changes likely to be
caused within smaller and larger ``human environments'' affected (e.g.,
part of a city, the whole city, the metropolitan area).
The impacts resulting from the proposed action may be direct,
indirect, or cumulative (see 40 CFR 1508.25(c)).
Step Four--Identify whether these changes are significant. The
following points should be considered in conjunction with 40 CFR 1508.8
(effects), 40 CFR 1508.14 (human environment), and 40 CFR 1508.27
(``significantly'') in making a decision concerning significance:
A change in the characterization of an environment is
significant (e.g., from terrestrial to aquatic);
The establishment of a species in or removal of a species
from an environment may be significant;
The more dependent an environment becomes on external
resources, the larger the magnitude of change (and the more likely it
is to be significant);
The larger the environment under consideration, the lower
the amount of change needed before the change may be significant.
The CEQ regulations in 40 CFR 1508.27 describe a number of factors
that should be considered in evaluating severity (intensity) of an
impact. OPCIVs/STAFFDIVs should consider the cumulative effect of the
proposed action. An action may be individually insignificant but
cumulatively significant when the action is related to other actions.
Significance exists if it is reasonable to anticipate a cumulatively
significant impact on the environment. Significance cannot be avoided
by terming an action temporary or by breaking it down into small
component parts.
Step Five--Consider alternatives to the proposed action.
Alternatives to the proposed action include:
No action alternative;
Other reasonable courses of action; and
Mitigation measures.
30-50-45 Findings of No Significant Impact
A. Purpose. A Finding of No Significant Impact (FONS) is a document
prepared by an OPDIV/STAFF that briefly presents the reasons why an
action, no otherwise excluded (see 30-20-40), will not have a
significant effect on the human environment and or which, therefore, an
EIS will not be prepared (40 CFR 1508.13).
B. Responsible. The responsible official will evaluate the
information contained in the EA to determine whether it is accurate and
objective, whether the proposed action may significantly affect the
quality of the human environment, and whether an EIS will be prepared.
The responsible official will examine the environmental effects of the
proposed action and the alternative courses of action, select a course
of action, and ensure that any necessary mitigating measures are
implemented as a condition for approving the selected course of action.
When the responsible official has determined that the proposed action
will not have a significant effect on the human environment, the
responsible official will sign the FONSI, thereby establishing that the
official approves the conclusion not to prepare an EIS for the action
under consideration.
A FONSI shall be prepared only if the related EA supports the
finding that the proposed action will not have a significant effect on
the quality of the human environment. The environmental assessment (or
a summary of the EA) shall be included as a part of the FONSI.
If significant effects requiring the preparation of an EIS are
identified, a Notice of Intent (NOI) to prepare an EIS will be
published in the Federal Register in accordance with Sec. 30-50-55. If
an EA does not support a FONSI, an EIS shall be prepared and a Record
of Decision (ROD) issued before action is taken on the proposal
addressed by the EA, except as permitted under 40 CFR 1506.1.
C. Contents. The FONSI shall include the following:
1. The supporting EA or a summary of it (including a brief
description of the proposed action and alternatives considered in the
EA, environmental factors considered, projected impacts);
2. References to any other related environmental documents (40 CFR
1501.7(a)(5));
3. Any mitigation measures that will render the impacts of the
proposed action not significant;
4. Any findings required by Sections 30-40-40 or 30-40-70 in
connection
[[Page 1682]]
with floodplain or wetlands environmental reviews;
5. The date of issuance; and
6. The signature of the approving official.
If the assessment is included, the FONSI need not repeat any of the
discussion in the assessment but may incorporate it by reference.
D. Proposed Action. An OPDIV/STAFFDIV may proceed with the proposed
action after the FONSI is issued, subject to any mitigation measures
identified in the FONSI that are essential to render the impacts of the
proposed action not significant.
30-50-50 Public Availability of Environmental Assessments and
Findings of No Significant Impact
A. Public Availability of FONSI and EA. OPDIVs/STAFFDIVs shall make
a FONSI and its related EA available to the public as provided in the
CEQ regulation at 40 CFR 1500.6, 1501.4(e)(1) and 1506.6, including
making copies available for inspection in public reading rooms or other
appropriate locations for a reasonable time.
B. Public Availability of FONSI. For a limited number of actions,
the proposed FONSI and its related EA will be made available for public
review (including review by state and area-wide information
clearinghouses) for 30 days before a final determination is made
whether to prepare an EIS and before the action may begin. This
procedure will be followed when the proposed action is, or is closely
similar to, one that normally requires an EIS or when the proposed
action is one without precedent (40 CFR 1501.4(e)). OPDIVs/STAFFDIVs
may issue a proposed FONSI for public review and comment in other
situations as well.
C. Revised FONSI. If a FONSI is revised, it is subject to the
public availability requirements of this section.
30-50-55 Notice of Intent and Scoping
A. Purpose. The Notice of Intent (NOI) notifies the public that an
EIS will be prepared and considered (40 CFR 1508.22). This
determination may be based on information contained in an EA or on
other available information which indicates that potentially
significant effects may be associated with a proposed action.
B. Responsibilities. When an environmental assessment indicates
that a significant environmental impact may occur and significant
adverse impacts cannot be eliminated by making changes in the project,
an NOI will be published in the Federal Register as soon as practicable
after the responsible official has made a decision to prepare an EIS
and before the scoping process. When the responsible official finds
that there will be a lengthy period between the decision to prepare an
EIS and the time of actual preparation, the NOI may be published at a
reasonable time in advance of preparation of the draft EIS.
C. Contents. As required by 40 CFR 1508.22, the NOI will:
1. Describe the proposed action and possible alternatives;
2. Describe the proposed scoping process, which may include a
request for information or suggestions regarding the scope of the EIS;
3. State whether a public scoping meeting will be held, and the
location, date, and time of such meeting; and
4. State the identification of persons within the HHS organization
to contact for information about the proposed action and the EIS.
D. Scoping. Publication of the NOI in the Federal Register beings
the scoping process. Scoping is an early and open process for
determining the scope of issues to be addressed and for identifying the
significant issues related to a proposed action (40 CFR 1501.7). The
scoping process for an EIS shall be undertaken in accordance with the
procedures in 40 CFR 1501.7. An NOI shall be made available to the
public in accordance with 40 CFR 1500.6 and 1506.6. OPDIVs/STAFFDIVs
shall allow a minimum of 30 days for the receipt of public comments
during the scoping process.
E. Public Scoping Meetings. A public scoping meeting normally will
be conducted whenever an NOI has been published, except that a public
scoping process is optional for supplemental EISs (40 CFR
1502.9(c)(4)). Public scoping meetings shall not be held until at least
15 days after public notification. 40 CFR 1506.6(c)(2).
F. Scoping Issues. Pollution prevention should be considered an
issue in the scoping process because it will encourage those outside
the HHS organization to provide insights into pollution prevention
technologies that might be available for use in connection with the
proposal or its possible alternatives.
30-50-60 Environmental Impact Statements
A. General. OPDIV/STAFFDIV responsible for carrying out a specific
action is responsible for preparation of an EIS, if one is required.
The final text of an EIS will be prepared by the responsible official
after comments on the draft statement have been addressed and received
full consideration in the OPDIV/STAFFDIV's decision-making process.
B. Cooperation With Other Federal Agencies. In cases in which HHS
participates with other Federal agencies in a proposed action, one
agency will be the lead agency and will supervise preparation of an EIS
is one is required. A Memorandum of Understanding among all involved
agencies may be useful in summarizing the relative responsibilities of
all involved agencies. Lead agency responsibility should be determined
in accordance with 40 CFR 1501.5.
HHS will act as a cooperating agency if requested. HHS may request
to be designated as a cooperating agency if proposed actions may affect
areas of HHS responsibility. As a cooperating agency, HHS will comply
with the procedures in 40 CFR 1501.6(b) to the extent possible,
depending on program commitments and the availability of funds and
personnel.
Within the Department, lead or cooperating agency responsibility
will be exercised by the OPDIV/STAFFDIV that is responsible for the
subject matter of the proposed action. If a proposed action affects
more than one OPDIVs/STAFFDIV, the Secretary will designate one of the
OPDIV/STAFFDIVs to be responsible for coordinating the preparation of
required environmental documentation.
C. Cooperation With States. In cases in which an OPDIV/STAFFDIV
participates with state and local governments in a proposed action, the
OPDIV/STAFFDIV is responsible for preparing an EIS. However, a state
agency may jointly prepare the statement if it has state-wide
jurisdiction and HHS participates in its preparation, including
soliciting the views of other state or Federal agencies affected by the
statement.
D. Proposals for Legislation. A legislative EIS must be prepared
for any legislative proposal developed by HHS which would significantly
affect the quality of the human environment. A legislative EIS shall be
submitted to Congress at the time the legislation is proposed to
Congress or up to 30 days afterwards. Except as provided in 40 CFR
1506.8, a draft EIS accompany a legislative proposal. A scoping process
is not required for a legislative EIS.
E. Responsibilities. Except for proposals for legislation, OPDIVs/
STAFFDIVs shall prepare EISs in two stages: draft and final. The
responsible official will ensure that:
1. All reasonable alternatives (including no action) are rigorously
explored and objectively evaluated,
[[Page 1683]]
2. There is balancing of environmental impacts with the OPDIV's/
STAFFDIV's objective in choosing an appropriate course of action;
3. Appropriate mitigation measures are included in the proposed
action or alternatives;
4. Diligent efforts are made to provide an opportunity for the
public to participate in the environmental review process;
5. Comments on a draft EIS are carefully assessed and considered;
and
6. The preferred alternative is the alternative which the OPDIV/
STAFFDIV believes would fulfill its statutory mission and
responsibilities giving consideration to economic, environmental,
technical and other factors.
F. OPDIV/STAFFDIV Action. Except as provided at 40 CFR 1506.1 and
1506.10(b) and this section, no HHS OPDIV/STAFFDIV decision on the
proposed action shall be made or recorded until at least 30 days after
the publication by EPA of notice that the particular EIS has been filed
with EPA. If the subject of a final statement is also the subject of a
regulation published in the Federal Register, this requirement may be
met by simultaneous publication of the regulation and of a Notice of
Availability of the final statement and the Record of Decision,
provided that the regulation becomes effective no sooner than 30 days
after the date of publication, unless such regulation is subject to
formal internal appeal. For regulations subject to formal internal
appeal, the period for formal appeal of the decision and the 30 day
period may run concurrently.
G. Record of Decision. A Record of Decision (ROD) shall be prepared
by the responsible official when an HHS organization decides to take
action on a proposal covered by an EIS. See 40 CFR 1505.2. No action
shall be taken until the decision has been made public, except as
provided at 40 CFR 1500.6 and 1506.1. The contents of a ROD are
specified in 30-50-65. (See further discussion in 30-50-65)
H. Emergency Actions. There are certain HHS organization actions
which, because of their immediate importance to the public health, make
adherence to the requirements of the CEQ regulations and this section
concerning minimum periods of public review impractical. Compliance
with the requirements for environmental analysis under NEPA is
impossible where emergency circumstances require immediate action to
safeguard the public health. For such actions, the responsible official
shall consult with the CEQ about alternative arrangements before the
action is taken, or after the action is taken if time does not permit
prior consultation with CEQ. OPDIVs/STAFFDIVs shall, in accordance with
40 CFR 1506.11, limit such arrangements to actions necessary to control
the immediate impacts of the emergency. Other actions remain subject to
NEPA review. An OPDIV/STAFFDIV shall document, including publishing a
notice in the Federal Register, an emergency action covered by this
paragraph within 30 days after such action occurs. The documentation
shall identify any adverse impacts from the actions taken; further
mitigation that is necessary; and any NEPA documents that may be
required.
I. Monitoring. As described in 40 CFR 1505.3, an OPDIVSTAFFDIV may
provide for monitoring to ensure that its decisions, any mitigating
measures, and other conditions are carried out.
30-50-65 Contents of an EIS
A. Format. The format used for an EIS shall encourage good analysis
and clear presentation of the proposed action, alternatives to the
proposed action, their environmental effects and, when there is an
interrelationship between economic or social and natural or physical
environmental effects, their economic, and social impacts. See 40 CFR
1508.14. The CEQ regulations (40 CFR part 1502) provide detailed
requirements for the preparation of an EIS.
The following CEQ recommended standard format for EIS's (40 CFR
1502.10) shall be used unless the responsible official determines that
there is a compelling reason to do otherwise:
1. Cover Sheet;
2. Summary;
3. Table of Contents;
4. Purpose of and need for action;
5. Alternatives including proposed action;
6. Affected environment;
7. Environmental consequences;
8. List of preparers;
9. List of Agencies, organizations, and persons to whom copies of
the EIS are sent;
10. Index; and
11. Appendices (if any).
If a different format is used, it shall include paragraphs 1-3, 8-
10, and shall include the substance of paragraphs 4-7 and 11, in any
appropriate format.
B. Cultural or Natural Assets. If a proposed action will also
affect a cultural or natural asset, the EIS shall incorporate the
material required by the applicable statute or Executive Order.
C. Pollution Prevention. Pollution prevention should be an
important component of mitigation of the adverse impacts of a Federal
action. To the extent practicable, pollution prevention considerations
should be included in the proposed action and in the reasonable
alternatives to the proposal, and should be addressed in the
environmental consequences section of the EIS (40 CFR 1502.14(f),
1502.16(h), and 1508.20).
D. Draft EIS. Draft environmental impact statements shall be
prepared in accordance with the scope decided upon in the scoping
process and shall satisfy to the fullest extent possible the
requirements established for final EISs. All substantive comments
received during the comment period held as part of the public scoping
process shall be considered in determining the scope of the EIS. The
draft statement should discuss all major points of view on the
environmental impacts of the alternatives, including the proposed
action.
E. Final EIS. A final EIS shall be prepared following the public
comment period and hearing on the draft EIS. The HHS organization's
responses to comments shall be made in accordance with 40 CFR 1503.4. A
final EIS shall contain any additional relevant information gathered
after the publication of the draft EIS, a copy of or a summary of oral
and written comments received during the public review of the draft
EIS, and the HHS organization's responses to the comments. Any
responsible opposing view that was not adequately discussed in the
draft statement shall be addressed in the final EIS. A final EIS shall
also include any mitigation measures necessary to make the recommended
alternative environmentally acceptable and any findings required by
Sections 30-40-40 or 30-40-70 in connection with floodplain or wetlands
environmental reviews.
F. Consideration of Comments on the Draft EIS. Comments received on
the draft EIS shall be carefully assessed and considered. The final EIS
shall respond to oral and written comments received during public
review of the draft EIS, as provided by 40 CFR 1503.4.
G. Supplemental Statement. OPDIVs/STAFFDIVs shall prepare
supplements to either draft or final statements if there are
substantial changes in the proposed action which are relevant to
environmental concerns bearing on the proposed action, if significant
new information becomes available, or new circumstances occur.
Preparation and circulation of supplements is the same as that for
draft and final EISs.
H. Record of Decision. When an OPDIV/STAFFDIV reaches a decision
[[Page 1684]]
on a proposed action after preparing an EIS, the responsible official
shall prepare a concise public record of decision which includes:
1. The decision;
2. All alternatives considered, specifying the alternative or
alternatives which were considered to be environmentally preferable;
3. A discussion of factors which were involved in the decision,
including any essential considerations of national policy which were
balanced by the organization in making its decision and a statement of
how those considerations entered into its decision;
4. A statement of whether all practicable means to avoid or
minimize potential environmental harm from the alternative selected
have been adopted, and if not, why they were not;
5. A description of mitigation measures that will be undertaken to
make the selected alternative environmentally acceptable;
6. A discussion of the extent to which pollution prevention is
included in the decision and how pollution prevention measures will be
implemented; and
7. A summary of any monitoring and enforcement program adopted for
any mitigation measures.
30-50-70 Public involvement and Circulation of Environmental
Impact Statements
A. Public Notice. The public has the opportunity to offer comments
and otherwise participate in the NEPA process as set forth in 40 CFR
1506.6 from the time the decision is made to prepare an EIS. A Notice
of Intent (30-50-55) to prepare an EIS is published in the Federal
Register and serves as the first public notification that an EIS will
be prepared. The scoping process (30-50-55), as announced in the Notice
of Intent, allows the public, Indian tribes, Federal agencies, States,
and local governments to participate in determining the issues to be
considered in the EIS.
OPDIVs/STAFFDIVs shall make diligent efforts to involve the public
in the environmental review process by providing public notice of NEPA-
related hearings, public meetings, and the availability of
environmental documents so as to inform those persons and agencies who
may be interested or affected. The responsible official shall ensure
that public notice is provided for in accordance with 40 CFR 1500.6 and
1506.6(b). Notice shall be made through direct mail, the Federal
Register, local media, or other means appropriate to the scope, issues,
and extent of public concern. In all cases, notice shall be given to
those who have requested it on an individual action. Public notice
shall include the name and location of a contact official through whom
additional material may be obtained. EPA will publish in the Federal
Register a Notice of Availability of HHS draft and final EISs.
OPDIVs/STAFFDIVs must give public notice in the following
instances:
1. Prior to preparing a draft statement in order to solicit public
participation; and
2. Prior to any public hearings.
B. Public Hearings. OPDIVs/STAFFDIVs shall hold public hearings as
part of the NEPA environmental review process when hearings will assist
substantially in forming environmental judgments. The hearings shall be
conducted in a manner that is consistent with OPDIV/STAFFDIV program
requirements. The responsible official shall conduct a public hearing
on a draft EIS and shall ensure that the draft EIS is made available to
the public and the hearing announced at least 15 days in advance of the
hearing. The announcement shall identify the subject of the draft EIS
and include the location, date, and time of the public hearing.
C. Availability of Draft EIS. Draft EISs will be prepared,
forwarded to EPA for filing, and made available to the public early
enough in the consideration of the proposed action to permit meaningful
review of the environmental issues involved. A draft EIS will be sent
to any party having an interest in the document, and will be available
to the public upon request for the purpose of receiving substantive
comment, corrections, and additional information on the issues covered
by the statement. Copies of draft statements shall be provided to:
1. U.S. Environmental Protection Agency;
2. Council on Environmental Quality;
3. Other Federal agencies having related special expertise or
jurisdiction by law;
4. Appropriate local and national organizations;
5. Appropriate State and local agencies; including those authorized
to develop and enforce environmental standards;
6. Indian tribes, as appropriate, and
7. Others requesting a copy of the draft statement.
D. Comments on Draft EIS. After preparing a draft EIS and before
preparing a final EIS, the responsible official shall obtain the
comments of Federal agencies, Indian tribes, State and local government
agencies, and the public in accordance with 40 CFR 1503.1. The
responsible official shall respond to comments in the final EIS in
accordance with 40 CFR 1503.4. There shall be a 45-day minimum comment
period for a draft EIS after EPA publishes a Notice of Availability of
the document in the Federal Register (40 CFR 1506.10(c)). Procedures
for the preparation and circulation of a supplemental statement are
contained in 30-50-65G.
E. Proposed Rulemaking. If the subject of a draft EIS is also the
subject of a notice of proposed rulemaking, the Federal Register notice
of proposed rulemaking will state that the draft EIS is available upon
request, and will solicit comments from all interested persons.
F. Final EIS. Copies of final statements shall be provided in
accordance with the list in subsection C and to all agencies, persons,
or organizations who submitted comments regarding the draft statement.
Copies of each final EIS will be available upon request, and the
responsible HHS organization will make copies of the final statement
available for public inspection in public reading room(s).
G. Record of Decision. The responsible official shall publish the
ROD in the Federal Register and disseminate the ROD to the public as
provided in 40 CFR 1506.6, except as provided in 40 CFR 1507.3(c).
30-50-70 Environmental Effects Abroad of Major Agency Actions
A. Consideration of Environmental Effects. In accordance with
Executive Order 12114, Environmental Effects Abroad of Major Federal
Actions, 44 FR 1957 (1979), 42 U.S.C. 4321 note, the responsible
official shall consider the environmental effects abroad of a major
action by the Department or one of its OPDIVs/STAFFDIVs, including
whether the action involves:
1. Potential environmental effects on the global commons and areas
outside the jurisdiction of any nation, e.g., oceans, Antarctica, and
the upper atmosphere;
2. Potential environmental effects on a foreign nation not
participating with or otherwise involved with the United States and not
otherwise involved in an HHS organization activity;
3. The export of products (or emissions or effluent) that in the
United States are prohibited or strictly regulated because their
effects on the environment create a serious public health risk; or
4. Potential environmental effects on natural and ecological
resources of global importance designated under the Executive Order.
Before deciding on any action falling into the categories specified
in
[[Page 1685]]
subsection A of this section, the responsible official shall determine
in accordance with Section 2-3 of the Executive Order whether such
actions may have a significant environmental effect abroad.
B. Type of Environmental Review. If the responsible official
determines that an action may have a significant environmental effect
abroad, the responsible official shall determine in accordance with
Section 2-4(a) and (b) of the Executive Order whether the subject
action calls for:
1. An EIS;
2. A bilateral or multilateral environmental study; or
3. A concise environmental review.
C. Preparation of Environmental Documents. In preparing
environmental documents under this section, the responsible official
shall:
1. Determine, as provided in Section 2-5 of the Executive Order,
whether proposed actions are subject to the exemptions, exclusions, and
modification in contents, timing, and availability of documents; and
2. Coordinate all communications with foreign governments
concerning environmental agreements and other arrangements in
implementing the Executive Order.
30-50-80 Reviewing External Environmental Impact Statements
HHS has a responsibility under section 102(2)C of NEPA to review
and comment on draft EISs developed by other Federal agencies. In
accordance with 40 CFR 1503.2, HHS must comment on each EIS on issues
for which it has ``jurisdiction by law or special expertise.''
A. Jurisidction by Law. An OPDIV/STAFFDIV reviewing a draft EIS
should review each alternative action discussed in an EIS in terms of
the Departments statutory responsibilities. For example, the reviewer
should examine:
1. Potential effects on the delivery or quality of health, social,
or welfare services;
2. Potential effects associated with the manufacture,
transportation, use, storage, and disposal of chemicals or other
hazardous or radioactive materials;
3. Potential changes in plant or animal populations. (This includes
examination of the potential effects the proposed action may have on
human health. Changes in natural predator populations may upset the
ecological balance to the extent that an increased incidence of
morbidity or mortality will occur unless offsetting safeguards are
instituted); and
4. Potential changes in the physical environment that could affect
human health or welfare (e.g., air pollution, change in land use).
(This shall also include an examination of the availability and quality
of water, sewage, and solid waste disposal facilities.)
B. Jurisdiction by Special Expertise. Individuals reviewing EISs
may comment, in addition, in areas beyond their immediate job
responsibilities when they have special expertise which may be
appropriate. For example, a veterinarian employed in a disease
prevention program can comment on an EIS discussion about the effects
of a forestry project on animal populations.
C. Types of Comments. Comments on an EIS or on a proposed action
shall be as specific as possible and may address either the adequacy of
the statement or the merits of the alternatives discussed or both. A
reviewer's comment on an external EIS can address one or more of the
following:
1. That data are missing or inaccurate;
2. That the organization of the EIS precludes a valid review;
3. That the projections or descriptions of effects are not complete
or are inaccurate;
4. That the reviewer does not concur with the projections (stating
reasons);
5. That certain safeguards will lessen the extent of an effect or
the magnitude of an impact;
6. A preference for an action alternative (or no action); or
7. An objection to a federal agency's preferred alternative (if one
is identified in the draft EIS) and recommend adoption of new or
existing alternatives.
Objections to a federal agency's alternative should be lodged on
the basis of the direct or indirect effects on HHS programs or mission.
When an objection or reservation about the proposal is made on grounds
of environmental impacts, an OPDIV/STAFFDIV shall specify the
mitigation measures it considers necessary to allow it to grant or
approve applicable permit, license, or related requirements or
concurrences (40 CFR 1503.3).
If a lead federal agency's predictive methodology is criticized,
the OPDIV/STAFFDIV should describe the alternative methodology which it
prefers and the rationale for its preference. An OPDIV/STAFFDIV shall
specify in its comments whether it needs additional information to
fulfill other applicable environmental reviews or consultation
requirements and what information it needs. In particular, an OPDIV/
STAFFDIV shall specify any additional information it needs to comment
adequately on the draft statements analysis of significant site-
specific effects associated with the granting or approving of necessary
Federal permits, licenses, or entitlements.
D. Resolution of Comments. If an OPDIV/STAFFDIV objects to all or
part of a Federal agency's proposed action and, after consultation with
the agency, is unable to resolve its differences, it shall determine if
the proposed action meets the criteria for referral in 40 CFR 1504.2.
If the criteria are met, the OPDIV/STAFFDIV head shall refer the
objection to CEQ within 25 days of the date that the final EIS is made
available to EPA in accordance with 40 CFR 1504.3.
HHS Chapter 30-60--General Administration Manual; HHS Transmittal
98.2
Subject: Emergency Planning and Community Right-To-Know Act of 1986
(EPCRA) Requirements
30-60-00.... Background
05.... Applicability
10.... Responsibilities
20.... Emergency Planning
30.... Notification of Release of Extremely Hazardous Substance
40.... Material Safety Data Sheet Reporting
50.... Emergency and Hazardous Chemical Inventory Reporting
60.... Treatment of Mixtures in MSDS and Inventory Reporting
70.... Toxic Chemical Release Inventory Reporting
80.... Public Availability of Information; Withholding and
Disclosure of Trade Secrets
90.... Compliance
100... Civil and Criminal Penalties
30-60-00 Background
EPCRA was enacted in 1986 as Title III of the Superfund Amendments
and Reauthorization Act (SARA), Pub. L. No. 99-499, 100 Stat. 1729
(codified at 42 U.S.C. 11001-11050(1988)). Although they are sometimes
connected by their emergency notification and reporting requirements,
EPCRA is a separate act from the ``Superfund'' law or, as it is
officially titled, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA).
EPCRA's provisions form two primary programs: (1) emergency
planning, and (2) community right-to-know. EPCRA establishes a
mechanism for providing the public with important information on the
hazardous and toxic chemicals in their communities, and it creates
emergency planning and notification requirements to protect the public
in the
[[Page 1686]]
event of a release of extremely hazardous substances. The law requires
local communities to prepare plans for dealing with emergencies
relating to the release of extremely hazardous substances from
facilities within those communities. EPCRA also provides the public and
local and state governments with the right to obtain information
concerning the types, amount, location, storage, use, disposition, and
possible health effects from the release of hazardous and extremely
hazardous substances from facilities that are in their communities.
Facilities that are subject to EPCRA are required to provide
information and reports to EPA and state and local groups. Five
distinct reporting requirements are contained in EPCRA:
1. Emergency planning (30-60-20);
2. Notification of release (30-60-30);
3. Material safety data sheet submission (30-60-40);
4. Emergency and hazardous chemical inventory reporting (30-60-50),
and
5. Toxic chemical release reports (30-60-70).
Each of these reporting requirements and other facility
responsibilities are described in the following sections.
30-60-05 Applicability
A. Executive Order 12856. EPCRA applies to ``persons''. The term
``person'' is defined in the act to include individuals, partnerships,
corporations, states, and municipalities. The definition does not cover
most United States government agencies. EPCRA is made applicable to
federal agencies by Executive Order 12856. E.O. 12856 incorporates by
reference all definitions found in EPCRA and EPA implementing
regulations, except that it modifies the term ``person'' to include
Federal executive agencies as defined in 5 U.S.C. 105 (1988). Executive
agencies are Executive Departments, government corporations, and
independent establishments of the United States. HHS is an Executive
Department and is subject to EPCRA because of Executive Order 12856.
B. Agency Facilities. Executive Order 12856 provides that EPCRA
applies to all Federal executive agencies that either own or operate a
``facility'' as that term is defined in EPCRA, if such facility meets
the statute's threshold requirements for compliance. The statutory
definition of facility is:
All buildings, equipment, structures, and other stationary items
which are located on a single site or on contiguous or adjacent sites
and which are owned or operated by the same person (or by any person
which controls, is controlled by, or under common control with, such
person). For purposes of [emergency release notification], the term
includes motor vehicles, rolling stock, and aircraft (42 U.S.C.
11049(4)).
EPA regulations revise the statutory definition of facility to
include ``manmade structures in which chemicals are purposefully placed
or removed through human means such that it functions as a containment
structure for human use.'' (40 CFR 3550.20, 370.2). The purpose of the
revision was to clarify that the definition applies to certain
subsurface structures.
C. Covered Facilities. Each Federal agency must apply all of the
provisions of Executive Order 12856 to each of its covered facilities,
including those facilities which are subject, independent of the
Executive order, to the provisions of EPCRA (e.g., certain Government-
owned/contractor-operated facilities (GOCO's), for chemicals meeting
EPCRA thresholds). Executive Order 12856 does not apply to Federal
agency facilities outside the customs territory of the United States,
such as United States diplomatic and consular missions abroad. EPA may
be consulted to determine the applicability of Executive Order 12586 to
particular OPDIV/STAFFDIV facilities.
D. Preliminary List of Covered Facilities. The Secretary was
required by Executive Order 12856 to provide the EPA Administrator by
December 31, 1993, with a preliminary list of facilities that
potentially meet the requirements for reporting under the threshold
provisions of EPCRA.
30-60-10 Responsibilities
A. HHS. Executive Order 12856 makes the Secretary responsible for
ensuring HHS compliance with emergency planning and community right-to-
know provisions established pursuant to all implementing regulations
issued pursuant to EPCRA. The Order requires Federal agencies to report
in a public manner toxic chemicals entering any wastestream from their
facilities, including any releases to the environment, and to improve
local emergency planning, response, and accident notification. The
objective of Executive Order 12856 is to make the Federal Government a
good neighbor to local communities by becoming a leader in providing
information to the public concerning toxic and hazardous chemicals and
extremely hazardous substances at Federal facilities, and in planning
for and preventing harm to the public through the planned or unplanned
releases of chemicals.
B. OPDIVs/STAFFDIVs. The head of each OPDIV/STAFFDIV is responsible
for compliance with the provisions of EPCRA as described in this
chapter and Executive Order 12856. An OPDIV/STAFFDIV must comply with
provisions set forth in sections 301 through 312 of EPCRA, all
implementing regulations, and future amendments to these authorities,
in light of any applicable guidance as provided by EPA. Dates for
compliance with individual sections of EPCRA vary and are set forth in
the appropriate sections below. Executive Order 12856 provides that the
compliance dates are not intended to delay implementation of earlier
timetables already agreed to by Federal agencies and are inapplicable
to the extent they interfere with those timetables. Compliance with
EPCRA means compliance with the same substantive, procedural, and other
statutory and regulatory requirements that would apply to a private
person.
C. Agency Contractors. Executive Order 12856 requires each Federal
agency to provide, in all appropriate future contracts, for the
contractor to supply all information the Federal agency deems necessary
for it to comply with the order. To the extent that compliance with the
Executive Order is made more difficult due to lack of information from
existing contractors, OPDIVs/STAFFDIVs must take practical steps to
obtain the information needed to comply with the Executive Order from
such contractors. Nothing in Executive Order 12856 alters the
obligations which GOCO's and Government corporation facilities have
under EPCRA independent of the Executive Order or subjects such
facilities to EPCRA if they are otherwise excluded. However, each
OPDIV/STAFFDIV shall include the releases and transfers from all such
facilities when meeting all of the organization's responsibilities
under Executive Order 12856.
30-60-20 Emergency Planning (EPCRA Secs. 301-30; 42 U.S.C. 11001-
30)
A. Basic Requirement. Facilities that are covered by EPCRA must
notify the State emergency response commission that they are subject to
the Act's emergency planning provisions. A local emergency planning
committee, comprised of state and local officials, community
organizations, and facility representatives, must prepare an emergency
plan for responding to the release of extremely hazardous substances in
the local community. A covered facility must provide any information
that is necessary for developing the local emergency plan.
[[Page 1687]]
The facility must also notify the local committee of relevant changes
at the facility that may affect the emergency plan and designate an
emergency planning coordinator who will participate in the emergency
planning process. EPA regulations governing emergency planning and
notification under EPCRA are contained in 40 CFR part 355.
B. Applicability of Requirement. A facility is subject to the EPCRA
emergency planning requirements if an amount of any extremely hazardous
substance equal to or in excess of the threshold planning quantity
(TPQ) established for that substance is present at the facility. An
``amount of an extremely hazardous substance'' means the total amount
of an extremely hazardous substance present at any one time at a
facility at concentrations greater than one percent by weight,
regardless of location, number of containers, or method of storage.
E.O. 12856 makes the EPCRA emergency planning requirements in
Sections 302 and 303 of the Act applicable to Federal agencies. A
Governor or a State commission may designate additional facilities in
the State which shall be subject to the EPCRA emergency planning
requirements. The authority of a Governor or a State commission to
designate additional facilities does not extend to Federal executive
agencies (except government corporations).
C. Extremely Hazardous Substances and Threshold Planning
Quantities. An ``extremely hazardous substance'' is defined in EPA
regulations to mean a substance that is listed in Appendices A (in
alphabetical order) and B (by CAS number) of 40 CFR part 355. The
Appendices contain tables which indicate the threshold planning
quantity (TPQ) for each extremely hazardous substance.
EPCRA authorizes EPA to modify the list and TPQ of extremely
hazardous substances from time to time based on the toxicity,
reactivity, volatility, dispersability, combustibility, and
flammability of a substance. Because extremely hazardous substances are
periodically removed or added to the list, and threshold quantities may
be revised, facilities must be sure that the list of extremely
hazardous substances they consult is current. EPA regulations in 40 CFR
355.30(e) (1992) set forth the rules and techniques for calculating the
TPQ of extremely hazardous substances that are solids or present in
mixtures, solutions, and molten materials.
D. State and Local Planning Groups. EPCRA requires the Governor of
each State or Chief Executive Officer of an Indian Tribe to appoint an
Emergency Response Commission (``commission''). The commission must
designate emergency planning districts in order to facilitate
preparation and implementation of an emergency plan. The commission
must also appoint local emergency planning committees (``committee'')
in each emergency planning district and supervise and coordinate the
activities of such committees.
Local committees include, at a minimum, representatives from each
of the following groups or organizations: elected State and local
officials; law enforcement, civil defense, firefighting, first aid,
health, local environmental, hospital, and transportation personnel;
broadcast and print media; community groups; and owners and operators
of facilities subject to EPCAR.
E. Local Emergency Plan. Each local emergency planning committee
was to have completed preparation of a local emergency plan not later
than October 17, 1988. The committee must review such plan once a year,
or more frequently as changed circumstances in the community or at any
facility may require. The rules of committee must include provisions
for public notification of committee activities, public meetings to
discuss the emergency plan developed by the committee, public comments
on the emergency plan and response to such comments by the committee,
and distribution of the emergency plan. EPCRA requires that each local
emergency plan prepared by a local committee shall include (but is not
limited to) each of the following:
1. Identification of facilities subject to the EPCRA's requirements
that are within the emergency planning district, identification of
routes likely to be used for the transportation of substances on the
list of extremely hazardous substances, and identification of
additional facilities contributing or subjected to additional risk due
to their proximity to facilities subject to EPCRA requirements, such as
hospitals or natural gas facilities.
2. Methods and procedures to be followed by facility owners and
operators and local emergency and medical personnel to respond to any
release of such substances;
3. Designation of a community emergency coordinator and facility
emergency coordinators, who shall make determinations necessary to
implement the plan;
4. Procedures providing reliable, effective, and timely
notification by the facility emergency coordinators and the community
emergency coordinator to persons designated in the emergency plan, and
to the public, that a release has occurred (consistent with the
emergency notification requirements of EPCRA Section 11004);
5. Methods for determining the occurrence of a release, and the
area or population likely to be affected by such release;
6. A description of emergency equipment and facilities in the
community and at each facility in the community subject to EPCRA
requirements, and an identification of the person responsible for such
equipment and facilities;
7. Evacuation plans, including provisions for a precautionary
evacuation and alternative traffic routes;
8. Training programs, including schedules for training of local
emergency response and medical personnel; and
9. Methods and schedules for exercising the emergency plan.
F. Review of Emergency Plans. After completion of an emergency plan
for an emergency planning district, the local emergency planning
committee must submit a copy of the plan to the State emergency
response commission of each State in which such district is located.
The commission must review the plan and make recommendations to the
committee on revisions of the plan that may be necessary to ensure
coordination of such plan with emergency response plans of other
emergency planning districts.
Regional response teams, as established pursuant to CERCLA's
National Contingency Plan (42 U.S.C. 9605), may review and comment upon
an emergency plan or other issues related to preparation,
implementation, or exercise of such a plan upon request of a local
emergency planning committee. Such review may not delay implementation
of the plan. The national response team must publish guidance documents
for preparation and implementation of emergency plans.
G. Emergency Planning Notification. Each covered facility small
notify the commission for the state in which the facility is located
that the facility is subject to EPCRA emergency planning requirements.
Thereafter, if a substance on the list of extremely hazardous
substances first becomes present at the facility in excess of the TPQ
established for such substance, or if there is a revision of the list
of extremely hazardous substances and the facility has present a
substance on the revised list in excess of the TPQ established for such
substance, the covered facility shall notify the state emergency
response commission and
[[Page 1688]]
the local emergency planning committee within 60 days after such
acquisition or revision that the facility is subject to the EPCRA
emergency planning requirements. (EPCRA, Sec. 302(c)).
H. Facility Emergency Response Coordinator. A facility
representative shall be designated for each facility who will
participate in the local emergency planning process as a facility
emergency response coordinator. The name of the facility emergency
response coordinator shall be provided to the local emergency planning
committee of the State (or the Governor if there is no committee) in
which the facility is located.
I. Provision of Information and Technical Assistance
1. Provision of Information. Upon request of the local committee,
the facility must promptly provide to the committee any information
necessary for development or implementation of the local emergency
plan. Executive Order 12856 provides that all information necessary for
the applicable local committee to prepare or revise the local emergency
plan must also be provided. A covered facility shall inform the local
emergency planning committee of any changes occurring at the facility
which may be relevant to emergency planning.
EPCRA section 322 (42 U.S.C. 11042) provides for the withholding of
certain trade secret information, provided the claim of trade secrecy
is substantiated in accordance with EPA regulations. Withholding and
disclosure of trade secret information is discussed in section 30-60-
80.
2. Technical Assistance. OPDIVs/STAFFDIVs, to the extent
practicable, shall provide technical assistance, if requested, to local
emergency planning committees in the development of emergency plans and
in fulfillment of their community right-to-know and risk reduction
responsibilities.
30-60-30 Notification of Release of Extremely Hazardous Substance
(EPCRA Sec. 304; 42 U.S.C. 11004)
A. Basic Requirement. A facility must immediately notify the local
committee for any area likely to be affected, and the commission of any
state likely to be affected, of all-site spills or any releases from
the facility of a ``reportable quantity'' (RQ) of an EPCRA ``extremely
hazardous substance'' or a CERCLA ``hazardous substance''. The initial
report must be made by such means as telephone, radio, or in person. A
follow-up written report must be furnished to the committee and
commission. EPA regulations governing notification of release of an
extremely hazardous substance are contained in 40 CFR Part 355.
B. Applicability. The EPCRA emergency release notification
requirements apply to any facility:
1. At which a hazardous chemical is produced, used, or stored; and
2. At which there is release of a reportable quantity of any
extremely hazardous substances or CERCLA hazardous substance.
Executive Order 12856 provides that the release notification
requirements in EPCRA section 304 (42 U.S.C. 11004) shall be effective
beginning January 1, 1994.
OPDIVs/STAFFDIVs should be aware that the release notification
requirements of EPCRA section 304 covers more facilities than the
emergency planning requirements of EPCRA sections 301-303. An OPDIV/
STAFFDIV facility must notify the local emergency planning committee of
a release under section 304 even if a section 302(b) ``threshold
planning quantity'' of a substance is not present. Furthermore, section
304 is the only section of EPCRA that applies to ``transportation
facilities.''
C. Reportable Quantities. EPA regulations in 40 CFR part 355
establish the list of extremely hazardous substances, threshold
planning quantities, and facility notification responsibilities
necessary for the development and implementation of state and local
emergency response plans. The reportable quantities for extremely
hazardous substances are set out in 40 CFR part 355, Appendices A
(alphabetical order) and B (by CAS number).
D. CERCLA Release Reporting. The EPCRA notification of release
requirements are in addition to the release reporting requirements
imposed by CERCLA section 103 (42 U.S.C. 9603). Under CERCLA section
103(a), the person in charge of a vessel or facility from which a
hazardous substance has been released in a quantity that equals or
exceeds its reportable quantity must immediately notify the National
Response Center of the release. The purpose of the CERCLA notification
requirement is to inform the government of a release so that Federal
personnel can evaluate the need for a Federal removal or remedial
action and undertake any necessary action in a timely manner. Under
section 104 of CERCLA, the Federal government may respond whenever
there is a release or substantial threat of a release of a hazardous
substance into the environment. Response activities are to be taken, to
the extent practicable, in accordance with the National Oil and
Hazardous Substances Pollution Contingency Plan (40 CFR part 300).
Releases of CERCLA hazardous substances are subject to the release
reporting requirements that are codified at 40 CFR part 302. The list
of CERCLA hazardous substances and their reportable quantities is found
at 40 CFR 302.4. The National Response Center telephone number for
release reporting is (800) 424-8802.
Note: Currently, only releases of those extremely hazardous
substances that are also CERCLA hazardous substances are required to
be reported to the National Response Center under CERCLA section
103. Discrepancies exist between the substances on the list of EPCRA
extremely hazardous substances and those on the list of CERCLA
hazardous substances. Moreover, the reportable quantity of the same
substance may differ between lists. EPA has published a proposed
rule to designate 226 non-CERCLA extremely hazardous substances as
CERCLA hazardous substances (54 FR 3388 (1989)). The purpose of the
proposed rule is to eliminate potential confusion concerning the
different EPCRA (notification to state and local officials only) and
CERCLA (notification to the National Response Center in addition to
notification to state and local officials) requirements. EPA has
also published a proposed rule to adjust the reportable quantities
for 225 substances on the EPCRA extremely hazardous substances list,
which EPA has proposed for designation as CERCLA hazardous
substances, and 19 substances that are CERCLA hazardous substances
(54 FR 35988 (1989)).
E. Comparison of EPCRA and CERCLA Release Reporting Requirements.
Table 1 indicates the differences in reporting a release of a
reportable quantity of a CERCLA hazardous substance or an EPCRA
extremely hazardous substance.
Note: A petroleum release that contains a reportable quantity of
an extremely hazardous substance as a constituent is exempt under
CERCLA but not under EPCRA section 304. The petroleum exclusion
under CERCLA does not apply to EPCRA (52 FR 13378, 13385 (1987)).
[[Page 1689]]
Table 1.--Comparison of CERCLA and EPCRA Release Notification Requirements
----------------------------------------------------------------------------------------------------------------
Substance only on EPCRA
Substance only on list of extremely
Reporting requirement CERCLA list of hazardous substances Substance on CERCLA and
hazardous substances (40 CFR Part 355, Appx EPCRA lists
(40 CFR 302.4) A & B)
----------------------------------------------------------------------------------------------------------------
Notify State and Local Officials Yes.................... Yes (unless release Yes
results in exposure
only to persons solely
within the boundaries
of the facility).
Notify National Response Center. Yes.................... No..................... Yes
Does the petroleum exclusion Yes.................... No..................... Yes--CERCLA Report
apply?. No--EPCRA Report
----------------------------------------------------------------------------------------------------------------
F. Notice Requirements. A facility shall immediately notify the
community emergency coordinator for the local emergency planning
committee of any area likely to be affected by the release and the
state emergency response commission of any state likely to be affected
by the release. If there is no local emergency planning committee,
notification shall be provided to relevant local emergency response
personnel.
Emergency release notice requirements for a transportation-related
release may be satisfied by providing the information indicated in
subsection G. Notice Contents by telephone to the 911 operator, or in
the absence of a 911 emergency telephone number, to the operator. A
``transportation-related release'' means a release during
transportation, or storage incident to transportation if the stored
substance is moving under active shipping papers and has not reached
the ultimate consignee.
G. Notice Contents. The emergency release notice shall include the
following to the extent known at the time of notice and so long as no
delay in notice or emergency response results:
1. The chemical name or identity of any substance involved in the
release.
2. An indication of whether the substance is an extremely hazardous
substance.
3. An estimate of the quantity of any such substance that was
released into the environment.
4. The time and duration of the release.
5. The medium or media into which the release occurred.
6. Any known or anticipated acute or chronic health risks
associated with the emergency and, where appropriate, advice regarding
medical attention necessary for exposed individuals.
7. Proper precautions to take as a result of the release, including
evacuation (unless such information is readily available to the
community emergency coordinator pursuant to the emergency plan).
8. The names and telephone number of the person or persons to be
contacted for further information.
H. Following Emergency Notice. As soon as practicable after a
release which requires notice under subsection F. Notice Requirements,
a written follow-up emergency notice (or notices, as more information
becomes available) setting forth and updating the information required
in subsection G. Notice Contents and including additional information
with respect to:
1. Actions taken to respond to and contain the release;
2. Any known or anticipated acute or chronic health risks
associated with the release; and
3. Where appropriate, advice regarding medical attention necessary
for exposed individuals.
I. Transportation Exemption Not Applicable. EPCRA generally exempts
from its requirements the transportation, including the storage
incident to such transportation, of any substance or chemical subject
to EPCRA. This transportation exemption does not apply to this section
(30-60-30) or EPCRA's requirements for notification of the release of
an extremely hazardous substance (EPCRA Sec. 304; 42 U.S.C. 11004).
Refer to subsection F. Notice Requirements for requirements
pertaining to transportation-related releases.
J. Exempted Releases. The notification requirements of this section
(30-60-30) do not apply to:
1. Any release which results in exposure to persons solely within
the boundaries of the facility. (Note: CERCLA does not contain a
similar exemption);
2. Any release which is a ``Federally permitted release'' as
defined in section 101 (10) of CERCLA (42 U.S.C. 9601 (10));
3. Any release that is continuous and stable in quantity and rate
under the definitions in 40 CFR 302.8(b).* Exemption from notification
under this subsection does not include exemption from:
(a) Initial telephone or written notifications of a continuous
release as defined in 40 CFR 302.8(d) and (e);
(b) Notification of a ``statistically significant increase,''
defined in 40 CFR 302.8(b) as any increase above the upper bound of the
reported normal range, which is to be submitted to the community
emergency coordinator for the local emergency planning committee for
any area likely to be affected by the release and to the State
emergency response commission of any State likely to be affected by the
release;
(c) Notification of a ``new release'', defined in 40 CFR
302.8(g)(1) as any change in the composition or source(s) of the
release; or
(d) Notification of a change in the normal range of the release as
required under 40 CFR 302.8(g)(2).
*The referenced definitions that apply to the notification of a
continuous release state: ``A continuous release is a release that
occurs without interruption or abatement or that is routine,
anticipated, and intermittent and incidental to normal operations or
treatment processes * * *. A routine release is a release that
occurs during normal operating procedures or processes * * *. A
release that is stable in quantity and rate is a release that is
predictable and regular in amount and rate of emission.'' (40 CFR
302.8(b)).
**``The normal range of a release is all releases (in pounds or
kilograms) of a hazardous substance reported or occurring over any
24-hour period under normal operating conditions during the
preceding year. Only releases that are both continuous and stable in
quantity and rate may be included in the normal range.'' (40 CFR
302.8(b)).
4. Any release of a pesticide product exempt from CERCLA section
103(a) (42 U.S.C. 9603(a)) reporting under CERCLA section 103(e) (42
U.S.C. 9603(e)) (CERCLA exempts from its notification requirements the
application of a pesticide product registered under FIFRA or the
handling and storage of such a pesticide product by an agricultural
producer);
5. Any release not meeting the definition of release under section
101 (22) of CERCLA (42 U.S.C. 9601(22)), and therefore exempt from
CERCLA
[[Page 1690]]
section 103(a) reporting (42 U.S.C. 9603(a)) (e.g., engine exhaust
emissions, certain nuclear material releases, the normal application of
fertilizer); and
6. Any radionuclide release which occurs:
(a) Naturally in soil from land holdings such as parks, golf
courses, or other large tracts of land;
(b) Naturally from the disturbance of land for purposes other than
mining, such as for agricultural or construction activities;
(c) From the dumping of coal and coal ash at utility and industrial
facilities with coal-fired boilers; and
(d) From coal and coal ash piles at utility and industrial
facilities with coal-fired boilers.
30-60-40 Material Safety Data Sheet Reporting (EPCRA Sec. 311; 42
U.S.C. 11021)
A. Basic Requirement. A material safety data sheet (MSDS) or a list
of hazardous chemicals shall be provided to the local emergency
planning committee, the State emergency planning commission, and the
fire department with jurisdiction over the facility for each hazardous
chemical present at the facility according to the minimum threshold
schedule provided in 40 CFR 370.20(b) (see subsection D. Minimum
Thresholds for Reporting). An MSDS must include such information as the
hazardous chemical's common and chemical names, physical and chemical
characteristics, physical and health hazards, primary routes of entry,
exposure limits, possible carcinogenic effects, safe handling and use
precautions, control measures, and emergency and first aid procedures
(29 CFR 1910.1200(g)(2)). EPA regulations governing MSDS reporting are
contained in 40 CFR part 370.
Note: Requirements for the reporting of mixtures is contained in
section 30-60-60.
B. Applicability. The requirement in section 311 of EPCRA to submit
a MSDS or list of hazardous chemicals applies to each facility that is
required to prepare or have available a MSDS for a hazardous chemical
under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et
seq.) and regulations promulgated under that Act (see 29 CFR
1910.1200(g)). The Act requires a facility to have a MSDS for each
hazardous chemical it uses, produces or imports (29 CFR
1910.1200(g)(1)).
C. Alternative Reporting. In lieu of the submission of an MSDS for
each hazardous chemical, the following may be submitted:
1. A list of the hazardous chemicals for which an MSDS is required,
grouped by hazard category as defined by 40 CFR 370.2 (e.g.,
``immediate (acute) health hazard'' or ``delayed (chronic) health
hazard'');
2. The chemical or common name of each hazardous chemical as
provided on the MSDS; and
3. Except for reporting of mixtures under 40 CFR 370.28(a)(2) (see
section 30-60-60, subsection A.2.), any hazardous component of each
hazardous chemical as provided on the MSDS.
D. Minimum Threshold Levels for MSDS Reporting. Except in response
to certain requests for submission of an MSDS, an MSDS shall be
submitted:
1. For all hazardous chemicals present at the facility at any one
time in amounts equal to or greater than 10,000 pounds (or 4,540 kgs.);
and
2. For all extremely hazardous substances present at the facility
in an amount greater than or equal to 500 pounds (or 227 kgs.
approximately 55 gallons) of the TPQ, whichever is lower.
The minimum threshold for reporting in response to a request for
submission of an MSDS by a local emergency planning committee (see
subsection H. Submission of MSDS Upon Committee Request) shall be zero.
E. Definition of ``Hazardous Chemical''. The term ``hazardous
chemical'', as defined in 29 CFR 1910.1200(c), means any chemical which
is a physical hazard or a health hazard, except that such term does not
include the following substances:
1. Any food, food additive, color additive, drug, or cosmetic
regulated by the Food and Drug Administration;
2. Any substance present as a solid in any manufactured item to the
extent exposure to the substance does not occur under normal conditions
of use;
3. Any substance to the extent it is used for personal, family, or
household purposes, or is present in the same form and concentration as
a product packaged for distribution and use by the general public;
4. Any substance to the extent it is used in a research laboratory
or a hospital or other medical facility under the direct supervision of
a technically qualified individual; and
5. Any substance to the extent it is used in routing agricultural
operations or is a fertilizer held for sale by a retailer to the
ultimate customer.
Note: The definition of ``hazardous chemical'' in this section
(30-60-40) is broader than ``hazardous substance'' under CERCLA or
``extremely hazardous substance'' under EPCRA (see sections 30-60-
20, 30-60-30).
F. Reporting Period. Executive Order 12856 provides that to the
extent that a facility is required to maintain MSDSs under any
provisions of law or Executive order, information required under
section 311 of EPCRA shall be submitted no later than August 3, 1994.
Thereafter, a facility shall submit an MSDS for a hazardous chemical or
a list within three months after a hazardous chemical requiring an MSDS
becomes present in an amount exceeding the threshold established in 40
CFR 370.20(b) (see subsection D. Minimum Threshold Levels for
Reporting).
G. Supplemental Reporting. A revised MSDS shall be provided to the
local emergency planning committee, the State emergency planning
commission, and the fire department with jurisdiction over the facility
within three months after discovery of significant new information
concerning the hazardous chemical for which the MSDS was submitted.
H. Submission of MSDS Upon Committee Request. A facility that has
not submitted the MSDS for a hazardous chemical present at the facility
shall submit the MSDS for any such hazardous chemical to the local
emergency planning committee upon its request. The MSDS shall be
submitted within 30 days of the receipt of such request. The minimum
threshold for reporting in response to a request for submission of an
MSDS by a local committee shall be zero.
I. Public Request for MSDS Information. EPA regulations permit any
person to obtain an MSDS with respect to a specific facility by
submitting a written request to the local emergency planning committee.
If the committee does not have the MSDS in its possession, the EPA
regulations authorize the committee to request a submission of the MSDS
from the owner or operator of the facility that is the subject of the
request and make the sheet available to the requester.
J. Withholding of Trade Secret Information. EPCRA section 322 (42
U.S.C. 11042) provides that any person may withhold from the submittal
of an MSDS the specific chemical identity (including the chemical name
and other specific identification) of a hazardous chemical when such
information is a trade secret and the claim of trade secrecy is
substantiated in accordance with EPA regulations. Withholding and
disclosure of trade secret information is discussed in section 30-60-
80.
30-60-50 Emergency and Hazardous Chemical Inventory Reporting
(EPCRA Sec. 312; 42 U.S.C. Sec. 1022)
A. Basic Requirement. A facility shall submit annually an Emergency
and Hazardous Chemical Inventory
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Reporting Inventory Form (Tier I form) to the local emergency planning
committee, the State emergency response commission, and the fire
department with jurisdiction over the facility for hazardous chemicals
present at the facility during the preceding calendar year that are
above the minimum threshold levels established for those chemicals (see
subsection D. Minimum Threshold Levels for Tier I or Tier II Form
Reporting). The Tier I form provides aggregate information on the
categories, amounts, and general location of the hazardous chemicals at
the facility. EPA regulations governing annual inventory reporting are
contained in 40 CFR part 370.
Note: Requirements for the reporting of mixtures is contained in
section 30-60-60.
B. Alternative Reporting. With respect to any specific hazardous
chemical at the facility, a Tier II form (see subsection G. Contents of
Tier II Form) may be submitted in lieu of the Tier I information.
C. Applicability of the Requirement. The requirement in section 312
of EPCRA to submit an emergency and hazardous chemical inventory form
applies to each facility that is required to prepare or have available
an MSDS for a hazardous chemical under OSHA and regulations promulgated
under that Act. OSHA requires facilities that use, distribute, produce,
or import chemicals to have a material safety data sheet for each
hazardous chemical which they use (29 CFR 1910.1200(g)(1)).
D. Minimum Threshold Levels for Tier I or Tier II Form Reporting.
Except in response to certain requests for submission of a Tier II
form, a Tier I (or Tier II) form shall be submitted covering:
1. All hazardous chemicals present at the facility at any one time
during the preceding calendar year in amounts equal to or greater than
10,000 pounds (or 4,540 kgs.); and
2. Extremely hazardous substances present at the facility in an
amount greater than or equal to 500 pounds (or 227 kgs.--approximately
55 gallons) or the TPQ, whichever is lower.
The minimum threshold for reporting in response to a request for
submission of a Tier II form by a State emergency response commission,
local emergency planning committee, or fire department having
jurisdiction over the facility (see subsection H. Submission of Tier II
Information to State Commissions, Local Committees, or Fire
Departments) shall be zero.
E. Annual Reporting Period. An inventory form containing Tier I (or
Tier II) information on hazardous chemicals present at the facility
during the preceding calendar year above the threshold levels
established in 40 CFR 370.20(b) (see subsection D. Minimum Threshold
Levels for Tier I or Tier II Form Reporting) shall be submitted on or
before March 1 of each year. Executive Order 12856 provides that the
first year of compliance with this reporting requirement for federal
agencies shall be no later than the 1994 calendar year, with reports
due on ore before March 1, 1995.
F. Content of Tier I Form. The Tier I Emergency and Hazardous
Chemical Inventory Form (with instructions) is set out in 40 CFR
370.40(b). In lieu of the form, a facility may submit a State or local
form that contains identical content. The Tier I Inventory Form
requires a facility to provide the following information in aggregate
terms for hazardous chemicals in categories of health and physical
hazards as set forth under OSHA and regulations promulgated under that
Act.
1. An estimate (in ranges) of the maximum amount of hazardous
chemicals in each category present at the facility at any time during
the preceding calendar year.
2. An estimate (in ranges) of the average daily amount of hazardous
chemicals in each category present at the facility during the preceding
calendar year.
3. The general location of hazardous chemicals in each category.
The EPA regulations consolidate 23 hazard categories defined in the
OSHA Hazard Communication Standard, 29 CFR 1910.1200, into two health
hazard and three physical hazard categories. The five Tier 1 Form
hazard categories are: fire hazards; sudden release of pressure
hazards; reactivity hazards; immediate (acute) health hazards; and
delayed (chronic) health hazards.
G. Contents of Tier II Form. Tier II Emergency and Hazardous
Chemical Inventory Forms (with instructions) is set out in 40 CFR
370.41(b). In lieu of the form contained in the EPA regulations, a
facility may submit a state or local form that contains identical
content. The Tier II Inventory Form requires the following additional
information for each hazardous chemical present at the facility:
1. The chemical name or the common name of the chemical as provided
on the MSDS.
2. An estimate (in ranges) of the maximum amount of the hazardous
chemical present at the facility at any time during the preceding
calendar year.
3. An estimate (in ranges) of the average daily amount of the
hazardous chemical present at the facility during the preceding
calendar year.
4. A brief description of the manner of storage of the hazardous
chemical.
5. The location at the facility of the hazardous chemical.
6. An indication of whether the facility elects to withhold
information regarding the location of the hazardous chemical from
disclosure to the public under 42 U.S.C. 11044 (see subsection L.
Withholding Certain Information From Public Disclosure.
H. Submission of Tier II information to State Commissions, Local
Committees, or Fire Departments. Upon request by a State emergency
response commission, a local emergency planning committee, or a fire
department with jurisdiction over the facility, a facility shall
provide Tier II information to the person making the request. Any such
request shall be with respect to a specific facility. The Tier II Form
shall be submitted within 30 days of the receipt of each request. The
minimum threshold for reporting in response to a request for submission
of a Tier II form by a State commission, local committee, or fire
department shall be zero.
I. Availability of Tier II Information to Other State and Local
Officials. A State or local official acting in his or her official
capacity may have access to Tier II information by submitting a request
to the State emergency response commission or the local emergency
planning committee. Upon receipt of a request for Tier II information,
the State commission or local committee is authorized by EPA
regulations to request the facility for the Tier II information and
make available such information to the official.
J. Availability of Tier II Information to General Public. Any
person may request Tier II information with respect to a specific
facility by submitting a written request to the State commission or
local committee in accordance with EPA requirements in 40 CFR
370.30(b). If the committee or commission does not have the Tier II
information in its possession, EPA regulations authorize it to request
a submission of the Tier II form from the facility that is the subject
of the request, provided that the request is limited to hazardous
chemicals stored at the facility in an amount in excess of 10,000
pounds. If the request is for Tier II information on chemicals present
at a facility in an amount less than 10,000 pounds, the requestor must
include a general statement of need in the request. The location of any
chemical shall be withheld by the State commission or local committee
upon request of the facility (see subsection L. Withholding
[[Page 1692]]
Certain Information From Public Disclosure).
EPCRA requires a State commission or local committee to respond to
a request for Tier II information no later than 45 days after the date
of receipt of the request.
K. Fire Department Inspection. A facility that has submitted an
inventory form shall allow on-site inspection by the fire department
having jurisdiction over the facility upon request of the department,
and shall provide to the department specific location information on
hazardous chemicals at the facility.
L. Withholding Certain Information From Public Disclosure.
1. Physical Location of Hazardous Chemical. All information
obtained from a facility in response to a public request to a State
commission or local committee for a Tier II form must be made available
to the person submitting the request, provided, upon request of the
facility, the commission or committee shall withhold from disclosure
the location of any specific chemical identified in the Tier II form.
2. Trade Secret Information. EPCRA section 322 (42 U.S.C. 11042)
provides that any person may withhold from a submittal of an emergency
and hazardous chemical inventory reporting form the specific chemical
identity (including the chemical name and other specific
identification) of a hazardous chemical when such information is a
trade secret and the claim of trade secrecy is substantiated in
accordance with EPA regulations. Withholding and disclosure of trade
secret information is discussed in section 30-60-80.
30-60-60 Treatment of Mixtures in MSDS and Inventory Reporting
A. Basic Reporting. A facility may meet the MSDS reporting
requirements of 40 CFR 370.21 (see 30-60-40) and the inventory
reporting requirements of 40 CFR 370.25 (see 30-60-50) for a hazardous
chemical that is a mixture of hazardous chemicals by:
1. Providing the required information on each component in the
mixture which is a hazardous chemical*; or
2. Providing the required information on the mixture itself.
*Note: If more than one mixture has the same component, only
MSDS or listing on the inventory form for the component is
necessary.
B. Same Manner of Reporting. Where practicable, the reporting of
mixtures by a facility shall be in the same manner for MSDS (see 30-60-
40) and inventory (see 30-60-50) reporting.
C. Calculation of the Quantity. If the reporting is on each
component of the mixture which is a hazardous chemical, then the
concentration of the hazardous chemical, in weight percent (greater
than 1% or 0.1% if carcinogenic) shall be multiplied by the mass (in
pounds) of the mixture to determine the quantity of the hazardous
chemical in the mixture. If the reporting is on the mixture itself, the
total quantity of the mixture shall be reported.
D. Aggregation of Extremely Hazardous Substances. To determine
whether the reporting threshold for an extremely hazardous substance
has been equaled or exceeded, the owner or operator of a facility shall
aggregate the following:
1. The quantity of the extremely hazardous substance present as a
component in all mixtures at the facility, and
All other quantities of the extremely hazardous substance present
at the facility.
If the aggregate quantity of an extremely hazardous substance
equals or exceeds the reporting threshold, the substance shall be
reported.
If extremely hazardous substances are being reported and are
components of a mixture at a facility, the owner or operator of a
facility may report either:
1. The mixture, as a whole, even if the total quantity of the
mixture is below its reporting threshold; or
2. The extremely hazardous substance component(s) of the mixture.
30-60-70 Toxic Chemical Release Inventory Reporting (EPCRA
Sec. 313; 42 U.S.C. 11023)
A. Basic Requirement. A facility that is subject to the EPCRA
section 313 reporting requirement shall submit annually a Toxic
Chemical Release Inventory Reporting Form (Form R) to EPA and to
affected States and Indian tribes. The purpose of this reporting is to
inform the general public and the communities surrounding covered
facilities about releases of toxic chemicals, to assist research, and
to aid in the development of regulations, guidelines, and standards.
A completed Form R must be submitted for each toxic chemical
manufactured, processed, or otherwise used at the facility in excess of
the threshold quantity established for that chemical. The facility must
report the activities and uses of the toxic chemical at the facility,
quantity released to the environment (air, water, or land), maximum
amount on-site during the calendar year, and amount contained in wastes
transferred off-site. The facility must also provide certain treatment
and pollution prevention data. Mandatory source reduction and recycling
data reporting requirements were added to Form R after enactment of the
Pollution Prevention Act of 1990 (42 U.S.C. 13101-13109). Reporting of
source reduction and recycling data is discussed in chapter 30-80.
Suppliers must also notify persons to whom they distribute mixtures
or trade name products containing toxic chemicals that they contain
such chemicals.
EPA regulations governing annual toxic chemical release inventory
reporting and supplier notification are contained in 40 CFR part 372.
B. Applicability of the Reporting Requirement. Section 313 of EPCRA
requires that toxic chemical release inventory (TRI) reports be filed
by facilities that meet all three of the following criteria during a
calendar year:
1. The facility has ten or more full-time employees;
2. The facility is included in Standard Industrial Classification
(SIC) Codes 20 through 39 (Note: Executive Order 12856 requires Federal
facilities to comply with section 313 without regard to standard
industrial classification); and
3. The facility manufactured (including imported), processed, or
otherwise used any listed toxic chemical in excess of the established
threshold quantity of that chemical (see subsection D. Reporting
Threshold).
Executive Order 12856 provides that the head of each Federal agency
shall comply with the provisions set forth in section 313 of EPCRA, all
implementing regulations, and future amendments to these authorities,
in light of applicable guidance as provided by EPA. The head of each
Federal agency shall comply with these provisions without regard to the
Standard Industrial Classification (SIC) delineations that apply to the
Federal agency's facilities, and such reports shall be for all
releases, transfers, and wastes at such Federal agency's facility
without regard to the SIC code of the activity leading to the release,
transfer, or waste. All other existing statutory or regulatory
limitations or exemptions on the application of EPCRA section 313 shall
apply to the reporting requirements set forth in section 3-304(a) of
the Order.
40 CFR 372.38(f) addresses reporting where two or more
organizations operate establishments within a single facility on leased
property without common ownership or control.
Note: The TRI reporting requirement is different from the
reporting requirements in the preceding sections, because a section
313 report is not triggered by the release of a certain amount of a
toxic chemical. The
[[Page 1693]]
criteria for reporting under section 313 is based on the amount of a
toxic chemical that a facility uses in a year. If a facility uses
more than a certain amount of a listed toxic chemical in a year, all
releases of that chemical must be reported (unless the use or
release is exempted).
C. Information Required To Be Reported
1. Toxic Chemical Release Inventory. Information elements that are
reportable on EPA Form R or equivalent magnetic media format (see
subsection I. Form R. Availability) include the following:
(a) Name and CAS number (if applicable) of the chemical reported.
The toxic chemicals that are subject to EPCRA section 313 reporting are
listed in 40 CFR 372.65. The EPA regulations contain three listings of
the toxic chemicals: (a) An alphabetical order listing of those
chemicals that have an associated Chemical Abstracts Service (CAS)
Registry number; (b) a CAS number order list of the same chemicals; and
(c) an alphabetical listing of the chemical categories for which
reporting is required.
(b) An indication of the activities and uses of the chemical at the
facility.
(c) An indication of the maximum amount of the chemical on site at
any point in time during the reporting year.
(d) An estimate of total releases in pounds per year from the
facility plus an indication of the basis of estimate for the following:
(1) Fugitive or non-point air emissions.
(2) Stack or point air emissions.
(3) Discharges to receiving streams or water bodies including an
indication of the percent of releases due to stormwater (and the
name(s) of receiving stream(s) or water body to which the chemical is
released).
(4) Underground injection on site.
(5) Releases to land on site.
(e) Information on transfers of the chemical in wastes to off-site
locations.
(f) Information relative to waste treatment.
(g) If the chemical identity is claimed trade secret, a generic
name for the chemical.
(h) A mixture component identity if the chemical identity is not
known.
Within the ``Instructions for Completing EPA Form R'', EPA warns
that because a complete Form R consists of at least nine unique pages,
and submission containing less than nine unique pages will not be
considered a valid submission. A complete report for any listed toxic
chemical that is not claimed as a trade secret consists of the
following completed parts:
Part I with an original signature on the certification statement
(section 2); and Part 11 (section 8 is now mandatory).
The instructions to Form R contain guidance for voluntary revision
of a previously-submitted Form R.
Note: Reporting requirements for a current calendar year may
differ from previous years. Changes from the previous year are
described in the instructions for Form R and should be carefully
noted. Significant changes to the reporting requirements may occur
because chemicals are added to the toxic chemical list for the
current reporting year or have been delisted and are not covered for
the reporting year. See the Form R Reporting Instructions for the
names and CAS number of chemicals that have been delisted from, or
added to, the toxic chemical list.
2. Source Reduction and Recycling Data. Section 8 of EPA Form R
asks for data related to source reduction and recycling. Reporting
requirements for source reduction and recycling data are described in
chapter 30-80.
3. Facility Identifying Information. Certain identifying
information about the facility must be reported on Form R, including
facility name and address; main business activity; all facility
identifiers (I.D.) (e.g., EPA RCRA I.D. Number, NPDES permit number;
Underground Injection Well Code (UIC) I.D., TRI facility I.D.); name
and telephone number for both a technical contact and a public contact;
and latitude and longitude coordinates for the facility.
4. Certification by Senior Management Official. A senior management
official of the facility shall sign the Form R and make the following
certification: ``I hereby certify that I have reviewed the attached
documents and, to the best of my knowledge and belief, the submitted
information is true and complete and that amounts and values in this
report are accurate based upon reasonable estimates using data
available to the preparer of the report.''
D. Reporting Threshold. 40 CFR 372.25 contains threshold amounts
for reporting chemicals. If more than 25,000 pounds of a listed toxic
chemical is manufactured (including imported) or processed at a
facility in a calendar year, the chemical must be reported. If more
than 10,000 pounds of a listed toxic chemical is not manufactured or
processed but is otherwise used at a facility in a given calendar year,
the chemical must be reported. When more than one threshold applies to
an activity at a facility, the facility must report if it exceeds any
applicable threshold and must report on all activities at the facility
involving the chemical, unless exempted (see subsection F. Exemptions
from Reporting).
When a facility manufactures, processes, or otherwise uses more
than one member of a chemical category listed in 40 CFR 372.65(c), the
facility must report if it exceeds any applicable threshold for the
total volume of all the members of the category involved in the
applicable activity. Any such report must cover all activities at the
facility involving members of the category.
A facility may process or otherwise use a toxic chemical in a
recycle/reuse operation. To determine whether the facility has
processed or used more than an applicable threshold of the chemical,
the facility shall count the amount of the chemical added to the
recycle/reuse operation during the calendar year. In particular, if the
facility starts up such an operation during a calendar year, or in the
event that the contents of the whole recycle/reuse operation are
replaced in a calendar year, the facility shall also count the amount
of the chemical replaced into the system at these times.
If a toxic chemical is listed in 40 CFR 372.65 with the notation
that only persons who manufacture the chemical, or manufacture it by a
certain method, are required to report, a facility that solely
processes or uses such a chemical is not required to report for that
chemical. Only a facility that manufactures that chemical in excess of
the threshold applicable to such manufacture is required to report. In
completing the reporting form, the manufacturing facility is only
required to account for the quantity of the chemical so manufactured
and releases associated with such manufacturing, but not releases
associated with subsequent processing or use of the chemical at that
facility.
E. Toxic Chemical Components of a Mixture or Trade Name Product. A
report is required on a toxic chemical that is known to be present as a
component of a mixture or trade name product which is received from
another person, if that chemical is imported, processed, or otherwise
used by the receiving facility in excess of an applicable threshold
quantity as part of that mixture or trade name product. For purposes of
EPA regulations, knowledge that a toxic chemical is present as a
component of a mixture or trade name product exists if the operator of
the facility:
1. Knows or has been told the chemical identity or Chemical
Abstracts Service Registry Number of the chemical and the identity or
Number corresponds to an identity or Number in 40 CFR 372.65, or
2. Has been told by the supplier of the mixture or trade name
product that the
[[Page 1694]]
mixture or trade name product contains a toxic chemical subject to
EPCRA section 313.
Guidance in determining whether a toxic chemical which is a
component of a mixture or trade name product has been imported,
processed, or otherwise used in excess of an applicable threshold at
the facility can be found at 40 CFR 372.30(b)(3).
F. Exemptions from Reporting
1. Laboratory Activities. Toxic chemicals manufactured, processed,
or used in a laboratory at a covered facility under the supervision of
a technically qualified individual as defined in 40 CFR 720.3(ee)* do
not have to be considered in determining whether a threshold has been
met unless the laboratory is engaged in:
(a) Specialty chemical production;
(b) Manufacture, processing, or use of toxic chemicals in pilot
plant-scale operations; or
(c) Activities conducted outside the laboratory.
*40 CFR 720.3(ee) defines ``technically qualified individual''
as ``a person or persons (1) who, because of education, training, or
experience, or a combination of these factors, is capable of
understanding the health and environmental risks associated with the
chemical substance which is used under his or her supervision; (2)
who is responsible for enforcing appropriate methods of conducting a
scientific experimentation, analysis, or chemical research to
minimize such risks; and (3) who is responsible for the safety
assessments and clearances related to the procurement, storage, use,
and disposal of the chemical substance as may be appropriate or
required within the scope of conducting a research and development
activity.''
2. Other Uses. If a toxic chemical is used at a covered facility
for one of the following purposes, the facility is not required to
consider the quantity of the toxic chemical used for such purpose when
determining whether an applicable threshold has been met or determining
the amount of releases to be reported:
(a) use as a structural component of the facility;
(b) Use of products for routine janitorial or facility grounds
maintenance (e.g., use of janitorial cleaning supplies, fertilizers,
and pesticides similar in type or concentration to consumer products);
(c) Personal use by employees or other persons at the facility of
foods, drugs, cosmetics, or other personal items containing toxic
chemicals, including supplies of such products within the facility such
as in a facility operated cafeteria, store, or infirmary;
(d) Use of products containing toxic chemicals for the purpose of
maintaining motor vehicles operated by the facility;
(e) Use of toxic chemicals present in process water and non-contact
cooling water as drawn from the environment or from municipal sources,
or toxic chemicals present in air used either as compressed air or as
part of combustion.
Note. If the toxic chemical is also manufactured (including
imported), processed, or otherwise used at the covered facility
other than as described in this subsection, in excess of an
applicable threshold quantity, the facility is required to report
under 40 CFR 372.30.
3. De Minimis Concentrations of a Toxic Chemical in a Mixture. A
facility is not required to consider the quantity of a toxic chemical
present in a mixture of chemicals when determining whether an
applicable threshold has been met or determining the amount of release
to be reported if the toxic chemical is in a concentration in the
mixture which is:
(a) Below 1 percent of the mixture; or
(b) Below 0.1 percent of the mixture in the case of a toxic
chemical which is a carcinogen as defined in 29 CFR 1910.1200(d)(4).
This exemption applies whether the facility received the mixture
from another person or the facility produced the mixture, either by
mixing the chemicals involved or by causing a chemical reaction which
resulted in the creation of the toxic chemical in the mixture.
Note: If the toxic chemical is also manufactured (including
imported), processed, or otherwise used at the covered facility
other than as part of the mixture or in a mixture at higher
concentrations, in excess of an applicable threshold quantity, the
facility is required to submit a Form R.
4. Articles. The quantity of a toxic chemical present in an article
at a covered facility need not be considered when determining whether
an applicable threshold has been met or determining the amount of
release to be reported. ``Article'' means a manufactured item which:
(a) Is formed to a specific shape or design during manufacture;
(b) Has end-use functions dependent in whole or in part upon its
shape or design during end-use; and
(c) Does not release a toxic chemical under normal conditions of
processing or use of that item at the facility or establishments.
This exemption applies whether the facility received the article
from another person or the facility produced the article. However, this
exemption applies only to the quantity of the toxic chemical present in
the article. If the toxic chemical is manufactured (including
imported), processed, or otherwise used at the covered facility other
than as part of the article, in excess of an applicable threshold
quantity, the facility is required to submit a Form R. If a release* of
a toxic chemical occurs as a result of the processing or use of an item
at the facility, that item does not meet the definition of ``article''.
*``Release'' means ``any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment (including the
abandonment or discarding of barrels, containers, and other closed
receptacles) of any toxic chemical.'' (40 CFR 372.3)
5. Ownership of Leased Real Estate. EPA regulations provide that
the owner of a covered facility ``is not subject to TRI reporting if
such owner's only interest in the facility is ownership of the real
estate upon which the facility is operated.'' (40 CFR 372.38(e)). This
exemption applies to owners of facilities, such as industrial parks,
all or part of which are leased to persons who operate establishments
within SIC code 20 through 39 where the owner has no other business
interest in the operation of the covered facility.
G. Annual Reporting Period. Reports are due annually and contain
data on releases during the previous calendar year. The report for any
calendar year must be submitted on or before July 1 of the following
year. Executive Order 12856 provides that the first year of compliance
for Federal agencies with the reporting requirements in EPCRA Section
313 shall be no later than for the 1994 calendar year, with reports due
on or before July 1, 1995.
H. Reporting for Establishments Within a Facility. For purposes of
submitting a Form R, a ``covered facility'' may consist of more than
one establishment. A separate Form R may be submitted for each
establishment or for each group of establishments within the facility,
provided that activities involving the toxic chemical at all the
establishments within the covered facility are reported. If each
establishment or group of establishments files separate reports, then
separate reports must be submitted for all other chemicals subject to
reporting at that facility. An establishment or group of establishments
does not have to submit a report for a chemical that is not
manufactured (including imported), processed, otherwise used, or
released at that establishment or group of establishments.
[[Page 1695]]
I. Form R Availability. Reports under section 313 of EPCRA are made
on EPA Form R (EPA Form 9350-1), the Toxic Chemical Release Inventory
(TRI) Reporting Form. Form R is submitted to EPA, affected States, and
Indian tribes. A completed Form R must be submitted for each toxic
chemical manufactured, processed, or otherwise used at each covered
facility in excess of an applicable threshold.
EPA encourages facilities to submit the required information to EPA
by using magnetic media (computer disk or tape) in lieu of Form R.
Instructions for submitting and using magnetic media may also be
obtained from the address given in this subsection.
The most current version of EPA Form R, including instructions for
Form R, and related documents may be obtained from: Section 313
Document Distribution Center, P.O. Box 12505, Cincinnati, OH 45212.
EPA Form R and instructions also may be obtained by calling the
EPCRA Information Hotline. Questions about completing Form R may be
directed to the EPCRA Information Hotline at the following address or
telephone numbers: Emergency Planning and Community Right-to-Know
(EPCRA) Information Hotline, Environmental Protection Agency, 401 M
Street, SW (OS-120), Washington, DC 20460; 800-535-2002 or 703-920-9877
from 8:30 a.m. to 7:30 p.m. Eastern Time (Mon-Fri, except Federal
holidays.).
The toll-free number is accessible throughout the United States,
including Washington, DC, and Alaska. EPA Regional Staff may also be of
assistance.
EPA has developed a package called the Toxic Chemical Release
Inventory Reporting System. The diskette comes with complete
instructions for use. It also provides prompts and messages to help
report according to EPA instructions. For copies of the diskette, call
the EPCRA Hotline.
J. Where Reports Are To Be Sent. Reports are to be sent to EPA and
to the State-designated Sec. 313 contact for the State in which the
facility is located or the designated official of an Indian tribe if it
is located on Indian land.
Send reports to EPA by mail to: EPCRA Reporting Center, P.O. Box
23779, Washington, DC 20026-3779, Attn: Toxic Chemical Release
Inventory.
To submit a Form R via hand delivery or certified mail, the EPCRA
Information Hotline may be called to obtain the street address of the
EPCRA Reporting Center. The Form R instructions include appropriate
State submission addresses. Note that ``state'' also includes the
District of Columbia, the Commonwealth of Puerto Rico, Guam, American
Samoa, the U.S.-Virgin Islands, the Northern Mariana Islands, and any
other territory or possession over which the United States has
jurisdiction. The Form R instructions also include information on
sending copies to the applicable Indian tribe and submission of reports
in magnetic media and computer-generated facsimile forms.
K. Supplier Notification Requirement
1. Basic Requirement. EPA regulations provide that a facility that
manufactures (including imports) or processes a toxic chemical and
sells or otherwise distributes a mixture or trade name product
containing the toxic chemical to a facility in Standard Industrial
Classification Codes 20 through 30 that employs ten or more people, or
to a person who in turn may sell or otherwise distribute such mixture
or trade name product to such a facility, must provide a notification
to each person to whom the mixture or trade name product is sold or
otherwise distributed from the facility.
Note: 40 CFR 372.45 states that only those facilities that are
in Standard Industrial Classification (SIC) codes 20 through 39 (see
40 CFR 372.22(b)) must provide a supplier notification. However,
Executive Order 12856 states that each Federal agency is to comply
with the provisions set forth in section 313 of EPCRA and all
implementing regulations without regard to the SIC delineations that
apply to the Federal agency's facilities.
40 CFR 372.45(h) addresses operation of separate establishments
within a single facility by two organizations that do not have common
ownership or control.
2. Notification Contents. The notification shall be in writing and
shall include:
(a) A statement that the mixture or trade name product contains a
toxic chemical or chemicals subject to the reporting requirements of
EPCRA section 313 and 40 CFR part 372.
(b) The name of each toxic chemical, and the associated Chemical
Abstracts Service registry number of each chemical if applicable, as
set forth in 40 CFR 372.65.
(c) The percent by weight of each toxic chemical in the mixture or
trade name product.
3. Notification Procedure. The written notice shall be provided to
each recipient of the mixture or trade name product with at least the
first shipment of each mixture or trade name product in each calendar
year, beginning with the chemical's applicable effective date (see 40
CFR 372.65 for effective dates).
If an MSDS is required to be prepared and distributed for the
mixture or trade name product in accordance with 29 CFR 1910.1200, the
notification must be attached to or otherwise incorporated into the
MSDS. When the notification is attached to the MSDS, the notice must
contain clear instructions that the notifications must not be detached
from the MSDS and that any copying and redistribution of the MSDS shall
include copying and redistribution of the notice attached to copies of
the MSDS subsequently redistributed.
4. Exemption from Notification. Notifications are not required in
the following instances:
(a) If a mixture or trade name product contains no toxic chemical
in excess of the applicable de minimis concentration (see subsection F.
Exemptions from Reporting).
(b) If a mixture or trade name product is one of the following:
(1) An ``article'' (see subsection F. Exemptions from Reporting);
(2) Foods, drugs, cosmetics, alcoholic beverages, tobacco, or
tobacco products packaged for distribution to the general public.
(3) any consumer product as the term is defined in the Consumer
Product Safety Act (15 U.S.C. 1251 et seq.) packaged for distribution
to the general public.
Note: EPA regulations also state that a person is not subject to
the supplier notification requirement to the extent the person does
not know that the facility or establishment(s) is selling or
otherwise distributing a toxic chemical to another person in a
mixture or trade name product. However * * * a person has such
knowledge if the person receives a notice * * * from a supplier of a
mixture or trade name product and the person in turn sells or
otherwise distributes that mixture or trade name product to another
person.'' (40 CFR 372.45(g))
5. Change in Mixture or Trade Name Product. If a facility changes a
mixture or trade name product for which notification was previously
provided by adding a toxic chemical, removing a toxic chemical, or
changing the percent by weight of a toxic chemical in the mixture or
trade name product, the facility shall provide each recipient of the
changed mixture or trade name product a revised notification reflecting
the change with the first shipment of the changed mixture or trade name
product to the recipient.
If a facility discovers:
(a) That a mixture or trade name product previously sold or
otherwise distributed to another person during the calendar year
contains one or more toxic chemicals, and
[[Page 1696]]
(b) That any notification provided to such other person in that
calendar year either did not properly identify any of the toxic
chemicals or did not accurately present the percent by weight of any of
the toxic chemicals in the mixture or trade name product.
the facility shall provide a new notification to the recipient within
30 days of the discovery and identify the prior shipments of the
mixture or product to which the new notification applies.
6. Trade Secret. If the specific identity of a toxic chemical in a
mixture or trade name product is considered to be a trade secret under
provisions of 29 CFR 1910.1200, the notice shall contain a generic
chemical name that is descriptive of that toxic chemical.
If the specific percent by weight composition of a toxic chemical
in the mixture or trade name product is considered to be a trade secret
under applicable state law or under the Restatement of Torts section
757, comment b, the notice must contain a statement that the chemical
is present at a concentration that does not exceed a specified upper
bound concentration value. For example, a mixture contains 12 percent
of a toxic chemical. However, the supplier considers the specific
concentration of the toxic chemical in the product to be a trade
secret. The notice would indicate that the toxic chemical is present in
the mixture in a concentration of no more than 15 percent by weight.
The upper bound value chosen must be no larger than necessary to
adequately protect the trade secret.
L. Recordkeeping
1. Retention of Form R Materials and Documentation. Each facility
subject to the reporting requirements of this chapter (30-60) must
retain the following records for a period of 3 years from the date of
the submission of a Form R:
(a) A copy of each Form R submitted by the facility;
(b) All supporting materials and documentation used to make the
compliance determination that the facility is a covered facility;
(c) Documentation supporting a submitted Form R, including:
(1) Documentation supporting any determination that a claimed
allowable exemption from reporting applies.
(2) Data supporting the determination of whether a threshold
applies for each toxic chemical.
(3) Documentation supporting the calculations of the quantity of
each toxic chemical released to the environment or transferred to an
off-site location.
(4) Documentation supporting the use indications and quantity on
site reporting for each toxic chemical, including dates of
manufacturing, processing, or use.
(5) Documentation supporting the basis of estimate used in
developing any release or off-site transfer estimates for each toxic
chemical.
(6) Receipts or manifests associated with the transfer of each
toxic chemical in waste to off-site locations.
(7) Documentation supporting reported waste treatment methods,
estimates of treatment efficiencies, ranges of influent concentration
to such treatment, the sequential nature of treatment steps, if
applicable, and the actual operating data, if applicable, to support
the waste treatment efficiency estimate for each toxic chemical.
2. Retention of Supplier Notification Materials and Documentation.
Each facility subject to the supplier notification requirement (see
subsection K. Supplier Notification Requirement) must retain the
following records for a period of 3 years from the date of the
submission of a notification:
(a) A copy of each notice.
(b) All supporting materials and documentation used to make the
compliance determination that the facility is a covered facility.
(c) All supporting materials and documentation used by the facility
to determine whether a supplier notification is required.
(d) All supporting materials and documentation used in developing
each required notice.
3. Availability of Records. Records must be maintained at the
facility to which the Form R report applies or from which a
notification was provided. Such records must be readily available for
purposes of inspection by EPA. According to the Form R instructions, in
the event of a problem with data elements on a facility's Form R, EPA
may request documentation that supports the information reported from
the facility. EPA may conduct data quality reviews of past Form R
submissions. An essential component of this process would be to review
a facility's records for accuracy and reliability. The Form R
instructions include a list of records that a facility should maintain
in addition to those that are required to be maintained.
30-60-80 Public Availability of Information; Withholding and
Disclosure of Trade Secrets
A. Availability of Information to Public. EPCRA section 324 (42
U.S.C. 11044) provides that each emergency response plan, MSDS, list of
hazardous chemicals, inventory form, toxic chemical release form, and
follow-up emergency notice shall be made available to the general
public, subject to trade secret limitations, at locations designated by
the Administrator of EPA, Governor, State emergency response
commission, or local emergency planning committee. Each local emergency
planning committee must annually publish a notice in local newspapers
indicating where members of the public may review documents that have
been submitted pursuant to EPCRA. EPA also maintains a national toxic
chemical inventory, based on TRI reports, in a computer data base that
is available to the public on a cost-reimbursable basis.
The Administrator of EPA, in any case in which the identity of a
toxic chemical is claimed as a trade secret, must identify the adverse
health and environmental effects associated with the toxic chemical and
assure that such information is included in the TRI computer database
and is provided to any person requesting information about such toxic
chemical. The appropriate Governor or state commission must identify
the adverse health effects associated with a hazardous chemical or
extremely hazardous substance, when its identity is claimed as a trade
secret, and provide such health effects information to any person
requesting information about the hazardous chemical or extremely
hazardous substance.
Section 5-508 of Executive Order 12856 also provides that the
public shall be afforded ready access to all strategies, plans, and
reports required to be prepared by Federal agencies under the order by
the agency preparing the strategy, plan, or report (to the extent
permitted by law). When the reports are submitted to EPA, EPA is to
compile the strategies, plans, and reports and make them publicly
available as well. Federal agencies are encouraged by the Executive
Order to provide such strategies, plans, and reports to the State and
local authorities where their facilities are located for an additional
point of access to the public. Section 6-601 of Executive Order 12856
authorizes an agency to withhold certain information. (See 30-90)
B. Trade Secret Procedures. EPCRA section 322 (42 U.S.C. 11042)
provides that a claim of trade secrecy may be made for the specific
chemical identity of an extremely hazardous substance, a hazardous
chemical, or a toxic chemical. Detailed information on how to submit a
trade secrecy claim for information submitted pursuant to an EPCRA
reporting requirement is
[[Page 1697]]
contained in 40 CFR Part 350. A trade secrecy claim may be submitted
only to EPA and must be substantiated by providing specific answers to
questions on an EPA form entitled ``Substantiation to Accompany Claims
of Trade Secrecy'' (see 40 CFR 350.27). The submitter shall include
with its EPCRA report both a sanitized and unsanitized trade secret
substantiation form. The unsanitized version must contain all of the
information claimed as trade secret or business confidential, properly
marked in accordance with EPA regulations. The sanitized version is
identical to the unsanitized version in all respects except that all of
the information claimed as trade secret or business confidential is
deleted, and a generic class or category to describe the trade secret
chemical is included. This sanitized version is the one that is
submitted to state or local authorities, as appropriate.
C. Public Petition for Disclosure of Trade Secret Information. The
public may request the disclosure of a chemical identity claimed as
trade secret by submitting a written petition to EPCRA Reporting
Center, Environmental Protection Agency, P.O. Box 3348, Merrifield, Va.
22116-3348. The required contents of the petition are described in 40
CFR 350.15. This public petition process covers only requests for
public disclosure of a chemical identify claimed as trade secret.
Requests for disclosure of other types of information must be submitted
under EPA's Freedom of Information Act regulations at 40 CFR part 2.
D. Access by Federal Representatives or State Employees
1. Authorized Federal Representative Access. Under EPCRA section
322(f) (42 U.S.C. 11042(f)), EPA possesses the authority to disclose
information to any authorized representative of the United States
concerned with carrying out the requirements of EPCRA, even though the
information might otherwise be entitled to trade secret or confidential
treatment under EPA regulations. Such authority will be exercised by
EPA only in accordance with 40 CFR 350.23.
2. State Employee Access. Any State may request access to trade
secrecy claims, substantiations, supplemental substantiations, and
additional information submitted to EPA in accordance with 40 CFR
350.19. EPA must release this information, even if claimed
confidential, to any State in response to its written request is the
request is from the Governor of the State and the State agrees to
safeguard the information with procedures equivalent to those which EPA
uses to safeguard the information. The Governor may disclose such
information only to State employees.
E. Access by Health Professionals. EPCRA section 323 (42 U.S.C.
11043) allows health professionals to gain access to chemical
identities, including those claimed as trade secret, in the following
circumstances:
For non-emergency treatment and diagnosis of an exposed
individual;
By health professionals employed by a local government to
conduct preventive research studies and to render medical treatment; or
For emergency diagnosis and treatment.
1. Non-emergency Access. In all circumstances but the medical
emergency, the health professional must submit a written request and a
statement of need, as well as a confidentiality agreement, to the
facility holding the trade secret. The statement of need verifies that
the health professional will be using the trade secret information only
for the needs permitted in the statute, and the confidentiality
agreement ensures that the health professional will not make any
unauthorized disclosures of the trade secret. The required contents of
the written request for access, including a certification signed by the
health professional stating that the information contained in the
statement of need is true, and the confidentiality statement are
contained in 40 CFR 350.40. Following receipt of a written request, the
facility to which such request is made shall provide the requested
information to the health professional promptly.
2. Emergency Access. In the event of medical emergency,* a facility
which is subject to the EPCRA reporting requirements must provide a
copy of a MSDA, an inventory form, or a toxic chemical release form,
including the specific chemical identity, if know, of a hazardous
chemical, extremely hazardous substance, or a toxic chemical, to any
treating physician or nurse who requests such information. The treating
physician or nurse must have first determined that:
(a) A medical emergency exists as to the individual or individuals
being diagnosed or treated;
(b) The specific chemical identity of the chemical concerned is
necessary for or will assist in emergency or first-aid diagnosis or
treatment; and
(c) The individual or individuals being diagnosed or treated have
been exposed to the chemical concerned.
The specific chemical identity must be provided to the requesting
treating physician or nurse immediately following the request, without
requiring a written statement of need or a confidentiality agreement in
advance. A written statement of need and confidentiality agreement may
be required from the treating physician or nurse as soon as
circumstances permit. The required contents of the statement of need
and confidentiality agreement are specified in 40 CFR 350.40.
*``Medical emergency'' means ``any unforeseen condition which a
health professional would judge to require urgent and unscheduled
medical attention. Such a condition is one which results in sudden
and/or serious symptom(s) constituting a threat to a person's
physical or psychological well-being and which requires immediate
medical attention to prevent possible deterioration, disability, or
death.'' (40 CFR 350.40(a)).
30-60-90 Compliance
A. Internal Reviews. OPDIVs/STAFFDIVs shall conduct internal
reviews and audits and take such other steps as may be necessary to
monitor compliance with the requirements of this chapter (30-60) and
Executive Order 12856. Compliance with EPCRA means compliance with the
same substantive, procedural, and other statutory and regulatory
requirements that would apply to a private person.
B. Annual Progress Report. The Secretary will submit annual
progress reports to the EPA Administrator beginning on October 1, 1995,
regarding the progress that has been made in complying with all aspects
of Executive Order 12856. This report and OPDIV/STAFFDIV
responsibilities are described in chapter 30-09.
C. Technical Assistance from EPA. OPDIVs/STAFFDIVs are encouraged
to request technical advice and assistance from EPA in order to foster
full compliance with Executive Order 12856 and this chapter (30-60).
D. EPA Monitoring. Executive Order 12856 provides that the
Administrator of EPA, in consultation with the Secretary, may conduct
such reviews and inspections as may be necessary to monitor compliance
with the agency's EPCRA responsibilities contained in sections 30-60-20
through 30-60-70 of this chapter. OPDIVs/STAFFDIVs are to cooperate
fully with the efforts of the Administrator to ensure compliance with
Executive Order 12856. Should the Administrator notify an OPDIV/
STAFFDIV that it is not in compliance with an applicable provision of
Executive Order 12856, the OPDIV/STAFFDIV shall achieve compliance as
promptly as is practicable.
E. State and Local Right-to-Know Requirements. OPDIV/STAFFDIVs are
[[Page 1698]]
encouraged to comply with all state and local right-to-know
requirements to the extent that compliance with such laws and
requirements is not otherwise already mandated.
F. Prior Agreements for Application of EPCRA. The compliance dates
for application of EPCRA set forth in Executive Order 12856 are not
intended to delay implementation of earlier timetables already agreed
to by an OPDIV/STAFFDIV and are inapplicable to the extent they
interfere with those timetables.
30-60-100 Civil and Criminal Penalties
EPCRA section 325 (42 U.S.C. 11045) establishes administrative,
civil, and criminal penalties for violation of the Act. Table 2,
following, indicates penalties that apply for specific violations.
Certain section 325 penalties do not apply to government entities.
Moreover, Executive Order 12856 does not make the provisions of section
325 applicable to any Federal agency or facility, except to the extent
that such Federal agency or facility would independently be subject to
such provision.
Table 2.--Summary of EPCRA Penalties
----------------------------------------------------------------------------------------------------------------
Requirement Administrative penalty Civil penalty Criminal penalty
----------------------------------------------------------------------------------------------------------------
Emergency Planning (42 U.S.C. Sec. ....................... $25,000 per day........
11002(c); Sec. 11003(d)).
Emergency Release Notification (42 $25,000 per day........ $25,000 per day........ 25,000 or two (2) years
U.S.C. Sec. 11004). Second violation: Second violation: imprisonment or both
$75,000 per day. $75,000 per day. Second conviction
$50,000 or five (5)
years imprisonment or
both
MSDS Reporting (42 U.S.C. Sec. $10,000 per day........ $10,000 per day........
11021) \1\.
Inventory Reporting (42 U.S.C. Sec. $25,000 per day........ $10,000 per day........
11022) \1\.
TRI Reporting (42 U.S.C. Sec. 11023) $25,000 per day........ $25,000 per day........
\1\.
Provision of Information to Health $10,000 per day........ $10,000 per day........
professionals (42 U.S.C. Sec.
11043(b)) \1\.
Failure to Substantiate Trade Secret $10,000 per day........ $10,000 per day........
Claim (42 U.S.C. Sec. 11042(a)(2)).
Frivolous Trade Secret Claim......... $25,000 per claim...... $25,000 per claim......
Disclosure Trade Secret Information ....................... ....................... $20,000 or one year
(42 U.S.C. Sec. 11042). imprisonment or both.
----------------------------------------------------------------------------------------------------------------
\1\ Penalty does not apply to a ``government entity.''
HHS Chapter 30-70--General Administration Manual; HHS Transmittal
98.2
Subject: Pollution Prevention Act of 1990 (PPA) Requirements
30-70-00.... Background
05.... Applicability
10.... Responsibilities
20.... Pollution Prevention Policy
30.... Definitions
40.... Toxic Chemical Source Reduction and Recycling Reporting
50.... Public Availability of Source Reduction Information
60.... Compliance
70.... Civil and Criminal Penalties
30-70-00 Background
The Pollution Prevention Act of 1990, 42 U.S.C. 13101-13109,
establishes national policy that pollution is to be prevented or
reduced at the source. The Act also requires the reporting of efforts
to reduce toxic chemical releases through source reduction and
recycling. This reporting requirement affects all facilities required
to submit Form R under section 313 of the Emergency Planning and
Community Right-to-Know Act of 1986 (EPCRA) (see 30-60).
The Administrator of EPA is required by the PPA to develop a
strategy to promote source reduction and to submit a biennial report to
Congress that describes the actions taken to implement the strategy and
analyzes the source reduction and recycling data submitted on Form R.
EPA must also promote source reduction practices in other federal
agencies; review EPA regulations to determine their effect on source
reduction; make matching grants to states to promote the use of source
reduction techniques by businesses; and establish a Source Reduction
Clearinghouse.
30-70-05 Applicability
A. Agency Facilities. Executive Order 12856 provides that EPCRA and
the PPA apply to all Federal executive agencies that either own or
operate a ``facility'' as that term is defined in EPCRA, if such
facility meets the EPCRA's threshold requirements for compliance. The
statutory definition of facility is:
All buildings, equipment, structures, and other stationary items
which are located on a single site or on contiguous or adjacent
sites and which are owned or operated by the same person (or by any
person which controls, is controlled by, or under common control
with, such person). For purposes of emergency release notification,
the term includes motor vehicles, rolling stock, and aircraft (42
U.S.C. 11049(4)).
EPA regulations revise the statutory definition of facility to
include ``manmade structures in which chemicals are purposefully placed
or removed through human means such that it functions as a containment
structure for human use.'' (40 CFR 355.20, 370.2). The purpose of the
revision was to clarify that the definition applies to certain
subsurface structures.
Executive Order 12856 modifies the statutory definition of facility
in one respect. Each OPDIV/STAFFDIV must comply with the reporting
provisions of the PPA without regard to the Standard Industrial
Classification (SIC) delineations that apply to the organization's
facilities, and such reports shall be for all releases, transfers, and
wastes at such facilities without regard to the SIC code of the
activity leading to the release, transfer, or waste. All other existing
statutory or regulatory limitations or exemptions on the application of
EPCRA section 313 shall apply to the PPA reporting requirements in this
chapter (see 30-60-70).
B. Covered Facilities. The reporting requirements of this chapter
apply to facilities that must submit a Toxic Chemical Release Inventory
Report (Form R) under section 313 of EPCRA. A completed Form R must be
submitted for each toxic chemical manufactured,
[[Page 1699]]
processed, or otherwise used at a covered facility in excess of the
threshold quantity established for that chemical (see 30-60-70). Each
OPDIV/STAFFDIV must apply all of the provisions of this chapter to each
of its covered facilities, except for a federal agency outside the
customs territory of the United States.
C. GOCO'S. Executive Order 12856 does not alter the obligations
which government-owned, contractor-operated facilities (GOCOS) have
under EPCRA and the PPA independent of that order or subjects such
facilities to EPCRA or PPA if they are otherwise excluded. However,
each OPDIV/STAFFDIV shall include the releases and transfers from all
such facilities when meeting all of its responsibilities under this
chapter.
D. Preliminary List of Covered Facilities. The Secretary was
required by Executive Order 12856 to provide the Administrator of EPA
by December 31, 1993, with a preliminary list of facilities that
potentially meet the requirements for reporting under the threshold
provisions of EPCRA, PPA, and Executive Order 12856.
30-70-10 Responsibilities
A. HHS. An objective of Executive Order 12856 (see 30-80) is to
ensure that all Federal agencies conduct their facility management and
acquisition activities so that, to the maximum extent practicable, the
quantity of toxic chemicals entering any wastestream, including any
releases to the environment, is reduced as expeditiously as possible
through source reduction; that waste that is generated is recycled to
the maximum extent practicable; and that any wastes remaining are
stored, treated, or disposed of in a manner protective of public health
and the environment.
Executive Order 12856 requires the Secretary to comply with the
reporting provisions set forth in section 6607 of the PPA (42 U.S.C.
13106), all implementing regulations, and future amendments to these
authorities, in light of applicable guidance as provided by EPA.
B. OPDIVs/STAFFDIVs. The head of each OPDIV/STAFFDIV is responsible
for ensuring that the OPDIV/STAFFDIV takes all necessary actions to
prevent pollution in accordance with Executive Order 12856, and for
that organization's compliance with the provisions of the PPA.
Compliance with the PPA means compliance with the same substantive,
procedural, and other statutory and regulatory requirements that would
apply to a private person. An OPDIV/STAFFDIV should consult with EPA
when a question arises as to the applicability of Executive Order 12856
to a particular facility.
30-70-20 Pollution Prevention Policy
A. Pollution Prevention Act. Section 6602(b) (42 U.S.C. 13101(b))
of the PPA states that it is the national policy of the United States
that:
Pollution should be prevented or reduced at the source whenever
feasible; pollution that cannot be prevented should be recycled in
an environmentally safe manner whenever feasible; pollution that
cannot be prevented or recycled should be treated in an
environmentally safe manner whenever feasible; and disposal or other
release into the environment should be employed only as a last
resort and should be conducted in an environmentally safe manner.
OPDIVs/STAFFDIVs are to incorporate the environmental management
hierarchy stated in this policy into their environmental management
practices and procedures.
Source reduction is fundamentally different and more desirable than
waste management and pollution control. Preventing pollution before it
is created is preferable to trying to manage, treat, or dispose of
pollution after it is generated. OPDIVs/STAFFDIVs are encouraged to
take advantage of opportunities to reduce or prevent pollution at the
source through cost-effective changes in production, operation, and raw
materials use. Such changes can result in substantial savings in
reduced raw materials, pollution control, and liability costs as well
as help protect the environment and reduce the risks to worker health
and safety.
B. Executive Order 12856. Executive Order 12856 indicates that the
Federal government should become a leader in the field of pollution
prevention through the management of its facilities, its acquisition
practices, and in supporting the development of innovative pollution
prevention programs and technologies. Additional policies and
requirements that apply to pollution prevention are contained in
chapter 30-80.
30-70-30 Definitions
A. Pollution Prevention. Executive Order 12856 defines ``pollution
prevention'' in section 2-203 to mean ``source reduction,'' as defined
in the PPA, and other practices that reduce or eliminate the creation
of pollutants through:
Increased efficiency in the use of raw materials, energy,
water, or other resources; or
Protection of natural resources by conservation.
EPA has issued a Statement of Definition of Pollution Prevention
that is identical to the definition in section 2-203 of Executive Order
12856 (Memorandum from F. Henry Habicht II, Deputy Administrator,
Environmental Protection Agency, Subject: EPA Definition of ``Pollution
Prevention'', to All EPA Personnel (May 28, 1992)). The Statement of
Definition explains that recycling, energy recovery, treatment, and
disposal are not included within EPA's definition of pollution
prevention. In distinguishing between prevention of pollution and
recycling, EPA includes ``in-process recycling'' within the definition
of ``pollution prevention.'' ``Out-of-process recycling'' is part of
recycling and is not part of the definition. The Statement of
Definition also comments that recycling that is conducted in an
environmentally sound manner shares many of the advantages of
prevention--it can reduce the need for treatment or disposal, and
conserve energy and resources.
Note: A different definition of pollution prevention is used in
guidance from the Council on Environmental Quality in NEPA matters
(see 30-50-50).
B. Source Reduction. ``Source reduction'' is defined in PPA section
6603(6) (42 U.S.C. 13102(5)) to mean any practice that:
Reduces the amount of any hazardous substance, pollutant,
or contaminant entering any waste stream or otherwise released into the
environment (including fugitive emissions) prior to recycling,
treatment or disposal; and
Reduces the hazards to public health and the environment
associated with the release of such substances, pollutants, or
contaminants.
The term includes equipment or technology modifications, process or
procedure modifications, reformulation or redesign of products,
substitution of raw materials, and improvements in housekeeping,
maintenance, training, or inventory control.
The term ``source reduction'' does not include any practice that
alters the physical, chemical, or biological characteristics or the
volume of a hazardous substance, pollutant, or contaminant through a
process or activity that is not integral to and necessary for producing
a product or providing a service.
30-70-40 Toxic Chemical Source Reduction and Recycling Reporting
A. Requirement. Section 6607 of the PPA (42 U.S.C. 13106) directs
each facility that is required to file an annual toxic chemical release
form (Form R) under Sec. 313 of EPCRA to include a toxic chemical
source reduction and
[[Page 1700]]
recycling report with its toxic chemical release filing. The report
must cover each toxic chemical required to be reported on Form R. Form
R is discussed in 30-60-70. Reporting requirements under the PPA cover
releases of toxic chemicals to all media (air, water, and land).
B. Reporting Period. A facility that is subject to the EPCRA
section 313 and PPA section 6607 reporting requirements shall submit
annually a Toxic Chemical Release Inventory Reporting Form (Form R) to
EPA and to affected States and Indian tribes (see 30-60-70). Executive
Order 12856 provides that the first year of compliance for Federal
agencies with the PPA's reporting requirements shall be no later than
for the 1994 calendar year, with reports due on or before July 1, 1995.
C. Toxic Chemicals to be Reported. The toxic chemicals that are
subject to EPCRA section 313 and PPA section 6607 reporting are listed
in 40 CFR 372.65. Additions to, or deletions from, the list are
described each year in the EPA Toxic Chemical Release Inventory
Reporting Form R and Instructions published in the Federal Register and
available booklet form from EPA. A completed Form R must be submitted
for each toxic chemical manufactured, processed, or otherwise used at a
covered facility in excess of the threshold quantity established for
that chemical (see 30-60-70). Form R now includes data elements
mandated by section 6607 of the PPA. A facility must provide
information about source reduction and recycling activities related to
each toxic chemical reported on Form R.
D. Information to be Reported based on the ``Instructions for
Completing EPA Form R''
1. Chemical Quantities. Facilities must provide the following
quantity information (in pounds) for each toxic chemical reported on
Form R for the current reporting year, the prior year, and quantities
anticipated in both the first year immediately following the reporting
year and the second year following the reporting year (future
estimates):
(a) Quantity of the toxic chemical (prior to recycling, treatment
or disposal but not including one-time events) entering any waste
stream or otherwise released* into the environment.
*Reportable releases include ``any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment (including the
abandonment of barrels, containers, and other closed receptacles).''
(EPCRA Sec. 329(8); 42 U.S.C. 11049(8)).
(b) Quantity of the toxic chemical or a mixture containing a toxic
chemical that is used for energy recovery on-site or is sent off-site
for energy recovery, unless it is a commercially available fuel;
Note: Reportable on-site and off-site energy recovery is the
combustion of a residual material containing a TRI toxic chemical
when (1) the combustion unit is integrated into an energy recovery
system (i.e., industrial furnaces, industrial kilns, and boilers);
and (ii) the toxic chemical is combustible and has a heating value
high enough to sustain combustion.
(c) Quantity of the toxic chemical or a mixture containing a toxic
chemical that is recycled on-site or is sent off-site for recycling;
(d) Quantity of the toxic chemical or a mixture containing a toxic
chemical that is treated on-site or is sent to an off-site location for
waste treatment; and
(e) Total quantity of toxic chemical released directly into the
environment or sent off-site for recycling, waste treatment, energy
recovery, or disposal during the reporting year due to any of the
following events:
(1) Remedial actions.
(2) Catastrophic events, such as earthquakes, fires, or floods; or
(3) One-time events not associated with normal or routine
production processes.
Note: The PPA separates the reporting of quantities of toxic
chemical recycled, used for energy recovery, treated, or disposed
that are associated with normal or routine production operations
from those that are not. Other sections of Form R dealing with
releases to the environment and off-site transfers must include all
releases and transfers as appropriate, regardless of whether they
arise from catastrophic, remedial, or routine process operations.
Information available at the facility that may be used to estimate
the prior year's quantities include the prior year's Form R submission,
supporting documentation, and recycling, energy recovery, or treatment
operating logs or invoices. However, for the first year of reporting
these data elements, prior year quantities are required only to the
extent such information is available. EPA expects reasonable future
quantity estimates using a logical basis. Reporting facilities should
take into account protections available for trade secrets as provided
in EPCRA section 322 (42 U.S.C. 11042) (see 30-60-80).
2. Production Ratio or Activity Index. The facility must report a
ratio of reporting year production to prior year production, or an
``activity index'' based on a variable other than production that is
the primary influence on the quantity of the reported toxic chemical
recycled, used for energy recovery, treated, or disposed.
3. Source Reduction Activities. If a facility engaged in any source
reduction activity for the reported toxic chemical during the reporting
year, the facility shall report the activity that was implemented. This
information is to be reported only if a source reduction activity was
newly implemented specifically (in whole or in part) for the reported
toxic chemical during the reporting year. ``Source reduction
activities'' are those actions that are taken to reduce or eliminate
the amount of the reported toxic chemical released, used for energy
recovery, recycled, or treated. Actions taken to recycle treat or
dispose of the toxic chemical are not considered source reduction
activities. Form R provides for the reporting of source reduction
activities by category. The categories include:
Good Operating Practices
Inventory Control
Spill and Leak Prevention
Raw Material Modifications
Process Modifications
Cleaning and Degreasing
Modified Containment Procedures for Cleaning Units
Surface Preparation and Finishing
Product Modifications
4. Source Reduction Techniques. If a facility engaged in any source
reduction activity for the reported toxic chemical during the reporting
year, the facility must also report the method used to identify the
opportunity for the activity implemented. Methods to identify source
reduction opportunities include:
Internal or external pollution prevention opportunity
audits(s)
Materials balance audits
Participative team management
Employee recommendations (under a formal OPDIV/STAFFDIV
Program or independent of a formal program)
Federal or state government technical assistance program
Trade association/industry technical assistance program
Vendor assistance
5. Additional Source Reduction, Recycling, or Pollution Control
Information. Form R provides an opportunity for a reporting facility to
indicate any additional information on source reduction, recycling, or
pollution control activities implemented at the facility in the
reporting year or in prior years for the reported toxic chemical.
E. Relationship to RCRA Reporting. The reporting categories for
quantities recycled, treated, used for energy recovery, and disposed
apply to completing the source reduction section
[[Page 1701]]
as well as to the rest of Form R. According to EPA, these categories
are to be used only for TRI reporting. They are not intended for use in
determining, under the Resource Conservation and Recovery Act (RCRA)
Subtitle C regulations, whether a secondary material is a waste when
recycled. These categories (and their definitions) also do not apply to
the information that may be submitted in a Hazardous Waste Report by
hazardous waste generators and treatment, storage, and disposal (TSD)
facilities to EPA or an authorized state under RCRA sections 3002 and
3004 (42 U.S.C. 6922, 6924). Differences in terminology and reporting
requirements for toxic chemicals reported on Form R and for hazardous
wastes regulated under RCRA occur because EPCRA and the PPA focus on
specific chemicals, while the RCRA regulations and the Hazardous Waste
Report focus on wastes, including mixtures.
F. Form R Availability. Reports under EPCRA section 313 and PPA
section 6607 are made on EPA Form R (EPA Form 9350-1), the Toxic
Chemical Release Inventory (TRI) Reporting Form. EPA encourages
facilities to submit the required information to EPA by using magnetic
media (computer disk or tape) in lieu of Form R. More complete guidance
on obtaining Form R and sources of information regarding, the submittal
of Form R is contained in section 30-60-70.
G. Where Reports Are to be Sent. Form R is submitted to EPA,
affected States, and affected Indian tribes.
Send reports to EPA by mail to: EPCRA Reporting Center, P.O. Box
23779, Washington, D.C. 20026-3779, Attn: Toxic Chemical Release
Inventory.
To submit a Form R via hand delivery or certified mail, the EPCRA
Hotline (800-535-2002) may be called to obtain the street address of
the EPCRA Reporting Center.
Additional information on submitting a Form R is contained in
section 30-60-70.
H. Trade Secrets. The provisions of EPCRA section 322 (42 U.S.C.
11042) dealing with the protection of trade secrets apply to the
reporting requirements of this section in the same manner as to the
reports required under section 313 of EPCRA (see 30-60-80).
30-70-50 Public Availability of Source Reduction Information
A. OPDIVs/STAFFDIVs. Unless such documentation is withheld pursuant
to a statutory requirement or Executive Order, the public shall be
afforded ready access to all reports required to be prepared by an
OPDIV/STAFFDIV under this chapter. OPDIVs/STAFFDIVs are encouraged to
provide such reports to the state and local authorities where their
facilities are located for an additional point of access to the public.
Public availability of information submitted on Form R is also
discussed in section 30-60-80.
B. EPA. The PPA and Executive Order 12856 require the Administrator
of EPA to make available to the public the source reduction information
gathered pursuant to the PPA and such other pertinent information and
analysis regarding source reduction as may be available to the
Administrator. Subject to the trade secret provisions of EPCRA, EPA
must make the data collected on Form R, pursuant to section 6607 of the
PPA, publicly available in the same manner as the data collected under
EPCRA section 313. The Administrator has also established, in
accordance with PPA section 6606 (42 U.S.C. 13105), a Source Reduction
Clearinghouse to compile information, including a computer data base
that contains information on management, technical, and operational
approaches to source reduction. The data base permits entry and
retrieval of information by any person.
30-70-60 Compliance
A. Internal Reviews. OPDIVs/STAFFDIVs shall conduct internal
reviews and audits, and take such other steps, as may be necessary to
monitor compliance with the requirements of this chapter and Executive
Order 12856.
B. Annual Progress Report. The Secretary will submit annual
progress reports to the EPA Administrator beginning on October 1, 1995,
regarding the progress that has been made in complying with all aspects
of Executive Order 12856, including the pollution reduction
requirements. This report and OPDIV/STAFFDIV responsibilities are
described in Chapter 30-80.
C. Technical Assistance from EPA. OPDIVs/STAFFDIVs are encouraged
to request technical advice and assistance from EPA in order to foster
full compliance with Executive Order 12856 and this chapter.
D. EPA Monitoring. Executive Order 12856 provides that the
Administrator of EPA, in consultation with the Secretary, may conduct
such reviews and inspections as may be necessary to monitor compliance
with the PPA responsibilities contained in this chapter. OPDIVs/
STAFFDIVs are to cooperate fully with the efforts of the Administrator
to ensure compliance with Executive Order 12856. Should the
Administrator notify an OPDIV/STAFFDIV that it is not in compliance
with an applicable provision of Executive Order 12856, the OPDIV/
STAFFDIV shall achieve compliance as promptly as is practicable.
E. State and Local Pollution Prevention Requirements. OPDIVs/
STAFFDIVs are encouraged to comply with all State and local pollution
prevention requirements to the extent that compliance with such laws
and requirements is not otherwise already mandated.
F. Funding Pollution Prevention Programs. In accordance with
Executive Order 12856, OPDIVs/STAFFDIVs shall place high priority on
obtaining funding and resources needed for implementing pollution
prevention strategies, plans, and assessments by identifying,
requesting, and allocating funds through line-item or direct funding
requests. Funding requests shall be made in accordance with the Federal
Agency Pollution Prevention and Abatement Planning Process and through
budget requests as outlined in Office of Management and Budget (OMB)
Circulars A-106 and A-11, respectively.
G. Life Cycle Analysis and Total Cost Accounting. OPDIVs/STAFFDIVs
should apply, to the maximum extent practicable, life cycle analysis
and total cost accounting principles to all projects needed to meet the
requirements of this chapter.
H. Contractors. All OPDIVs/STAFFDIVs shall provide, in all future
contracts between the organization and its relevant contractors, for
the contractor to supply all information the OPDIV/STAFFDIV deems
necessary for it to comply with this chapter. In addition, to the
extent that compliance with this chapter and Executive Order 12856 is
made more difficult due to lack of information from existing
contractors, an OPDIV/STAFFDIV shall take practical steps to obtain the
information from such contractors that is needed to comply.
I. Prior Agreements for Application of EPCRA and PPA. The
compliance dates for application of EPCRA and PPA set forth in
Executive Order 12856 are not intended to delay implementation of
earlier timetables already agreed to by a Federal agency and are
inapplicable to the extent they interfere with those timetables.
30-70-70 Civil and Criminal Penalties
EPCRA section 325(c) (42 U.S.C. 11045(c)), which provides civil and
administrative penalties for failure to report TRI information, also
applies to the PPA's requirement to report toxic chemical source
reduction and recycling information on Form R. The penalty for
[[Page 1702]]
failure to file a Form R is $25,000 for each day of violation of the
law.
EPCRA section 325(c) penalties do not apply to a governmental
entity. Moreover, Executive Order 12856 does not make the provisions of
section 325 applicable to any Federal agency or facility, except to the
extent that such Federal agency or facility would independently be
subject to such provisions.
HHS Chapter 30-80--General Administration Manual; HHS Transmittal
98.2
Subject: Executive Order 12856, Federal Compliance with Right-To-Know
Laws and Pollution Prevention Requirements
30-80-00.... Background
05.... Applicability
10.... Responsibilities
15.... Definitions
20.... Pollution Prevention Strategy
30.... Toxic Chemical Reduction Goals
40.... Pollution Prevention Plan
50.... Acquisition and Procurement Plans and Goals
60.... EPCRA and Pollution Prevention Act Responsibilities
70.... Compliance
80.... Public Availability of Information
90.... Funding and Resources
30-80-00 Background
The objective of Executive Order 12856, August 3, 1993 (58 FR
41981), is to foster the Federal government as a good neighbor to local
communities by becoming a leader in providing information to the public
concerning toxic and hazardous chemicals and extremely hazardous
substances at Federal facilities, and in planning for and preventing
harm to the public through the planned or unplanned releases of
chemicals. The Order also encourages the Federal government to be a
leader in the field of pollution prevention through the management of
its facilities, its acquisition practices, and in supporting the
development of innovative pollution prevention programs and
technologies. Executive Order 12856 seeks to ensure that all Federal
agencies conduct their facility management and acquisition activities
so that, to the maximum extent practicable:
The quantity of toxic chemicals entering any wastestream,
including any releases to the environment, is reduced as expeditiously
as possible through source reduction;
Waste that is generated is recycled to the maximum extent
practicable; and
Any wastes remaining are stored, treated, or disposed of
in a manner protective of public health and the environment.
Executive Order 12856 requires Federal agencies to comply with the
requirements of the Emergency Planning and Community Right-to-Know Act
of 1986 (EPCRA) (42 U.S.C. 11001-11050) and the Pollution Prevention
Act of 1990 (PPA) (42 U.S.C. 13101-13109). EPCRA establishes programs
to provide the public with important information on the hazardous and
toxic chemicals in their communities and emergency planning and
notification requirements to protect the public in the event of release
of extremely hazardous substances. The order requires Federal agencies
to report in a public manner toxic chemicals entering any wastestream
from their facilities, including any releases to the environment, and
to improve local emergency planning, response, and accident
notification. Facilities that are subject to EPCRA are required to
provide information and reports to EPA and state and local groups. Five
distinct reporting requirements are contained in EPCRA. Each of these
reporting requirements and other facility responsibilities under EPCRA
and Executive Order 12856 are described in chapter 30-60.
The PPA establishes national policy that pollution is to be
prevented or reduced at the source. The Act also requires the reporting
of efforts to reduce toxic chemical releases through source reduction
and recycling. The PPA reporting requirement and other facility
responsibilities under the PPA and Executive Order 12856 are described
in chapter 30-70
Executive Order 12856 also places other responsibilities on federal
agencies that are not contained in EPCRA or PPA. It requires Federal
agencies to develop voluntary goals to reduce total releases of toxic
chemicals to the environment and off-site transfers of such toxic
chemicals for treatment and disposal; a pollution prevention strategy
and plan; a plan and goals for eliminating or reducing the unnecessary
acquisition of products containing extremely hazardous substances or
toxic chemicals; and a plan and goals for voluntarily reducing agency
manufacturing, processing, and use of extremely hazardous substances
and toxic chemicals. These additional responsibilities under Executive
Order 12856 are described in this chapter.
30-80-05 Applicability
A. Covered Facilities. Executive Order 12856 is applicable to all
OPDIVs/STAFFDIVs that either own or operate a ``facility'' as that term
is defined in EPCRA section 329(4) (42 U.S.C. Sec. 11049(4)), if such
facility meets EPCRA's threshold requirements for compliance. Each of
the threshold requirements for EPCRA compliance are discussed in
chapter 30-60. The statutory definition of ``facilities'':
all buildings, equipment, structures, and other stationary items
which are located on a single site or on contiguous or adjacent
sites and which are owned or operated by the same person (or by any
person which controls is controlled by, or under common control
with, such person). For purposes of emergency release notification,
the term includes motor vehicles, rolling stock, and aircraft.
EPA regulations revise the statutory definition of facility to
include ``manmade structures in which chemicals are purposefully placed
or removed through human means such that it functions as a containment
structure for human use.'' (40 CFR 355.20, 370.2). The purpose of the
revision was to clarify that the definition applies to certain
subsurface structures.
Each OPDIV/STAFFDIV must apply all of the provisions of Executive
Order 12856 to each of its covered facilities, including those
facilities which are subject, independent of the Executive Order, to
the provisions of EPCRA (e.g., certain government-owned/contractor-
operated facilities (GOCOS)).
Executive Order 12856 does not apply to Federal agency facilities
outside the customs territory of the United States. EPA may be
consulted to determine the applicability of Executive Order 12586 to
particular OPDIV/STAFFDIV facilities.
B. Preliminary List of Covered Facilities. The Secretary was
required by Executive Order 12856 to provide the EPA Administrator by
December 31, 1993, with a preliminary list of facilities that
potentially meet the requirements for reporting under the threshold
provisions of EPCRA, PPA, and Executive Order 12856.
30-80-10 Responsibilities
The head of each OPDIV/STAFFDIV is responsible for ensuring that
all necessary actions are taken for the prevention of pollution with
respect to that organization's activities and facilities, and for
ensuring compliance with the appropriate pollution prevention and
emergency planning and community right-to-know provisions of the PPA
and EPCRA. To the maximum extent practicable, the head of each OPDIV/
STAFFDIV shall strive to comply with the purposes, goals, and
implementation steps set forth in Executive Order 12856.
[[Page 1703]]
HHS Headquarters has developed the Pollution Prevention Strategy.
The head of each OPDIV/STAFFDIV with facilities covered by the
Executive Order must ensure that the organization develops, consistent
with the HHS Pollution Prevention Strategy,:
1. Voluntary goals to reduce the organization's total releases of
toxic chemicals to the environmental and off-site transfers of such
toxic chemicals for treatment and disposal from facilities covered by
Executive Order 12856;
2. A written pollution prevention plan;
3. A plan and goals for eliminating or reducing the unnecessary
acquisition of products containing extremely hazardous substances or
toxic chemicals;
4. A plan and goals for voluntarily reducing manufacturing,
processing, and use of extremely hazardous substances and toxic
chemicals.
The OPDIV/STAFFDIV shall submit progress reports, conduct internal
reviews and audits, and take such other steps as may be necessary to
monitor compliance with the requirements of this chapter and Executive
Order 12856. The head of each OPDIV/STAFFDIV with facilities covered by
the Executive Order shall also place high priority on obtaining funding
and resources needed for implementing all aspects of this chapter and
Executive Order 12856.
30-80-15 Definitions
Executive Order 12856 incorporates by reference all definitions
found in EPCRA and PPA and implementing regulations (except the term
``person'', as defined in section 329(7) (42 U.S.C. 11049(7)) of EPCRA,
also includes Federal agencies). The following definitions are used in
this chapter and chapters 30-60 and 30-70:
A. Extremely Hazardous Substance. An ``extremely hazardous
substance'' is defined in EPCRA section 329(3) (42 U.S.C. 11049(3)) and
EPA regulations in 40 CFR 355.20 to mean a substance that is listed in
Appendices A (in alphabetical order) and B (by CAS number) of 40 CFR
part 355.
B. Pollution Prevention. Pollution prevention is defined in section
2-203 of Executive Order 12856 to mean ``source reduction,'' as defined
in the PPA, and other practices that reduce or eliminate the creation
of pollutants through:
Increased efficiency in the use of raw materials, energy,
water, or other resources; or
Protection of natural resources by conservation.
EPA has issued a Statement of Definition of Pollution Prevention
that is identical to the definition in Executive Order 12856
(Memorandum from F. Henry Habicht II, Deputy Administrator,
Environmental Protection Agency, Subject: EPA Definition of ``Pollution
Prevention'', to All EPA Personnel (May 28, 1992)). The Statement of
Definition explains that recycling, energy recovery, treatment, and
disposal are not included within EPA's definition of pollution
prevention. In distinguishing between prevention of pollution and
recycling, EPA includes ``in-process recycling'' within the definition
of ``pollution prevention.'' ``Out-of-process recycling'' is part of
recycling and is not part of the definition. The Statement of
Definition also comments that recycling that is conducted in an
environmentally sound manner shares many of the advantages of
prevention--it can reduce the need for treatment or disposal, and
conserve energy and resources.
Note: A different definition of pollution prevention is used in
guidance from the Council on Environmental Quality in NEPA matters
(see 30-50-50).
C. Source Reduction. ``Source reduction'' is defined in PPA section
6603(5) (42 U.S.C. 13102(5)) to mean any practice that:
Reduces the amount of any hazardous substance, pollutant
or contaminant entering any waste stream or otherwise released into the
environment (including fugitive emissions) prior to recycling,
treatment, or disposal; and
Reduces the hazards to public health and the environment
associated with the release of such substances, pollutants, or
contaminants.
The term includes equipment or technology modifications, process or
procedure modifications, reformulation or redesign of products,
substitution of raw materials, and improvements in housekeeping,
maintenance, training, or inventory control.
The term ``source reduction'' does not include any practice that
alters the physical, chemical, or biological characteristics or the
volume of a hazardous substance, pollutant, or contaminant through a
process or activity that is not integral to and necessary for producing
a product or providing a service.
D. Toxic Chemical. Toxic chemical means a substance on the list
described in section 313(c) of EPCRA (42 U.S.C. 11023(c)) and contained
in 40 CFR 372.65 (see 30-60-70).
E. Toxic Pollutants. Under the provisions of section 313 of EPCRA
as of December 1, 1993 (see 30-60-70), OPDIVs/STAFFDIVs may choose to
include releases and transfers of other chemicals, such as:
An ``extremely hazardous substance'' as defined in section
329(3) of EPCRA (42 U.S.C. 11049(3)) and listed in 40 CFR part 355,
Appendices A & 8 (see 30-60-20 and -30);
A ``hazardous waste'' under section 3001 of RCRA (42
U.S.C. 6921) as defined in 40 CFR 261.3 (see section 30-00-30); or
A ``hazardous air pollutant'' listed under section 112(b)
of the Clean Air Act (42 U.S.C. 7412(b)) (see 30-00-30).
For the purposes of establishing the OPDIV/STAFFDIV baseline under
subsection C of section 30-80-30, such ``other chemicals'' are in
addition to (not instead of the EPCRA section 313 chemicals. The term
``toxic pollutants'' does not include hazardous waste subject to
remedial action generated prior to August 3, 1993.
30-80-20 Pollution Prevention Strategy
A. Achievement of Executive Order 12856 Requirements. The HHS
Pollution Prevention Strategy was developed to achieve the following
requirements specified in sections 3-302 through 3-305 of Executive
order 12856:
1. Toxic Chemical Release Reduction Goals. Voluntary goals to
reduce the Department's total releases of toxic chemicals or toxic
pollutants to the environment and off-site transfers of such toxic
chemicals or toxic pollutants for treatment and disposal from
facilities covered under Executive order 12856 by 50 percent by
December 31, 1999, utilizing, to the maximum extent practicable, source
reduction practices.
2. Acquisition and Procurement Goals and Plans. Plans and goals for
eliminating or reducing the unnecessary acquisition of products
containing extremely hazardous substances or toxic chemicals and a plan
and goal for voluntarily reducing manufacturing, processing, and use of
extremely hazardous substances and toxic chemicals.
3. Toxic Chemical Release Inventory and Pollution Prevention Act
Reporting. Compliance with the provisions in EPCRA section 313 (42
U.S.C. 11023) and PPA section 6607 (42 U.S.C. 13106) and all
implementing regulations.
4. Emergency Planning and Community Right-to-Know Reporting
Responsibilities. Compliance with the provisions set forth in sections
301 through 312 of EPCRA (42 U.S.C. 11001-11022) and all implementing
regulations.
[[Page 1704]]
B. Strategy Contents. The Pollution Prevention Strategy includes
the following elements.
1. Pollution Prevention Policy Statement. The HHS Pollution
Prevention Strategy contains a Pollution Prevention Policy Statement
that reflects the Department's commitment to incorporate pollution
prevention through source reduction in facility management and
acquisition. The statement designates principal responsibilities for
development, implementation, and evaluation of the strategy. The
statement also identifies an individual responsible for coordinating
the Department's efforts in pollution prevention.
2. Source Reduction Commitment. The Pollution Prevention Strategy
commits the Department to utilize pollution prevention through source
reduction, where practicable, as the primary means of achieving and
maintaining compliance with all applicable federal, state, and local
environmental requirements.
3. Executive Order 12856 Achievement Plan. The strategy contains
plans for achieving the requirements specified in sections 3-302
through 3-305 of Executive Order 12856, as summarized in subsection A
of this section.
30-80-30 Toxic Chemical Reduction Goals
A. OPDIV/STAFFDIV Toxic Chemical Release Reduction Goals. Each
OPDIV/STAFFDIV having facilities covered by Executive Order 12856 shall
develop voluntary goals to reduce total releases of toxic chemicals to
the environment and off-site transfers of such toxic chemicals for
treatment and disposal by 50 percent by December 31, 1999. To the
maximum extent practicable, such reductions shall be achieved by
implementation of source reduction practices.
B. Baseline Measurement. The baseline for measuring reductions for
purposes of achieve the 50 percent reduction goal in subsection A of
this section for each OPDIV/STAFFDIV is the first year in which
releases of toxic chemicals to the environment and off-site transfers
of such chemicals for treatment and disposal are publicly reported. The
baseline amount to which the 50 percent reduction goal applies is the
aggregate amount of toxic chemicals reported in the baseline year for
all of that OPDIV/STAFFDIV's covered facilities. In no event shall the
baseline be later than the 1994 reporting year.
C. Alternate Toxic Pollutants Reduction Goal. As an alternative to
a 50 percent reduction goal for toxic chemicals, an OPDIV/STAFFDIV may
choose to achieve a 50 percent reduction goal for toxic pollutants. In
such event, the OPDIV/STAFFDIV shall delineate the scope of its
reduction program in the written pollution plan that is required by
section 30-80-40. The baseline for measuring reductions for purposes of
achieving the 50 percent reduction requirement for each OPDIV/STAFFDIV
shall be the first year in which releases of toxic pollutants to the
environment and off-site transfers of such chemicals for treatment and
disposal are publicly reported for each of that OPDIV/STAFFDIV's
facilities encompassed by its pollution prevention plan. In no event
shall the baseline year be later than the 1994 reporting year. The
baseline amount as to which the 50 percent reduction goal applies shall
be the aggregate amount of toxic pollutants reported by the OPDIV/
STAFFDIV in the baseline year. For any toxic pollutants included by the
OPDIV/STAFFDIV in determining its baseline under this section, in
addition to toxic chemicals under EPCRA, the OPDIV/STAFFDIV shall
report on such toxic pollutants annually as part of its toxic chemical
release inventory report (see 30-60-70), if practicable, or through a
report that is made available to the public.
30-80-40 Pollution Prevention Plan
A. Pollution Prevention Plan. The head of each OPDIV/STAFFDIV shall
ensure that each of its covered facilities develops a written Pollution
Prevention Plan. Each facility plan shall set forth the facility's
contribution to the OPDIV's/STAFFDIV's toxic chemical reduction goals
(see 30-90-30).
B. Facility Assessments. OPDIVs/STAFFDIVs shall conduct assessments
of their facilities as necessary to ensure development of facility
pollution prevention plans and pollution prevention programs.
30-80-50 Acquisition and Procurement Plans and Goals
A. Plans and Goals
1. Toxic Chemical Acquisition Reduction Plan and Goals. Each OPDIV/
STAFFDIV shall establish a plan and goals for eliminating or reducing
the unnecessary acquisition of products containing extremely hazardous
substances or toxic chemicals.
2. Toxic Chemical Use Reduction Plan and Goal. Each OPDIV/STAFFDIV
shall establish a plan and goal for voluntarily reducing its own
manufacturing, processing, and use of extremely hazardous substances
and toxic chemicals.
B. Specifications and Standards Review. OPDIVs/STAFFDIVs shall also
review (in coordination with GSA, EPA, and other Federal agencies where
appropriate) their standardized documents, including specifications and
standards, and identify opportunities to eliminate or reduce the use of
extremely hazardous substances and toxic chemicals, consistent with the
safety and reliability requirements of their missions. All appropriate
revisions to these specifications and standards shall be made by 1999.
C. Coordination with EPA. Each OPDIV/STAFFDIV shall establish
priorities for implementing this section in coordination with EPA.
D. Innovative Pollution Prevention Technologies. OPDIVs/STAFFDIVs
are encouraged to develop and test innovative pollution prevention
technologies at their facilities in order to encourage the development
of strong markets for such technologies. Partnerships should be
encouraged between industry, Federal agencies, Government laboratories,
academia, and others to assess and deploy, innovative environmental
technologies for domestic use and for markets abroad.
30-80-60 EPCRA and Pollution Prevention Act Responsibilities
A. Emergency Planning and Community Right-to-Know Responsibilities.
The head of each OPDIV/STAFFDIV is responsible for assuring compliance
with the provisions set forth in sections 301 through 312 of EPCRA (42
U.S.C. 11001-11022). Procedures for complying with these requirements
are contained in chapter 30-60.
B. Toxic Chemical Release Inventory and Pollution Prevention Act
Reporting. The head of each OPDIV/STAFFDIV is responsible for assuring
compliance with the reporting requirements set forth in EPCRA section
313 (42 U.S.C. 11023) and PPA section 6607 (42 U.S.C. 13106).
Procedures for complying with these reporting requirements are
contained in chapters 30-60 and 30-70. In accordance with Executive
Order 12856, each OPDIV/STAFFDIV shall comply with these reporting
requirements without regard to the Standard Industrial Classification
(SIC) delineations that apply to the organization's facilities, and
such reports shall be for all releases, transfers, and wastes at such
facilities without regard to the SIC code of the activity leading to
the release, transfer, or waste.
[[Page 1705]]
30-80-70 Compliance
A. Scope of Compliance. Executive Order 12856 provides that
compliance with EPCRA and PPA means compliance with the same
substantive, procedural, and other statutory and regulatory
requirements that would apply to a private person.
B. Internal Reviews. OPDIVs/STAFFDIVs shall conduct internal
reviews and audits, and take such other steps as may be necessary, to
monitor compliance with the requirements of this chapter and Executive
Order 12856, including conducting assessments of their facilities to
ensure development of facility pollution prevention plans and pollution
prevention programs.
C. Annual Progress Reports
1. HHS Annual Report to EPA. The Secretary will submit annual
progress report to the EPA Administrator beginning on October 1, 1995.
These reports will include a description of the progress that has been
made in complying with all aspects of Executive Order 12856, including
pollution reduction requirements. This reporting requirement expires
after the report due on October 1, 2001. All OPDIVs/STAFFDIVs must
institute procedures that will permit timely progress reporting by
OPDIV/STAFFDIV facilities and the gathering of information for the
Secretary's report.
2. EPA Annual to President. Executive Order 12856 requires EPA to
submit an annual report to the President on Federal agency compliance
with toxic chemical release inventory reporting under EPCRA section 313
and toxic chemical source reduction and recycling reporting under PPA
section 6607 (see chapters 30-60 and 30-70). All OPDIVs/STAFFDIVs must
institute procedures that will permit timely progress reporting to EPA
for its report to the President.
D. Contractor Reporting Responsibilities. To facilitate compliance
with Executive Order 12856, OPDIVs/STAFFDIVs shall provide, in all
future contracts between the organization and its relevant contractors,
for the contractor to supply to the OPDIV/STAFFDIV all information that
the OPDIV/STAFFDIV deems necessary for it to coply with the order. In
addition, to the extent that compliance with Executive Order 12856 is
made more difficult due to lack of information from existing
contractors, OPDIVs/STAFFDIVs shall take practical steps to obtain the
information needed to comply with the order from such contractors.
Although Executive Order 12856 does not alter the obligations which
GOCOs have under EPCRA and PPA independent of the order or subjects
such facilities to EPCRA or PPA if they are otherwise excluded, the
releases and transfers from all such facilities are to be included when
meeting all of the OPDIV's/STAFFDIV's responsibilities under Executive
Order 12856.
E. Technical Assistance for EPA. OPDIVs/STAFFDIVs are encouraged to
request technical advice and assistance from EPA in order to foster
full compliance with Executive Order 12856 and this chapter.
F. Technical Assistance to Local Emergency Planning Committees.
OPDIVs/STAFFDIVs shall provide technical assistance, if requested, to
local emergency planning committees in their development of emergency
response plans and in fulfillment of their community right-to-know and
risk reduction responsibilities (see 30-60).
G. EPA Review. Executive Order 12856 provides that the
Administrator of EPA, in consultation with the Secretary, may conduct
such reviews and inspections as may be necessary to monitor compliance
with HHS responsibilities under EPCRA (see 30-60) and the PAA (see 30-
70). OPDIVs/STAFFDIVs are to cooperate fully with the efforts of the
Administrator to ensure compliance with Executive Order 12856. Should
the Administrator notify an OPDIV/STAFFDIV that it is not in compliance
with an applicable provision of Executive Order 12856, the OPDIV/
STAFFDIV shall achieve compliance as promptly as is practicable.
H. State and Local Right-to-Know Requirements. OPDIVs/STAFFDIVs are
encouraged to comply with all State and local right-to-know and
pollution prevention requirements to the extent that compliance with
such laws and requirements is not otherwise already mandated.
I. Exemption for Particular Federal Facilities. Section 6-601 of
Executive Order 12856 provides that the head of a Federal agency may
request from the President, in the interest of national security, an
exemption from complying with the provisions of any or all aspects of
the order for particular Federal agency facilities, provided that the
procedures set forth in CERCLA section 1200)(1) (42 U.S.C. 9620(j)(1))
are followed.
30-80-80 Public Availability of Information
To the extent permitted by law, and unless such documentation is
withheld pursuant to section 6-601 of Executive Order 12856, the public
shall be provided ready access to all strategies, plans, and reports
required to be prepared by the Department or an OPDIV/STAFFDIV under
Executive Order 12856. OPDIVs/STAFFDIVs are encouraged to provide such
strategies, plans, and reports to the State and local authorities where
their facilities are located for an additional point of access to the
public.
30-80-90 Funding and Resources
Each OPDIV/STAFFDIV shall place high priority on obtaining funding
and resources needed for implementing all aspects of this chapter and
Executive Order 12856, including the pollution prevention strategies,
plans, and assessments required by Executive Order 12856, by
identifying, requesting, and allocating funds through line-item or
direct funding requests. OPDIVs/STAFFDIVs are to make such budget
requests as required in the Federal Agency Pollution Prevention and
Abatement Planning Process and through budget requests as outlined in
Office of Management and Budget (OMB) Circular A-11. OPDIVs/STAFFDIVs
should apply, to the maximum extent practicable, a life cycle analysis
and total cost accounting principles to all projects needed to meet the
requirements of this chapter and Executive Order 12856.
HHS Chapter 30-90--General Administration Manual; HHS Transmittal
98.2
Subject: Greening the Government Through Waste Prevention, Recycling,
and Federal Acquisition
30-90-00.... Background
05.... Applicability
10.... Responsibilities
15.... Definitions
20.... Roles of the Federal Environmental Executive and Agency
Environmental Executives
30.... Acquisition Planning and Affirmative Procurement Programs
40.... Agency Goals and Reporting Requirements
50.... Standards, Specifications and Designation of Items
60.... Recycling and Recycling Awareness Programs
70.... Real Property Acquisition and Management
80.... Training
90.... Compliance
30-90-00 Background
A. Executive Order 13101. Executive Order 13101 requires Federal
agencies to strive to increase the procurement of products that are
environmentally preferable or that are made with recovered materials
and to set goals to maximize the number of recycled
[[Page 1706]]
products purchased, relative to non-recycled alternatives. Each agency
is to establish either a goal for solid waste prevention and for
recycling or a goal for solid waste diversion. It is the national
policy to prefer pollution prevention, whenever feasible.
Each Executive agency is to initiate a program, compatible with
State and local requirements, to promote cost-effective waste
prevention and recycling of reusable materials in all of its
facilities. Federal agencies are also to consider cooperative ventures
with State and local governments to promote recycling, and waste
reduction in the community. The order directs that in acquisition
planning and in the evaluation and award of contracts, agencies are to
consider, among other factors, use of recovered materials, life cycle
costs, and recyclability. Each Executive department and major procuring
agency must establish model facility demonstration programs that
include comprehensive waste prevention and recycling programs and
emphasize the procurement of recycled and environmentally preferable
products and services. A government-wide award will be presented
annually by the White House to the best, most innovative program
implementing the objectives of Executive Order 13101 to give greater
visibility to these efforts so that they can be incorporated
government-wide.
The Executive Order creates a Federal Environmental Executive and
establishes high-level Environmental Executive positions within each
agency to be responsible for expediting the implementation of the order
and statutes that pertain to the Order.
Executive Order 13101 was effective immediately upon its issuance
by the President on September 14, 1998. Executive Order 13101 revokes
Executive Order 12873, dated October 20, 1993.
B. Resource Conservation and Recovery Act of 1976 (RCRA). Executive
Order 13101 requires Federal agencies to comply with the sections of
RCRA that cover Federal procurement of recycled products. Section
6002(c)(1) of RCRA (42 U.S.C. 6962(c)(1)) imposes a duty on Federal
agencies to procure items ``composed of the highest percentage of
recovered materials practicable * * * consistent with maintaining a
satisfactory level of competition. * * *'' The Administrator of the
Environmental Protection Agency (EPA) is required by Section 6002 to
develop guidelines that designate those items which are or can be
produced with recovered materials and set forth recommended practices
with respect to the procurement of recovered materials and items
containing such materials. To assist procuring agencies in complying
with the requirements of section 6002, EPA has issued guidelines for
the Federal procurement of building insulation products containing
recovered materials, cement and concrete containing fly ash, paper and
paper products containing recovered materials, lubricating oils
containing re-refined oil, and retread tires (see 40 CFR part 247).
RCRA 6002 also requires each procuring agency to develop an
affirmative procurement program which will assure that items composed
of recovered materials will be purchased to the maximum extent
practicable and which is consistent with applicable provisions of
Federal procurement law.
C. OFPP Policy Letter 92-4. RCRA section 6002 (42 U.S.C. 6962)
requires the Office of Federal Procurement Policy (OFPP) to issue
coordinated policies to maximize Federal use of recovered material.
Executive Order 13101 requires Federal agencies, consistent with
policies established by OFPP Policy Letter 92-4 (57 FR 53362 (1992)),
to comply with executive branch policies for the acquisition and use of
environmentally preferable products and services and to implement cost-
effective procurement preference programs favoring the purchase of
these products and services. OFPP Policy Letter 92-4, establishes
Executive branch policies for the acquisition and use of
environmentally-sound, energy-efficient products and services. The OFPP
Policy Letter also provides guidance to be followed by Executive
agencies in implementing section 6002 of RCRA.
The OFPP Policy Letter requires the implementation of cost-
effective procurement preference programs for the purchase of
environmentally-sound, energy-efficient products and services. It
applies to Federal executive agencies that use appropriated Federal
funds for procurement purposes. The Policy Letter provides direction
for developing affirmative procurement programs and for the procurement
of paper containing post-consumer waste. The letter also implements the
Energy Policy and Conservation Act, 42 U.S.C. 6201-6422, and two
Executive Orders.
Policy Letter 92-4 directs executive agencies to consider energy
conservation and efficiency factors in the procurement of property and
services. It also requires Federal agencies to give preference in their
procurement programs to practices and products that conserve natural
resources and protect the environment. Energy conservation and
efficiency data are to be considered, along with estimated cost and
other relevant factors, in the development of purchase requests,
invitations for bids and solicitations for offers. In addition, with
respect to the procurement of consumer products, as defined under Part
B, Title III of the Energy Policy and Conservation Act, agencies shall
consider energy use/efficiency labels (42 U.S.C. 6294) and prescribed
energy efficiency standards (42 U.S.C. 6295) in making purchasing
decisions.
The Policy Letter is intended to apply to all products and
services. There are differing requirements for the guideline items than
for other items.
30-90-05 Applicability
A. OPDIV/STAFFDIVs. Consistent with the demands of efficiency and
cost effectiveness, the head of each OPDIV/STAFFDIV shall incorporate
waste prevention and recycling in the organization's daily operations
and work to increase and expand markets for recovered materials through
greater Federal Government preference and demand for such products.
Consistent with policies established by Office of Federal Procurement
Policy (``OFPP'') Policy Letter 92-4, OPDIVs/STAFFDIVs shall comply
with executive branch policies for the acquisition and use of
environmentally preferable products and services and implement cost-
effective procurement preference programs favoring the purchase of
these products and services.
B. Contractor Operated Facilities. Contracts that provide for
contractor operation of a government-owned or leased facility and/or
contracts, awarded after the effective date of Executive Order 13101,
shall include provisions that obligate the contractor to comply with
the requirements of the order within the scope of its operations. In
addition, to the extent permitted by law and where economically
feasible, existing contracts should be modified to include provisions
that obligate the contractor to comply with the requirements of
Executive Order 13101.
C. Real Property Acquisition and Management. Within 90 days after
the date of this order, and to the extent permitted by law and where
economically feasible, OPDIVs/STAFFDIVs shall ensure compliance with
the provisions of this order in the acquisition and management of
Federally owned and leased space. Agencies shall also include
environmental and recycling provisions in the acquisition and
management of all leased space and in the construction of new Federal
buildings.
[[Page 1707]]
D. Retention of Funds. The Administrator of General Services shall
continue with the program that retains for the agencies the proceeds
from the sale of materials recovered through recycling or waste
prevention programs and specifying the eligibility requirements for the
materials being recycled.
E. Agencies in non-GSA Managed Facilities. OPDIVs/STAFFDIVs, to the
extent permitted by law, should develop a plan to retain the proceeds
from the sale of materials recovered through recycling or waste
prevention programs.
F. Model Facility Programs. Each executive agency shall establish a
model demonstration program incorporating some or all of the following
elements as appropriate. Agencies are encouraged to demonstrate and
test new and innovative approaches such as incorporating
environmentally preferable and bio-based products; increasing the
quantity and types of products containing recovered materials;
expanding collection programs; implementing source reduction programs;
composting organic materials when feasible; and exploring public/
private partnerships to develop markets for recovered materials.
G. Recycling Programs. Each OPDIV/STAFFDIV shall designate a
recycling coordinator for each facility or installation. The recycling
coordinator shall implement or maintain waste prevention and recycling
programs in the agencies' action plans. Agencies shall also consider
cooperative ventures with State and local governments to promote
recycling and waste reduction in the community.
30-90-10 Responsibilities
The head of each OPDIV/STAFFDIV shall develop and implement to the
maximum extent practicable affirmative procurement programs in
accordance with RCRA section 6002 (42 U.S.C. 6962) and Executive Order
13101.
The head of each OPDIV/STAFFDIV shall ensure that the organization
meets or exceeds minimum materials content standards when purchasing or
causing the purchase of printing and writing paper.
30-90-15 Definitions
A. ``Acquisition'' means the acquiring by contract with
appropriated funds for supplies or services (including construction) by
and for the use of the Federal Government through purchase or lease,
whether the supplies or services are already in existence or must be
created, developed, demonstrated, and evaluated. Acquisition begins at
the point when HHS organization needs are established and includes the
description of requirements to satisfy organization needs, solicitation
and selection of sources, award of contracts, contract financing,
contract performance, contract administration, and those technical and
management functions directly related to the process of fulfilling
organization needs by contract
B. ``Environmentally preferable'' means products or services that
have a lesser or reduced effect on human health and the environment
when compared with competing products or services that serve the same
purpose. This comparison may consider raw materials acquisition,
production, manufacturing, packaging, distribution, reuse, operation,
maintenance, or disposal of the product or service.
C. ``Life Cycle Cost'' means the amortized annual cost of a
product, including capital costs, installation costs, operating costs,
maintenance costs, and disposal costs discounted over the lifetime of
the product.
D. ``Life Cycle Assessment'' means the comprehensive examination of
a product's environmental and economic effects throughout its lifetime
including new material extraction, transportation, manufacturing, use,
and disposal.
E. ``Postconsumer material'' means a material or finished product
that has served its intended use and has been discarded for disposal or
recovery, having completed its life as a consumer item. ``Post-consumer
material'' is a part of the broader category of ``recovered material''.
F. ``Recovered materials'' means waste materials and by-products
which have been recovered or diverted from solid waste, but such term
does not include those materials and by-products generated from, and
commonly reused within, an original manufacturing process (42 U.S.C.
6903 (19)).
Manufacturing, forest residues, and other wastes also fit within
the definition of ``recovered materials''. Such wastes include dry
paper and paperboard waste generated after completion of the paper-
making process; finished paper and paperboard from obsolete inventories
of paper and paperboard manufacturers, merchants, wholesalers, dealers,
printers, converters, or others; fibrous byproducts of harvesting,
manufacturing, extractive, or wood-cutting processes; wastes generated
by the conversion of goods made from fibrous material; and fibers
recovered form waste water which otherwise would enter the wastestream.
G. ``Recyclability'' means the ability of a product or material to
be recovered from, or otherwise diverted from, the solid waste stream
for the purpose of recycling.
H. ``Recycling'' means the series of activities, including
collection, separation, and processing, by which products or other
materials are recovered from the solid waste stream for use in the form
of raw materials in the manufacture of new products other than fuel for
producing heat or power by combustion.
I. ``Waste prevention'' means any change in the design,
manufacturing, purchase or use of materials or products (including
packaging) to reduce their amount or toxicity before they become
municipal solid waste. Waste prevention also refers to the reuse of
products or materials.
J. ``Waste reduction'' means preventing or decreasing the amount of
waste being generated through waste prevention, recycling, or
purchasing recycled and environmentally preferable products.
K. ``Pollution prevention'' means ``source reduction'' as defined
in the Pollution Prevention Act of 1990, and other practices that
reduce or eliminate the creation of pollutants through: (a) Increased
efficiency in the use of raw materials, energy, water, or other
resources; or (b) protection of natural resources by conservation.
L. ``Biobased product'' means a commercial or industrial product
(other than food or feed) that utilizes biological products or
renewable domestic agricultural (plant, animal, and marine) or forestry
materials.
M. ``Major procuring agencies'' shall include any executive agency
that procures over $50 million per year of goods and services.
30-90-20 Roles of the Federal Environmental Executive and Agency
Environmental Executives
A. Federal Environmental Executive. The Federal Environmental
Executive is designated by the President and is located within the
Environmental Protection Agency (``EPA''). The Federal Environmental
Executive is authorized to take all actions necessary to ensure that
Federal agencies comply with the requirements of Executive Order 13101.
The Federal Environmental Executive's responsibilities include:
Identifying and recommending initiatives for government-wide
implementation that will promote the purposes of Executive Order
13101, including:
(a) The development of a government-wide Waste Prevention and
Recycling Strategic Plan for implementation of Executive Order 13101
and appropriate incentives to encourage the acquisition of recycled
and environmentally preferable products by the Federal Government,
[[Page 1708]]
(b) Chairing the Task Force under the steering committee
established by Executive Order 13101, and
(c) Preparing a biennial report on this Order.
The Federal Environmental Executive will establish committees and
work groups to identify, assess, and recommend actions to be taken to
fulfill the goals, responsibilities, and initiatives of the Federal
Environmental Executive. As these committees and work groups are
created, OPDIVs/STAFFDIVs may be requested to designate appropriate
personnel in the areas of procurement and acquisition, standards and
specifications, electronic commerce, facilities management, waste
prevention, and recycling, and others as needed to staff and work on
the initiatives of the Executive. OPDIVs/STAFFDIVs shall make their
services, personnel and facilities available to the Federal
Environmental Executive to the maximum extent practicable for the
performance of functions under Executive Order 13101.
B. HHS Environmental Executive. Executive Order 13101 requires the
Secretary to designate an Agency Environmental Executive, who serves at
a level no lower than at the Assistant Secretary level or equivalent.
The Agency Environmental Executive is responsible for:
1. Translating the Government-wide State Plan into specific agency
and service plans;
2. Implementing the specific agency and service plans;
3. Reporting to the Federal Environmental Executive (FEE) on the
progress of plan implementation;
D. Working with the FEE and the Task Force in furthering
implementation of this order;
E. Tracking agencies' purchases of EPA-designated guideline items
and reporting agencies' purchases of such guideline items to the FEE
per the recommendations developed in this Order. Agency acquisition and
procurement personnel shall justify in writing to the file and the
Agency Environmental Executive (AEE) the rationale for not purchasing
such items, above the micropurchase threshold, and submit a plan and
timetable for increasing agency purchases of the designated items(s);
F. One year after a product is placed on the USDA Biobased Products
List, estimating agencies' purchases of products on the list and
reporting agencies' estimated purchases of such products to the
Secretary of Agriculture; and
G. Reviewing Departmental programs and acquisitions to ensure
compliance with this Order.
30-90-30 Acquisition Planning and Affirmative Procurement Programs
A. Acquisition Planning. In developing plans, drawings, work
statements, specifications, or other product descriptions, OPDIVs/
STAFFDIVs shall consider, as appropriate, a broad range of actors
including:
--Elimination of virgin material requirements;
--Use of recovered materials;
--Reuse of product;
--Life cycle cost;
--Recyclability;
--Use of environmentally preferable products;
--Waste prevention (including toxicity reduction or elimination); and
--Ultimate disposal, as appropriate.
These factors should be considered in acquisition planning for all
procurements and in the evaluation and award of contracts, as
appropriate. Program and acquisition managers should take an active
role in these activities.
B. OPDIV/STAFFDIV Responsibilities. In accordance with OFPP Policy
Letter 924, OPDIVs/STAFFDIVs shall:
1. Identify and procure needed products and services that, all
factors considered, are environmentally-sound and energy-efficient;
2. Procure products, including packaging, that contain the highest
percentage of recovered materials, and where applicable, post-consumer
waste, consistent with performance requirements, availability, price
reasonableness, and cost effectiveness;
3. Employ life cycle cost analysis, wherever feasible and
appropriate, to assist in making product and service selections;
4. Use product descriptions and specifications that reflect cost-
effective use of recycled products, recovered materials, water
efficiency devices, remanufactured products and energy-efficient
products, materials and practices;
5. Work with private standard setting organizations and
participate, pursuant to OMB Circular No. A-119, in the development of
voluntary standards and specifications defining environmentally-sound,
energy-efficient products, practices and services;
6. Require vendors to certify the percentage of recovered materials
used, when contracts are awarded wholly or in part on the basis of
utilization of recovered materials;
7. Assure, when drafting or reviewing specifications for required
items, that the specifications:
(a) do not exclude the use of recovered materials;
(b) do not unnecessarily require the item to be manufactured from
virgin materials; and
(c) require the use of recovered materials and environmentally-
sound components to the maximum extent practicable without jeopardizing
the intended end use of the item; and
8. Arrange for the procurement of solid waste management services
in a manner which maximizes energy and resource recovery. OPDIVs/
STAFFDIVs that generate heat, mechanical, or electrical energy from
fossil fuel in systems that have the technical capability of using
energy or fuel derived from solid waste as a primary or supplementary
fuel shall use such capability to the maximum extent practicable.
C. Affirmative Procurement Programs. RCRA section 6002(i) (42
U.S.C. 6962(i)) requires the development of an affirmative procurement
program for each item that is covered by an EPA guideline. The
affirmative procurement program is to assure that items composed of
recovered materials will be purchased to the maximum extent
practicable, consistent with applicable provisions of Federal
procurement law.
1. OPDIVs/STAFFDIVs shall establish affirmative procurement
programs for each of the items covered by guidelines developed by the
Environmental Protection Agency pursuant to subsection 6002(e) of RCRA
(see 40 CFR 247). For newly designated items, OPDIVs/STAFFDIVs shall
revise their internal programs within one year from the date EPA
designated the new items. OPDIVs/STAFFDIVs shall ensure that
responsibilities for preparation, implementation and monitoring of
affirmative procurement programs are shared between program personnel
and procurement personnel. The responsibility to establish an
affirmative procurement program applies only to purchases of guideline
items costing $10,000 or more or where the quantity of such items, or
of functionally-equivalent items, acquired in the course of the
preceding year was $10,000 or more.
2. For designated EPA guideline items, excluding biobased products
as described in this Executive Order, OPDIVs/STAFFDIVs shall ensure
that their affirmative procurement programs require that 100 percent of
their purchases of products meet or exceed the EPA guideline standards
unless written justification is provided that a
[[Page 1709]]
product is not available competitively within a reasonable time frame,
does not meet appropriate performance standards, or is only available
at an unreasonable price. Written justification is not required for
purchases below the micropurchase threshold. For micropurchases,
agencies shall provide guidance regarding purchase of EPA-designated
guideline items. This guidance should encourage consideration of
aggregating purchases when this method would promote economy and
efficiency.
3. Program Elements. Each OPDIVs/STAFFDIVs affirmative procurement
program, at a minimum, must comply with RCRA subsection 6002(i) and
must:
(a) State a preference for the procurement of the item covered by
the EPA guideline;
(b) Promote the cost-effective procurement of the covered item;
(c) Require estimates of the total amount of the recovered item
used in a contract, certification of the minimum amount actually used,
where appropriate, and procedures for verifying the estimates and
certifications;
(d) Provide for the annual review and monitoring of the
effectiveness of the program; and
(e) Include one of the following options, or a substantially
equivalent alternative, to insure that contracts for items covered by
the guidelines are awarded, unless a waiver is granted, on the basis
of:
Case-by-case procurement, open competition between
products made of virgin materials and products containing recovered
materials; preference to be given to the latter, or
Minimum-content standards, which identify the minimum
content of recovered materials that an item must contain to be
considered for award.
4. Waiver. OPDIVs/STAFFDIVs are to base decisions to waive, or not
to procure, EPA guideline items composed of the highest percentages of
recovered materials practicable on a determination that such items:
(a) Are not reasonably available within the time required;
(b) Fail to meet the performance standards set forth in applicable
specifications or fail to meet the reasonable performance standards of
the procuring agencies; or
(c) Are only available at an unreasonable price.
5. The Agency Environmental Executive will track purchases of
designated EPA guideline items and report purchases of such guideline
items to the Federal Environmental Executive when requested.
A. Agencies shall implement the EPA procurement guidelines for
rerefined lubricating oil and retread tires. Fleet and commodity
managers shall take immediate steps, as appropriate, to procure these
items in accordance with section 6002 of RCRA. This provision does not
preclude the acquisition of biobased (e.g., vegetable) oils.
B. The FEE shall work to educate executive agencies about the new
Department of Defense Cooperative Tire Qualification Program, including
the cooperative Approval Tire List and Cooperative Plant Qualification
Program, as they apply to retread tires.
30-90-40 Agency Goals and Reporting Requirements
Each OPDIVs/STAFFDIV shall establish either a goal for solid waste
prevention and a goal for recycling or a goal for solid waste diversion
to be achieved by January 1, 2000. Each agency shall further ensure
that the established goals include long-range goals to be achieved by
the years 2005 and 2010. These goals shall be submitted to the FEE
within 180 days after the date of this Order.
In addition to white paper, mixed paper/cardboard, aluminum,
plastic, and glass, agencies should incorporate into their recycling
programs efforts to recycle, reuse, or refurbish pallets and collect
toner cartridges for re-manufacturing. Agencies should also include
programs to reduce or recycle, as appropriate, batteries, scrap metal,
and fluorescent lamps and ballasts.
30-90-50 Standards, Specifications and Designation of Items
A. Designation of Items that Contain Recovered Materials. EPA shall
designate Comprehensive Procurement Guidelines containing designated
items that are or can be made with recovered materials. OPDIVs/
STAFFDIVs shall modify their affirmative procurement programs to
require that, to the maximum extent practicable, their purchases of
products meet or exceed the EPA guideline standards unless written
justification is provided that a product is not available
competitively, not available within a reasonable time frame, does not
meet appropriate performance standards, or is only available at an
unreasonable price. Concurrently with the issuance of the Comprehensive
Procurement Guideline, EPA will publish Recovered Materials Advisory
Notice(s) that present the range of recovered material content levels
within which the designated recycled items are currently available.
These levels will be updated periodically to reflect changes in market
conditions.
B. Guidance for Environmentally Preferable products. In accordance
with Executive Order 13101, EPA will issue guidance that Executive
agencies should use in making determinations for the preference and
purchase of environmentally preferable products. OPDIVs/STAFFDIVs are
to use this guidance, to the maximum extent practicable, in identifying
the purchasing environmentally preferable products and shall modify
their procurement programs by reviewing and revising specifications,
solicitation procedures, and policies as appropriate. OPDIVs/STAFFDIVs
may develop pilot projects to provide practical information to the EPA
for further updating of the guidance.
C. Designation of Biobased Items by the USDA. The USDA Biobased
Products Coordination Council, shall, in consultation with the FEE,
issue a Biobased Products List. The biobased Products List shall be
published in the Federal Register by the USDA within 180 days after the
date of this Order and shall be updated biannually after publication to
include additional items. Once the Biobased Products List has been
published, agencies are encouraged to modify their affirmative
procurement program to give consideration to those products.
D. Minimum Content Standard for Printing and Writing Paper. Heads
of OPDIVs/STAFFDIVs heads shall ensure their organizations meet or
exceed the following minimum materials content standards when
purchasing or causing the purchase of printing and writing paper.
1. For high speed copier paper, offset paper, forms bond, computer
printout paper, carbonless paper, file folders, white woven envelopes,
writing and office paper, book paper, cotton fiber paper, and cover
stock, the minimum content standard shall be no less than 30 percent
post-consumer materials beginning December 31, 1998. If paper
containing 30 percent post-consumer material is not reasonably
available, does not meet reasonable performance requirements, or is
only available at an unreasonable price, then the agency shall purchase
paper containing no less than 20 percent post-consumer material. The
Steering Committee in consultation with the AEEs, may revise these
levels if necessary.
2. As an alternative to meeting the foregoing standards for all
printing and writing papers, the minimum content standard shall be no
less than 50 percent recovered materials that are a waste material
byproduct of a finished
[[Page 1710]]
product other that a paper or textile product which would otherwise be
disposed of in a landfill, as determined by the State in which the
facility is located.
E. Effective January 1, 1999, no executive branch agency shall
purchase, sell, or arrange for the purchase of, printing and writing
paper that fails to meet the minimum requirements of this section.
30-90-60 Recycling and Recycling Awareness Programs
A. Recycling Program. Each OPDIVs/STAFFDIV shall designate a
recycling coordinator for each facility or installation. Each OPDIVs/
STAFFDIVs shall initiate a program to promote cost-effective waste
prevention and recycling of reusable materials in all of its
facilities. Each facility recycling program must be compatible with
applicable State and local recycling requirements. Each facility shall
also consider cooperative ventures with State and local governments to
promote recycling and waste reduction in the community.
B. Awards Programs. Each OPDIV/STAFFDIV shall develop an internal
awards program, as appropriate, to reward its most innovative
environmental programs. Winners of OPDIV/STAFFDIV awards will be
eligible for annual HHS and White House awards programs. The White
House will annually present an award to the best, most innovative
program implementing the objectives of Executive Order 13101.
C. Model Facility Programs. Executive order 13101 requires HHS to
establish a model facility demonstration program incorporating some or
all of the following elements as appropriate. Agencies are encouraged
to demonstrate and test new and innovative approaches such as
incorporating environmentally preferable and bio-based products;
increasing the quantity and types of products containing recovered
materials; expanding collection programs; implementing source reduction
programs; composing organic materials when feasible; and exploring
public/private partnerships to develop markets for recovered materials.
30-90-70 Real Property Acquisition and Management
Each OPDIV/STAFFDIV, to the extent permitted by law and where
economically feasible, shall ensure compliance with the provisions of
Executive Order 13101 in the acquisition and management of Federally
owned and leased space. Environmental and recycling provisions shall be
included in the acquisition of all leased space and in the construction
of new Federal buildings.
30-90-80 Training
Each OPDIV/STAFFDIV shall provide training to program management
and requesting activities as needed to ensure awareness of the
requirements of this Order.
30-90-90 Compliance
Review of Implementation. The HHS Inspector General, at the request
of the President's Council on Integrity and Efficiency (PCIE), will
periodically review OPDIVs'/STAFFDIVs' affirmative procurement programs
and reporting procedures to ensure their compliance with Executive
order 13101.
[FR Doc. 99-9 Filed 1-8-99; 8:45 am]
BILLING CODE 4150-04-M