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NEPA Lessons Learned March 2000 1

LESSONSLEARNEDLEARNED

LESSONSNational Environmental Policy Act

NEPA

U.S. DEPARTMENT OF ENERGY QUARTERLY REPORT

For First Quarter FY 2000March 1, 2000; Issue No. 22

Hanford Comprehensive Land-Use Plan EISHelps DOE Preserve Unique Resources

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By: Thomas W. Ferns, NEPA Document Manager, Richland Operations Office,and Yardena Mansoor, Office of NEPA Policy and Assistance

A 50-year land-use plan for the Hanford Site? Some saidit couldn’t be done. Too many factions, they said, withirreconcilably different visions for the future. WouldNEPA be a help or a hindrance in developing such aland-use plan?

It turns out that the Hanford Comprehensive Land-UsePlan EIS Record of Decision (ROD) (64 FR 61615;November 12, 1999) marks the end of a successful, albeitlong and arduous planning process. It was a process thatmany stakeholders – whose diverse views could not all beaccommodated – acknowledged was open and fair.Importantly, the EIS allowed DOE to make decisionsimmediately to preserve uniquely valuable natural

resources at the Site – notably expanding a NationalWildlife Refuge on the Wahluke Slope, on the northernshore of the Columbia River within the Hanford Site.Over a longer term, the Record of Decision seeks tobalance the Department’s continuing land-use needs atthe Hanford Site with its desire to preserve importantecological and cultural values of the Site and allow foreconomic development in the area.

Mapping out a long-term comprehensive blueprint for the586-square-mile Hanford Site in southeastern Washingtonwas no easy task. The experience demonstrates theversatility and usefulness of the NEPA review process inland-use decision making, and the importance of a robuststakeholder involvement process.

This article examines the relationship between Hanford’sremedial action and land-use decision making, describesthe stakeholder involvement approaches (first with astakeholder working group and then with cooperatingagencies), and describes the environmental benefits fromthis NEPA process.

Initial EIS Scope: Remediation and Land Usesfor Contaminated AreasEarly in 1989, DOE negotiated a Federal FacilityAgreement with the U.S. Environmental ProtectionAgency (EPA) and the Washington State Department ofEcology (Ecology) that established decision-makingresponsibilities and an enforceable schedule forremediation of the Hanford Site.

The White Bluffs of the Wahluke Slope rise above theHanford Reach of the Columbia River.

Lessons Learned NEPA2 March 2000

Be Part of Lessons LearnedWe Welcome Your ContributionsWe welcome suggestions and contributed drafts for theLessons Learned Quarterly Report. Draft articles for thenext issue are requested by April 26, 2000. To propose anarticle for a future issue, contact Yardena Mansoor [email protected], or phone 202-586-9326.

Second Quarter QuestionnairesDue May 1, 2000Lessons Learned Questionnaires for NEPA documentscompleted during the second quarter of fiscal year 2000(January 1 to March 31, 2000) should be submitted assoon as possible after document completion, but no laterthan May 1, 2000. The Questionnaire is availableinteractively on the DOE NEPA Web attis.eh.doe.gov/nepa/ under DOE NEPA ProcessInformation.

For Questionnaire issues, contact Hitesh Nigam [email protected], or phone 202-586-0750.

Feedback on LLQRDo you have a comment or a suggestion? Please submitfeedback to either of the contacts listed above.

LLQR OnlineCurrent and past issues of the Lessons Learned QuarterlyReport are available on the DOE NEPA Web attis.eh.doe.gov/nepa/ under DOE NEPA ProcessInformation.

LLQR IndexA cumulative index of the LLQR is providedin the September issue each year.

Inside LESSONS LEARNED

Welcome to the 22nd Quarterly Report on lessons learned inthe NEPA process. Articles in this issue include:

DirectorOffice of NEPA Policy and Assistance

Printed on recycled paper

The Office of NEPA Policy and Assistance is planning to convene a meeting of the NEPA Compliance Officers inWashington, DC, May 2 and 3, 2000. Speakers at the meeting will include Brian Costner, Senior Policy Advisorto the Secretary for Environment, Safety and Health. (See related article, page 9.) Members of the DOE NEPACommunity are encouraged to provide input for meeting discussions through their NEPA Compliance Officers.

NEPA Compliance Officers to Meet in May

NEPA Compliance Officers to Meet .................................... 2

DOE Inspector General ReportQuestions Categorical Exclusion Application ...................... 3

DOE Decides Disposition of Surplus Plutonium ................. 6

Interview with New NEPA Director at CEQ ......................... 8

Transitions ........................................................................... 9

DOE Issues Decisions onLow-level and Mixed Low-level Waste .............................. 10

Waste Isolation Pilot Plant�s 25-Year History .................... 11

Considering Essential Fish Habitat in NEPA Reviews ...... 12

NEPA Guidance Updates .................................................. 13

Web Site of Interest ........................................................... 13

DOE-wide NEPA Contracts Update .................................. 13

Training Opportunities ....................................................... 14

DOE Litigation Updates ..................................................... 16

Other NEPA Cases ............................................................ 17

EAs and EISs Completed This Quarter ............................ 18

First Quarter FY 2000 Questionnaire Results ................... 19

Cost and Time Facts ......................................................... 22

Other Recent EIS Documents and Milestones ................. 22

Office of NEPA Policy and Assistance, EH-42U.S. Department of Energy1000 Independence Avenue, SWWashington, DC 20585-0119


DOE Inspector General Report QuestionsApplication of a Categorical Exclusion

Consider Which Categorical Exclusion AppliesThere may be other instances where similar categorical exclusions will need to be thoughtfully considered to bestmatch the scope of a proposed action to a categorical exclusion. For example, categorical exclusion:

• A7 applies to the transfer, lease, disposition, or acquisition of property when the property use would remainunchanged; that is, the types and magnitude of impacts would remain essentially the same.

• B1.24 applies to the transfer, lease, disposition, or acquisition of uncontaminated structures and the land neededto transfer the structures when the use would be different but the impacts would remain virtually the same asbefore the action.

• B1.25 applies to the transfer, lease, disposition, or acquisition of uncontaminated land for habitat preservation orwildlife management and only associated buildings that support these purposes.

A recent DOE Inspector General report highlights theimportance of using the most appropriate categoricallyexcluded class of action for a proposed action and, morefundamentally, considering the full scope of a proposedaction when determining the level of NEPA review.The report, Inspection of Selected Issues of the Chem-BioFacility at the Oak Ridge National Laboratory(INS-O-00-1, November 1999), is available at theDOE Inspector General Web site at www.ig.doe.gov/oig_public_documents.htm.

Issues Include Choice of Categorical Exclusionand Scope of Action

In 1996, the Oak Ridge Operations Office entered into aninteragency agreement with the Department of the Armyto design, build, and demonstrate instruments fordetecting and identifying chemical and biological warfareagents. The agreement stated that the work would berestricted to simulants and killed biological agents; workwith live agents would not be performed.

The proposed action that the Oak Ridge OperationsOffice categorically excluded was to modify an existingfacility by installing material and equipment that wouldresult in a Biosafety Level-3 facility (for research anddevelopment on instruments to detect chemical andbiological warfare agents). The Office applied categoricalexclusion B3.6 of the DOE NEPA regulations,10 CFR Part 1021, Appendix B – facilities for bench-scale research, conventional laboratory operations, small-scale research and development, and pilot projects.

As the Inspector General Report noted (Appendix B,Management Alert on “Inspection of the Chem-BioFacility at ORNL;” June 30, 1999), another categoricalexclusion more specifically addresses the proposed action– B3.12 – for microbiological and biomedical facilities.Under B3.12, however, facilities with Biosafety Level-3

or -4 containment are excluded, a restriction that shouldhave been identified by DOE program and environmentalstaff. (The higher containment levels accommodate workrequiring greater health protection, such as research onlive biological warfare agents.)

In addition, the Inspector General report indicated thatreasonably foreseeable activities at the Chem-Bio Facilityappeared to be broader than the scope of the interagencyagreement, which did not include work with live agents.The report concludes that “should future projects for thefacility include live agents and…a favorabledetermination for live agents could not be reachedthrough an environmental assessment [and FONSI],then the taxpayers would have been better served ifalternatives and future plans for the facility had been fullyevaluated, in the spirit of NEPA compliance, prior to theexpense of procurement and installation of the facility.”

Recommendations for NEPA Practitioners

4 Several categorical exclusions may need to beconsidered to determine which best matches the scopeof a proposed action and thus ensure that a categoricalexclusion is the appropriate level of NEPA review.Pay particular attention to the requirements forapplying categorical exclusions at 10 CFR 1021.410,as well as the integral elements for classes of actionsin Appendix B to DOE’s NEPA regulations. Considernot just what is allowed under a categorical exclusion,but also what is disallowed.

4Accurately defining the scope of a proposed action isessential to determining the appropriate level of NEPAreview, including a categorical exclusion. Forexample, the NEPA review for the construction andoperation of a facility must be based on its anticipateduses over the reasonably foreseeable future, not justinitial uses.LL


Hanford Comprehensive Land-Use Plan EISThe cleanup negotiators soon realized that a plan for landuses could facilitate remediation planning. Otherwise,specific land-use decisions would have to be made on aproject-by-project basis, using EPA’s default cleanup goal– residential use – in areas where many were advocatinga less costly environmental preservation goal. For someparts of the Hanford Site, such as the 200-Area wastemanagement facilities, a residential use goal would betechnically infeasible or economically prohibitive, andcould cause more environmental injury and human healthrisks than it would avoid.

In August 1992, DOE published a Notice of Intent toprepare an EIS on cleanup strategies to meet alternativeobjectives for contaminated areas of the Hanford Site.These alternatives included unrestricted uses (includingresidential and agricultural); uses with limitations, suchas on groundwater use; and exclusive future use by DOE(for waste management and buffer zones).

Working Group EstablishedCommon Ground

EPA, Ecology, and DOE organizeda process to involve stakeholders indeveloping a vision for the futureuses of the Hanford Site. Theagencies established the HanfordFuture Site Uses Working Group,with representatives of labor,environmental, governmental,agricultural, economicdevelopment, and citizen interestgroups, and of Tribal governments.The Working Group was chargedwith establishing the commonground from which priorities andpreferences could be debated. InDecember 1992, the WorkingGroup submitted its final report,The Future for Hanford: Uses andCleanup, to DOE as EIS scopinginput, thus framing the keyelements of the EIS:

• dividing the Site into sub-areas,

• identifying reasonablealternative uses for each sub-area, and

• stating a set of group values tobe respected in the land-useplanning process.

Building on the Working Group’s report, DOE issued aDraft Hanford Remedial Action EIS (August 1996) thatassessed the potential environmental impacts of attainingthe cleanup conditions needed for alternative land usesand the impacts of the uses themselves.

Changed EIS Focus: Land Uses for Entire Site

Based on comments on the 1996 Draft EIS, DOE decidedto refocus the EIS on a proposed Comprehensive Land-Use Plan because remediation decisions would be madeby EPA and Ecology, as lead regulatory agencies, andDOE as an implementing agency.

With the scope of the EIS limited to land-use issues,DOE also decided to consider the entire Site (not justcontaminated areas). Because of this change,DOE decided to prepare a Revised Draft EIS,

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and also to expand stakeholder participation byinvolving agencies and Tribes with land-use interests.

Agencies and Tribes: Full NEPA Partnerswith Irreconcilable Interests

Nine parties responded to DOE’s invitation to participateas either a cooperating agency or, in the case of the TribalNations, a consulting government: the Bureau of LandManagement, the Bureau of Reclamation, and the U.S.Fish and Wildlife Service within the U.S. Department ofthe Interior; the City of Richland and Benton, Franklin,and Grant Counties; the Department of EnvironmentalRestoration and Waste Management of the Nez PerceTribe; and the Confederated Tribes of the Umatilla IndianReservation. Together they reached substantial agreementon the land-use category definitions, a framework for theenvironmental analyses, and the Comprehensive Land-Use Plan’s policies and implementing procedures.

However, some of the cooperating agencies andconsulting Tribal governments strongly favored mutuallyincompatible future land uses, especially with regard toindustrial and agricultural development versusenvironmental preservation. To provide fair voices forcompeting interests, cooperating agencies and consultingTribes developed their own alternatives for considerationin the revised Draft EIS, using guidelines and a commonoutline to yield technically parallel information. The EISpresented these alternatives as written by these parties.Although this collaborative process required time, itultimately saved time by enabling preparation of an EISthat adequately considered the full range of reasonablealternatives.

DOE and the cooperating agencies created six land-usealternatives, each consisting of a map that designatedallowable uses for sub-areas within the Site. Except for

No Action (continuing current land uses, landmanagement processes, and intergovernmentalrelationships), each alternative represents one or moreTribe, Federal, or local agency preferred alternative.

DOE’s preferred alternative in the Revised Draft EISwould consolidate waste management operations in theCentral Plateau of the Site, allow industrial developmentin the eastern and southern portions of Hanford, increaserecreational access to the Columbia River, expand anexisting Saddle Mountain National Wildlife Refuge onthe north side of the Site to include all of the WahlukeSlope, and allow limited commercial grazing on the Site.

The Department of the Interior agencies’ alternativewould increase Federal stewardship of Hanford’s naturalresources. The local governments’ alternative wouldallow agricultural and grazing activities on the HanfordSite and increase industrial development. Two Tribalalternatives called for increasing traditional Tribal useswhile preserving natural and cultural resources. TheTribes and DOE “agreed to disagree” on theinterpretation of treaty rights in the interest of moving theEIS forward.

NEPA Process Enhanced Environmental Values

Public comments on the Revised Draft EIS primarilyaddressed environmental issues such as Hanford’s uniqueshrub-steppe habitat, the importance of protecting theHanford Reach to preserve salmon spawning sites, theproposed Congressional designation of the HanfordReach as a Wild and Scenic River, and the historicsignificance of the Hanford Site’s first nuclear reactor.Comments overwhelmingly favored a moreenvironmentally protective alternative – with no cattlegrazing, less gravel mining for remediation activities, andmore preservation of wildlife and habitat than DOE’sRevised Draft preferred alternative.

Hanford Comprehensive Land-Use Plan EIS (continued from previous page)

Hanford�s Unique Resources

� The Hanford Site contains a large tract of rare andunfragmented shrub-steppe habitat and rareanimal and plant species.

� Along the north and east of the Hanford Site runsthe last free flowing stretch of the Columbia River,known as the Hanford Reach, valued for itsrecreational uses and as prime salmon spawninghabitat. The Reach�s northern shore, known as theWahluke Slope, rises in a chalk bluff formationwhose stability has been threatened by agriculturalirrigation.

These elk are part of a herd that migrates throughthe Hanford Site. The EIS considered how tomanage large portions of the Site to preservebiological resources.

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DOE Decides Disposition of Surplus PlutoniumAfter Complex NEPA ProcessOn January 4, 2000, the Department announced itsdecision to dispose of up to 50 metric tons of surplusweapons-usable plutonium by immobilizingapproximately one-third of it and using the remainder tofabricate mixed oxide (MOX) fuel, which will beirradiated in existing commercial nuclear reactors tomake the plutonium inaccessible and unattractive forweapons use. Three new facilities will be constructed andoperated at the Savannah River Site for pit disassembly,plutonium immobilization, and MOX fuel fabrication, thelatter facility to be licensed by the U.S. NuclearRegulatory Commission.

This major decision, the culmination of a complex NEPAprocess that began with a programmatic EIS initiated sixyears ago, was based on a tiered project-specific EIS thatincluded a supplement to the draft EIS. (In a parallelprocurement process, DOE also prepared anenvironmental critique and synopsis under Section 216 ofthe DOE NEPA regulations.)

In the project-specific Surplus Plutonium Disposition EIS(DOE/EIS-0283), DOE evaluated 15 action alternativesinvolving seven DOE sites and three commercial reactorsites. Planning and executing an appropriate NEPAcompliance strategy required extensive discussionsamong numerous affected Program and Field Offices, andthe Offices of General Counsel and NEPA Policy andAssistance.

In preparing this EIS and the resulting Record ofDecision (ROD) (65 FR 1608; January 11, 2000), theOffice of Fissile Materials Disposition discovered that itsEIS affected, or was affected by, many other DOE EISsand EAs. These interrelationships required close

coordination between that Office and other involvedProgram and Field Offices to ensure that the EIS usedcurrent information. According to Bert Stevenson, theMaterials Disposition NEPA Compliance Officer andNEPA Document Manager, “Close coordination wasespecially important in preparing the cumulative impactanalysis. A total of 35 NEPA documents contributed to it.We had to cope with several moving targets and tie themall together into a credible analysis. I was in almost dailycontact with my counterparts in Defense Programs,Environmental Management, and the Field Offices.”

Tiering and an Amended Programmatic ROD

The Surplus Plutonium Disposition EIS was tiered fromthe Storage and Disposition of Weapons-Usable FissileMaterials Final Programmatic EIS (DOE/EIS-0229). Inthe Programmatic ROD (62 FR 3014; January 21, 1997),DOE selected strategies for storage of weapons-usablefissile materials and disposition of surplus plutonium; thestrategy included consolidating part of DOE’s weapons-usable plutonium storage at the Savannah River Site. TheProgrammatic ROD made moving plutonium to theSavannah River Site for storage contingent on completinga new storage facility and selecting Savannah River as thesite for immobilizing plutonium in the subsequentSurplus Plutonium Disposition ROD. However, whenEnvironmental Management identified possibledifficulties in meeting the closure schedule for the RockyFlats Environmental Technology Site, DOE amended theprogrammatic ROD (63 FR 43386; August 13, 1998) toallow for earlier shipment of plutonium from Rocky Flatsby upgrading existing storage facilities at the SavannahRiver Site.



�216 Process� and a Supplemental Draft EIS

While preparing the Surplus Plutonium Disposition DraftEIS, DOE initiated a procurement consistent with DOE’sNEPA regulations at 10 CFR 1021.216 (the “216process”) to obtain MOX fuel fabrication and reactorirradiation services under a privatization approach.(Section 216 establishes an environmental review processwithin the procurement process for evaluating proposals.DOE uses the 216 process when it needs to meetsignificant acquisition objectives before the NEPAprocess can be completed, as often is inherent to aprivatization approach. See Lessons Learned QuarterlyReport, September 1997, page 8.)

The May 1998 Request for Proposals for this workdefined limited activities that could be performed beforea Surplus Plutonium Disposition EIS ROD. Per the 216process, DOE requested that each offeror provide, as partof its proposal, information on facility design for MOXfuel fabrication and on commercial reactors proposed forirradiation services. This information was used in theprocurement process to identify potential environmentalimpacts of the proposals and was documented in anenvironmental critique. In addition, an environmentalsynopsis, based on the environmental critique, wasprovided to the U.S. Environmental Protection Agencyand made available to the public. In March 1999, DOEawarded a contract (contingent on DOE selecting thecontractor’s approach after completing NEPA review) forfuel fabrication and reactor irradiation services. Theaward decision was based, in part, on the analysisdocumented in the environmental critique.

Meanwhile, DOE issued the Surplus PlutoniumDisposition Draft EIS in July 1998, which genericallyassessed the potential environmental impacts of usingMOX fuel in commercial nuclear reactors. In April 1999,DOE issued a Supplement to the Surplus PlutoniumDisposition Draft EIS that incorporated the synopsis andanalyzed the potential environmental impacts of using

MOX fuel in the specific commercial reactors. “Thisapproach helped save us some time in that we issued theDraft EIS, followed by a Supplement to the Draft EIS, aFinal EIS, and a ROD,” said Mr. Stevenson.

Meeting Milestones Through TeamworkAs the Office of Fissile Materials Disposition waspreparing the Final EIS and identifying Los AlamosNational Laboratory as the preferred alternative forfabrication of test MOX fuel rods, Defense Programsraised questions about the Laboratory’s capability tosupport this activity in addition to its existing missionrequirements. Materials Disposition, however, wasconcerned that delays in the Surplus PlutoniumDisposition EIS would affect its overall programschedule, which included Environmental Management’scommitments to the State of Colorado regarding theshipment of Rocky Flats surplus plutonium to theSavannah River Site.

After much internal discussion, the matter was resolvedby compromise: DOE selected Los Alamos NationalLaboratory for the manufacture of the test fuel rods, butdeferred deciding which facility at the Laboratory will beused for the final stages of the test assembly work.Materials Disposition and Defense Programs establisheda process, which may involve further NEPA review, toresolve the longer-term issues.

Timely publication of the Surplus Plutonium DispositionFinal EIS and ROD could not have been accomplishedwithout extraordinary teamwork among many offices.Mr. Stevenson advises NEPA Document Managers toidentify possible linkages to other proposals and NEPAreviews early in the internal scoping process: “Whennumerous sites and programs are involved in a NEPAreview, coordinating data calls and project milestones isthe only way to avoid potential conflicts andinefficiencies.” LL


As NEPA reaches its 30th anniversary, whatopportunities do you see for furtherimprovements under NEPA?

The fact that NEPA has remained virtuallyunchanged for 30 years testifies to its enduring

purpose and goals. The NEPA process, an environmentalimpact analysis and the documentation of that analysis,enables us to meet the responsibilities set out in NEPASection 101. The opportunities that lie ahead are forcontinued refinements to ensure that the environmentalimpact analysis process is efficient and effective. Ourchallenge is to increasingly focus on the environmentalissues of concern and produce analyses that are trulyuseful to decision makers, their agencies, and the public.

What are your priorities for NEPA initiativesat the Council on Environmental Quality?

To a significant extent, the people who prepareand use the NEPA analyses drive my priorities.

I convened a meeting of Federal agency NEPA Liaisonsearly in my time at CEQ, and I recognized the value ofworking with them to address the needs and concernsthey and their agencies face. There are few situationswhere one approach will serve all. Accordingly, I intendto work with NEPA Liaisons to reassess the needs andconcerns of those who prepare NEPA analyses and helpthem get the tools they need to do their work. Many timesother agencies have such tools and solutions, andestablishing a forum for exchanging lessons learned andbest practices is one of my primary goals. For example,our first NEPA Liaison meeting began providing usefulexchanges regarding categorical exclusions.

I also will focus on several Administration initiatives,from the specific – applying NEPA to the problem ofinvasive species – to the more general – seeking ways toreduce regulatory burdens while maintainingenvironmental protection. Finally, integrating the NEPAprocess with agency decision making and otherenvironmental processes is an area that continues tochange and require our attention. By using my position tohelp strengthen the NEPA process (a fundamental step inaddressing the environmental component of anydecision), the broader environmental initiatives designedto make communities more livable and to addresspreservation of habitat and biological diversity willcontinue to move forward.

Do you see a need to refocus Federal agencies’overall vision and approach to environmentalimpact analysis?

Not generally, but sometimes a specific agencymay not understand the need for, or appreciate the

value of, the NEPA process. In any agency, occasionallynew senior leaders arrive who are unfamiliar with theNEPA process – and especially the need for theirleadership in agency NEPA efforts. I intend to continueCEQ’s tradition of helping those leaders focus onmeeting their NEPA responsibilities in a way that makessense, supports their missions, and adds value to theirdecision making.

How did your experience color your vision ofthe NEPA process and the environmentalbenefits it could bring about?

My experience in the Coast Guard, the Army, andthe private sector helped shape my views of

NEPA’s value. As a young attorney, I learned the value ofproactive or preventive advice. Being in situations wherelack of planning, time, or knowledge prevented achievingNEPA’s full potential drove home the value of usingNEPA early in decision making. Using NEPA to identifyenvironmental concerns and integrate economic,operational, and environmental considerations is aproactive approach that results in environmental benefits.

Do you have any specific advice for NEPApractitioners in the Department of Energy?

Rather than offering specific advice, I have arequest. As you continue doing NEPA work,

please find the time to identify and pass on toCarol Borgstrom (DOE’s NEPA Liaison) and her staffthe challenges, successes, and “bumps in the road” thatyou encounter. I want to bring the Lessons LearnedQuarterly Report and the self-examination you haveundertaken to improve DOE’s NEPA process to theattention of the entire Federal NEPA community. I thankCarol for agreeing to make a presentation to the FederalNEPA Liaisons on your program in the coming year. Mygoal is to work with Carol and the other NEPA Liaisonsto identify those issues that need attention and to findways to help the NEPA practitioners. Together, we canmake NEPA’s next 30 years successful and rewarding,both for the environment and the people we serve.

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Lessons Learned Talks with Horst GreczmielNew NEPA Director at CEQ Requests DOE Input

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Horst G. Greczmiel is the Associate Director for NEPA at the Council on Environmental Quality (CEQ).Lessons Learned recently interviewed Mr. Greczmiel on his vision for NEPA and CEQ.



Horst G. Greczmiel joined CEQ in December 1999 as its Associate Director for NEPA. He is responsiblefor overseeing and implementing NEPA and CEQ mandates to ensure that Federal agencies integrateenvironmental values into decision making.

Previously, in the Office of Environmental Law at U.S. Coast Guard Headquarters in Washington, DC, he wasresponsible for all facets of environmental planning, including policy development and defensive litigationarising from compliance responsibilities under NEPA, the Endangered Species Act, and the National HistoricPreservation Act. While at the Coast Guard, he received the Commandant�s Award for Superior Achievement anda Department of Justice Commendation for his work on environmental planning and species protection litigation.

Earlier, Mr. Greczmiel had practiced law in the New Jersey Public Defender�s Office (Camden, NJ), in a privatefirm, and for the U.S. Army. His service in the Army included tours with the Office of the Judge AdvocateGeneral�s Environmental Law Division and as environmental advisor to the Deputy Assistant Secretary of theArmy for Environment, Safety and Occupational Health.

Mr. Greczmiel received his B.A. from Lafayette College, a J.D. from Rutgers-Camden School of Law, and aL.L.M. in environmental law from George Washington University.

(continued from previous page)Lessons Learned Talks with New CEQ NEPA Director

Transitions

Gearo to Lead Environmental Services at Dugway Site

Costner Named Secretary�s Advisor for Environment,Safety and HealthBrian Costner has been named as Senior Policy Advisorfor Environment, Safety and Health to advise theSecretary of Energy in a wide range of areas affectingenvironmental policy, worker health and safety, andpublic health. Mr. Costner’s perspectives on DOE ES&Hactivities come from his longstanding public-sectorinvolvement in the Department’s major environmentalimpact statements. “NEPA compliance is important to theDepartment’s effective management of many projects andprograms,” he observed, “as well as to relations withpeople interested in the Department’s activities.”

Most recently, Mr. Costner served as a consultant to theInstitute for Energy and Environmental Research.Previously, he had been the Director of the Energy

Research Foundation, a nonprofit environmentalorganization in Columbia, South Carolina, that addressedsite-specific and national DOE issues. He also has servedon advisory and working committees of DOE, theNational Research Council, Consortium for RiskEvaluation with Stakeholder Participation, AspenInstitute, Medical University of South Carolina, SouthCarolina Research Authority, and Risk AssessmentCorporation. From 1994 until 1999, he served as amember of DOE’s Environmental Management AdvisoryBoard and its Worker Health and Safety Committee.Mr. Costner has a Master of Arts degree from AntiochUniversity’s Environment and Community Program inSeattle, Washington.

Joe Gearo, who has served in DOE’s Office of NEPAPolicy and Assistance since 1989, left DOE in lateJanuary to become Environmental Services DivisionDirector for the U.S. Army’s Dugway Proving Ground inUtah. Mr. Gearo will be responsible for developing andmanaging the Proving Ground’s environmental

compliance program, including actions taken to enhancethe environment. Mr. Gearo will be applying NEPAlessons learned in a very practical and challengingcontext. The Office of NEPA Policy and Assistancewishes him well.

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Hanford Comprehensive Land-Use Plan EIS (continued from page 5)

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Influenced by this public preference, DOE ultimatelydecided to increase environmental protection of parts ofthe Site. Accordingly, the Washington Department of Fishand Wildlife, the U.S. Fish and Wildlife Service, and DOEmodified their management agreements to allow expansionof the Saddle Mountain National Wildlife Refuge to theentire Wahluke Slope. The Record of Decision, whichadopts the Comprehensive Land-Use Plan, “creates aroadmap for planning appropriate industrial developmentin the eastern and southern parts of Hanford while definingareas of the site where waste management will behandled,” said Assistant Secretary for EnvironmentalManagement Dr. Carolyn L. Huntoon.

Plan Includes Implementation ProceduresTo help ensure that future decisions are consistent withthe Comprehensive Land-Use Plan and that appropriateNEPA review takes place for future land-use proposals,the EIS includes an unusual chapter on implementationprocedures. Under these procedures, adopted in theRecord of Decision, proposals for new facilities andactivities on the Site, whether from private orgovernment proponents, will be evaluated by DOE’sRealty Officer and NEPA Compliance Officer, jointlywith a Site Planning Advisory Board that includesrepresentatives from the cooperating agencies andaffected Tribal governments.

For more information on the Hanford ComprehensiveLand-Use Plan EIS, contact Tom Ferns [email protected] or call 509-372-0649.

DOE Issues Decisions for Low-leveland Mixed Low-level WasteLast Planned Decisions for the WasteManagement Programmatic EIS

On February 25, 2000, DOE published a Record ofDecision for the Department’s Waste ManagementProgram: Treatment and Disposal of Low-level Waste(LLW) and Mixed Low-level Waste (MLLW) (65 FR10061). The decisions enable DOE to integrate wastemanagement activities among sites to promote expeditious,compliant, and cost-effective cleanup.

In brief, for the management of LLW analyzed in the FinalWaste Management Programmatic EIS (DOE/EIS-0200),DOE decided to perform minimum treatment at LLWgenerator sites. In addition, the Hanford Site inWashington and the Nevada Test Site will be madeavailable to all DOE sites for LLW disposal and, to the extentpracticable, some other LLW disposal operations at DOE siteswill continue as specified in the Record of Decision.

For the management of MLLW analyzed in the WasteManagement Programmatic EIS, the Department decided

to treat MLLW at the Hanford Site, Idaho NationalEngineering and Environmental Laboratory, Oak RidgeReservation, and Savannah River Site, and to dispose ofMLLW at the Hanford Site and the Nevada Test Site. Inthe same Federal Register notice, DOE amended theDecember 1996 Record of Decision for the Nevada Site-wide EIS (DOE/EIS-0243) to accord with thesedecisions regarding Nevada.

This is the last planned Record of Decision under theWaste Management Programmatic EIS issued May1997. The previous Records of Decision for DOE’sWaste Management Program were:

• Treatment and Storage of Transuranic Waste(63 FR 3629; January 23, 1998);

• Treatment of Non-wastewater Hazardous Waste(63 FR 41810; August 5, 1998); and

• Storage of High-level Radioactive Waste(64 FR 46661; August 26, 1999).LL


Sandia Book Tells 25-Year Historyof Waste Isolation Pilot Plant

WIPP Project ManagerWendell Weart, dressed inhis official Sultan of Saltuniform, wields a scimitar ata gathering in April 1997 tohonor his 35th anniversaryat Sandia and being nameda Sandia Fellow.

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It was 1975 when the Energy Research and DevelopmentAgency (a DOE predecessor agency) first assignedSandia National Laboratories major responsibility for thescientific investigations related to a proposed radioactivewaste repository in southeastern New Mexico. The firstshipment of waste arrived in 1999. The 25-year history ofthe Waste Isolation Pilot Plant (WIPP) is now detailed inSandia and the Waste Isolation Pilot Plant, 1974 – 1999,by Carl J. Mora, a historian at Sandia NationalLaboratories. The Department’s three EISs for WIPP(DOE/EIS-0026 and supplements) and their associatedRecords of Decision are part of this history.

This book tells a multi-faceted story (generouslyillustrated with historic photographs and newspapercartoons) – of shifting missions, high public interest,political infighting, scientific controversy, technicalchallenges, and naivete replaced with hard-wonexperience – and of Sandia’s role in helping to developthe nation’s first geological repository for the permanentdisposal of transuranic radioactive waste. It also tells ofDOE’s growing sophistication in performing complexNEPA reviews.

Dr. Mora describes how an initial test site seven milesnorthwest of the eventual WIPP site had to be abandonedbecause unexpected subsurface conditions werediscovered in the form of steeply dipping salt beds and abrine reservoir under artesian pressure (which nearly

killed one of the Sandiastaff during exploratorydrilling). Even as thesearch ensued for a newsite, background workwas beginning for anEIS. At first, there wereonly three members ofthe EIS preparationteam, and as one ofthem recalled 20 yearslater, “people were stilltrying to learn what anEIS means.” (Peoplestill thought an EIScould be about a dozenpages.) After severaliterations, a draft EISwas finally issued in1979. Subsequently, theEIS was extensivelysupplemented in 1990and 1997.

The book chronicles how opposition to WIPP grew asconstruction proceeded. Disagreements raged amongproponents and opponents at all levels – from activistsarrested at the construction site, to disputes betweenPresidents andCongress. Some earlyopponents later becameproponents. Amongthe many personalitiesin the book isBill Richardson who, asa former Congressmanfrom the host state ofNew Mexico, stressedthat WIPP should berequired to meetEnvironmentalProtection Agency(EPA) standards forwaste disposal.Congress eventuallyenacted requirementssetting out a new rolefor EPA, and, in 1998,EPA certified that WIPP met the agency’s disposalstandards. The facility began waste disposal operations inMarch 1999 under the leadership of Bill Richardson asSecretary of Energy.

Over the 25 years of facility development, fiveU.S. Presidents held office, the Energy Research andDevelopment Agency evolved into DOE (with manychanges in leadership), and Congress debated WIPP’sfunding and future numerous times. Among the fewconstants over time were some of the initial Sandiaplayers, including the project manager, Wendell Weart,nicknamed “The Sultan of Salt” by former Secretary ofEnergy Hazel O’Leary. Dr. Weart himself writes in thebook’s forward that, although WIPP took a 25-year tripthat had many potholes and detours, the fact that it finallycame to fruition “provides a positive signal to the worldthat radioactive waste disposal is not too difficult aproblem to overcome.”

Sandia and the Waste Isolation Pilot Plant, 1974 – 1999,publication SAND99-1482, is available from theNational Atomic Museum Store at 505-284-3242.

DOE�s NEPA Experience Grew as Project Took Shape

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At first, therewere only threemembers of theEIS team. As onerecalled 20 yearslater, �peoplewere still tryingto learn what anEIS means.�(People stillthought an EIScould be about adozen pages.)


Mini-guidance from the Office of NEPA Policy and Assistance

Considering Essential Fish Habitat in NEPA ReviewsAvoiding adverse impacts to environmentally sensitive resources is a consideration in project planning, so theseresources receive special attention � often including interagency consultation � in the NEPA process. Lessons LearnedQuarterly Report recently described regulations for considering historic properties (June 1999, page 3) and nationalnatural landmarks (December 1999, page 12) in NEPA reviews. This article highlights requirements for consideringanother environmentally sensitive resource: essential fish habitat.

The 1996 Amendments to the Magnuson FisheryConservation and Management Act require the NationalMarine Fisheries Service (NMFS) to designate �essentialfish habitat� for species covered by a Federal fisheriesmanagement plan. The renamed Magnuson-Stevens Act(16 U.S.C. 1801, et seq.) defines these habitats as �thosewaters and substrate necessary to fish for spawning,breeding, feeding, or growth to maturity.� These habitatsare in marine and estuarine areas as well as rivers thatsupport Federally managed anadromous fish (that is,species that return from the sea to breed in rivers).

Under the Act, Federal agencies must consult with NMFSregarding any authorized, funded, undertaken, orproposed actions that may adversely affect essential fishhabitat. Although the concept of essential fish habitat issimilar to �critical habitat� under the Endangered SpeciesAct, measures recommended by the NMFS are advisory,not prescriptive. If a project would have adverse effects,NMFS must develop recommendations to avoid or offsetthe effects. Federal agencies have 30 days to respond inwriting to those recommendations.

NMFS interim final implementing regulations 50 CFR600, Subparts J and K, effective January 20, 1998 (62 FR66531; December 19, 1997), specify that consultations onessential fish habitat should be incorporated intoenvironmental review procedures already established,including those for NEPA. If a proposal has potentialimpacts on essential fish habitat, a draft EIS or an EAprepared for pre-approval review should contain therequired provisions of an essential fish habitat assessment:

• A description of the proposed action;

• An analysis of the effects of the proposed action (andalternatives, when appropriate) on essential fishhabitat and associated species;

• The agency’s views regarding those effects; and

• Proposed mitigation, if applicable.

An essential fish habitat assessment should appear underits own heading in an EIS or EA, and may incorporate byreference any relevant information contained elsewhere inthe document.

Recommendations for DOE NEPA PractitionersNEPA practitioners should include essential fish habitatamong the environmentally sensitive resources to beconsidered when assessing environmental impacts of aproposed action.

4 In applying a categorical exclusion, ensure thatthe proposed action meets the requirements ofDOE NEPA regulations, which specify thatenvironmentally sensitive resources must not beadversely affected (Appendix B.(4)).

4 If a proposed action could adversely affect the habitatof a marine or anadromous fish, consult with NMFSearly during preparation of an EA or EIS.

4 Distribute a draft and final EIS, or an EA for pre-approval review, to the appropriate NMFS RegionalCoordinator if the document addresses a proposalwith potential impacts on essential fish habitat.

For more information and for links to RegionalFishery Management Council Web sites, see theNMFS Office of Habitat Conservation Web site atwww.nmfs.gov/habitat.

In response to NMFS comments on a draft EIS fora proposed Clean Coal project in Florida, DOEprepared and will incorporate an essential fishhabitat assessment into the final EIS for the JEACirculating Fluidized Bed Combustor Project(DOE/EIS-0289).

Essential Fish Habitat Assessment Preparedfor DOE EIS

NMFS Essential Fish Habitat Regional Coordinators

Northeast Region: Lou Chiarella, 978-281-9277Southeast Region: Ric Ruebsamen, 727-570-5317Southwest Region: Mark Helvey, 707-575-6078Pacific Islands: John Naughton, 808-973-2935Northwest Region: Nora Berwick, 503-231-6887Alaska Region: Jeanne Hanson, 907-271-3029

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DOE-wide NEPA Contracts Update

Environmental Studies Federal Energy RegulatoryCommission 8/3/99 Tetra Tech, Inc.

EA for Transfer of DOE Grand Tracy PlessingerJunction Office to non-DOE 970-248-6197Ownership [email protected] 8/13/99 Tetra Tech, Inc.

Nuclear Infrastructure Colette Brown, NEProgrammatic EIS 301-903-6924

[email protected] 12/21/99 SAIC

Based on the performance evaluations provided by NEPA Document Managers and Ordering Contracting Officers,DOE plans to exercise the first option period on its contracts with Tetra Tech, Inc., and Science ApplicationsInternational Corporation for DOE-wide NEPA document preparation services. The contracts, issued in June 1997,cover a basic period of three years and two one-year options. (A contract with Battelle Memorial Institute was awardedin March 1998, and a decision on exercising an option will be due in early 2001.) For questions or comments on theDOE-wide contracts, contact David Gallegos at [email protected] or phone 505-845-5849.

The following tasks have been awarded under the DOE-wide contracts; for previously reported tasks, see LessonsLearned Quarterly Report, September 1999, page 10.

Task Description DOE Contact Date Awarded Contract Team

NEPA Guidance Updates Web Site of Interest:www.ehsfreeware.comFor a “virtual library” of environmental, health, andsafety information, take a look at www.ehsfreeware.com.This informative and entertaining Web site provides linksto more than 600 online databases, assorted governmentand non-government Web sites, and downloadablesoftware (“freeware”). Information is organized incategories such as:

• Information/Data (including analytical methods,emergency response, energy conservation, nature/wildlife, pollution, and waste management)

• Tools for Environmental Responsibility, ComplianceAssistance (including links to sites on environmentallaws and regulations)

• Investigation/Cleanup Assistance, Education/Training,and “Neat Stuff” (including collections ofphotographs and maps)

The site, online since July 1999, was created byDonley Technology, a publisher of environmentalsoftware and a clearinghouse for environmental softwareinformation.

The following documents were recently distributed by theOffice of NEPA Policy and Assistance.

Directory of Potential Stakeholdersfor DOE Actions under NEPA(13th edition; January 31, 2000)Office of NEPA Policy and AssistanceAvailable at tis.eh.doe.gov/nepa/ under DOE NEPA Tools

Katherine [email protected]

EPA Guidance for Consideration of EnvironmentalJustice in Clean Air Act Section 309 Reviews(EPA 315-B-99-001; July 1999)Environmental Protection AgencyOffice of Federal Activities

(DOE contact: Carolyn Osborne, [email protected])


NEPA Training OpportunitiesNEPA-related courses are listed in the Lessons Learned Quarterly Report for information only, without endorsement.

Advanced Topics in EnvironmentalImpact AssessmentIrving, TX: March 15-17, 2000Fee: $695

Cumulative Effects AssessmentIrving, TX: May 10-12, 2000Fee: $695

Environmental Impact AssessmentIrving, TX: July 26-28, 2000Fee: $695

Environmental Impact TrainingDr. Larry Canter, University of OklahomaDr. Samuel Atkinson, University of North TexasPhone: 405-321-2730E-mail: [email protected]: www.eiatraining.com

National Environmental Policy ActMay 23-25, 2000Fee: Free to Federal employees

National Advocacy CenterOffice of Legal EducationExecutive Office for United States AttorneysDepartment of JusticeColumbia, SCPhone: 803-544-5100Fax: 803-544-5110Internet: www.usdoj.gov/usao/eousa/ole.html

The NEPA Toolbox: Essentials for NEPA PractitionersDenver, CO: June 5-6, 2000Fee: $650 (Early Bird $595)

The NEPA Toolbox: Assessing Cumulative ImpactsDenver, CO: June 7, 2000Fee: $425 (Early Bird $395)

The NEPA Toolbox: EAs with FOCUSDenver, CO: June 8-9, 2000Fee: $650 (Early Bird $595)

Environmental Training and Consulting International, Inc.Phone: 720-859-0380Fax: 720-859-0381Internet: www.envirotrain.com

National Environmental Policy Actand Related RequirementsWashington, DC: April 27-28, 2000Fee: $695

American Law Institute � American Bar AssociationDinah Bear, William M. Cohen, David PagetPhone: 800-CLE-NEWSFax: 215-243-1664Internet: www.ali-aba.org

Environmental Planning �National Environmental Policy Act(Offered through a General Services AdministrationEnvironmental Advisory Services contract. Location anddate by arrangement with vendor.)Fee: $8,740 (Minimum class of 10 students) $960 (Each additional student)

Marc Enviro Services L.L.C.Contact: Mark E. SchaferPhone: 402-492-8025E-mail: [email protected]: www.marcservices.com

Cumulative Effects Assessmentin the NEPA ProcessLevine Science Research Center, Duke UniversityDurham, NC: May 31-June 2, 2000 (Register by April 12)Fee: $595

The Nicholas School of the EnvironmentDuke UniversityPhone: 919-613-8063E-mail: [email protected]: www.env.duke.edu/alternative.html

Clear Writing for NEPA SpecialistsSan Antonio, TX: March 15-17, 2000Fee: $795

Cultural and Natural Resource ManagementReno, NV: April 5-6, 2000Salt Lake City, UT: June 7-8, 2000Fee: $595

Clear Writing for NEPA Specialists/Reviewing NEPADocuments (Advanced)Denver, CO: May 1-5, 2000Fee: $1,289

Reviewing NEPA DocumentsAlbuquerque, NM: May 9-11, 2000Fee: $795

Risk Communication: Strategies and ImplementationPhoenix, AZ: May 16-18, 2000Fee: $795

The Shipley Group, Inc.Phone: 888-270-2157 or 801-298-7800E-mail: [email protected]: www.shipleygroup.com


Related Training Opportunities

Environmental Laws and RegulationsChicago, IL: March 21-23, 2000Aiken, SC: May 9-11Fee: $950

An Overview of Environmental Lawsand Regulations for ManagersRichland, WA: June 14, 2000Fee: $250

DOE National Environmental Training Office (NETO)Phone: 803-725-7153E-mail: [email protected]: www.em.doe.gov/neto

Introduction to Section 106 ReviewKansas City, MO: March 14-15, 2000Riverside, CA: March 21-22Riverside, CA: March 23-24Philadelphia, PA: April 9-11Anchorage, AK: May 2-3Chicago, IL: May 16-17Dallas, TX: June 6-7Memphis, TN: June 20-21Phoenix, AZ: July 11-12Washington, DC: July 25-26Portland, OR: August 1-2Minneapolis/St. Paul, MN: August 8-9Fee: $425

Advisory Council on Historic Preservation(with the University of Nevada, Reno)Phone: 775-784-4046 or 800-233-8928E-mail: [email protected]: www.achp.gov/

Section 106: An Advanced SeminarAustin, TX: March 13-15, 2000Madison, WI: March 21-23Fee: $475

Consultation with Indian Tribeson Cultural Resource IssuesRiverside, CA: April 18-19, 2000Fee: $325

Section 106: Working with the Revised RegulationsHonolulu, HI: April 25-26, 2000Sacramento, CA: May 1-2Fee: $325

National Preservation InstitutePhone: 703-765-0100E-mail: [email protected]: www.npi.org


Appeals Court Upholds Decision Not to Stop InternationalNuclear Waste Shipments; Rationale is NEPA, Not Mootness

On February 3, 1998, a British-flag freighter carrying vitrified high-level radioactive waste passed through the MonaPassage (between the islands of Puerto Rico and Hispaniola) bound from France to Japan by way of the PanamaCanal. A day earlier, a group of fishermen and environmental organizations from Puerto Rico, fearing an accident ormaritime disaster, sued DOE, the Department of State, the Coast Guard, and the companies involved in the treatmentand transport of the waste. The plaintiffs requested an injunction to stop the shipment until the U.S. prepared an EIS.The District Court dismissed the action as moot because the shipment had already left U.S. waters. (See LessonsLearned Quarterly Report, March 1998, page 14.) The plaintiffs appealed.

On December 20, 1999, the United States Court ofAppeals for the First Circuit found that this case was notmoot – because shipments of vitrified high-level wastethrough the Mona Passage continue – but also found thatthe shipments do not constitute a major Federal actionsubject to NEPA.

Nuclear Waste Shipmentsa Federal Action?In the appeal, the plaintiffs argued that because theUnited States plays some role in the transport of thiswaste under various international agreements and

international law, the shipments constitute a “majorFederal action” under NEPA. The United Statesresponded that the “action” is the waste shipment, whichis being carried out by private parties.

The Council on Environmental Quality (CEQ) NEPAregulations state that actions by non-Federal actors “witheffects that may be major and which are potentiallysubject to Federal control and responsibility” can bemajor Federal actions (40 CFR 1508.18). Under CEQregulations, these “actions” include “projects and

DOE Litigation Updates

DOE Radioactive WasteManagement Order andCategorical Exclusion ChallengedOn December 6, 1999, several Michigan residents and

the Citizens for Alternatives to Chemical Contaminationsued DOE in the U.S. District Court for the WesternDistrict of Michigan, alleging several NEPA violations inDOE�s environmental assessment (DOE/EA-1216) forthe Parallex Project. This project is a test that will fuel aresearch nuclear reactor in Ontario, Canada, with mixedoxide (MOX) fuel (consisting of uranium oxide andweapons-grade plutonium oxide) fabricated in the UnitedStates and Russia. The plaintiffs requested a preliminaryinjunction, which would have prevented the DOE MOXshipment to Canada until the merits of the case could beheard and decided.

On December 17, the court declined to issue apreliminary injunction but concluded that some of theplaintiffs� NEPA claims may have merit. On January 15,2000, the DOE MOX shipment arrived in Canadawithout incident. Nevertheless, the lawsuit is still active;Lessons Learned Quarterly Report will report on futuredevelopments. Hirt v. Richardson, Case No. 1:99-CV-933; December 17, 1999.

Court Allows DOE Shipmentof Test Fuel to Canada

In issuing the Radioactive Waste Management Order(DOE O 435.1) in July 1999, replacing a previous suchOrder, DOE applied categorical exclusion A5 of the DOENEPA Regulations, “Rulemaking interpreting oramending an existing rule or regulation that does notchange the environmental effect of the rule or regulationbeing amended.” On January 3, 2000, the NaturalResources Defense Council and the Snake River Alliancepetitioned the U.S. Court of Appeals for the Ninth Circuitto review and to set aside as arbitrary, capricious, andcontrary to law – both the Order and the application ofthe categorical exclusion.

The Natural Resources Defense Council’s brief is due tothe court on March 27, 2000, and DOE’s responding briefis due on April 24. Lessons Learned Quarterly Reportwill report on future developments in this case.

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programs entirely or partly financed, assisted, conducted,regulated, or approved by Federal agencies.” The Appealspanel found that the shipments are not Federal actionsbecause the U.S. performs none of these activities withrespect to the waste shipments.

Is Failure to Regulate theShipments a Federal Action?Under CEQ regulations, an agency’s failure to act is an“action” within the meaning of NEPA only when thefailure to act is reviewable by the courts under theAdministrative Procedure Act or other applicable law(40 C.F.R. §1508.18). The plaintiffs argued that the U.S.Government’s failure to regulate shipments of nuclearwaste through its Exclusive Economic Zone waters(which extend 200 nautical miles offshore) falls withinthis provision of the regulations.

In general, foreign ships do not require U.S. permissionto pass through its Exclusive Economic Zone, but the

plaintiffs argued that the U.S. granted or was required togrant specific authorization for these shipments under theU.S.-EURATOM Agreement (Agreement for Cooperationin the Peaceful Uses of Nuclear Energy between theUnited States of America and the European AtomicEnergy Community, H.R. Doc. No. 104-138). TheGovernment successfully responded that the U.S.authorities under this Agreement end when nuclearmaterial becomes “practically irrecoverable” throughvitrification. The Appeals Court concluded that “theUnited States has chosen not to regulate shipments ofnuclear waste through its [Exclusive Economic Zone] –there is no requirement that it do so, nor is it evident thatit would have that authority if it so chose. Under thesecircumstances, there is no major Federal action.”Mayaguezanos por la Salud y el Ambiente v. UnitedStates, 38 F. Supp. 2d 168, 178 (D.P.R. 1999) andNo. 99-1412, 1999 U.S. App. LEXIS 33416(1st Cir. December 20, 1999).

Other Agency NEPA CasesAppeals Court Reverses Wilson Bridge NEPA DecisionThe U.S. Court of Appeals for the District of ColumbiaCircuit on December 17, 1999, reversed a District Courtruling on the adequacy of a Federal HighwayAdministration (FHWA) EIS for replacing the WoodrowWilson Bridge across the Potomac River, finding that theEIS satisfied the requirements of NEPA, the NationalHistoric Preservation Act, and the Department ofTransportation Act. (See Lessons Learned QuarterlyReport, September 1999, page 12.)

The District Court had concluded that the FHWA violatedNEPA in failing to consider a ten-lane bridge as a“reasonable alternative.” The Appeals Court, stating that“reasonable alternatives” must be viewed in light of theaction’s objective, found that the FHWA reasonablyidentified its objective as addressing traffic needs in 20years and correctly concluded that the ten-lane bridgealternative would not provide sufficient capacity for 2020traffic projections.

The District Court, in finding the ten-lane bridge areasonable alternative, had noted that the FWHA’s CleanAir Act conformity analysis was conducted for a ten-lanealternative. The Appeals Court disagreed with thisreasoning, stating that “the Clean Air Act and NEPAinquiries have different time horizons; while a project

must show conformity with the Clean Air Act at the time itis approved, see 42 U.S.C. § 7506(c)(1) (1995), theconsideration of reasonable alternatives under NEPArequires an assessment of traffic needs in 2020.”

The District Court also had found the EIS’s treatment ofthe temporary construction impacts inadequately brief andgeneral, and – in postponing identification of constructionstaging sites – in violation of section 106 of the NationalHistoric Preservation Act and section 4(f) of theDepartment of Transportation Act. Criticizing the DistrictCourt’s assessment as “too harsh,” the Appeals Courtfound that the EIS did address a number of constructionimpacts and the brevity of the discussion was justified byFHWA’s practice of identifying construction staging sites(an “ancillary activity”) after detailed design. The AppealsCourt further found that the FHWA is not prohibited fromcompleting its section 106 analyses and certainrequirements of section 4(f) during final design of theproject. City of Alexandria v. Slater, 46 F. Supp.2d 35(D.D.C. 1999)

Although the Appeals Court decision would allowconstruction to proceed, the FHWA has issued a draftsupplemental EIS that addresses design changes and newinformation on resource needs and impacts.LL

Litigation Updates (continued from previous page)


ENVIRONMENTAL PROTECTION AGENCY (EPA)RATING DEFINITIONS

Environmental Impact of the Action

LO � Lack of Objections

EC� Environmental Concerns

EO� Environmental Objections

EU� Environmentally Unsatisfactory

Adequacy of the EIS

Category 1 � Adequate

Category 2 � Insufficient Information

Category 3 � Inadequate

(See the March 1997 Lessons Learned Quarterly Report fora full explanation of these definitions.)

EAs and EISs Completed October 1 � December 31, 1999

EAs

Environment, Safety and HealthDOE/EA-1249 (11/03/99)10 CFR 850 Chronic Beryllium Disease PreventionProgramCost: $200,000Time: 32 months

National Energy Technology CenterDOE/EA-1306 (10/12/99)Cedar Lane Farms Atmospheric Fluidized BedCombustor System, Wooster, Wayne Co., OhioCost: $27,000Time: 4 months

Oakland Operations Office/Defense ProgramsDOE/EA-1305 (10/29/99)Terascale Simulation Facility, Lawrence LivermoreNational Laboratory, CaliforniaCost: $50,000Time: 7 months

Savannah River Operations Office/EnvironmentalManagementDOE/EA-1302 (12/08/99)Interim Measures for the Mixed Waste ManagementFacility Groundwater at the Burial Ground Complexat the Savannah River Site, Aiken, South CarolinaCost: $36,000Time: 6 months

EISs

Defense Programs/Albuquerque OperationsOfficeDOE/EIS-0281 (EPA Rating: LO)Sandia National Laboratories, Albuquerque,New Mexico, Site-wideOctober 1999 (64 FR 58404; 10/29/99)Cost: $10.1 millionTime: 29 months

DOE/EIS-0293 (EPA Rating: EC-2)Proposed Conveyance and Transfer of Certain LandTracts Located at Los Alamos National Laboratory,Los Alamos and Santa Fe Counties, New MexicoOctober 1999 (65 FR 5635; 2/04/2000)Cost: $2.0 millionTime: 18 months

Fissile Materials DispositionDOE/EIS-0283 (EPA Rating: EC-2)Surplus Plutonium DispositionNovember 1999 (64 FR 63313; 11/19/99)Cost: $12.2 millionTime: 29 months


What Worked and Didn't Work in the NEPA Process

First Quarter FY 2000 Questionnaire Results

To foster continuing improvement in the Department�s NEPACompliance Program, DOE Order 451.1A requires the Office ofNEPA Policy and Assistance to solicit comments on lessonslearned in the process of completing NEPA documents anddistribute quarterly reports. This Quarterly Report coversdocuments completed between October 1 and December 31,1999. Comments and lessons learned on the following topicswere submitted by questionnaire respondents.

The material presented here reflects the personal views ofindividual questionnaire respondents,which (appropriately)may be inconsistent. Unless indicated otherwise, viewsreported herein should not be interpreted as recommendationsfrom the Office of Environment, Safety and Health.

Scoping

What Worked

· Meetings with stakeholder groups. By meeting withvarious non-government organizations (includingproponent and opposing organizations), DOE wasable to anticipate the type and content of commentswe could expect on the draft.

· Cost-free methods to submit comments. The publicliked the use of toll-free telephone numbers toprovide spoken and faxed comments. They also usedthe Program�s Web site to submit comments.

Data Collection/AnalysisWhat Worked

· Early calls for data. Data collection was expeditedby issuing data calls on the alternatives to labs andsites before the Notice of Intent was issued.

ScheduleFactors that Facilitated Timely Completionof Documents

· An aggressive schedule. A schedule was establishedthat was aggressive for both the contractor and DOE,yet allowed adequate DOE review time.

· Use of a template. A template for the EA wasprovided to the members of the team for use inpreparing and incorporating their analyses.

· Electronic communications. All documentcommunications were electronic, so individualsections could be easily transmitted for review,adjusted as necessary, and imported into a draft EA.

· Offsite reviews. Offsite meetings brought togetherreviewers from headquarters, sites, and labs. Manyissues were resolved at these meetings, whereeveryone could devote full time to reviewing the EIS.

· Stable contracting and budget situation. Althoughcosts increased due to program changes, a stablesupport contract situation and contingency budgetkept the document preparation on track.

Factors that Inhibited Timely Completionof Documents

· Preparation of the EA during the design phase.Because of design changes, the EA underwent severalunanticipated revisions before approval.

· Extra comment review periods. The EA underwentseveral rounds of comments even after the advertisedpublic review period closed.

· Delays caused by the approval process. The DOEapproval process caused EA schedule delays. Theprocess needs to be streamlined. This could beachieved by obtaining multiple reviewerconcurrences on a single draft rather than revise theEA for each new reviewer in the step-wiseconcurrence process.

· Multiple comment response. We provided changes tothe EA in response to one stakeholder�s commentsseveral times, allowing this individual to essentially�control� the NEPA process and the completionschedule.

· Unforeseen development of supplemental materials.The NEPA process was started on time. A majorportion of the draft had to be supplemented, however,taking many months and adding significant cost.

continued on page 20


What Worked and Didn't Work


(continued from page 19)

· Late submission of applicant data. If NEPA reviewhad been conducted earlier, there would have beenmore time for construction and placement ofcomponents before winter. NEPA review was startedas soon as possible; however, the applicant did notsubmit the required Environmental Questionnaire in atimely manner as had been requested.

Factors that Facilitated Effective Teamwork

· Positive historical relationship between DOE andcontractor. The relationship that existed betweenDOE and the contractor personnel who participatedin the NEPA process facilitated teamwork.

· Periodic conference calls. Periodic conference callswere held, with an agenda distributed beforehand. Inaddition, all persons needed on the conference callswere included.

Factors that Inhibited Effective Teamwork

· Insufficient time availability by some team members.Some team members were expected to take on thisassignment as an addition to their ongoing work,although they had insufficient time availability. Thiscreated difficulties for the team as a whole.

· Lack of familiarity with NEPA process. The projectteam was unfamiliar with the NEPA process; this wasthe first EA the team prepared.

· Insufficient availability of DOE project manager.Better accessibility of the DOE project managerduring the development of the NEPA documentwould have made the process more efficient.

ProcessSuccessful Aspects of the Public ParticipationProcess

· Face-to-face meetings with municipal officials.Face-to-face meetings with municipal officials helpedus provide them advanced notice of and informationon the proposed action, and helped them to establishtheir interest in and prepare for review of the draftdocument.

· Floodplain and wetland involvement. The FederalRegister floodplain and wetland involvementnotification helped the public participation process.

Unsuccessful Aspects of the PublicParticipation Process

· Lack of public understanding about the NEPAprocess. The public thought that the project was goodfor the environment and could not understand why anEA was needed. The public thought the projectshould have been categorically excluded.

· Insufficient newspaper publicity. We missed placing anotice about the EA in one of the local papers.Consequently, a group requested and was grantedmore time to comment because they did not learn ofthe EA until later in the comment period.

UsefulnessWhat Worked

· A better understanding of the project by stakeholdersand regulators. Preparation of the EA and theFinding of No Significant Impact was an effectiveplanning tool; stakeholders and regulators betterunderstood the overall objective and benefit of theproposed action.

· A shift in the basis for project decision making usingthe results of the environmental impact analysis. Theprocess was useful in that it showed that there wasnot a great amount of environmental differencebetween the alternatives and, therefore, otherconsiderations (non-proliferation, costs, etc.) couldbecome deciding factors.

What Didn�t Work

· Compliance with NEPA was viewed only as aregulatory requirement. The EA was not used as aplanning tool; it was a process required byregulations.



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What Worked and Didn't Work (continued from previous page)

· Conflict between NEPA decision making andCERCLA/RCRA decision making. NEPA review wascompleted early � perhaps too early to be effective inthe final action. Agencies that drive CERCLA/RCRAdecisions do not really care about NEPA and do notwant NEPA messing up their RCRA decisions.

· Project decision making preceded NEPA compliance.Management had made a decision to implement theproposed action as approved by regulators and theNEPA process was used to justify that action.

Enhancement/Protection ofthe Environment· Increased awareness of environmental protection by

participant. DOE�s decision to prepare an EAimparted to the participant an awareness of theseriousness of environmental concern regarding theproposed action. The participant maintained aninterest in the potential environmental effects of theproposed action on a level equal to his interest in theeconomic benefits.

· Protection of wetlands. Wetlands will be betterprotected, and potential impacts to wetlands will bebetter understood.

· NEPA compliance validated environmental analysis.The environment was protected because the NEPAprocess required technical personnel and decisionmakers to ensure that the lack of major differences inthe environmental consequences of the alternativeswas real and not just a result of the analysis process.

Effectiveness of the NEPA ProcessFor the purposes of this section, �effective� means thatthe NEPA process was rated 3, 4, or 5 on a scale of 0 to5, with 0 meaning �not effective at all� and 5 meaning�highly effective� with respect to its influence on decisionmaking.

· For this quarter, in which questionnaire responseswere received for 3 EAs and 1 EIS, 5 of the 9respondents rated the NEPA process as �effective.�

· A respondent who rated the process as �5� stated that,�Without the NEPA process, potential impacts tosensitive species may not have been identified untillater in the project, which could have affected theproject schedule and timely completion.�

· A respondent who rated the process as �not effectiveat all� explained that, �Stakeholders thought it wasvery evident that this project, which would have putout of service an old, inefficient stoker boiler, shouldnot have undergone this [NEPA] process and shouldhave been given a categorical exclusion.�


Other EIS Documentsand Milestones(December 1, 1999 � February 29, 2000)

Draft EISIdaho Operations OfficeDOE/EIS-0287Idaho High-Level Waste and Facilities DispositionDecember 1999 (65 FR 3448; 1/21/2000)

Records of DecisionDefense Programs/Sandia National LaboratoriesDOE/EIS-0281Sandia National Laboratories, Albuquerque,New Mexico, Site-wide12/06/1999 (64 FR 69996; 12/15/1999)

Environmental ManagementDOE/EIS-0200 and DOE/EIS-0243Waste Management Program: Treatment andDisposal of Low-Level Waste and Mixed Low-LevelWaste; Amendment of the Record of Decision for theNevada Test Site02/18/2000 (65 FR 10061; 2/25/2000)

Fissile Materials DispositionDOE/EIS-0283Surplus Plutonium Disposition01/04/2000 (65 FR 1608; 1/11/2000)

NEPA Document CompletionTime FactsEISs

• For this quarter, the average and median completiontimes of three EISs were 25 and 29 months,respectively.

• Cumulatively, for the 12 months that endedDecember 31, 1999, the median completion time forthe preparation of 13 EISs was 29 months; the averagewas also 29 months.

EAs

• For this quarter, the median completion time of fourEAs was seven months; the average was 12 months.

• Cumulatively, for the 12 months that endedDecember 31, 1999, the median completion time forpreparation of 28 EAs was nine months; the averagewas 15 months.

NEPA Document Cost FactsEISs

• Three EISs were completed this quarter. The mediancost for the three EISs was $10.1 million, and theaverage cost was $8.1 million.

• Cumulatively, for the 12 months that endedDecember 31, 1999, the median cost for thepreparation of 10 EISs was $3.2 million; the averagecost was $6.6 million. Three other EISs were paid forby applicants.

EAs

• For this quarter, the median cost of four EAs was$43,000; the average was $78,250.

• Cumulatively, for the 12 months that endedDecember 31, 1999, the median cost for thepreparation of 25 EAs was $52,000; the averagecost was $67,000. Three other EAs were paid for byapplicants.