APPENDIX K. Questions and Answers About NASA NEPA Regulations
K.1 Introduction
a. This appendix provides answers to the most
commonly asked questions about NASA's National Environmental Policy Act
(NEPA) compliance regulations. The U.S. Department of Energy's Green Book,
National Environmental Policy Act Compliance Guide, Volume II Reference
Book (DOE 1998) was a primary source in identifying questions.
b. The Forty Most Often Asked Questions Concerning
CEQ's National Environmental Policy Act Regulations (46 FR 18026) can be
found in Appendix G. It is highly recommended reading.
K.2 Question and Answers
K.2.1 Question 1: What is considered a NEPA Document?
- NASA defines a NEPA document as any document required by
Council on Environmental Quality regulations or NASA NEPA regulations that
includes a Notice of Intent (NOI), Notice of Availability (NOA), Draft and
Final Environmental Impact Statements (EIS's), Record of Decision (ROD),
Draft and completed Environmental Assessments (EA's), finding of no
significant impact (FONSI), Environmental Resources Document (ERD), or any
other document prepared pursuant to a requirement of NEPA or the CEQ
regulations.
K.2.2 Question 2: Does the EIS definition include a supplemental EIS?
- Yes. The term EIS includes
Draft, Final, tiered, and supplemental EIS's. Note that the CEQ
regulations (40 CFR º1502.9(c)(4)) specify that a supplemental EIS shall
be prepared, circulated, and filed ". . . in the same fashion (exclusive
of scoping) as a draft and final statement . . ."
K.2.3 Question 3: When should you begin a NEPA review for a research
program?
- The NEPA review process should begin
as soon as environmental effects can be meaningfully evaluated and before
reaching the level of investment or commitment likely to determine
subsequent development or restrict later alternatives (Section 40 CFR
º1502.4(c)(3) of the CEQ regulations and NASA's NEPA implementing
regulations).
K.2.4 Question 4: What are the procedures for coordination with
Indian tribes?
- If tribal lands would be affected by a NASA action, Indian tribes
should be given the same opportunities afforded to States (e.g., direct mailing notices of
available NEPA documents, early consultation during NEPA document preparation).
Refer to the Bureau of Indian Affairs for more information on Indian tribes. A listing of
the Federally recognized Indian tribes is available from the U.S. Department of Interior,
Bureau of Indian Affairs, Office of Public Affairs, Washington, DC 20240.
K.2.5 Question 5: Must every EIS be reviewed at least every 5 years
to determine if a supplement is required?
- Only ERD's, as a category, must be for reviewed for
adequacy every 5 years.
In addition, based on CEQ's Forty Most Often Asked Questions Concerning
CEQ's National Environmental Policy Act Regulations as a rule of thumb, if
the proposed action has not been implemented or if the EIS concerns an
ongoing program, an EIS that is more than 5 years old should be reexamined
to determine if a supplement is required. See Question #32 in Forty
Questions... NASA procedures provide for monitoring of the action after a
categorical exclusion determination, a FONSI, and a ROD. One of the
principal reasons for monitoring implementation is to detect changes that
could initiate additional NEPA review, such as mitigation techniques that
are not working and resulting in unanticipated impacts or significant new
information that has a bearing on important environmental issues (see
section 7.5-Supplemental EIS's).
K.2.6 Question 6: What obligation does NASA have with regard to public
notification when there is a lengthy delay between when a decision is made
to prepare an EIS and its actual preparation?
- NASA is required to publish a NOI in the Federal
Register in accordance with 40 CFR º1501.7 that contains the elements
specified in 40 CFR º1508.22 as soon as practicable after a decision is
made to prepare an EIS. NASA may defer publication of the NOI until a
reasonable time before preparing the EIS, provided that NASA allows a
reasonable opportunity for interested parties to participate in the EIS
process. NASA requires that the EIS scoping period be at least 45 days in
duration.
K.2.7 Question 7: When there will be a lengthy delay between publication
of the NOI and release of the Draft EIS, what are NASA's obligations?
- If circumstances determine that release of the Draft EIS
will be subject to a lengthy delay, the Sponsoring Entity should publish
an information update in the Federal Register explaining why the
delay is occurring and what the new schedule is expected to be. Copies
should be mailed directly to interested parties, including respondents to
the NOI during scoping.
K.2.8 Question 8: Is a public scoping process required for a NASA
supplemental EIS?
- A public scoping process is not required for a supplemental
EIS. When the scope of the proposed action has changed or the importance,
size, or complexity, of the proposal warrants, NASA may elect to have a
scoping process.
K.2.9 Question 9: Is a ROD required for a supplemental EIS?
- Yes. With the exception of scoping, which is optional (see
K.2.2 and K.2.8 above), a supplement to a Draft or Final EIS is prepared,
circulated, and filed in the same manner as any other Draft and Final EIS.
It also includes the preparation of a ROD.
K.2.10 Question 10: When can NASA take action on a proposal covered by
an EIS or EA?
- No final decision may be made on a proposal covered by an
EIS or EA during a mandatory waiting period following completion of the
Final EIS, except as provided at 40 CFR º1506.1 and º1506.10(b).
Specifically, CEQ regulations state that a decision cannot be made until
the later of (a) 90 days after the date of publication of the NOA for the
Draft EIS or (b) 30 days after the date of publication of the EPA NOA for
the Final EIS. No final action can be taken until the ROD has been
issued.
Before completing the NEPA process. NASA cannot take any action that will
(a) have an adverse environmental impact or (b) limit the choice of
reasonable alternatives.
K.2.11 Question 11: Which documents and decisions are required to be
published in the Federal Register?
- NOI's and NOA's for EIS's, and FONSI's for exceptional
action EA's are required to be published in the Federal Register.
K.2.12 Question 12: Is it necessary to execute a categorical
exclusion for routine maintenance and other continuing operations actions
for projects and facilities?
- No. Continuing operation of a NASA facility does not need
documentation (see section 4.5.1d).
K.2.13 Question 13: What kind of NEPA review is required to shut down a
facility? Can a facility be shut down and subsequently restarted based on
a categorical exclusion?
- Normally, shutdown and startup of a facility (e.g., workload
reductions) is considered part of a continuing operation that does not
trigger NEPA review, assuming there is an applicable ERD or EA/EIS covering
the facility. However, the activities that take place during the shutdown
(e.g., facility modification, safety improvements or repair, or reduced
maintenance) may require NEPA review if appropriate documentation does not
already exist. This advice does not apply to transfers of ownership or
use to another party or where the facility has special status or other
environmental prominence (e.g., National Historic Landmark).
K.2.14 Question 14: Must the No-Action alternative be assessed in NASA
EA's?
- Yes. CEQ regulations explicitly require assessment of the
No-Action alternative only for EIS's. NASA NEPA implementing regulations
require the No-Action alternative be considered for both EA's and EIS's.
K.2.15 Question 15: What is the appropriate time frame for which
environmental impacts should be analyzed?
- In general, impacts should be analyzed for as long as they
are reasonably expected to occur.
This question reflects confusion regarding reasonably foreseeable actions
and their reasonably foreseeable resulting impacts. To illustrate,
consider a major construction of facilities project for a new launch
vehicle processing center, where construction will take 2 years and the
operational lifetime of the facility is 15 years. Impacts should be
evaluated for construction and operation of the facility, i.e., for at
least 17 years. If the facility was decommissioned and continued to emit
effluents to the environment, the time frame could be extended even
further.
K.2.16 Question 16: How should NASA address public comments received
on a Final EIS?
- Comments NASA receives on a Final EIS before the ROD has
been issued should be reviewed to first determine whether the comments
present "significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its impacts".
If it is clear that the comments do present such new information, a
supplemental EIS is normally required (40 CFR º1502.9(c)).
If it is clear that the comments do not require a supplemental EIS, then
NASA may issue a ROD. NASA's approach is to address such comments in the
ROD itself or as a referenced independent document. NASA may refer the
commentor to the appropriate section in the Final EIS in lieu of a detailed
answer.
Comments on a Final EIS that NASA receives after a ROD has been issued
should be considered in light of 40 CFR º1502.9(c).
K.2.17 Question 17: May NASA adopt another agency's EA and FONSI if
NASA was not a cooperating agency?
- Any Federal agency may adopt another Federal or State
agency's EA for which a FONSI was issued and is encouraged to do so to save
time or money. The FONSI of another agency cannot be adopted. To decide
if adopting an EA is appropriate, NASA (as adopting agency) must conclude
that the EA adequately describes its proposed action and in all other
respects meets its requirements for EA's. Normal practices for review,
publishing, and notifying the public would occur. NASA would issue its
FONSI, if appropriate. The administrative record should be maintained as
with any other EA.
K.2.18 Question 18: May NASA use unpublished NEPA documents as
reference material in preparing another NEPA document?
- NASA recognizes that extensive NEPA documents and analyses
have been prepared for programs that were canceled before publication of
the NEPA documents. If the work in question was compiled and analyzed by
recognized experts and the document or analyses were or will be made
available to the public, either in the designated information repositories
or upon request through the Freedom of Information Act (FOIA), it is
acceptable to use the document and/or the analysis as reference material,
provided that it has been evaluated by NASA and found to be reasonable and
relevant to the proposed NASA action. The information/document can then
be cited in the reference section.
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