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Department of Energy- NEPA Review (9-FD-e)

Information current as of 2019
The United States Department of Energy (DOE) must coordinate National Environmental Policy Act (NEPA) review into its decision-making process for any action affecting the quality of the environment of the United States. An action means a project, program, plan or policy as discussed in 40 C.F.R. § 1508.18, that is subject to DOE’s control and responsibility. 10 C.F.R. § 1021.102. An action includes new and continuing activities, including projects and programs financed, assisted, conducted, regulated or approved by DOE. 40 C.F.R. § 1508.18.


The National Environmental Policy Act of 1969 requires federal agencies to consider the potential environmental effects of major federal actions that may significantly affect quality of the human environment before deciding whether and in what form to act. 42 U.S.C. § 4332(2)(C).

Environmental reviews prepared under NEPA should provide a decisionmaker with relevant and timely information, and the Council on Environmental Quality (CEQ) regulations make it clear that “NEPA’s purpose is not to generate paperwork—even excellent paperwork—but to foster excellent action.” 40 C.F.R. §§ 1500.1(c).

Specifically, the lead federal agency, in this case DOE, must first determine whether a categorical exclusion applies, and what requisite level of detailed statement to prepare assessing the environmental impact of and alternatives to major federal actions that may significantly affect the human environment.

If a categorical exclusion does not apply, DOE prepares and issues either an Environmental Assessment (EA) and/or an Environmental Impact Statement (EIS) that examines alternatives and the likely effects to the human environment from the proposed major federal action. 40 C.F.R. §§ 1500.1 – 1501.4.

DOE must begin NEPA review as soon as possible after receiving an application for the proposed action. 10 C.F.R. § 1021.215(d).

DOE's NEPA process is described and controlled by 10 C.F.R. § 1021.



Department of Energy- NEPA Review Process


9-FD-e.1 – Consult with the Department of Energy (DOE)

The applicant (developer) applying for a DOE permit, license, exemption, allocation, or other similar action should consult with DOE as early as possible in the planning process to obtain guidance with respect to the appropriate level and scope of any studies or environmental information that DOE may require to be submitted as part of, or in support of, the permit or approval application. 10 C.F.R. § 1021.215(b)(1).

9-FD-e.2 to 9-FD-e.3 – Initiate On-Site Evaluation (If Applicable)

During or following the initial consultation DOE determines whether an on-site evaluation of the proposed action is required to determine the potential environmental impacts and the level and scope of environmental review.

If an on-site evaluation is required, see:

‘’’Geothermal’’’

Geothermal On-Site Evaluation Overview

‘’’Hydropower’’’

Hydropower On-Site Evaluation Overview

‘‘’Solar’’’ Solar On-Site Evaluation Overview

‘’’Transmission’’’

Transmission On-Site Evaluation Overview

If an On-Site Evaluation has been completed, DOE reviews the significance of impacts from proposed activity.

9-FD-e.4 – Conduct Environmental Studies

The applicant (developer) must conduct studies requested by DOE to determine the environmental impacts of the proposed action. The developer may be required to hire an Environmental Consultant or Engineer to complete the environmental studies requested. 10 C.F.R. § 1021.215(b)(2).

9-FD-e.5 – Consult with Stakeholders

The applicant (developer) must consult with the appropriate federal, state, regional and local agencies, American Indian tribes and other potentially interested parties during the preliminary planning stages of the proposed action to identify environmental factors and permitting requirements. 10 C.F.R. § 1021.215(b)(3).

9-FD-e.6 – Notify DOE of Private Entities and Organizations Interested in the Proposed Action

The applicant (developer) must notify DOE of private entities, and organizations interested in the proposed action, so that DOE can consult, as appropriate with these parties in accordance with 40 C.F.R. §§ 1501.2(d)(d).

9-FD-e.7 – Notify DOE of Other Local, State, or Federal Environmental Reviews and Requirements

The applicant (developer) must notify DOE as early as possible of other federal, state, regional, local, or tribal actions required for project completion to allow the DOE to coordinate the federal environmental review and fulfill the requirements of 40 C.F.R. §1506.2 regarding elimination of duplication with state and local procedures. 10 C.F.R. § 1021.215(b)(4).

9-FD-e.8 – Notify DOE of Additional Actions

The applicant (developer) must notify DOE, before DOE completes NEPA review, if the developer plans to take an action that is within DOE’s jurisdiction that may have an adverse environmental impact or limit the choice of alternatives. 10 C.F.R. § 1021.215(b)(6).

9-FD-e.9 to 9-FD-e.11 – Review Application Materials and Environmental Information for Completeness

DOE must independently evaluate and verify the accuracy of information received from the applicant (developer) in accordance with 40 C.F.R. § 1506.5(a); 10 C.F.R. § 1021.215(d). DOE may request any additional information from the developer that it needs to review the Application for completeness.

9-FD-e.12 – Review Application Materials and Environmental Information for Environmental Determination

DOE must review the Application materials and environmental information to make an environmental determination. DOE must determine whether a categorical exclusion applies or whether an Environmental Assessment (EA) and/or an Environmental Impact Statement (EIS) is required. 10 C.F.R. § 1021.300(a).

DOE has identified classes of actions that generally require either an EA or an EIS. DOE generally prepares an EA for classes of actions identified in Appendix C of 10 C.F.R. § 1021. DOE also prepares an EA for a proposed DOE action that is not described in any of the classes of actions listed in Appendices A, B, or D of 10 C.F.R. § 1021. However, an EA is not required if DOE decided to prepare an EIS. 10 C.F.R. § 1021.321(a).

Similarly, DOE generally prepares an EIS for classes of actions identified in Appendix D of 10 C.F.R. § 1021.

DOE may prepare a NEPA document (e.g., EA or EIS) for any DOE action at any time in order to further the purposes of NEPA. DOE may prepare a NEPA document to analyze the consequences of ongoing activities, support DOE planning, assess the need for mitigation, fully disclose the potential environmental consequences of DOE actions, or for any other reason. 10 C.F.R. § 1021.300(a).

9-FD-e.13 – Does the Proposed Action Fall Under a Categorical Exclusion?

DOE must determine if the proposed action falls under a categorical exclusion. A categorical exclusion is “a category of actions which do not individually or cumulatively have significant effect on the human environment and which have been found to have no such effect in procedures adopted by a federal agency in implementation of NEPA and…neither an EA or an EIS is required.” 40 C.F.R. §§ 1508.4.

To find that a proposed action falls under a categorical exclusion, DOE must first determine whether:

  • The proposed action has not been segmented to meet the definition of a categorical exclusion. Segmentation can occur when a proposal is broken down into small parts in order to avoid the appearance of significance of the total action.

10 C.F.R. §1021.410(a)(1),(3).

If the proposed action does not fit within a class of actions listed in Appendix A or B or the proposed action has been segmented, then the proposed action is not categorically excluded. If the proposed action is in Appendix A or B and has not been segmented, then a proposed action may be categorically excluded if there are no extraordinary circumstances that may affect the significance of the environmental effects of the proposal. 10 C.F.R. §1021.410(a)(2).

9-FD-e.14 to 9-FD-e.16 – Does the Proposed Action Include Extraordinary Circumstances?

If the proposed action falls under a class of action listed in Appendix A or B of 10 C.F.R. §§ 1021.100 – 1021.410, Department of Energy - National Environmental Policy Act Implementing Procedures, and the proposed action has not been segmented to meet the definition categorical exclusion DOE must determine whether the proposed action includes an extraordinary circumstance that may affect the significance of the environmental effects of the proposal. 10 C.F.R. §1021.410(a)(2). Categorical exclusions are limited by extraordinary circumstances. 10 C.F.R. §1021.410(a). If a extraordinary circumstance applies to the proposed action it may not be categorically excluded.

Extraordinary circumstances are factors or circumstances in which a normally excluded action may have a significant environmental effect that then requires further analysis in an EA or EIS. Specifically, extraordinary circumstances are unique situations presented by specific proposals, including but not limited to:

  • Scientific controversy about the environmental effects of the proposal;
  • Uncertain effects of the proposal;
  • Uncertain effects or effects involving unique or unknown risks; and
  • Unresolved conflicts concerning alternative uses of available resources.

10 C.F.R. §1021.410(a)(2).

If DOE determines there is an extraordinary circumstance an EA or in some circumstances an EIS is required.

If the proposed action falls under a class of action listed in Appendix A or B of 10 C.F.R. §§ 1021.100 – 1021.410, Department of Energy - National Environmental Policy Act Implementing Procedures, and the proposed action has not been segmented to meet the definition categorical and if no extraordinary circumstances are found DOE issues a Categorical Exclusion Decision Memo and the developer can continue with the approval process without further NEPA review.10 C.F.R. §1021.410(b).

9-FD-e.17 – Does DOE Determine that an Environmental Impact Statement (EIS) is Required?

DOE may determine that the proposed action requires the preparation of an EIS without further examination. The proposed action may fall under one of the classes of actions identified in Appendix D of 10 C.F.R. § 1021 or DOE may decide based on the initial consultation with the developer and the application material. An EIS is a more comprehensive study than an EA in which DOE must “rigorously explore and objectively evaluate all alternatives” of the proposed action. 40 C.F.R. §§ 1502.14. If DOE determines that an EIS is required for the proposed action, DOE initiates the EIS process.

If DOE determines that an EIS required for the proposed action, an EA is not prepared, and DOE initiates the EIS process.

9-FD-e.18 – Initiate Environmental Assessment Process

If DOE determines that an EA is required DOE initiates the process to prepare an EA. An EA is appropriate for proposed actions that are not categorically excluded and not normally subject to an EIS. An EA is concise public document prepared to determine if the proposed action has the potential to “significantly affect the quality of the human environment.” 42 U.S.C. § 4332(2)(C). If the proposed action significantly effects the human environment DOE is responsible for preparing and EIS. If the proposed action does not significantly affect the human environment, then DOE prepares a FONSI instead.

The term “significantly” has specific meaning in the context of NEPA.

Significantly as used in the NEPA requires considerations of both context and intensity:

Context
This means that 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. Significance varies with the setting of the proposed action. For instance, for a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short-term and long-term effects are relevant. 40 C.F.R. 1508.27.
Intensity
This refers to the severity of effect. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. 40 C.F.R. 1508.27.

DOE must also examine the types of effects that are caused by a proposed action to determine whether an action is significant.

Effects
Include direct effects, which are caused by the action and occur at the same time and place as well as indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. 40 C.F.R. 1508.8.
Human Environment
Is interpreted comprehensively to include the natural and physical environment and the relationship between of people with that environment. This means the economic or social effects are not intended by themselves to require preparation of an EIS. When an EIS is prepared and economic or social and natural or physical environmental effects are interrelated, then the EIS will discuss all these effect on the human environment. 40 C.F.R. 1508.14.

An EA is typically shorter than an EIS, with fewer opportunities for public comment or involvement, and has fewer procedural requirements, generally requiring less time to prepare than an EIS. Council on Environmental Quality - Forty Most Asked Questions Concerning CEQ's NEPA Regulations, p.36a.

9-FD-e.19 to 9-FD-e.21 – Does DOE Prepare the Environmental Assessment?

If an EA is determined to be necessary, the applicant (developer) may be permitted to prepare an EA pursuant to 40 C.F.R. § 1506.5(b) for review and adoption by DOE. 10 C.F.R. § 1021.215(d).

If DOE permits an applicant (developer) to prepare an EA, DOE must make its own evaluation of the environmental issues and take responsibility for the scope and content of the EA. 40 C.F.R. § 1506.5(b).

9-FD-e.22 to 9-FD-e.23 – Environmental Assessment (EA)

DOE or the applicant (developer) must prepare an EA. An EA must comply with the requirements of 40 C.F.R. § 1508.9 and include, at minimum, the following:

  • Briefly provide sufficient evidence and analysis for determining whether to prepare an EIS or a Finding of No Significant Impact (FONSI). An EIS is a more comprehensive study than an EA in which DOE must “rigorously explore and objectively evaluate all alternatives” of the proposed action. 40 C.F.R. §§ 1502.14. While a FONSI is a document prepared by DOE briefly presenting the reasons why action, not otherwise categorically excluded pursuant to 40 C.F.R. §§ 1508.4, will not have a significant effect on the human environment and for which an EIS is not required. 40 C.F.R. §§ 1508.13;
  • Aid DOE’s compliance with NEPA when no EIS is necessary; and
  • Facilitate preparation of a statement when one is necessary.

40 C.F.R. §§ 1508.9(a)(1)-(3).

An EA must include brief discussions of the proposed action, of the environmental impacts of the proposed action and alternatives and a list of agencies and persons consulted. 40 C.F.R. §§ 1508.9(b).

When feasible, DOE NEPA documents must explain technical, scientific, or military terms and measurements using terms familiar to the general in accordance with 40 C.F.R. §§ 1502.8.

9-FD-e.24 – Publish Environmental Assessment (EA)

DOE must make NEPA documents available to other federal agencies, states, local governments, American Indian tribes, interested groups and the general public, in accordance with 40 C.F.R. §§ 1506.6.

DOE must publish notice of the EA, at minimum, in the following manner:

  • Mail notice of the EA to those who have requested notice;
  • Publish notice in the Federal Register; and
  • Provide notice by mail to national organizations reasonably expected to be interested. 40 C.F.R. §§ 1506.6(b).

In certain cases, DOE may also provide notice to:

  • State and areawide clearinghouses;
  • Notice to Indian tribes when effects may occur on reservations;
  • Publication in local newspapers in general circulation;
  • Notice through other local media;
  • Notice to potentially interested community organizations; and
  • Direct mailing to owners and occupants of nearby or affected property. 40 C.F.R. §§ 1506.6(b)(3).

A full list of notice requirements can be found pursuant to 40 C.F.R. §§ 1506.6.

9-FD-e.25 – Notify Host State or Tribe of the Environmental Assessment (EA)

DOE must notify the host state and the host tribe of a DOE determination to prepare an EA. 10 C.F.R. 1021.301(d). Host state means a state within whose boundaries DOE proposes and action at an existing facility or construction or operation of a new facility. 10 C.F.R. § 1021.104(b). Host tribe means an American Indian tribe within whose tribal lands DOE proposes an action at an existing facility or construction or operation of a new facility. 10 C.F.R. § 1021.104(b). DOE may also notify any other state or American Indian tribe that, in DOE’s judgement, may be affected by the proposed action. 10 C.F.R. § 1021.301(c).

9-FD-e.26 – Comment on Environmental Assessment (EA)

DOE must provide the host state or host tribe the opportunity to comment on an EA before DOE’s approval and final action on the EA. 10 C.F.R. 1021.301(d). DOE may also provide any other state or American Indian tribe with the same opportunity if, in DOE’s judgement, the state or tribe may be affected by the proposed action. 10 C.F.R. 1021.301(d).

Unless waived by the state or tribe, the comment period must last between 14 and 30 days. 10 C.F.R. 1021.301(d).

9-FD-e.27 – Review Environmental Assessment and Public Comments

DOE must review the EA and public comments before approving or modifying the EA. 10 C.F.R. 1021.301(d). If DOE permits an applicant (developer) to prepare an EA, DOE must make its own evaluation of the environmental issues and take responsibility for the scope and content of the EA. 40 C.F.R. §§ 1506.5(b).

9-FD-e.28 to 9-FD-e.29 – Does DOE Make a Finding of No Significant Impact (FONSI)?

After reviewing the EA and public comments, along with other relevant information DOE must make either a Finding of No Significant Impact (FONSI) or require an Environmental Impact Statement. 10 C.F.R. § 1021.322(a). DOE prepares a FONSI only if the related EA support the finding that the proposed action will not have a significant effect on the human environment. 10 C.F.R. § 1021.322(a).

Specifically, there are two situations when a FONSI is prepared:

  • EA analysis shows that the action would have no significant effects.
  • EA analysis shows that the action would have no significant effects beyond those already analyzed in an EIS to which the EA is tiered, provided that the significant effects in question were fully analyzed in the EIS.


Finding of No Significant Impact (FONSI)

The FONSI explains the reasons why an action will not have a significant effect on the human environment and why an EIS will not be required. It must succinctly state the reasons for deciding that the action will have no significant environmental effects. 40 CFR § 1508.13; Council on Environmental Quality - Forty Most Asked Questions Concerning CEQ's NEPA Regulations, p.37a.

A FONSI must include, at minimum, the following:

10 C.F.R. § 1021.322(b)(1)-(4).


If the EA does not support a FONSI, DOE must prepare and EIS and issue a Record of Decision (ROD) before acting on the proposed action addressed by the EA, except as provided in 40 C.F.R. §§ 1506.1 and 10 C.F.R. § 1021.211. 10 C.F.R. § 1021.322(a).

9-FD-e.30 – Make FONSI Available for the Public

DOE must make the FONSI available for public review pursuant to 40 C.F.R. §§ 1501.4(e)(1) and 40 C.F.R. §§ 1506.6. 10 C.F.R. § 1021.322(c). Specifically, DOE must publish notice of the FONSI, at minimum, in the following manner:

  • Mail notice of the EA to those who have requested notice;
  • Publish notice in the Federal Register; and
  • Provide notice by mail to national organizations reasonably expected to be interested. 40 C.F.R. §§ 1506.6(b).

In certain cases, DOE may also provide notice to:

  • State and areawide clearinghouses;
  • Notice to Indian tribes when effects may occur on reservations;
  • Publication in local newspapers in general circulation (;
  • Notice through other local media;
  • Notice to potentially interested community organizations; and
  • Direct mailing to owners and occupants of nearby or affected property. 40 C.F.R. §§ 1506.6(b)(3).

A full list of notice requirements can be found pursuant to 40 C.F.R. §§ 1506.6.

9-FD-e.31 – Comment on FONSI (If Applicable)

In certain circumstances DOE must make a proposed FONSI available for public review and comment before making a final determination on the FONSI as required by 40 C.F.R. §§ 1501.4(e)(2) or in other situations at DOE’s discretion. 10 C.F.R. § 1021.322(d).

9-FD-e.32 and 9-FD-e.33 – Comply with FONSI

The applicant (developer) must comply with any limitation or condition in the FONSI. DOE may revise a FONSI at any time, so long as the revision is supported by an existing EA. 10 C.F.R. § 1021.322(f).

9-FD-e.34 – Initiate Environmental Impact Statement (EIS) Process

DOE must initiate the EIS process if DOE determines that an EIS is required. DOE may determine an EIS required if:

  • The proposed action fall under one of the class of actions identified in Appendix D of 10 C.F.R. § 1021;
  • DOE decides an EIS is required based on the initial consultation with the developer; or
  • After preparing an EA, finding that the EA does not support a FONSI.

10 C.F.R. § 1021.322(a).

9-FD-e.35 – Publish Scoping Notice of Intent (NOI)

DOE must publish a Notice of Intent (NOI) that DOE will prepare an EIS in the Federal Register. 10 C.F.R. § 1021.311(a); 40 C.F.R. §§ 1501.7. The NOI must briefly:

  • Describe the proposed action and possible alternatives;
  • Describe DOE’s proposed scoping process including whether, when, and where any scoping meeting will be held; and
  • State the name and address of the person within DOE who can answer questions about the proposed action and the EIS.

40 C.F.R. §§ 1508.22.

Through the NOI, DOE must invite comments and suggestion on the scope of the EIS. 10 C.F.R. § 1021.311(a).

DOE must publish the NOI, at minimum, in the manner as follows:

  • Mail notice of the EA to those who have requested notice;
  • Publish notice in the Federal Register; and
  • Provide notice by mail to national organizations reasonably expected to be interested. 40 C.F.R. §§ 1506.6(b).

In certain cases, DOE may also provide notice to:

  • State and areawide clearinghouses;
  • Notice to Indian tribes when effects may occur on reservations;
  • Publication in local newspapers in general circulation;
  • Notice through other local media;
  • Notice to potentially interested community organizations; and
  • Direct mailing to owners and occupants of nearby or affected property. 40 C.F.R. §§ 1506.6(b)(3).

A full list of notice requirements can be found pursuant to 40 C.F.R. §§ 1506.6.


9-FD-e.36 – Notify Host State or Tribe of the Environmental Impact Statement (EIS)

DOE must notify the host state and the host tribe of a DOE determination to prepare an EIS. DOE may also notify any other state or American Indian tribe that, in DOE’s judgement, may be affected by the proposed action. 10 C.F.R. 1021.301(c).

9-FD-e.37 – Comment on Scope of Environmental Impact Statement (EIS)

The publication of the NOI in the Federal Register starts the public scoping process. DOE must afford the public a minimum of 30 days to comment on the scope of the EIS. 10 C.F.R. 1021.311(c).

The intent of scoping is to focus the analysis on significant issues and reasonable alternatives, to eliminate extraneous discussion, and to reduce the length of the EIS.

The Council on Environmental Quality regulations at 40 C.F.R. §1501.7 requires DOE to:

  • Invite participation from affected federal, state, local, and tribal organizations and interested persons;
  • Determine the scope or extent of the EIS and the significant issues to be analyzed. Scoping is valuable in identifying connected, cumulative, and similar actions;
  • Identify and eliminate those issues raised that are not related to potentially significant impacts or those that have been covered in other environmental documents;
  • Allocate assignments for preparation of the EIS among the lead and cooperating agencies, with DOE as the lead agency retaining responsibility for the EIS;
  • Identify any environmental documents being prepared that have relevance to, but are not part of, the scope of the EIS;
  • Identify other environmental review and consultation requirements.
  • Discuss the relationship between the timing of the preparation of the EIS and DOE’s tentative planning and decision-making schedule.

40 C.F.R. §1501.7(a)(1)-(7)

9-FD-e.38 – Hold Public Scoping Meeting(s)

DOE must hold at least one public scoping meeting as part of the public scoping process for an EIS. DOE generally announces the location, date, and time of the public scoping meeting(s) in the NOI or by other appropriate means, such as notices in the Federal Register, news releases, or letters to affected parties. 10 C.F.R. §1021.311(d).

DOE must not hold a scoping meeting until at least 15 days after public notification. 10 C.F.R. §1021.311(d).

9-FD-e.39 – Determine Scope of Environmental Impact Statement (EIS)

After considering all comments received DOE must determine the scope of the EIS. 10 C.F.R. §1021.311(e).

9-FD-e.40 – Draft Environmental Impact Statement

DOE must prepare a Draft EIS in accordance with the scope decided upon in the scoping process. 40 C.F.R. §§ 1502.9. An EIS is a more comprehensive study than an EA in which DOE must “rigorously explore and objectively evaluate all alternatives” of the proposed action. 40 C.F.R. §§ 1508.11.

The primary purpose of an EIS is to serve as an action-forcing device to ensure that the policies and goals of NEPA are infused into the ongoing programs and actions of the federal government, in this case DOE. The EIS must:

  • Provide full and fair discussion of the significant environmental impacts; and
  • Inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment. 40 C.F.R. § 1502.1.

In preparing a Draft EIS DOE must focus on significant environmental issues and alternatives and must reduce paperwork and the accumulation of extraneous background data. 40 C.F.R. § 1502.1.

The Council on Environmental Quality regulations require EIS documents to be “concise, clear, and to the point.” 40 C.F.R. § 1500.2(b); 40 C.F.R. §1502.4. Specifically, analyses must:

*Focus on significant environmental issues and alternatives and be useful to the decision-maker and the public. 40 C.F.R. §1500.1;

Discussions of impacts are to be proportionate to their significance. 40 C.F.R. § 1502.2(b);

  • The description of the affected environment is to be no longer than is necessary to understand the effects of the alternatives. 40 C.F.R. § 1502.15; and
  • Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail. 40 C.F.R. § 1500.1.

9-FD-e.41 – Publish Draft Environmental Impact Statement

DOE must make NEPA documents available to other federal agencies, states, local governments, American Indian tribes, interested groups and the general public, in accordance with 40 C.F.R. §§ 1506.6.

DOE must publish notice of the Draft EIS, at minimum, in the following manner:

  • Mail notice of the Draft EIS to those who have requested notice;
  • Publish notice in the Federal Register; and
  • Provide notice by mail to national organizations reasonably expected to be interested. 40 C.F.R. §§ 1506.6(b).

In certain cases, DOE may also provide notice to:

  • State and areawide clearinghouses;
  • Notice to Indian tribes when effects may occur on reservations;
  • Publication in local newspapers in general circulation;
  • Notice through other local media;
  • Notice to potentially interested community organizations; and
  • Direct mailing to owners and occupants of nearby or affected property. 40 C.F.R. §§ 1506.6(b)(3).

A full list of notice requirements can be found pursuant to 40 C.F.R. § 1506.6.

9-FD-e.42 – Comment on Draft Environmental Impact Statement

DOE must afford the public a minimum of at least 45 days to comment on the Draft EIS. The public comment period begins when the United States Environmental Protection Agency publishes a notice of availability of the Draft EIS in the Federal Register. 10 C.F.R. §1021.313(a).

9-FD-e.43 to 9-FD-e.44 – Publish Notice of Public Hearing(s)

DOE must publish notice of the public hearing(s) regarding the Draft EIS at least 15 days in advance of the hearing. DOE must hold at least one public hearing on the Draft EIS. The notice must include the subject of the Draft EIS and include the location, date and time of the public hearing(s). 10 C.F.R. §1021.313(b).

9-FD-e.45 – Final Environmental Impact Statement

Following the public comment period and public hearing on the Draft EIS, DOE must prepare a Final EIS. 10 C.F.R. § 1021.313(c).

The Final EIS must respond to oral and written comments received during the public review of the Draft EIS as provided in accordance with 40 C.F.R. § 1503.4. 10 C.F.R. § 1021.313(c).

A Final EIS may also include any statement of findings as required in compliance with floodplain and wetland environmental review requirements as required by 10 C.F.R. §§ 1022.1 – 1022.24, Compliance with Floodplain and Wetland Environmental Review Requirements or DOE may issue a statement of findings separately. 10 C.F.R. § 1021.313(c).

DOE must prepare a supplemental EIS if there are substantial changes to the proposed action or significant new circumstances or information as described in 40 C.F.R. § 1502.9(c)(1). DOE may supplement a Draft or Final EIS at any time, to further the purposes of NEPA in accordance with 40 C.F.R. § 1502.9(c)(2). 10 C.F.R. § 1021.314(a)-(b).

9-FD-e.46 – Publish Notice of Final Environmental Impact Statement

DOE must use appropriate means to publicize the availability of the Final EIS. The methods chosen should focus on the reaching persons who may be interested in or affected by the proposed action and may include the methods listed in 40 C.F.R. §§ 1506.6(b)(3). 10 C.F.R. § 1021.313(d).


9-FD-e.47 – Record of Decision (ROD)

DOE must prepare a Record of Decision (ROD), if DOE decides to act on the proposed action covered by the EIS in accordance with 40 C.F.R. §§ 1505.2. 10 C.F.R. § 1021.315(a)-(b). A ROD must:

  • State what the decision on the proposed action was;
  • Identify all alternatives considered by DOE reaching its decision, specifying the alternative or alternatives which were considered to be environmentally preferable. DOE may discuss preferences among alternatives based on relevant factors including economic and technical considerations and agency statutory missions;
  • DOE must identify and discuss all such factors including any essential considerations of national policy which were balanced by the agency in making its decision and state how those considerations entered into its decision; and
  • State whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not.

40 C.F.R. § 1505.2.

DOE may revise the ROD at any time, so long as the revised decision is adequately supported by an existing EIS. 10 C.F.R. § 1021.315(e).

9-FD-e.48 – Publish Notice of Record of Decision (ROD)

DOE must publish notice of the ROD in the Federal Register and make the ROD available to the public as specified in 40 C.F.R. § 1506.6. 10 C.F.R. § 1021.315(c).

9-FD-e.49 – Follow Environmental Impact Statement (EIS) and Continue Permitting

The applicant (developer) is required to abide by any limitations or conditions in the EIS. In addition, the DOE at its discretion and within its scope of authority may select an appropriate form and method for monitoring EIS compliance. 40 C.F.R. §1505.3. The public may also assist with actual EIS monitoring through public-private partnership programs.


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