NEPA FAQ

NEPA's 40 Most Asked Questions

Laws and Regulations

NEPA Analysis

A Citizen's Guide to NEPA is an excellent reference for all types of legally mandated environmental analysis. Other NEPA information is available at NEPAnet.

National Environmental Policy Act of 1969

NEPA Regulations, 40 CFR 1500 through 1518

Forest Service Manual 1900, Chapter 1950, Environmental Policy and Procedure

NEPA's Forty Most Asked Questions

Executive Orders

Mining Laws (This list is incomplete.  An exhaustive list being developed.)

36 CFR 228 ( TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 228--MINERALS)

36 CFR 220  ( TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 220--NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) COMPLIANCE)

35 CFR, Subpart 3714 (RIGHTS OF MINING CLAIMANTS)

Forest Service Handbook

FSH 1909.15 (NATIONAL ENVIRONMENTAL POLICY ACT HANDBOOK)

EIS Process

Some people have questioned the selection process for the contractor conducting the National Environmental Policy Act (NEPA) analysis. The following statement is provided to clarify the process and the regulations that implement the process.

Regulatory Background

SWCA Environmental Consultants (SWCA) was selected as a third-party contractor to conduct the National Environmental Policy Act (NEPA) review of the proposed Rosemont Copper Project, under the direction and oversight of Coronado National Forest. Forest Supervisor Jeanine Derby made this selection in accordance with the Council on Environmental Quality (CEQ) implementing regulations at 40 CFR 1506.5(c), which states:

“(c) Environmental impact statements. Except as provided in Secs.1506.2 and 1506.3 any environmental impact statement prepared pursuant to the requirements of NEPA shall be prepared directly by or by a contractor selected by the lead agency or where appropriate under Sec. 1501.6(b), a cooperating agency. It is the intent of these regulations that the contractor be chosen solely by the lead agency, or by the lead agency in cooperation with cooperating agencies, or where appropriate by a cooperating agency to avoid any conflict of interest. Contractors shall execute a disclosure statement prepared by the lead agency, or where appropriate the cooperating agency, specifying that they have no financial or other interest in the outcome of the project. If the document is prepared by contract, the responsible Federal official shall furnish guidance and participate in the preparation and shall independently evaluate the statement prior to its approval and take responsibility for its scope and contents. Nothing in this section is intended to prohibit any agency from requesting any person to submit information to it or to prohibit any person from submitting information to any agency.”

In CEQ's online publication, “NEPA's Forty Most Asked Questions,” available at http://ceq.hss.doe.gov/nepa/regs/40/40P1.HTM, questions 16 and 17a address the third-party contracting process as follows:

“16. Third Party Contracts. What is meant by the term “third party contracts” in connection with the preparation of an EIS [environmental impact statement]? See Section 1506.5(c) When can “third party contracts” be used?

A. As used by EPA [Environmental Protection Agency] and other agencies, the term “third party contract” refers to the preparation of EISs by contractors paid by the applicant. [In documentation for the Rosemont Copper Project the “applicant” Rosemont Copper company, is also frequently referred to as the “proponent.”] In

the case of an EIS for a National Pollution Discharge Elimination System (NPDES) permit, the applicant, aware in the early planning stages of the proposed project of the need for an EIS, contracts directly with a consulting firm for its preparation. See 40 C.F.R. 6.604(g). The “third party” is EPA, which, under Section 1506.5(c) must select the consulting firm, even though the applicant pays for the cost of preparing the EIS. The consulting firm is responsible to EPA for preparing an EIS that meets the requirements of the NEPA regulations and EPA’s NEPA procedures. It is in the applicant’s interest that the EIS comply with the law so that EPA can take prompt action on the NPDES permit application. The “third party contract” method under EPA’s NEPA procedures is purely voluntary, though most applicants have found it helpful in expediting compliance with NEPA.

If a federal agency uses “third party contracting,” the applicant may undertake the necessary paperwork for the solicitation of a field of candidates under the agency’s direction, so long as the agency complies with Section 1506.5(c). Federal procurement requirements do not apply to the agency because it incurs no obligations or costs under the contract, nor does the agency procure anything under the contract.”

“17a. Disclosure Statement to Avoid Conflict of Interest. If an EIS is prepared with the assistance of a consulting firm, the firm must execute a disclosure statement. What criteria must the firm follow in determining whether it has any “financial or other interest in the outcome of the project” which would cause a conflict of interest?

A. Section 1506.5(c), which specifies that a consulting firm preparing an EIS must execute a disclosure statement, does not define “financial or other interest in the outcome of the project.” The Council interprets this term broadly to cover any known benefits other than general enhancement of professional reputation. This includes any financial benefit such as a promise of future construction or design work on the project, as well as indirect benefits the consultant is aware of (e.g., if the project would aid proposals sponsored by the firm's other clients). For example, completion of a highway project may encourage construction of a shopping center or industrial park from which the consultant stands to benefit. If a consulting firm is aware that it has such an interest in the decision on the proposal, it should be disqualified from preparing the EIS, to preserve the objectivity and integrity of the NEPA process.

When a consulting firm has been involved in developing initial data and plans for the project, but does not have any financial or other interest in the outcome of the decision, it need not be disqualified from preparing the EIS. However, a disclosure statement in the draft EIS should clearly state the scope and extent of the firm’s prior involvement to expose any potential conflicts of interest that may exist.”

In early 2008, the Forest Service deemed Rosemont Copper company’s “Rosemont Copper Project, Mine Plan of Operation” sufficient to initiate an environmental review pursuant to NEPA. The Rosemont Copper company recommended the Forest Service consider SWCA as the third-party contractor to develop the environmental analysis and documentation for the Rosemont Copper Project proposal. With regard to such a recommendation, CEQ guidance at http://ceq.hss.doe.gov/nepa/regs/1983/1983guid.htm states the following:

“There is no bar against the agency considering candidates suggested by the applicant, although the Federal agency must retain its independence. If the applicant is seen as having a major role in the selection of the contractor, contractors may feel the need to please both the agency and the applicant. An applicant's suggestion, if any, to the agency regarding the choice of contractors should be one of many factors involved in the selection process.”

Contractor Selection Criteria

In accordance with CEQ third-party contracting regulations and guidance above in conjunction with the Rosemont Copper company’s recommendation, the Forest Supervisor considered the following criteria in selecting SWCA as the prime consultant for environmental review of the Rosemont Copper Project.

General Qualifications. SWCA is one of 655 Federal contactors listed on the GSA (United States General Services Administration) Schedule who are qualified to conduct NEPA reviews. (See website www.gsaadvantage.gov link to Multiple Award Schedule 899, Environmental Services. NEPA contractors are listed under 899-1.) There is no regulatory requirement for choosing a contractor on the GSA Schedule. Based on previous experience with SWCA as a consultant in other local NEPA reviews (e.g., electrical transmission routing and astrophysical research EISs) and its involvement in the NEPA review of another Arizona mine project, the Forest Supervisor considered SWCA qualified to conduct a NEPA analysis of the scope and complexity required by the Rosemont Copper Project proposal.

Location. To facilitate oversight of the NEPA review by Forest resource specialists, a Tucson-based environmental consultant was preferred. Qualifications of at least three other local environmental contractors were considered, but they were found to be either underqualified or already engaged in non-NEPA-related studies under contract to Rosemont Copper company that could prejudice their participation in the NEPA review.

Professional and Technical Expertise. SWCA’s qualifications and experience were reviewed prior to selection. The Forest Supervisor determined that SWCA resource specialists, supplemented by other technical expertise available to SWCA through a well-developed network of environmental subcontractors, are fully capable of achieving the standard of excellence required by this NEPA review.

NEPA Experience and Previous Working Relationships. As evidence of its NEPA experience, SWCA offered the Forest numerous references to past NEPA reviews in which it had participated. These references included a previous workingrelationship with the Coronado National Forest when SWCA served as a sub-contractor to the Department of Energy’s primary contractor in the development of an EIS for Tucson Electric Power. As a cooperating agency in that project, Coronado National Forest staff, including the Forest Supervisor, worked closely with SWCA staff and directly observed their ability and competence in managing a complex NEPA review. SWCA also previously worked with the Forest on a NEPA review (environmental assessment) of the proposed VERITAS astrophysical project. In addition, the Forest NEPA Coordinator has had a positive working relationship with SWCA when it was the prime environmental contractor for several projects proposed by the Department of the Interior.

Conclusion

To ensure that SWCA will prepare an impartial, unbiased environmental impact analysis of the Rosemont Copper Project, the respective roles of the contractor, Rosemont Copper company, and Forest Service were defined in a Memorandum of Understanding (MOU) between the Forest Service and Rosemont Copper company, available at http://www.fs.fed.us/r3/coronado/rosemont. The MOU has been available for public inspection on the Coronado National Forest website for several months.

The Forest Service is fully aware that the Rosemont Copper company’s proposal to construct an open-pit copper mine and associated ore processing facilities in proximity to and on National Forest System land is highly controversial and that some opponents of the proposal may view timely completion of the NEPA process as contrary to their interests. On the other hand, the Forest Service also recognizes that some advocates of the proposal view the rigorous NEPA review process as overly bureaucratic and weighed down by rules and regulations.

Despite the fact that these opposing views are commonly expressed during NEPA reviews of controversial projects, the Forest Service is obligated to maintain its independence, objectivity, and neutrality, and it must comply with all established legal mandates, among which are to carry out comprehensive NEPA reviews in an efficient and timely manner. To this end, the Forest Service will conduct the NEPA review of the Rosemont Copper Project in accordance with a timeline that is appropriate for the nature and scope of the proposal. The Forest Service will neither shortcut the legal process, nor will it impede it. Despite external pressure to modify the process to the benefit of one party or another, the Forest Service will, as strictly as possible, adhere to compliance with the CEQ regulations implementing the NEPA and other environmental laws of the United States.

Facts About NEPA Third-Party Contracting

 What is NEPA third-party contracting?

Why do contractors often prepare EISs instead q lead agencies?

How are third-party contractors selected?

How are conflicts of interest avoided?

What other safeguards prevent bias in an EIS prepared by a third-party contractor?

 

What is NEPA third-panty contracting?

Under a NEPA third-party contract, the federal lead agency, project applicant, and environmental consultant enter into an agreement about how a NEPA document such as an EIS will be prepared. The applicant pays for the consultant's services, but the federal lead agency ("third party") is responsible for independently reviewing, analyzing and judging all information in the EIS. Under NEPA regulations, the lead agency is responsible for guiding and participating in EIS preparation, independently evaluating the EIS prior to its approval, and taking responsibility for the EIS scope and contents. 40 CFR 1506.4(c).

Why do contractors often prepare EISs instead of lead agencies?

Third-party EIS contracting is commonly used, across the nation, for applicant projects requiring lead agency approvals. Many lead agencies rely on the experience and expertise of environmental consultants to assist in EIS preparation. Contractors are often used because lead agencies do not have the staff expertise, staff resources or time to conduct the technical analysis necessary to comply with NEPA. Contractors can provide valuable assistance in NEPA process management, as well as technical study preparation.

How are third-party contractors selected?

NEPA regulations provide that the lead agency. not the applicant, is ultimately responsible for selecting the environmental contractor to prepare an EIS. 40 CFR 1506.5(c). The lead agency may use applicant input to make this selection. Federal procurement requirements (such as competitive bidding) do not apply because the lead agency incurs no obligations or costs under the contact, nor does it procure anything under the contract. Council of Environmental Quality (CEQ) "40 Questions" Guidance, Question 16.

How are conflicts of interest avoided?

In addition to the lead agency being responsible for contractor selection. the NEPA regulations provide another important safeguard. EIS contractors must execute a disclosure statement, prepared by the lead agency. specifying that the contractor has no "financial or other interest in the outcome of the project." 40 CFR 1506.5(c). This term is interpreted broadly to cover any known benefits other than general enhancement of professional reputation.

When a consulting firm has been involved in developing initial data and plans for a project but does not have a financial or other interest in project decision, the firm is not disqualified from preparing the EIS,. The EIS should clearly state the extent of the firm's prior involvement to demonstrate conflicts of interest do not exist. CEQ "40 Questions" Guidance, Question 17.

What other safeguards prevent bias in an EIS prepared by a third-party contractor?

To expedite permit processing, it is in the applicant's interest that the EIS comply with all NEPA requirements. The EIS is required to be an objective, good faith attempt at full disclosure, and could be invalidated in court if it is found to be biased. Cases of third-party NEPA contractor bias are extremely rare; the only sustainable business practice for third-party NEPA contractors is to produce objective, scientifically accurate NEPA documents.

Furthermore. the scoping and Draft EIS comment period provide an opportunity for the public to present any concerns about perceived bias in the information presented. The lead agency is then required to address these concerns prior to completion of the EIS and approval of the permit.