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Surface Transportation Board
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: March 19, 2001 (Volume 66, Number 53)]
[Notices]
[Page 15527-15532]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr01-129]
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DEPARTMENT OF TRANSPORTATION
[STB Ex Parte No. 585]
Surface Transportation Board
AGENCY: Surface Transportation Board
ACTION: Policy statement on use of third-party contracting In
preparation of environmental documentation.
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SUMMARY: This policy statement discusses the Surface Transportation
Board's practice of using third-party contractors to aid in preparing
environmental documentation necessary to comply with the requirements
of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et
seq., and related environmental laws in Board proceedings.
DATES: This policy statement is effective upon publication.
[[Page 15528]]
FOR FURTHER INFORMATION CONTACT: Victoria Rutson, (202) 565-1545 or
Evelyn Kitay, (202) 565-1563 [TDD/TYY for the hearing impaired: 1-800-
877-8339].
SUPPLEMENTARY INFORMATION: The Surface Transportation Board (Board)
often uses third-party contractors to assist in preparing Environmental
Assessments (EAs) \1\ or Environmental Impact Statements (EISs) \2\ to
fulfill the requirements of the National Environmental Policy Act of
1969, 42 U.S.C. 4321 et seq. (NEPA), and related environmental laws in
our rail licensing decisions. The public has, on occasion, raised
concerns regarding whether an environmental document prepared by the
Board's environmental staff with the assistance of a contractor paid
for by a railroad applicant presents an impartial and unbiased
analysis. Also, applicants have at times objected to their lack of
control over the costs of an environmental analysis in certain
proceedings, particularly when the scope of work needed to complete the
environmental review in complex cases is more far-reaching than
originally contemplated, due to the discovery of unanticipated
environmental issues that need to be addressed. Below, we review the
requirements of NEPA and the environmental regulations concerning
third-party contracting. In addition, we summarize our third-party
contracting process, respond to the concerns raised by some regarding
our current third-party contracting procedures, and explain why we
believe that our approach, although not without problems, is the most
appropriate one for this agency.
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\1\ An EA is a concise public document issued by the agency that
contains sufficient information for determining whether to prepare a
full Environmental Impact Statement or to make a finding of no
significant impact. See Council on Environmental Quality (CEQ),
Regulations for Implementing the Procedural Provisions of the
National Environmental Policy Act, at 40 CFR 1508.9; 49 CFR
1105.4(d).
\2\ An EIS is the detailed written statement required by the
National Environmental Policy Act for a major federal action
significantly affecting the quality of the human environment. See 40
CFR 1508.11; 49 CFR 1105.4(f).
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Background
NEPA requires federal agencies ``to the fullest extent possible''
to consider the environmental consequences ``in every recommendation or
report on major federal actions significantly affecting the quality of
the human environment.'' \3\ The purpose of NEPA is to focus the
attention of the government and the public on the likely environmental
consequences of a proposed agency action before it is implemented, in
order to minimize or avoid potential negative environmental impacts.\4\
While NEPA requires that we take a hard look at the environmental
consequences of our licensing decisions, it does not mandate a
particular result. Thus, once the adverse environmental effects of a
proposed action have been adequately identified and evaluated, we may
conclude that other values outweigh the environmental costs.\5\
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\3\ 42 U.S.C. 4332(2)(C). CEQ has defined ``major federal
actions'' to include projects regulated or approved by federal
agencies. 40 CFR 1508.18.
\4\ Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371
(1989).
\5\ See Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 350 (1989); City of Auburn v. United States, 154 F. 3d 1025,
1031-33 (9th Cir. 1998), cert. denied, 527 U.S. 1022 (1999) (City of
Auburn).
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Our Section of Environmental Analysis (SEA) assures that the Board
meets its responsibilities under NEPA. SEA provides us with an
independent environmental review of these proposals for which an
environmental review is triggered by NEPA and our implementing
regulations at 49 CFR part 1105 (generally rail line constructions,
abandonments, and mergers). SEA prepares an EA or EIS, as appropriate,
and provides technical advice and recommendations to the Board on
environmental matters.
Third-party contracting is a voluntary arrangement in which the
applicant pays for a contractor to assist SEA by developing
environmental analyses necessary for compliance with NEPA and related
environmental laws, \6\ under SEA's direction, control, and
supervision. Our environmental rules at 49 CFR 1105.10(d) specifically
permit the use of third-party contractors, if approved by SEA. The
third-party contracting process, discussed below in more detail, has
generally worked well in more than 50 Board (and Interstate Commerce
Commission) proceedings.\7\
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\6\ See Implementation of Environmental Laws, 7 I.C.C.2d 807,
817 (1991) (Environmental Laws). The government-wide regulations
implementing NEPA, promulgated by CEQ, expressly permit the use of
third-party contractors in the preparation of an EA or an EIS. 40
CFR 1506.5(c). CEQ regulations provide that agencies using
contractors to aid in the preparation of environmental documents
will be responsible for selecting the contractors, will provide the
contractors with guidance and supervision in the preparation of the
document, and will independently evaluate the document before
approval. Contractors must sign a disclosure statement prior to
beginning work, indicating that they are disinterested parties to
the project.
\7\ Most of the concerns that have been raised regarding the
third-party contracting process focus on two particularly
controversial proceedings involving unique and unanticipated
environmental issues that resulted in higher than expected costs
associated with the third-party contracting process: STB Finance
Docket No. 33388, CSX Corp.--Control and Operating Leases/
Agreements--Conrail, Inc. (Draft EIS served Dec. 12, 1997; Final EIS
served May 22, 1998) (Conrail), and STB Finance Docket No. 33407,
Dakota, Minnesota & Eastern Railroad Corp. Construction into the
Powder River Basin (Draft EIS served Sept. 27, 2000) (DM&E).
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The Board's Third-Party Contracting Process
SEA follows certain steps when preparing environmental documents
with the aid of third-party contractors. The first step is to inform
applicants about the third-party contractor option. As stated above,
third-party contracting is a voluntary arrangement. Applicants can
choose either (1) to retain a third-party contractor to assist in the
preparation of the environmental document or (2) to prepare an
environmental (and historic) report on their own, evaluating the
potential environmental impacts and any reasonable alternatives to the
proposed action, and submit the report with, or prior to, the time they
file their project with the Board.\8\ In the former case, the third-
party contractor assists in the preparation of the environmental
document, working under the direction, supervision, and control of SEA,
and the applicant's obligation to submit an environmental and historic
report is waived.\9\ In the latter case, SEA prepares the environmental
document using the material provided by the applicant in the
environmental and historic report as a starting point.
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\8\ Environmental and historic reports must include the material
required by our regulations at 49 CFR 1105.7 and 1105.8.
\9\ See 49 CFR 1105.10(d).
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Once an applicant decides to use a third-party contractor to assist
in the preparation of the environmental document, the next step in the
process is to select a third-party contractor. SEA maintains a list of
approved third-party contractors, comprised of individuals and firms
with expertise and experience in environmental review of rail or
transportation projects.\10\ When an applicant expresses an interest in
using a third-party contractor, SEA furnishes the applicant a copy of
the third-party contractor list. The applicant indicates which
contractor from the list it would prefer to use by formally requesting
in writing SEA's approval of that contractor.\11\ SEA decides whether
to
[[Page 15529]]
grant the request and responds to the applicant in writing. SEA's
approval is subject to the contractor signing a disclosure statement
that it has no financial interest in the outcome of the applicant's
proposal.\12\ SEA's process allows the applicant to have some input in
the selection of the third-party contractor, while enabling SEA to
retain ultimate responsibility. Our environmental regulations at 49 CFR
1105.4(j) make it clear that, while the applicant may participate in
choosing the contractor, ``to avoid any impermissible conflict of
interest * * * the railroad may not be responsible for the selection or
control of independent contractors [emphasis supplied].'' \13\
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\10\ This list was initially derived from responses to a
solicitation placed by SEA in the Commerce Business Daily. SEA staff
reviewed the responses received for experience in preparing EAs and
EISs, and knowledge of and experience in analyzing environmental
issues, particularly those related to transportation projects. SEA
has periodically updated the third-party contractor list. Currently,
there are 48 individuals and firms on the list.
\11\ Applicants can propose to have a contractor added to the
list if the contractor furnishes information showing that the
contractor has the requisite qualifications.
\12\ This practice prevents conflict of interest problems and
assures the objectivity of the third-party contractor in the
environmental review process. See 40 CFR 1506.5(c) (requiring a
contractor disclosure statement); Sierra Club v. Marsh, 714 F. Supp.
539, 553 (D. Me. 1989), quoting CEQ guidance for implementing NEPA,
Forty Most Asked Questions Concerning CEQ's National Environmental
Policy Act Regulations, 46 FR 18026 (1981) (Forty Questions), 46 FR
at 18031 (this conflict of interest regulation is intended to
preserve the ``objectivity and integrity of the NEPA process'').
\13\ See also 40 CFR 1506.5(c) (``It is the intent of these
regulations that the contractor be chosen solely by the lead agency
* * * to avoid any conflict of interest.''); Forty Questions,
Question 16 (``the agency must select the consulting firm, even
though the applicant pays for the cost of preparing the EIS * * *
[T]he 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)''). There have
been few challenges to the third-party contracting process. In
Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 202 (D.C.
Cir. 1991), cert. denied, 502 U.S. 994 (1991), however, the court
concluded that the agency ``was obliged to pick a contractor itself,
and not to delegate the responsibility.'' The court rejected an
agency's claim that its concurrence in the applicant's choice of the
contractor was sufficient.
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After the third-party contractor has signed and returned the
disclosure statement to SEA, SEA prepares a Memorandum of Understanding
(MOU), which SEA, the applicant, and the third-party contractor must
all sign. The MOU outlines the conditions and procedures each party
must follow in preparing the environmental document. Under the MOU, the
applicant's primary responsibility is to pay for the contractor's
services; the contractor's primary responsibility is to assist SEA in
preparing the environmental document as SEA directs; and SEA's primary
responsibility is to supervise and direct the contractor's work. The
MOU provides that the applicant will not attempt to improperly
influence the contractor's work, and that the contractor will cooperate
fully with SEA. The MOU clarifies that SEA, not the applicant, is in
control of the preparation of the environmental analysis, even though
the applicant is paying the contractor's bills. The specific
responsibilities of SEA, the applicant, and the third-party contractor
detailed in a typical MOU are set forth below.
(a) SEA's Responsibilities. While the exact language of an MOU will
depend on the facts and circumstances of the particular case, each MOU
explains that SEA is ultimately responsible for the preparation of the
appropriate environmental document, and that SEA will furnish guidance
on the environmental analysis, participate in the preparation of the
environmental document, independently evaluate the environmental
document and add its expertise through review and revision, if
necessary.
(b) The Contractor's Responsibilities. Each MOU makes clear that
the contractor shall provide: environmental expertise; a good working
knowledge of NEPA and related environmental laws and regulations; the
capability to perform appropriate environmental impact analyses;
representatives to attend meetings; the ability to prepare thorough,
readable, technically sound, and informative environmental
documentation, as well as related charts, maps, and diagrams; and
expertise in data management.
Every MOU states that the contractor may engage subcontractors to
perform work on the project, but that all work performed by
subcontractors will also be under the direction, control, supervision,
and final approval of SEA. MOUs also typically require the contractor
to perform work in a ``timely, responsive, satisfactory, and cost-
effective manner * * *''
(c) The Applicant's Responsibilities. Each MOU states that the
applicant is responsible for all costs of the third-party contractor,
including administrative and clerical costs associated with preparation
and production of environmental documents.
The final step before beginning preparation of the environmental
document is the development of a Work Plan that describes the work to
be performed by the contractor, sets forth a proposed schedule for
completing the work, names the individual members of the contractor's
staff who will be primarily responsible for the project, and outlines
environmental tasks that will need to be performed for the project
known to date (for example, preparation of a biological assessment
under the Endangered Species Act, 16 U.S.C 1531 et seq.). The Work Plan
is prepared by the third-party contractor, in consultation with SEA and
the applicant. SEA has the authority to amend the scope of work and
monitors the contractor on a regular basis to ensure that the work is
progressing efficiently and cost-effectively. SEA also has the
authority to remove the contractor for cause or approve termination of
the contract between the applicant and the contractor.\14\ If SEA
removes the contractor or approves the termination of the contract, SEA
works to replace the contractor with another qualified contractor as
soon as practicable.
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\14\ In most cases, the applicant and contractor enter into a
separate contract detailing general rates to be charged and others
costs to be assessed for various services. The agency does not
participate in this process.
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Once all of the preliminary matters have been settled, SEA and the
contractor begin working together to prepare the environmental document
under SEA's direction and control.\15\ The preparation of every
environmental document includes extensive contact and cooperation
between the contractor and SEA. For example, SEA (1) conducts regular
informational briefings with the contractor (by meetings and
telephone); (2) determines the format of the environmental document and
the scope of the environmental analysis; (3) conducts site inspections
with the applicant, the contractor, and other environmental experts, as
appropriate; (4) works with the contractor to consult with Federal,
state, and local agencies, Native American Tribes, members of the
public, and other interested parties, as appropriate; (5) reviews,
edits, and revises the environmental document; and (6) coordinates and
directs the efforts to reach conclusions regarding potential
environmental impacts and develop recommended environmental mitigation
measures. The process ensures that SEA retains ultimate control over
the work product and protects the independent nature of the
environmental document and the contractor's work.
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\15\ See 49 CFR 1105.4(j); 49 CFR 1105.10(d); 40 CFR 1506.5(c)
(CEQ regulations requiring that the agency ``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'').
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Additionally, the extensive public participation that is an
integral part of the environmental review process guarantees that the
environmental document will reflect multiple points of view and reduces
the possibility of one-sided or applicant-biased environmental
analyses.\16\ SEA and the contractor typically conduct public outreach
at the early stages of the environmental analysis, to promote notice of
the
[[Page 15530]]
proposal and to obtain input on potential environmental impacts and
issues associated with the project. Under our environmental rules, an
opportunity for public review and comment is provided on every EA and
Draft EIS.\17\ SEA, working with the contractor, then incorporates and
responds to the comments in preparing a final EIS or post-EA.\18\
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\16\ See City of Auburn, 154 F.3d at 1032.
\17\ See 49 CFR 1005.10(a), (b).
\18\ Id.
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Other agencies participate in the environmental review process as
well, which adds further checks and balances to the process and makes
the environmental documents required by NEPA more comprehensive. One of
the first tasks SEA directs a third-party contractor to undertake is
the preparation of consultation letters to appropriate Federal, state
and local agencies. All agencies are encouraged to participate and
submit comments during the Board's environmental review process.
Moreover, SEA may request agencies that have jurisdiction under other
laws over some aspect of the proposal, or agencies that have ``special
expertise with respect to any environmental issue,'' to participate as
``cooperating agencies'' in the Board's environmental review
process.\19\
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\19\ Cooperating agencies typically have their own decisions to
make regarding a particular project and tend to adopt the
environmental analysis prepared by another agency (known as the lead
agency) and base their decision upon it. One environmental document
therefore includes information necessary to fulfill the requirements
of NEPA and related environmental laws for both the lead and
cooperating agencies. 40 CFR 1501.5, 1501.6. The Board may also be
invited to participate as a cooperating agency in an environmental
analysis for which another Federal agency is the lead.
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In short, our third-party contracting process provides an effective
means to prepare an independent, comprehensive environmental analysis
that meets the requirements of NEPA and related environmental laws. The
contractors function as an extension of SEA's staff. They work under
SEA's direction to collect and verify environmental information from
the railroads, consulting agencies, other interested parties, and the
general public; conduct unbiased environmental analysis; develop
appropriate environmental criteria and methodologies for analyzing
particular environmental issue areas; and prepare environmental
documentation and mitigation options.
Concerns That Have Been Expressed
At times, members of the public and certain applicants have raised
concerns about the Board's third-party contracting process. The public
has questioned whether any environmental document prepared with the
assistance of a contractor paid by the railroad constitutes an
impartial analysis, and whether the work of a contractor paid by the
railroad is influenced by the applicant-railroad. We believe that
adequate safeguards exist that ensure the neutrality of the third-party
contracting process. As discussed above, SEA remains fully responsible
for the contents of the EA or EIS and closely monitors the work of the
contractor throughout the environmental review process. There is
extensive public outreach to ensure public awareness of the proposals
before the agency and participation in the process. Also, SEA issues
every EA or EIS in draft form for public review and comment and
consults with appropriate Federal, state and local agencies. A final
environmental document is then prepared responding to the comments,
which also are made public.
Applicants' concerns primarily focus on the cost and lack of
control over the scope of the environmental review.\20\ Specifically,
certain applicants have complained that the Board's third-party
contracting process prohibits them from controlling the scope of work
that will be required to complete the environmental analysis, while
requiring them to fully fund the contractor's work.
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\20\ See the comments of the Norfolk Southern Railway Company
filed in response to the notice of proposed rulemaking in STB Ex
Parte No. 582 (Sub-No. 1), Major Rail Consolidation Procedures.
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Because the potential environmental impacts of a project cannot
always be predicted at the beginning of the environmental review
process, particularly in large rail construction cases or major rail
mergers such as Conrail, it can be difficult to estimate accurately the
amount of work--and consequently, the amount of money--that will be
needed to complete the requisite hard look at the environmental
consequences of our licensing decisions. At times, the potential
environmental impacts associated with a rail proposal initially may
appear to be less than what comes to light as the agency and its
contractor begin looking more closely at the proposal. Frequently,
consultation with Federal, state, and local agencies, as well as input
from the public, serves to disclose additional potential environmental
impacts that must be analyzed and, if possible, avoided or mitigated.
In fact, one of the objectives of the environmental review process
under NEPA is to detect and appropriately analyze all potential
environmental impacts, and as potential impacts come to light during
the environmental review process, the agency is required to supplement
or even rewrite an environmental document as necessary.\21\
Unanticipated public controversy may develop as the public learns more
about a proposal, or additional alternatives beyond those that were
anticipated when the environmental review was initiated, may be found
that need to be considered. In other words, environmental review is a
dynamic process that can entail unavoidable delay in completing the
environmental analysis that NEPA requires and increased environmental
review costs.
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\21\ See CEQ 1983 Memorandum, Guidance Regarding NEPA
Regulations, 48 FR 34263, 34264 (1983).
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As our regulations state, we encourage the use of third-party
contractors because they expedite and facilitate the environmental
analysis.\22\ Without the use of third-party contractors, particularly
in complex cases such as Conrail and DM&E, the Board would not have the
in-house resources to perform a legally sufficient environmental
analysis in a timely manner. The Board does not have, and likely will
never have, funding available to it to increase its staff sufficiently
to make the third-party contractor resources unnecessary.
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\22\ See 49 CFR 1105.10(d); Environmental Laws, 7 I.C.C.2d at
817.
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Moreover, the Board lacks the broad range of in-house technical
experts that third-party contractors can tap. Environmental analyses in
Board proceedings are becoming increasingly complex, requiring the
input of a number of experts in highly technical fields, such as
atmospheric science and meteorology, anthropology and ethnography,
geographic information system (GIS) analysis, acoustical engineering,
and environmental justice analysis. Almost all environmental documents
prepared by SEA require the input of some experts. However, individual
experts are needed only on a periodic basis, as issues requiring their
specific area of expertise do not arise in every case before the Board
requiring environmental review. Thus, it would be impractical and
prohibitively expensive for a small agency such as the Board to employ
its own experts in these highly technical areas on a full-time basis.
Furthermore, while third-party contractors, as private businesses,
are free to commit their staff resources to as many or as few clients
as they wish, the Board, as a government agency, cannot refuse to
conduct environmental analyses and produce environmental documents due
to limited staff. In order to prepare appropriate environmental
[[Page 15531]]
documents without the assistance of third-party contractors, the Board
would need more resources to hire additional staff with the necessary
expertise to undertake highly technical environmental analyses. But
again, even if additional staff could be hired, the increased number
would doubtless not be sufficient to replace third-party contractor
resources, particularly in complex cases. Third-party contractors with
access to staff with varied expertise enable SEA to prepare
environmental documents and conduct analyses more efficiently,
effectively, and in a more timely manner than if SEA were working
alone.
Certain applicants have expressed concern about the significant
costs that they can incur with the third-party contractor process.\23\
However, SEA oversight and review over the environmental review process
minimize delay and unnecessary costs as much as possible. As discussed
above, for each case in which a third-party contractor is used, a Work
Plan is developed that sets forth a proposed schedule for completing
the work and outlines the necessary environmental tasks. SEA then
monitors the contractors on a regular basis to ensure that the work is
progressing as efficiently and cost effectively as possible. Moreover,
when other agencies act as cooperating agencies, as in DM&E,
duplication is minimized because those agencies are not performing
their own analyses independent of the Board's process, which
facilitates efficient environmental review and lowers the applicant's
ultimate costs. In certain cases, as already noted, significant issues
do surface during the environmental review process that were not
anticipated at the beginning of the process, which must be evaluated
and do increase the costs of the environmental review process using
third-party contractors. While these costs cannot be avoided without
calling into question the legal sufficiency of the environmental
review, SEA oversight again serves to minimize unnecessary costs as
much as possible.
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\23\ See Conrail.
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We have examined the processes used by other agencies to see if we
could improve our process and allow applicants to better control costs
without compromising the need to ensure the independent nature of the
contractor's environmental analysis. We conclude that our current
process, although not without problems, offers the best available
alternative for preparing the environmental documentation needed to
fulfill the Board's NEPA obligations.
Some agencies have policies similar or identical to ours. For
example, the Federal Energy Regulatory Commission's (FERC) procedure
for third-party contracting is essentially the same as our process.\24\
After applicants decide to use third-party contractors, they select
which contractor they would prefer to use from FERC's list of approved
contractors.\25\ FERC makes the final decision as to whom to hire as
the contractor, and then the selected contractor executes a disclosure
statement indicating that it has no conflict of interest. The parties
then prepare and sign a Memorandum of Agreement, which describes each
party's duties. Like the Board, the applicant in proceedings before
FERC is responsible for paying the contractor for the preparation of
the environmental document and executes a separate contract with the
contractor detailing general rates and costs. FERC supervises the
contractor's work and retains ultimate responsibility for the finished
product.
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\24\ Information obtained from FERC's internet website:
www.ferc.fed.us.
\25\ FERC indicates that it uses third-party contracting only in
the preparation of EISs.
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The third-party contracting process used by the U.S. Environmental
Protection Agency (EPA) in the preparation of EISs, outlined at 40 CFR
6.604(g)(3), is also similar to our process in several respects.\26\
EPA requires the applicant to pay for the contractor's services, while
retaining control and supervisory authority over the environmental
analysis. Additionally, EPA allows applicants to provide some input as
to their choice of contractor, but retains ultimate responsibility for
the final selection of the third-party contractor. EPA and the
applicant enter into a MOU that governs the third-party contracting
arrangement, and the contractor must sign a disclosure statement prior
to beginning work. In the MOU, EPA and the applicant also agree upon a
general time frame for the completion of various parts of the EIS, and
set forth the scope of the EIS in as much detail as possible.\27\ If
EPA determines that additional analysis beyond the scope of the
original MOU is needed, the MOU may be amended to cover the additional
work at the applicant's expense, or EPA may elect to complete the
analysis itself.\28\ Unlike the Board, EPA has a separate process for
contracting directly with consultants to prepare EISs and has funding
to pay for the services of these consultants.\29\
Other agencies either have separate funding for contractors, or
they may require applicants to place funds for paying contractors into
separate accounts that are subject to oversight by agency officials.
For example, the Federal Aviation Administration (FAA) has separate
funds to pay contractors who prepare environmental documents for
airport development projects; applicants must pay for hiring
contractors to prepare environmental documents in other matters.\30\
Although separate funds or accounts might reduce some of applicants'
concerns regarding the costs incurred in the use of third-party
contractors in Board proceedings, the process to create and regulate
separate third-party contractor funds or accounts would be burdensome
and complex for the parties as well as for a small agency like the
Board, and would more than likely require the Board to hire a cadre of
escrow account managers. Therefore, this idea is not a practical one
for the Board.
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\26\ EPA, as a matter of practice, does not use third-party
contractors in the preparation of EAs.
\27\ Information obtained from a sample ``Memorandum of
Understanding Between the United States Environmental Protection
Agency and ________ for Third Party Environmental Impact Statement
Preparation'' that EPA provides to interested parties and from
informal telephone conversations with EPA staff.
\28\ Id. See 40 CFR 6.604(g)(1), (2).
\29\ Information obtained from informal telephone conversations
with EPA staff.
\30\ Information obtained from an FAA notice for revising its
procedures for implementing NEPA, 64 FR 55526, 55594-95 (1999). See
also 7 CFR 1789 (discussing the Rural Utilities Services (RUS)
practice of using escrow accounts to fund consultants who assist in
the preparation of technical documents for applications before the
agency). RUS allows the use of consultants to ``provide financial,
legal, engineering, environmental or other technical advice and
services in connection with the review of an Application'' (7 CFR
1789.152(a)). Thus, the preparation of environmental analyses
appears to be just one of several instances in which RUS uses third-
party contracting.
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Summary
We remain open and receptive to suggestions on how to improve our
third-party contracting process. But for now, the current process
appears to be the most efficient and effective way for the Board to
ensure a thorough, adequate, and legally sound environmental review
under NEPA and related environmental laws. As discussed above, we
believe sufficient safeguards exist to address the public's chief
concern--assurance of the objectivity of the environmental review
process. To date, most of applicants' concerns relate to experience
with a few extremely controversial rail proposals, such as Conrail,
involving extensive opposition by communities or other Federal agencies
and entities and unique environmental issues that
[[Page 15532]]
resulted in unanticipated costs associated with the environmental
review process. While we understand applicants' concerns in this
regard, because the NEPA analysis at times involves the discovery of
unforeseen environmental impacts that require more analysis than
originally contemplated, we see no way to set monetary limits or to
accurately forecast total expenditures at the outset of the NEPA
process, nor any practical way to further monitor costs throughout the
process beyond SEA oversight. And we see no viable alternative to the
use of third-party contractors to ensure a legally sufficient
environmental review that is timely, given the Board's budget.
NEPA mandates a process rather than a result. In order to respond
to new developments, SEA, as well as contractors working under SEA's
supervision and applicants, must remain flexible and responsive. We
understand that this process may introduce some undesired uncertainty
and additional cost into the environmental review process, but NEPA has
certain requirements, including thorough, accurate, and ultimately,
legally defensible environmental analyses, and the current third-party
contractor process is needed to meet those requirements in the most
timely and efficient way possible.
We do not seek public comment on this policy statement because we
do not propose a new rule or policy here. Rather, we are explaining the
Board's existing policy regarding third-party contractors.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
Decided: March 16, 2001.
By the Board, Chairman Morgan, Vice Chairman Clyburn, and
Commissioner Burkes.
Vernon A. Williams,
Secretary.
[FR Doc. 01-6743 Filed 3-16-01; 8:45 am]
BILLING CODE 4915-00-P