1. Major
2. Federal Action
3. That will significantly effect the quality of the human environment.

1. Project doesn't meet triggers
2. Exempted from statutes (logging on fed lands)
3. When statute requires an alturnative process that is = to EIS.
4. Would be contradictory to statute (facility will be built in Chapel Hill, N.C.)

No relocation of significant numbers people

No significant impact on natural, cultural, recreational, historic, or other resource

Do not involve significant air, sound, water quality impacts

Do not have significant impact travel patterns

• Activities not related or leading to construction
• Grants and research activities
• Projects under other statutes
• Approval of utility installations
• Construction of bike and ped lanes PG. 96 for more examples

This is a smaller scale review that determines if the full blown EIS is required it is done to save time and money. It outlines the project and the expected environmental impacts. 

Categorical Exclusions

Environmental Assessment

Scoping

 Notice of Intent

A Draft EIS is Done

Final EIS is issued

EPA reviews the Final EIS

Record of Decision is Made

Judicial Review 

The agency determines the proper scope of the impacts to be considered and the level of action alternatives that are to be explored. This defines the scope of the inquiry.

EPA can review EIS done by other federal agencies. The are not allowed to change the decisions made by the other agencies made after the submission of the final EIS

The agencies final determination about the project must be made and a justification given for the decision made as well as the reasons why the alternatives were not selected

arbitrary and capricious standard or abuse of discretion. Marsh v. Oregon

federal question jurisdiction. Calvert Cliffs v. Atomic Energy Commission

1. Whether the agency had to do the EIS
2. Did Agency Take a "HARD LOOK" at the environmental impacts
3. Whether the determination was based relevant factors and was it a clear error of judgement. 

1. Proposal or action, when an agency has a goal and it actively preparing to make a decision.
2. Inaction will not require an EIS unless the agency has a decision making obligation. Defenders of Wildlife v. Andrus
3. Sect. 102 (2)(C) specifies that EIS be included in every recommendation, report, proposals for legislation,and other major federal actions significantly affecting env, that are performed  by a fed agency.

"any action that is potentially subject to federal control or responsibility.” Winnebago Tribe of Nebraska v. Ray

Factors

Case by Case Analysis

Factors

1. Are there adverse environmental impacts in excess of those that are already in place
2. The absolute quantitative effects of the action itself, including cumulative harm that results from the addition of harm to existing negative impacts
3. One more highway in a city filled with highways has less of an impact than putting one through a forest
4. When looking at the cumulative even a small amount of impact can be significant (the straw the breaks the camels back).

Things that are controversial are likely to be significant under CEQ guidelines. 

Actions that might have a cumulative effect on the environment require an EIS. Grand Canyon Trust v. FAA

includes

ecological,

aesthetic,

historical,

cultural,

economic,

social,

or health effects,

whether direct or indirect.

Psychological fear of explosion from nuclear plant not warranted. Metropolitan Edison v. People Against Nuclear Energy

The cumulative impact of the past, present, and future impacts can be considered. A significant change in the plan of an agency may also trigger an EIS.

An EIS is necessary when proposals for federal actions are so closely related as to constitute a single course of action and are significant. (Trying to keep the agencies from making things so small nothing will trigger significant.)

No EIS if no Regional Proposal. 

Actions that might have a cumulative effect on the environment require an EIS. Grand Canyon Trust v. FAA

COnnected Actions must be done together. Building a hatchery and diverting water from a nearby river. Because the river water is being diverted just for the hatchery they must be considered. Morgan v. Walter

Found in §102

1. Does It look at Envr. Impacts?
2. Consideration of Alternatives?
3. Mitigation?
4. Supplemental EIS?

Things to be considered:Health and Public Safety Concerns, Air and Water Quality, Noise, Sewage and Solid Waste, Crime, Fire danger, social services, schools, hospitals, bus, any general comm. Services.  Alter character of area (Zoning, Aethstics blending)

• All reasonable alternatives must be considered Methow
• Those that would eliminate the need for this action
• Those that would mitigate any environmental impact
• The lack of action in this case.

IT does not require a plan that says what mitigation stratagies will be taken, or a worst case scenario analysis. Robertson v. Methow Valley Citizen’s Council

IF the adverse env effects of the action are adequately ID’d and considered, the agecy is not constrained by NEPA from deciding that other values outweigh the env. costs.  

While they must look at mitigation in the EIS there is no requirement that they use the mitigation strategies. Robertson v. Methow Valley Citizens

There used to be a worst case analysis requirement now all that is required is “summary of existing credible scientific evidence.” Courts have interpreted this to include a probability analysis. Methow

1. State starts SIP when pollutant is added to the list. (within 3 years)
2. EPA reviews to see if complete (6 mo.)
3. EPA considers if SIP meets CAA (12 mo)
4. EPA either Approves or gives conditional approval (If conditional state has 12 months to make EPA's required changes)

1. EPA can create a Federal Implementation Plan. Unless state fixes the problem within a certain period of time. 
2. Sanctions- They are discretionary for attainment zones (Highway funds Ex.) Non-Discretionary for Non-attainment zones

RACT (Reasonable Available Control Tech) as expeditiously as possible, and make reasonable progress towards attainment each year.

Pre-construction Review-For New and Modified Major stationary sources

1. LAER- (Lowest Achievable Emissions Rate) This is requires lower emission rate than anything in the state SIP at least as stringent as NSPS.
2. Offsets- States decide but has to improve air quality not just keep status Quo. more than 1 to 1.
3. Owner of source must show that any other units they have in the sate meet CAA standards
4. State must be properly implementing its SIP
5. Cost Benefit Analysis that says that after looking at other sites the benefits of this site outweigh the environmental and social costs.

A source that emits more than 100 tons per year of any pollutant or 250 tons per year of any combination of pollutants and the source is a member of one of the 28 listed categories of industry. (Plant Wide Bubble) Alabama Power Co. v. Costle

(BACT) Best Available Control Technology

"maximum degree of reduction of each pollutant . . . taking into consideration energy, environmental, and economic impacts and other costs"

Case by Case analysis

1. Air Quality Impact Review- Demonstrates that the the new or modified emission will not cause or contribute to the violation of any emission limit under PSD. 
2. Classification of Air Sheds for Visibility Rehabilitation. Class I, II, III. 

Class I: are National Parks and Scenic Areas. Sometimes Goal is 0 visibility impairment in SIP's. They must install BART (Best Available Retrofit Technology).

Class II: Most other Zones

Class III: areas for Industrial Development. 

States can switch a zone between II and III but they have to show that it will not result in the violation of NAAQS. 

Standard that is imposed on sources of pollutants that may cause or contribute to Class I Impairment

Factors in Determining Level

1. Cost of Compliance
2. energy and nonair quality env impacts of compliance
3. any existing pollution control tech in use at the source 
4. the remaining useful life of source 
5.  the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology         

The States Set BART

1. Attribution step: is a source BART eligible (does it emit any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of viz in any mandatory Class I Federal area). EPA Cant force a state to find a source.
2. Determination step: requires states to determine the particular technology that an individual source subject to BART must install

Yes, When

1. Viz does not decline in any Class I area
2. There is an overall improvement in Viz, determined by comparing the average difference between BART and the alternative over all Class I areas affected  

New Source Performance Standards

They cover new and modified sources in both attainment and non-attainment regions. They are required to use BADT (Best Available Demonstrated Technology)

WEPCO- Things that are Routine Maintenance and Repair

Factors In determining if it is R&M (small list)

1. Frequency of Repair
2. Cost of Work 
3. Extension of Plant Life

Of the Three Regulatory Frame Works Which have the Bubble Principle Apply?

NNSR, PSD, and NSPS?

Major: emits or has the potential to emit 10 tons or more a year of a HAP. or 25 tons per year or more of any combination of HAPs.

Area: Everything Else that is Stationary

EPA gets to decide how it will measure for HAP. Can include fugitive emissions. However in calculating potential EPA must consider state and local controls. National Mining Association v. EPA

112a1 states that a “group of stationary sources” need meet only three conditions to be termed a major source

Sources within the group must be located within a contiguous area

Must be under common control

Cost and Technological feasibility should be considered. §112(d)(2).

New- at least as stringent as “achievable in practice by the best controlled similar source”

Existing- reflect at least the average emission limitation achieved by the best 12% of existing sources in the same category. If there are less than 30 sources then the level of the best 5.

MACT- Must be updated every 8 years, this creates a ratcheting effect. 

1. After the effective date for the HAP no new major source can be constructed if not approved by the EPA as being compliant with CAA.
2. Those that are constructed after promulgation but before effective approval have 3 years to comply.
3. If the proposed level is more stringent than the final they must comply with the proposed for the three years. 

1. Residual risk standards are effective from the  date of promulgation, existing source had 90 days to come into compliance.
2. There is a 2 year waiver which can be obtained from the EPA 112 (f)(4).
3. MACT- EPA had 3 years to promulgate a new MACT to bring existing sources into compliance. 112(i)(3)(A).
4. 1 year extension is avaliable if it is determined that more time is required to install the technology. 

1. Public Access- The public must have access to the permits, permit applications, and monitoring and compliance reports.
2. Public Participation- Must allow the public the ability to participate in the permit process and in any judicial review of final permit actions in state court.
3. Minimal Conditions- there are minimum conditions that must be included. Ex. 5 year length of permit.
4. Modification Provisions- All permits must allow for changes at a source without revision of an existing permit if the source provides advanced written notice to the EPA and state.
5. Standardized Permit Application
6. Fees- Must provide for permit fees for implementation and enforcement costs. 

They approve or deny. The states get 2 years to fix the problems they do not have to fix all problems with their program only those that were identified by EPA. 

1. Language says EPA must specify “the changes that must be made before the program can receive full approval.”
2. Requiring redress of problems arising during interim approval could sabotage state’s efforts for full approval
3. CAA creates mechanism in NOD process to correct deficiencies.  Why would that process be there if Congress expected ever deficiency would be corrected during the interim process.

Only Major Sources as Defined by PSD, NNSR, HAP, 

• Major Source for HAP- stationary source which does nor might emit 10 tons per ear of any HAP or 25 tons of any combination of HAPs is a major source under the HAP covered by title V
• Major Stationary Source: Any source that might emit 100 tons of any pollutant covered by 302(j)
• Non-Attainment major source- source that might emit between 10 and 100 tons of any air pollutant (depending on nonattainment classification.)

EPA can block Construction of New Major emitting facilities if they think their BACT is unreasonable

If state is not complying with CAA can prohibit construction, give admin penalty, or bring civil action.

There could be a suit in state court saying that the state was acting arbitrary and capricious. 

Bring Suit