A Study for the Department of Energy

July 1998

The Academy's Center for the Economy and the Environment helps institutions at the federal, state, and local level build and sustain stronger economies, healthier ecosystems, and safer living and working environments.

The Center assists decisionmakers at all levels of government and in all sectors to take practical steps toward those goals. The Center engages Academy Fellows, other leaders in environmental management and economic development, and Academy staff in studies, technical assistance, working conferences, and other activities.

Recent work at the Center has addressed environmental protection, worker safety and health, and community and economic development. DeWitt John is the director of the Center. Richard A. Minard, Jr., is the associate director.

Executive Summary
I. Introduction: 'Managing' NEPA
II. The History of the Department's NEPA Reforms

A. The Changing Mission of the Department of Energy
B. Secretary Watkins' Tenure
C. The 1994 Secretarial Policy on NEPA

A. Impact on Timeliness
B. Impact on Public Participation
C. Delivering Better Guidance, Training, and Performance Measurement

A. DOE's Efforts to Improve Its NEPA Contracting Practices
B. Agency-Wide Master Contracts for NEPA Services
C. Evaluating the Costs of Preparing NEPA Documents
D. Redefining the Role of Contractors in the NEPA Process

Appendix I: A Primer on the National Environmental Policy Act of 1969

Appendix II: DOE Programmatic and Site-Wide Environmental Impact Statements

Appendix III: Study Team and Roundtable Participants

The National Environmental Policy Act of 1969 - NEPA - requires all federal agencies to consider the environmental impacts of proposed actions before selecting among alternative approaches. Implementing the act has been a challenge at the Department of Energy, which over the last decade has instituted a series of changes to improve its management of the NEPA process. DOE's efforts demonstrate that even a large, fragmented agency with a legacy of serious problems can, with strong executive leadership, strengthen its performance and chip away at old problems.

NEPA made federal agencies responsible for initiating planning processes that would help integrate environmental concerns into a wide range of programs. The subsequent development of environmental impact statements as a vehicle for public access to agency decisionmaking has given NEPA some "teeth" while also making it controversial and challenging for agencies to implement. For example, NEPA's requirement for openness seems antithetical to efficiency, and its presumption of responsiveness seems to compromise decisiveness. The challenge to public management is that Americans want more of all of these things, as evidenced by Congress's adoption of the Government Performance and Results Act of 1993. The Results Act calls for more planning, more integrated thinking, more useful measures of performance, and more transparency to the public. DOE's efforts to strengthen its management of NEPA have succeeded in improving efficiency without compromising public access to the process.

The National Academy of Public Administration appreciates DOE's invitation to analyze and report on its management of the NEPA process. We thank the DOE employees who provided data for this study and their candid assessments of DOE's operations. The Academy also thanks the participants in the roundtable that helped inform this report. We are particularly grateful to Lynton Caldwell, one of the principal architects of NEPA and an Academy Fellow, for overseeing this analysis. Professor Caldwell's commitment to the environment and to improving America's system of governance has spanned some four decades. We hope that this analysis will be helpful to the department.

R. Scott Fosler
President

This Study
The Department of Energy asked the National Academy of Public Administration to review the impact of a NEPA reform policy issued by then Energy Secretary Hazel O'Leary in 1994. The department asked the Academy to examine whether the reforms have helped make the process of preparing environmental impact statements and environmental assessments more efficient.

This study focuses on DOE's management of the overall NEPA process, not on any specific projects or decisions. The study tracks the costs and time DOE has invested in NEPA analyses over the last decade and considers the impacts of DOE's efforts to streamline review procedures, delegate some authority, and improve its management of contracts and contractors.

This study does not attempt to evaluate the quality of any particular environmental impact statement or environmental assessment. Nor does the study attempt to weigh the impact of the NEPA process on the quality of decisionmaking within DOE or Congress. Exploring those topics would require a much more detailed study. The study team presumes, however, that if DOE can make NEPA reviews more timely and less expensive without compromising the public's access to the process, then the department and the nation will be more likely to reap substantive benefits from the process as well.

Staff of the Academy's Center for the Economy and the Environment researched this report under the guidance of Lynton Caldwell, an Academy fellow and noted expert on NEPA. Staff analyzed DOE and EPA documents and databases, as well as other external evaluations, and interviewed people with a broad range of perspectives on DOE's NEPA process. Interviewees included DOE employees from headquarters and the field, employees of other federal agencies, contractor representatives, and members of non-governmental organizations representing a segment of the public concerned about DOE and its nuclear weapons complex. After preparing a draft report, the Academy convened a roundtable, chaired by Caldwell, to critique the report. Staff revised the report in light of those comments before issuing this final version. The participants of the roundtable and project staff are listed in Appendix III.

II. The History Of The Department's NEPA Reforms

A. The Changing Mission of the Department of Energy

In large measure, the history of DOE's compliance with NEPA is associated with the historical changes in the nuclear weapons complex. The nuclear arms race during the Cold War resulted in the development of a vast network of research, production and testing facilities. During half a century of operations, the nuclear weapons complex manufactured tens of thousands of nuclear warheads. At its peak, the complex consisted of 16 major facilities, including vast reservations of land in Nevada, Idaho, Washington, Tennessee, New Mexico and South Carolina.

Building and stockpiling nuclear materials and weapons required an extensive manufacturing effort that generated large volumes of waste and resulted in considerable environmental contamination. Growing concerns about safety and environmental problems caused DOE to shut down various parts of the weapons-producing complex in the 1980s. During these years, the Environmental Protection Agency and state agencies began enforcing environmental regulations at DOE's weapons complex. Public scrutiny of DOE's actions increased sharply as the magnitude of the nuclear weapons program's legacy of environmental contamination became better known.

The shutdowns of the nuclear weapons facilities were at first expected to be temporary, but many facilities were permanently closed in the wake of the dissolution of the Soviet Union in 1991. Although the United States continues to maintain an arsenal of nuclear weapons, the Department of Energy sharply reduced its nuclear weapons production and testing programs, and has begun to downsize the weapons complex as part of the stockpile stewardship and management program.

From its inception, NEPA applied to the Atomic Energy Commission and its successor, the Department of Energy. For many years, however, DOE had a very poor reputation for compliance with the act. [Congressional Research Service, NEPA Compliance at Department of Energy Defense Production Facilities (1990).] NEPA review was substantially an after-the-fact review of decisions that had already been made. During the 1980s, DOE was increasingly criticized for its poor NEPA compliance, and was a defendant in several lawsuits. As one DOE official recently put it, DOE practiced "pseudo-NEPA" until the 1990s.

B. Secretary Watkins' Tenure

After taking charge of DOE in 1989, Secretary of Energy James Watkins focused attention on environmental compliance generally, and NEPA compliance in particular. Watkins was concerned with the apparent failure of DOE's field organizations to comply with environmental laws, and reacted by imposing full responsibility within DOE's line organizations. Watkins emphasized strict compliance with NEPA, and pledged to integrate NEPA in DOE decisionmaking generally. [Watkins' directives on NEPA compliance were spelled out in a department-wide directive referred to as SEN-15, dated February 5, 1990.] DOE managers today say that because Watkins was personally committed to NEPA, his senior managers adopted that commitment as well. Table 2 presents a list of key changes in DOE's handling of NEPA, beginning with Watkins' tenure.

Watkins oversaw the adoption of a formal rule that eliminated some of the discretion managers had used to avoid NEPA reviews. [Watkins eliminated the "catch-all" categorical exclusion with a provision in SEN-15, a change DOE codified in subsequent rulemaking. DOE issued a Notice of Proposed Rulemaking for revision of its NEPA regulations, 10 CFR 1021, in 1990. The final rule was published in 57 Federal Register 15122 (April 24, 1992).] Watkins also encouraged closer involvement of host states and tribes in DOE's NEPA process by requiring DOE to issue formal notification to them when it intended to prepare an EA. The new rule also required DOE to provide host state and tribal authorities with an opportunity to comment on each EA before DOE approved it. Finally, Watkins directed DOE to make "implementation plans" for each environmental impact statement available to the public. These plans were to lay out the NEPA process in ways that would help the department manage the process. Making the plans public would also help members of the public understand how they could participate in the process.

Secretary Watkins' tenure coincided with a substantial increase in DOE's use of programmatic EISs. Graph 2 shows the number of EISs DOE began each year, broken down by whether the proposed action called for a programmatic, site-wide or project-specific EIS. (Here, as elsewhere in this report, the starting date for each EIS is measured from DOE's formal publication of a "notice of intent" to prepare an environmental impact statement.) Beginning in 1989 and continuing to the present day, DOE initiated a significant number of programmatic EISs each year. (Appendix II contains a list of all DOE EISs that the department classifies as either programmatic or site-wide.) [Appendix II lists the programmatic and site-wide EISs that have been initiated by DOE. Some EISs do not cleanly fit into one or another category, as several of the "programmatic" EISs also had significant emphasis on a single project.]

• The department's changing mission posed many new environmental and managerial challenges, and required NEPA reviews of new proposals and alternatives.

• DOE initiated a number of large and exceptionally complex NEPA reviews during the early 1990s. The department's increased use of programmatic and site-wide reviews created new challenges for timely and cost-effective preparation of NEPA documents.

• Growing public awareness of the environmental legacy of nuclear weapons production contributed to heightened public distrust of the department and its proposals. As a result, NEPA reviews today often proceed in a political context that is highly skeptical, if not hostile, to the department and its conduct of the EIS process.

The centralization of authority under Secretary Watkins' leadership appears to have improved the department's compliance with NEPA, but it also caused or contributed to a number of administrative problems. These problems included inefficient methods of document preparation and review, lengthy delays in preparation of final documents, and undue attention to minor problems at the expense of larger issues. Watkins' successor, Hazel O'Leary, attempted to solve those problems while continuing to implement the basic program Watkins had instituted.

Watkins made the line programs and operations offices responsible for preparing NEPA documents, but kept the authority for their final approval in the Office of Environment, Safety and Health (EH). The office had a role in both national and purely local decisions. For example, EH was responsible for approving each environmental assessment for the agency, and passed as well on every decision about the applicability of categorical exclusions. In addition, the Office of General Counsel and respective program offices were closely involved in NEPA documents prepared by and for field offices. The review of documents became somewhat circular: the program office would pass a document to EH, which would pass it on to counsel, which could pass it back to EH and the program, and so on. This sequential multi-office process often resulted in long document review periods.

In 1992, a meeting of weapons complex operations office managers identified the time for preparation and approval of NEPA documents as one of their key managerial challenges. [DOE, Environmental Assessment Process Improvement Report (January 1994).] These managers were particularly unhappy with the length of time required for the review and approval of environmental assessments and the issuance of "findings of no significant impact" or FONSIs. In cooperation with DOE headquarters staff, the managers formed the EA Process Improvement Team, which in early 1994 recommended that DOE delegate EA approval authority to the program and operations offices, rather than keeping the authority at EH.

In June 1994, Secretary of Energy Hazel O'Leary issued a secretarial policy statement on the National Environmental Policy Act that directed DOE to streamline its NEPA process and minimize the cost and time for document preparation and review. [O'Leary, Hazel, Secretarial Policy on the National Environmental Policy Act (June 1994).] The policy encouraged team-work in the preparation and review of documents. For example, the policy established management teams from EH, the Office of the General Counsel, and the program offices that replaced the sequential review process with a concurrent review that expedited the resolution of conflicts. The policy encouraged more delegation of authority to the programs and the field, directed the department to improve its management of contractors involved in NEPA work, and directed the Office of NEPA Policy and Assistance (which, in DOE shorthand, is known as EH-42) to develop additional training and guidance materials, to monitor departmental NEPA performance, and to initiate a "lessons learned" process to capitalize on process improvements. O'Leary's goal was to make the process, and the resulting documents, more useful for DOE decision makers and the public. The policy set the ambitious goal of reducing the median time to complete an EIS to 15 months within two years. Achieving that goal would require cutting the median completion time by more than half.

In July 1994, Secretary O'Leary announced a departmentwide policy on public participation that dovetailed with the secretary's goals for NEPA. [O'Leary, Hazel, Guidance on Implementation of the Department's Public Participation Policy (July 29, 1994).] The new policy declared that "public participation must be a fundamental component of the department's program operations, planning activities, and decisionmaking." The policy defined public participation as open, ongoing, two-way communication, both formal and informal, between DOE and its stakeholders. The secretary directed each DOE site to develop a public participation program in consultation with community representatives. While the public participation strategy should be tailored to the needs of specific sites, each strategy should advance the following broad goals: the department must be open and honest with the public; departmental decision making must be clearly defined, with well-identified points for public input; and linkages between local and national issues must be clarified to facilitate informed public participation.

Delegation of Authority to the Field

The 1994 secretarial policy on NEPA broke with existing DOE practices by directing EH to delegate approval authority for environmental assessments to the field. Prior to 1994, the Office of NEPA Policy and Assistance within the Office of Environment, Safety and Health had reviewed each proposed categorical exclusion, environmental assessment, and environmental impact statement. O'Leary's policy adopted the recommendation of the EA Process Improvement Team to make secretarial officers and heads of organization (generally, the assistant secretaries for the national programs and the managers of the operations offices) responsible for approving EAs and for issuing "FONSI's," the "findings of no significant impact" which allow projects to go forward without an EIS. [The secretarial officers listed in the policy are: assistant secretaries for Defense Programs, Energy Efficiency and Renewable Energy, Environmental Management, Fossil Energy, Field Management (associate deputy secretary) and the directors of several programs (e.g., Energy Research) and the power administrations. The heads of the field organizations listed in the policy are the people in charge of the operations offices, and field offices such as the Yucca Mountain office.] EH retains the authority to direct a program or operations office to prepare an EA or EIS if, in its judgment, the program or office would not otherwise prepare the appropriate document. By eliminating headquarters involvement in most environmental assessments, the policy eliminated several layers of review (by EH, the Office of General Counsel, and the program offices) and thus appears to have saved both time and money. The change also allows the Office of NEPA Policy and Assistance to stay focused on the more significant issues associated with environmental impact statements.

The policy allowed the assistant secretary for environment, safety and health to delegate to field offices the authority to approve an EIS on a case-by-case basis. Since 1994, however, EH has delegated broad EIS approval authority only to the Bonneville Power Administration, and to a lesser extent, to the Western Area Power Administration. Many power administration actions tend to be relatively straightforward and routine, and stand in contrast to many department actions involving the weapons complex. The assistant secretary delegated approval authority to Bonneville in part because of the nature of the projects it manages and in part because EH has confidence, based on experience, in Bonneville's capacity to do the NEPA work well. In two cases, EH has delegated EIS approval authority to parts of the weapons complex for projects whose impacts were of only local concern. Other operations offices have requested such authority on a case-by-case basis, but EH has not concurred. Nor has EH established generic criteria for determining when EIS authority might best be delegated to the field because EH officials believe that delegation decisions should be based on a case-by-case review.

EH has retained its authority over most EIS approval decisions for several reasons: to maintain quality control over the technical and legal aspects of NEPA documents; to provide a degree of independence and objectivity to internal reviews; and to avoid problems created by DOE's organizational fragmentation and the tension between national and local interests.

The department's complex organizational structure creates complex cross-cutting interests in the outcomes of particular EISs. DOE is organized by function but most of the line programs are actually implemented by geographically based operations offices. The large headquarters programs include Defense Programs (DP, which supervises the production and management of the nation's nuclear weapons), Energy Research (ER, which supervises a wide range of basic and applied research at DOE's national laboratories), and Environmental Management (EM, which manages the department's wastes and runs the nation's largest environmental clean-up program). DOE's operations offices are at places like Aiken, South Carolina; Richland, Washington; and Albuquerque, New Mexico. These "ops offices" may oversee several DOE sites and area offices, each of which may be funded by several program offices and carry out a variety of functions. Historically, the operations offices have enjoyed considerable autonomy from headquarters and its program offices, and have often operated independently of each other.

An action at one operations office may have significant impacts on other parts of the complex. For example, a decision on whether to shut down a reactor or start up a new waste stabilization process at one site may have environmental and social impacts halfway across the country as the flow of nuclear materials, weapons components, wastes, or jobs changes in response to the decision. Moreover, reasonable alternatives to a proposed action at one site may be spread out across the country. By retaining control over the EIS process, the Office of Environment, Safety and Health tries to coordinate these decisions and strengthen the secretary's ability to manage the complex as a whole.

Apart from the challenge of coordinating actions that could affect numerous sites, the Office of Environment, Safety and Health plays a role in balancing parochial and national interests on matters with potential environmental impacts. Operations office managers are under pressure to get specific jobs done as quickly as possible and at the lowest possible cost. NEPA reviews are generally perceived as adding time and cost to the process of making a decision. Thus, project managers in field offices have an incentive to try to make projects fit the definitions of categorical exclusions, or failing that, to try to fit the projects into an EA rather than EIS.

DOE employees in the field counter that headquarters' intervention sometimes adds to the cost and time of complying with NEPA without adding much value. They strongly endorse delegation of EA authority and generally would like delegation of EIS authority as well. [DOE, Report of the NEPA Quality Improvement Team (October 1995).] One NEPA employee in an operations office said that any of his counterparts worth their salt should be able to handle the responsibilities that would come from full delegation of EIS authority to the field. Representatives from public interest groups disagree, however, fearing that if DOE gave the field offices more authority, the field managers might increase their use of EAs in lieu of EISs. The interest groups and managers in DOE's national programs interviewed in this study were generally opposed to delegating further approval authority to the field, and believed that EH-42 plays an important role in quality control.

Staffing and Organization Under the Secretarial Policy

The 1994 secretarial policy established a new job description that is central to the EIS process. The DOE "NEPA document manager" is the DOE employee charged with directing the preparation of each EIS and EA. [The organizational framework is now specified in DOE Order 451.1A.] Although the job title suggests that the document manager's role is primarily custodial and concerned with archiving paperwork, the manager plays an active and critical role in designing and directing the environmental review process. The document manager, in concert with local contracting officers, makes decisions about the issuance of contracts for NEPA services.

In creating the position of document manager, the secretarial policy was building on a principle established by Watkins: that the field office or program proposing an action should be responsible for evaluating the action and preparing whatever environmental assessments or impact statements would be required. The document managers are part of these line operations, not EH or the EH analogues in the field offices.

The current DOE NEPA process also relies to a great extent on a pre-existing job description known as the "NEPA compliance officer" (NCO). Each of the headquarters program offices has a designated NCO. Each of the operations offices and some of the more subordinate field offices also has a designated NCO, though in these offices they are typically not part of the line operations but rather part of the environment, safety, and health program. In contrast to the document managers, the NCO's are permanently assigned to NEPA compliance functions, and are very knowledgeable about both the purposes of the act and the department's procedures. In some cases, the NCO serves as the document manager for a particular EIS or EA. Although the NCO makes the determination that an action falls within a categorical exclusion, the NCO generally serves in an advisory role to the EA or EIS document manager and the document manager's line superiors - the responsible secretarial officer or head of the field organization who have final responsibility for NEPA compliance.

The relationship between the document manager, the headquarters and field compliance officers, and the Office of NEPA Policy and Assistance is both important and difficult. The relationship is important because the department's overall ability to comply with NEPA and to manage the process efficiently depends in large part on the document manager's understanding of NEPA's requirements, management skills, and commitment to public dialogue. Observers note that document managers do not always have those skills. The relationship is difficult because EH-42, which is accountable for improving the NEPA process, has no direct authority over any of the document managers or the NCOs. Moreover, the NCOs in the field have no direct authority over their office's document managers. DOE's usual career track provides few incentives for the document managers to sharpen their NEPA skills. Generally, document managers get the position because they are involved in the programs responsible for the new facility or project. Most see NEPA as a one-time assignment which they would prefer not to repeat. A DOE employee who works with many document managers said that the beauty of NEPA is that it forces managers who might be indifferent or even hostile to the goals of NEPA to learn about environmental impacts and public concerns and thus become better managers.

Regulatory Changes Since the Secretarial Policy

DOE proposed additional changes to its NEPA regulations in 1996, in part to conform the regulations to the policies ordered in the 1994 secretarial policy statement. [DOE published the preliminary rule in 61 Federal Register 6414 (February 20, 1996) and the final rule in 61 Federal Register 36222 (July 9, 1996). Portions of the final rule pertaining to power marketing activities were published in 61 Federal Register 64603 (December 6, 1996).] The final rule implemented two significant changes:

First, the rule eliminated the requirement that DOE officials prepare an "implementation plan" describing how they would go about preparing each EIS. A few years earlier, Watkins had required that DOE make these plans available to the public. In the interim, preparing the plans had become an elaborate process of its own. DOE concluded that the implementation plans were not worth their cost, as they were often issued at such a late date that the draft environmental impact statement was nearing completion.

In interviews with the study team, DOE officials and members of the concerned public said that the deletion of the requirement to do an implementation plan has not had an adverse effect on the department's NEPA process. As a matter of practice, NEPA document managers still must lay out a plan for the EIS process in order to manage their contractors. Further, the document managers must also engage in early scoping and careful planning to get the most out of contractors. Consequently, the regulatory change lifted the burden of preparing another formal document, without altering the underlying need to accomplish the substance of the implementation plan.

The 1996 regulations also made numerous changes to DOE's list of categorical exclusions. DOE added a number of new categorical exclusions, expanded or clarified some of the old ones, and removed a few. DOE appears to have done a good job of demonstrating that the proposed expansion of exclusions would have no significant environmental impact. The regulation aroused little controversy and is generally regarded as a positive administrative change, as it allows the agency to focus its resources on more significant problems. Most recent disputes involving categorical exclusions are about whether DOE really deliberated about the applicability of the categorical exclusions to specific proposals, rather than on the legitimacy of the excluded categories themselves. [Neither CEQ nor DOE regulations and orders require NCO's to document their determinations that a proposed action falls within a categorical exclusion, and CEQ counsels against such practices on the grounds that too much documentation detracts from the main purposes of the Act. Nevertheless, litigants have challenged some DOE actions, claiming that DOE failed to consider all relevant factors in making a categorical exclusion determination. In a recent guidance memorandum, the Office of Environment, Safety and Health encouraged NCO's to keep a simple record of categorical exclusion determinations in order to demonstrate that they considered all relevant factors. DOE, Guidance on National Environmental Policy Act Categorical Exclusion Determinations, (January 16, 1998).]


III. Assessing the Effectiveness of DOE's NEPA Reforms

A. Impact on Timeliness

The department is completing its environmental impact statements in substantially less time than it used to.

The Office of NEPA Policy and Assistance has analyzed the length of time it has taken to prepare EISs initiated after the secretary's 1994 NEPA policy statement by examining a cohort of the first 24 such EISs. "Analysis: EIS Completion Times and Costs," Lessons Learned Quarterly Report, No 14 (March 3, 1998). Some of the EISs in this cohort are still not final, and the conclusions are still tentative. According to DOE's analysis, the median time to complete an EIS was 14.5 months, with an average duration of 16 months. The median time to complete programmatic and site-wide EISs was 17 months; the median for project-specific EISs was 11 months. Although the summary statistics on this cohort will increase over time (as still pending EISs are completed), DOE estimates that, at most, the median time for completion of the full cohort will be 20 months. In contrast, DOE calculated that the median time to complete an EIS was 33 months in the period from 1989 to 1994.

With an important caveat, the Academy's study team confirmed that in the last decade DOE has decreased the time it takes to prepare both EISs and EAs. The caveat is that a comparison of document preparation times alone cannot assure that the documents compared are comparable in scope or quality. This study was not designed to evaluate individual DOE NEPA documents, and consequently cannot provide an opinion on whether the quality of DOE's NEPA documents has changed over time.

The study team confirmed that EIS completion times have decreased over this decade. Graphs 3 and 4 are based on data obtained from DOE's Office of NEPA Policy and Assistance. The results in Graph 4 exclude EISs that DOE adopted from other agencies. GRAPH 3 shows the median duration of time for completion of EISs, catalogued by the year in which DOE issued its notice of intent to prepare the EIS. The line and the right hand scale show the median time to complete those EISs, and shows that it has declined since the early 1990s. The two columns show the number of EISs begun in each year that have been completed, and the number of EISs begun in each year that are still incomplete.

GRAPH 4 demonstrates that the median completion times of environmental assessments has also fallen through this decade. It should be noted that, as with EISs shown in Graph 3, some of the recent EAs are still not complete, and hence are not reflected in this graph.

These savings in time are likely to also save the department money. There is anecdotal evidence that three of the administrative reforms in particular - the expanded number of categorical exclusions, the delegation of categorical-exclusion authority to the NCOs, and the delegation of EA approval authority to the field - have allowed operations offices and program offices to avoid costs that they would otherwise have incurred.

B. Impact on Public Participation

Congress intended the National Environmental Policy Act to create an open process that would make it possible for the public to learn about and comment on federal actions that may affect the environment or well-being of communities. The process that has evolved since the passage of the act does that, albeit with some cumbersomeness. DOE appears to have strengthened its commitment to public dialogue and access to the NEPA process over the last decade. The department has not sacrificed public involvement in NEPA to achieve its goals of a more expedient and efficient process.

The Council on Environmental Quality's regulations establish minimum requirements for public access to the formal NEPA process. Like the CEQ, DOE has established a minimum 45-day public-comment period on each draft EIS. In many cases, however, DOE allows or encourages longer public-comment periods than CEQ requires.

The Academy study team examined a random sample of environmental impact statements completed after January 1989 and found that the comment period exceeded the 45-day minimum for 62 percent of the draft EISs. Furthermore, DOE has often gone beyond its own minimum legal requirement that it conduct one public hearing to discuss a draft environmental impact statement. For programmatic and site-wide EISs, DOE held an average of seven hearings on the draft EISs. The average for project specific EISs was three.

The extent of formal public participation in DOE's draft EISs is highly variable. Programmatic and site-wide EISs elicited an average of 475 submissions of written documents from the public and other governmental agencies, whereas project-specific EISs received an average of only 43 documents. Similarly, many more persons submitted comments of all types (oral and written) for programmatic EISs (an average of almost 1,500 commenters) than for project-specific EISs (an average of about 50 commenters).

These measures suggest that DOE is meeting its legal requirements, but they shed little light on DOE's responsiveness to public comments or skill at engaging the public in a constructive dialogue about decisions with environmental impacts. By most accounts, DOE has made great strides in the last decade to move from a culture of secrecy to one that encourages public involvement in decisionmaking. Some participants at the Academy's June 11, 1998, roundtable made it clear that they believe DOE has a long way to go. That roundtable and other interviews produced the following qualitative assessments of the department's management of NEPA's demands for public access.

Although DOE has set a goal of producing its EISs in about 15 months on average, DOE's managers should gauge the time needed for each EIS by its complexity and the degree of public interest. If the process is too quick, neither the department nor the public will have the time to analyze the problems or think creatively about alternatives. If the process is too slow, the public will lose interest and turnover in key DOE positions will make the whole process less relevant to the final decision. In any case, DOE should not compress the time available to the public to review and comment on documents.

In order to build an administrative record for each EIS that can withstand a legal challenge, DOE must conduct formal hearings and comment periods. Roundtable participants agreed that these formal proceedings are essential yet insufficient. The rigid settings do not satisfy the department's need to freely exchange information and opinions with interested people and organizations. Roundtable participants agreed that DOE and other agencies need to experiment with new methods of public involvement to supplement - although not replace - more traditional hearing formats.

The department has established other methods of public involvement in recent years, and these may have taken some of the pressure off the NEPA process as the primary public outreach vehicle. As DOE was emerging from its Cold War secrecy, the NEPA process was one of the only avenues by which the public could learn about and comment on the activities at sites around the country. Since then, DOE has established site advisory councils at its major facilities which bring concerned citizens from surrounding communities together to discuss issues of importance to each site. Given the deep reservoir of public distrust and anxiety about nuclear materials and nuclear weapons, however, many of the department's NEPA reviews continue to be flashpoints of controversy.

Those political controversies over DOE's mission have a profound impact on the department's management of NEPA. Because NEPA established procedural requirements for environmental reviews, political disagreements about nuclear weapons policy can be transformed into litigation over the analysis of potential environmental impacts. One participant at the Academy's roundtable said that his organization would use NEPA's legal hooks at every opportunity in order to delay or prevent actions that the group opposed on principle.

The threat of litigation and its delays has forced DOE's NEPA project managers to practice what might be called defensive analysis. Just as medical doctors fearful of malpractice suits may order unnecessary tests, so DOE managers have concluded that the safest course of action is to expand the scope or extend the depth of their EIS analyses. One result has been that EISs become encyclopedic so that DOE can demonstrate that it considered all the options in appropriate detail. The process thus takes more time and costs more money. Ironically, the very completeness of these documents makes them so large and technical that they are less readable by most citizens or DOE managers, and thus of less utility to both.

C. Delivering Better Guidance, Training, and Performance Measurement

In addition to developing NEPA policy and conducting and coordinating EIS reviews, the Office of NEPA Policy and Assistance has assumed the responsibility for creating a well-trained, well-informed cadre of NEPA compliance officers and NEPA document managers throughout the DOE complex. The office's efforts constitute a commitment to continuous improvement of the NEPA process and are highly regarded throughout the complex. The office uses a variety of tools to this end, including guidance documents, training and conferences, performance measurement, and communication through a quarterly publication, Lessons Learned Quarterly Report, and a World Wide Web site on the Internet. The DOE managers interviewed for this study gave consistently high marks to EH-42 for its assistance programs.

Guidance

A common criticism in early 1990s was that DOE officials in charge of NEPA had no guidance on how to do NEPA reviews and so used inconsistent methods that yielded inconsistent results. Beginning in 1993, EH-42 has issued a wide variety of guidance documents on the NEPA process in an effort to create a more standard approach and to help people outside the department understand the department's policies and methods. Table 3 lists these documents.

	Table 3: NEPA Guidance Documents Issued by EH-42
1993	Recommendations for the Preparation of EAs and EISs
1994	Environmental Assessment Checklist
1994	Guidance on Effective Public Participation Under the National Environmental Policy Act
1994	NEPA Compliance Guide Reference Book
1996	NEPA Contracting Reform Guidance
1997	Environmental Impact Statement Checklist
1997	Guidance for NEPA Review for Corrective Actions Under RCRA
1998	Guidance on National Environmental Policy Act Categorical Exclusion Determinations
1998	Directory of Potential Stakeholders for Department of Energy Actions Under the National Environmental Policy Act, Ninth Edition (updated twice each year since 1994)
1998	Guidance on Dates for Department of Energy NEPA Documents

The checklists are designed to help the NEPA document managers ensure that each EA or EIS is complete. The contracting reform guidance was designed to help the many people throughout the complex with responsibility for NEPA contracts to improve their contract management. The directory of stakeholders was intended to make it easier for NEPA managers to reach out to interested parties. DOE is converting that document to a database and has put it on the NEPA web page to make it even easier for managers to find those people or organizations most likely to have an interest in a proposal.

Training

Many of DOE's more senior NEPA specialists, the NEPA compliance officers, have years of experience with NEPA both in DOE and other agencies. The NEPA document managers, however, tend to be relatively new to the process when they take on the role of supervising the preparation of a specific EIS or EA. The NCOs have generally assumed the responsibility for training the document managers, though EH-42 provides training on request and encourages participation in training offered by a DOE center called the National Environmental Training Office. As a regular feature, Lessons Learned Quarterly Report lists training opportunities at a variety of universities and conferences.

The secretarial policy of 1994 raised the possibility that DOE would develop a certification program for NEPA practitioners. EH has evaluated that proposal but has not yet decided how to proceed, in part because of a debate within DOE about whether the document managers should be NEPA specialists who would make a career of NEPA projects or program specialists whose career would stay focused on the site or program for which the NEPA review happened to be a temporary activity. However the department resolves that debate, it is clear that the responsibilities placed on the document managers require not only an understanding of NEPA but also excellent skills in project management, contractor management, and public involvement. Those general skills should be at least as valuable to a DOE facility manager as to a NEPA compliance officer so the debate about the career track of document managers should not get in the way of more appropriate training.

Performance Measurement

In the last five years, the Office of NEPA Policy and Assistance has dramatically improved the quality and range of data that the department collects on NEPA compliance. The office uses that data to track NEPA performance and publishes the data in Lessons Learned Quarterly Report and on the EH-42 web site.

EH-42 obtains the data through an online questionnaire. At the conclusion of an EA or EIS, the NEPA document manager or the NCO completes the questionnaire, providing information on the cost of the evaluation process, how effective the process appears to have been (on a scale of 1 to 5), and how long it took. Other persons from the agency, the contractor and the public can comment on the process as well.

By tabulating the resulting statistics, EH-42 creates a management tool that it can use to identify progress or problems. By publishing them quarterly, the office helps managers from across the complex see what the norms are for EIS and EA production. Lessons Learned Quarterly Reports identify specific projects by name and aggregate the data to show trends and averages. The data tracking and publication reinforce the message that the department expects costs and preparation time to go down. EH-42 encourages this result by highlighting success stories in Lessons Learned Quarterly Reports and reprinting comments about "what worked and didn't work" in the process.

The measures EH-42 uses are important and helpful but ultimately not sufficient. They track administrative aspects of NEPA reviews, but do not collect types of information that would be especially relevant to performance evaluation. For example, the data to date do not allow one to assess how often the EIS process results in a significant change in the preferred alternative. Because DOE's managers now develop project proposals with their environmental consequences in mind, one should not expect NEPA reviews to change all proposed agency actions. Nevertheless, it is reasonable to inquire how often the NEPA process, in itself, did result in a change or reorientation of agency behavior.

EH-42 could continue to improve its NEPA monitoring system by trying to capture additional performance data. Measures that characterize outcomes, the quality of the documents, the extent of public involvement, and the relevance of the documents to the public or decision makers are far more difficult to establish and use consistently than measures like the dates of Federal Register notices. However, further development of such measures would likely pay dividends in the form of a more textured and robust understanding of the contribution of NEPA reviews to departmental actions.

Mechanisms for Continual Improvement

EH-42's efforts to set policy, clarify expectations, gather and publish data, and build a network of competent managers are parts of a strategy that seeks continual improvement of the NEPA process.

EH-42 convenes members of DOE's "NEPA community" - the compliance officers, document managers, legal staff, and others - at least once a year to discuss issues of importance, to share lessons learned, and to build a sense of common purpose. Lessons Learned Quarterly Report extends the impact of those conferences. In its reviews of federal programs, the Academy often notes that the program or agency fails to learn from its actions and thus fails to improve. Lessons Learned Quarterly Report is an excellent example of what a program can do to gather and use information to support continual improvement. DOE's NEPA web site carries the approach one step farther by being available to anyone with a connection to the Internet. (The URL for the DOE NEPA web site is http://tis-nt.eh.doe.gov/nepa/.)

IV. NEPA Costs and the Use of Contractors

In 1995, Secretary O'Leary informed Congress that DOE was spending approximately $20 million to $30 million per year for its routine NEPA compliance program. In addition, the department was spending $50 million per year to prepare several major, one-time programmatic environmental impact statements, and $30 million per year for several site-wide EISs. [Letter from Hazel O'Leary to Senator Peter Domenici (June 2, 1995). Similar information was provided to Congress in the testimony of Robert Nordhaus, DOE General Counsel, before the Senate Energy and Natural Resources Committee, Subcommittee on Oversight and Investigations (June 7, 1995).] The perception that these costs were excessive gave an impetus to many of the reforms that are discussed in this report.

Many of DOE's NEPA costs are attributable to the agency's extensive use of contractors. Of the 39 EISs completed since July 1994 for which detailed cost information is available, only one was completed without incurring any contractor costs, and more than 90 percent of the aggregate EIS costs were contractor costs. (These percentages are based on cost data collected, on a project by project basis, by DOE's Office of NEPA Policy and Assistance.) DOE also uses contractors to prepare EAs, although to a less marked degree than for EISs. Ninety percent of the EAs completed since July 1994 were prepared with the assistance of contractors, and two thirds of overall EA project costs were contractor costs. While other federal agencies also use contractors for NEPA document preparation, DOE's use of contractors stands at the far edge of the continuum. Much of the department's efforts to improve the management of NEPA has focused on reforming the contracting process.

A. DOE's Efforts to Improve Its NEPA Contracting Practices

In the secretarial policy of 1994, Secretary O'Leary established a quality improvement team to make recommendations on how to improve the NEPA contracting process. A team, formed with members from all major DOE programs and major operations offices, subsequently reviewed DOE's practices. Their report criticized the department's NEPA contracting practices in strong terms:

The cost of DOE EISs is frequently too high, EIS preparation time is often too long, and document quality is often too low. Although the Team recognizes that these problems are related in some degree to the complexity of the decisions that are the subject of many NEPA analyses, the Team concludes that the more significant part of the problem lies in poor planning and management of the EIS process by DOE, along with the results of using cost-plus-fixed fee contracting mechanisms. DOE, Report of the NEPA Contracting Quality Improvement Team (Feb 1995).