PREFACE

This paper provides guidance to Department of Energy (DOE) personnel for involving the public effectively and meaningfully in DOE processes conducted under the National Environmental Policy Act of 1969 (NEPA). It was prepared in furtherance of the Secretary of Energy’s 1994 Public Participation Policy and Policy on the National Environmental Policy Act.

The Office of NEPA Policy and Assistance prepared this paper in consultation with the Office of the Assistant General Counsel for Environment and the Office of Intergovernmental and External Affairs. These recommendations should aid those responsible for preparing NEPA documents and others involved in NEPA public participation activities by describing techniques and procedures that will enhance the usefulness of the NEPA process to DOE and to its stakeholders. Because each DOE proposed action presents unique circumstances, the paper emphasizes the need for thoughtful case-by-case application of the guidance.

The Assistant Secretary for Enviornment, Safety and Health issued the first edition of this paper in December 1994. This Second Edition reflects changes to the DOE NEPA regulations in 1996 and other needed updates. The Office of NEPA Policy and Assistance plans to revise this guidance from time to time to address additional issues, approaches, and directives. The Office welcomes suggestions for improvement.

Citations to NEPA regulations are provided throughout the text of this paper for the reader’s convenience and relevant regulatory language is contained in the appendices. The reader should be able to understand the paper without examination of the regulations.

• Actively seek and consider public comments and incorporate the views of stakeholders in making decisions.
• Inform the public in a timely manner about and empower them to participate in DOE’s decision making processes, which should be open, understandable, and consistently followed.
• Incorporate credible, effective public participation processes into all of DOE’s activities, at headquarters and in the field.

This paper also furthers the Secretarial Policy Statement on the National Environmental Policy Act issued on June 13, 1994, included as Appendix II. Under this policy, full compliance with NEPA is an essential priority for DOE. The NEPA Policy Statement includes provisions for enhanced public participation, particularly for environmental assessments.

Public participation in the NEPA process is only one element in DOE’s overall public participation program. Public participation activities conducted through the NEPA process should be coordinated with other DOE public outreach efforts.

Public participation requirements can be found throughout the Council on Environmental Quality’s Regulations for Implementing the Procedural Provisions of NEPA (40 CFR Parts 1500-1508), and DOE’s NEPA Implementing Procedures (10 CFR Part 1021). While the regulations describe specific requirements, they also state broad goals for public participation in the NEPA process. For example, the Council on Environmental Quality regulations note that public scrutiny is essential to implementing NEPA (40 CFR 1500.1(b)). For this reason, Federal agencies are required, to the fullest extent possible, to encourage and facilitate public participation in agency decisions that affect the quality of the human environment (40 CFR 1500.2(d)). Agencies must also make diligent efforts to involve the public in preparing and implementing their NEPA procedures (40 CFR 1506.6(a)).

The Secretary’s Public Participation Policy Statement defines public participation as open, ongoing, two-way communication, both formal and informal, between DOE and its stakeholders—those interested in or affected by its actions. The purpose of such interactive communication is to enable both parties to learn about and better understand the views and positions of the other. Public participation provides a means for DOE to gather the most diverse collection of options, perspectives, and values from the broadest spectrum of the public, allowing DOE to make better and more informed decisions. In addition, public participation benefits stakeholders by creating an opportunity to provide comment and influence decisions.

In keeping with this definition, this paper uses the word "public" broadly, to include any and all interested or affected parties. The "public" includes: interested or affected private citizens; state, local, and tribal governments; environmental groups; civic and community organizations; business and labor groups; and independent experts from the scientific, technical, and academic communities. Keep in mind as well that seeking comments of Federal agencies with jurisdiction by law or special expertise is an important aspect of the NEPA process. Further, although effective communication within the DOE complex is certainly essential, this paper focuses on improving the involvement of external stakeholders in DOE’s affairs.

Open the Decision Making Process and Build Credibility. A good public participation program enables those who are interested in or affected by a proposal to have an opportunity to influence the outcome. Presenting information openly, evaluating issues and alternatives fairly, and following through on commitments all build credibility.

Identify Issues. Decision making can benefit from a diversity of opinion and expertise. When afforded the opportunity, interested citizens with varied backgrounds and experiences can contribute useful information, historical data, and new perspectives to the decision making process. The public may identify issues and alternatives that DOE would otherwise overlook.

Enhance Mutual Understanding. Public participation activities promote substantive communication and improve understanding on all sides. By responding to comments and questions, DOE can help the public understand the technical aspects of a particular proposal, as well as the broader policy, political, and legal framework within which DOE makes decisions. DOE, in turn, can better understand the effects of its proposed actions on the local community and the environment by listening to those directly affected.

Make Better Decisions. Public participation helps DOE make informed decisions that take into account public concerns and preferences as well as legal, technical, environmental, economic, and social factors. When a decision acknowledges disparate views and addresses the reasons why other views were not accepted, it stands a better chance of successful implementation.

Enhance Community Support and Minimize Delays. An effective public participation program will not necessarily eliminate all conflicts and controversies accompanying a DOE proposal. However, a community that has a voice in the process and is clearly influencing the final decision will be less angry and frustrated with the process than one that feels shut out or ignored. Public workshops, meetings, hearings, and other communications will provide information and help dispel rumors, fears, and misunderstanding. By addressing public concerns up front, DOE may avoid time-consuming litigation or at least strengthen its position in the event of a subsequent legal or regulatory challenge.

Promote Environmental Justice. Executive Order No. 12898 directs Federal agencies to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health and environmental effects of their programs, policies, and activities on minority and low-income populations. A targeted public participation program can help to identify any disproportionately high and adverse impacts upon these populations.

While this paper describes the explicit requirements for public participation contained in the Council on Environmental Quality and DOE NEPA regulations, it suggests additional activities that may be appropriate to facilitate public participation, consistent with the Secretary’s public participation policy and NEPA Policy Statement. This paper is not a comprehensive guide to public participation activities; it should be one tool among many. A list of additional resources is included in Section 10.

The recommendations in this guidance should be applied thoughtfully, taking into consideration the distinctive needs of the agency and the community, and as a supplement to any applicable requirements of NEPA or its implementing regulations. This paper is not intended to create any rights or obligations or any cause of action on the part of any person.

Each DOE proposal presents a unique set of circumstances and potential impacts. As noted in "Recommendations for the Preparation of Environmental Assessments and Environmental Impact Statements" (Environment, Safety and Health, Office of NEPA Oversight, May 1993), the range of alternatives and level of analysis may vary in DOE NEPA documents depending upon the level of potential impacts. Similarly, the extent of public participation opportunities should also vary according to applicable circumstances.

The "sliding scale" approach can often help to determine the appropriate level of public participation, particularly for environmental assessments (EAs). The sliding scale approach recognizes that public participation for some proposed actions needs to be more extensive than for others. In general, the extent of opportunities should increase as the potential for environmental impacts increases. Substantial interest in or controversy regarding a proposed action, despite relatively insignificant potential environmental impacts, may also warrant a higher degree of public participation opportunities. Note that DOE will only know the extent of public interest or controversy if DOE has engaged in open and early communication with potentially interested parties.

This section sets forth general approaches to public participation in the NEPA process. DOE should employ these approaches in accordance with the Secretary’s Public Participation Policy Statement, NEPA Policy Statement, and the Council on Environmental Quality and DOE NEPA regulations. It is the responsibility of the NEPA document manager to encourage and facilitate public participation throughout the NEPA process, in coordination with DOE program and site public affairs officials. Innovation is encouraged to maximize the quality of public participation.

The applicability of specific recommendations below and in subsequent sections depends on the characteristics and needs of the community, the nature of the proposed action, and the availability of DOE resources. If the public has many questions and concerns, conducting a variety of public participation activities could be helpful in understanding and addressing them. The sliding scale approach helps to determine which activities to conduct.

• Beginning with the earliest project or program planning, budget for public participation activities.
• Consult and coordinate with and through the public affairs officials for the program or affected site. These individuals will be able to help plan and conduct all levels of public participation activities. Through public affairs officers, seek to obtain a good understanding of local issues, values, and interested and affected publics to help anticipate how the public would like to participate in the NEPA process.
• Assure that the level and kind of public participation efforts meet the needs of various affected segments of the population, especially taking into account low-income and minority populations (see later discussion on public participation and environmental justice).
• Establish working relationships with key audiences such as state, local, and tribal governments; local and national activist organizations; and civic groups.
• Actively seek interactions with the public through speaking engagements, civic groups, mall exhibits, workshops, focus groups, etc.
• Present alternatives fairly and objectively. Do not exaggerate benefits or minimize costs and potential impacts. Recognize that members of the public may identify additional reasonable alternatives to the proposed action.
• Practice active and empathetic listening to understand other points of view.
• Encourage the public to provide specific comments rather than simply to express satisfaction or dissatisfaction with the proposed action.
• Where possible, conduct NEPA public participation activities in concert with other related public participation programs that may be conducted for the same site or proposal in order to avoid overwhelming the public and decreasing interest in participation. Use an existing forum when appropriate, such as a regularly scheduled civic or local government meeting, rather than a separately scheduled DOE meeting.
• At the conclusion of the NEPA process for a particular action, consider seeking public comment on the effectiveness of the public participation efforts and suggestions for improvement.
• Behave as you would want a Federal official to behave if the proposed Federal action affected you.

• Involve the public early in the decision making process—that is, before narrowing alternative and making other key decisions.
• Inform state, local, and tribal governments, civic organizations, and communications media of the proposed action and the NEPA process to be conducted.

• While the Council on Environmental Quality and the DOE NEPA regulations refer to public meetings and to public hearings (40 CFR 1506.6(c); and 10 CFR 1021.311(d) and 1021.313(b)), these terms should be considered synonymous in this context, both meaning an open public forum. Some meetings or hearings may be informal, off-the-record informational exchanges between DOE and the public; others may have more formal components, including presentation of oral, on-the-record statements.
• Conduct public meetings and hearings in a manner that encourages discussion and mutual understanding of the NEPA process and the proposed action, even though such meetings may also have more formal components. Whenever possible, meetings, hearings, and workshops should have interactive components to encourage dialogue between DOE and the public.

• Some of the best results of meetings stem from providing an opportunity for all the parties to meet one another and listen to the concerns of others. Face-to-face meetings are more likely to encourage fruitful discussion than simply providing written responses.
• If members of the public are confident that DOE has listened to their views, they are more likely to be satisfied that the decision making process was fair, even if they disagree with the outcome. People understand that listening is the first step in seriously considering their views in the decision making process.
• Under the Council on Environmental Quality regulations, the following factors may indicate a need for public meetings: substantial environmental controversy concerning the proposed action, substantial interest in holding a hearing or meeting, and a request for a hearing or meeting by another agency with jurisdiction over the action, supported by reasons why it would be useful (40 CFR 1506.6(c)).
• Consider holding pre-meeting briefings to provide state, local, and tribal government officials, DOE employees, and the local media with specific information on the NEPA process, the proposed action, and the schedule of upcoming activities.
• A skillful, well-informed facilitator can substantially enhance informal meetings. Such a facilitator need not be a DOE employee.
• A single large public meeting brings together all the interested parties. However, large meetings can grow unwieldy, limiting the opportunity for discussion, making dialogue difficult, and frustrating participants. In general, informal meetings in small groups are better for eliciting useful information and encouraging interaction with individuals who may not be comfortable speaking before a large audience. Concurrent topical breakout sessions where people can go from room to room are sometimes valuable. Sessions can then be repeated at other times or on other days.
• Note that small, informal discussions in workshops or as part of a larger public meeting are usually not part of the formal comment record. The DOE representatives present should ensure that the members of the public in attendance understand that the comments they make in those settings are not necessarily part of the formal record. Notwithstanding the informality, notes regarding significant matters discussed in these sessions may be useful.
• Give the logistical and presentation details careful consideration when planning a public meeting. Remember obligations under the Americans with Disabilities Act, including access for physically disabled individuals and sign language interpretation for deaf people. Think about such things as room layout, comfort and safety, accessibility, room temperature, and extraneous noise.
• Seek to understand the public’s expectations and needs. Work with local organizations or community groups to help plan meeting formats and locations that will meet their needs and DOE’s needs. Consider meeting in community centers, schools, libraries, etc., for the public’s convenience.
• Strive to hold at least some meeting sessions during evening or weekend hours.
• In addition to DOE staff, consider asking representatives of the Environmental Protection Agency, the State, and/or local and tribal governments to make a short presentation and to respond to questions. Such officials should also be encouraged to be available in breakout rooms for dialogue with interested people.
• DOE representatives should never argue with meeting participants or disparage any views presented, although it may be appropriate to indicate polite disagreement.
• DOE staff, not contractors, should represent the agency at public meetings.

• Disclose information. Unless restricted for national security reasons or eligible for withholding under specific statutory provisions, DOE should make information about a proposal readily available to the public.
• Note that EAs and Environmental Impact Statements (EISs) that address classified proposals may be safeguarded and restricted from public dissemination in accordance with DOE’s regulation applicable to classified information. However, to the maximum extent possible, these documents should be organized so that classified information is included in an appendix and unclassified portions can be made available to the public. 40 CFR 1507.3(c) and 10 CFR 1021.340.
• Make information available well in advance of public meetings.
• Establish an information repository near the facility to make all information pertaining to the proposed action readily available to interested persons. Such repositories could be in public libraries or other locations that are open during evening or weekend hours.
• In addition to publishing notices of events or availability of documents in the Federal Register, use media that members of the public are likely to encounter, such as community and school newspapers, radio and television announcements, and notices in public places. The goal is to notify the interested or affected public. The notice can be placed in advertising space to guarantee publication and increase the likelihood that the public will see it. Issuing press releases to the news media may not be enough, because these media often only carry stories that they consider "newsworthy."
• Make an effort to enhance the media’s understanding of the issues related to the program, site, or proposed action. This will facilitate the dissemination of accurate information to the public.

• Use the latest edition of the "Directory of Potential Stakeholders for Department of Energy Actions under the National Environmental Policy Act" (Environment, Safety and Health, Office of NEPA Policy and Assistance) to help identify potentially interested or affected groups and government agencies. Remember that the Directory is only meant to supplement a site-specific mailing list or a mailing list established for a particular proposal.
• Make use of any established mailing list of persons who should receive or have requested to receive information on site or program activities. This will facilitate providing informational materials such as fact sheets, press releases, and notices to persons who may be interested in a proposed action at the site. Telephone and facsimile numbers may aid in communicating with organizations and government entities.
• Establish a specific mailing list for those interested in a particular proposed action to facilitate providing information, draft and final documents, and notices regarding the proposal. Prepare a sign-up sheet at public meetings and other public forums for individuals who want to be on the mailing list. Develop the mailing list at the beginning of the NEPA process and maintain it throughout the life of the project.
• Use return-mail postcards and similar devices to tailor future mailings to each stakeholder’s preference for receiving entire documents, summaries, etc.
• Mailing informational materials is one-way communication. Provide for two-way communication through direct feedback from the public in meetings, telephone conversations, workshops, open houses, etc.

• Understand that commenters are expressing sincere concerns, not trying to make your life difficult.
• Be timely in responding to public comments. A slow response sends the message that public input is not important and that DOE does not care.
• Deal fairly with independent experts. Recognize that people outside of DOE may be highly competent and can contribute valuable perspectives.
• Provide clear, definite responses to substantive comments. Differentiate between philosophical and factual differences. Explain why one approach or option was selected over others.

• Enhance public participation by actively seeking the participation of minority and low-income populations.
• Ensure that information regarding DOE proposed actions is made available to minority and low-income populations, through meetings and programs targeted to reach these populations. This can help to reduce the degree of isolation often experienced by minority and low-income populations.
• Schedule public meetings in locations that are readily accessible to minority and low-income populations, such as local schools and churches.
• Be sensitive to special needs of population members. For a population of non-English speaking residents, consider using a translator during the public meeting. Also, consider translating fact sheets and other background information to accommodate a non-English speaking population.

• disseminating the Notice of Intent,
• holding at least one public meeting, and
• soliciting and considering public comments.

The Notice of Intent to prepare an EIS announces the location and time of public meetings, provides the name and address of a person within DOE who can answer questions about the proposed action and EIS, and invites comments and suggestions on the scope of the EIS (40 CFR 1508.22(b) and (c); 10 CFR 1021.311(a)). The Council on Environmental Quality regulations state that agencies must publish the Notice of Intent in the Federal Register as soon as practicable after a decision to prepare an EIS (40 CFR 1501.7). DOE must disseminate the notice in accordance with the Council on Environmental Quality’s public notice requirements at 40 CFR 1506.6, which may involve: observance of public notice procedures of the affected state; publication of the notice in local newspapers; issuance of the notice to state and area-wide clearinghouses, Indian tribes, and potentially interested community organizations; direct mailings; and posting (10 CFR 1021.311(a)).

DOE requires at least one public meeting as part of the scoping process for EISs. DOE must invite the participation of Federal, state, local, and tribal governments; the proponent of the action; and other interested persons. DOE must announce the location, date, and time of the public meeting(s) in the Notice of Intent or by other appropriate means, such as additional notices in the Federal Register, news releases to the local news media, or letters to affected persons. DOE may not hold the public scoping meeting(s) until at least 15 days after public notification (10 CFR 1021.311(d)).

DOE must allow at least 30 days after the publication of the Notice of Intent for receipt of public comments. DOE must consider all comments received during the announced comment period; DOE may consider comments received after the close of the announced comment period (10 CFR 1021.311(c) and (e)).

• The Notice of Intent to prepare an EIS should provide information about the EIS and the proposed action that an interested or affected citizen would want to know. Include a description of the purpose and need, the proposed project, possible alternatives, and potential environmental issues. The Notice of Intent should also state the relationship of the proposed EIS to other EAs and EISs, particularly those that have previously been of interest to the public.
• Treat scoping as a process and not as an event or a meeting.
• Publish the Notice of Intent only after there is sufficient information to invite meaningful comments. Scoping cannot be useful until DOE knows enough about the proposed action to identify the affected parties, to present a coherent proposal, and to suggest a list of environmental issues and alternatives. The first step is to gather preliminary information from the program office or line organization and to compose a clear picture of the proposal.
• If there will be a lengthy delay between the time DOE has decided to prepare an EIS and the beginning of the public scoping process, consider publishing an Advance Notice of Intent in the Federal Register to provide an early opportunity to inform interested parties of the pending EIS or to solicit early public comments (10 CFR 1021.311 (b)).
• Design the scoping process individually for each proposal. Be flexible. Tailor the type, timing, and location of public participation activities to the proposal.
• Make clear that DOE has not made a decision on the proposed action.
• Scoping is often the first contact between proponents of a proposal and the public and is a crucial first step toward building public confidence. Therefore, allocate sufficient time and resources to planning productive meetings. Try to include opportunities for the public to interact with DOE representatives.
• Consider providing more than the required minimum of 15 days between the notice of a scoping meeting and the meeting, particularly if the subject being addressed is unusually complex. Take account of holidays and other circumstances that may call for schedule flexibility to avoid inconveniencing the interested public.
• Through the scoping process, identify individuals who may already have knowledge about a site or an alternative proposal or a relevant study and encourage them to share their information and ideas.
• Consider preparing an information packet with easy-to-understand material. The packet could contain a description of the proposal, an initial list of areas of environmental impact, possible alternatives, maps, drawings, and other material or references that could help the interested public understand the proposed action. Also include a brief explanation of the NEPA process to give potential participants a context for their involvement.

• writing the draft EIS with the public in mind,
• circulating the draft EIS,
• providing public notice of availability,
• soliciting public comments, and
• holding at least one public hearing.

While writing the draft EIS, DOE must keep in mind that the audience consists of interested members of the public, in addition to the decision maker. In order to make the document useful for the public, DOE must use plain language (40 CFR 1502.8), present environmental impacts of the proposed action in comparative form (40 CFR 1502.14), incorporate material by reference when the effect will be to cut down on the bulk of the EIS without impeding public review (40 CFR 1502.21), and provide a summary section that emphasizes issues raised by other agencies and the public (40 CFR 1502.12).

DOE must circulate the draft EIS, providing the entire document to any person, organization, or agency requesting it. DOE may circulate a summary of the draft EIS to other parties if the draft EIS is unusually long (40 CFR 1502.19).

After completion, DOE files the draft EIS with the Environmental Protection Agency; filing may not precede distribution to the public (40 CFR 1506.9). The Environmental Protection Agency is required to publish each week in the Federal Register a Notice of Availability of the EISs filed during the preceding week; the comment period on the draft EIS is calculated from this date of publication (40 CFR 1506.10(a)). The comment period must be at least 45 days (40 CFR 1506.10(c); 10 CFR 1021.313(a)).

DOE must use appropriate means to publicize the availability of the draft EIS. The methods chosen should focus on persons potentially interested in or affected by the proposed action (10 CFR 1021.313(d)).

DOE must request comments on the draft EIS from appropriate state and local agencies authorized to develop and enforce environmental standards, Indian tribes potentially affected by the proposed action, and members of the public. DOE must affirmatively solicit comments from those persons or organizations potentially interested in or affected by the proposed action (40 CFR 1503.1).

DOE must hold at least one public hearing on a draft EIS. The announcement of the public hearing must precede the hearing by at least 15 days, identify the subject of the draft EIS, and include the location, date, and time of the hearing (40 CFR 1506.6(c)(2); 10 CFR 1021.313(b)). DOE must use appropriate means to publicize the public hearing.

• Address every substantive issue and comment raised in the scoping process. Treat insignificant issues with a short explanation, showing that DOE examined the issue but did not consider it significant for one or more reasons.
• Consider establishing a comment period longer than 45 days for a draft EIS that is unusually long or complex or is highly controversial.
• Encourage the public to comment on specific matters and recommend improvements to the proposed action and various alternatives. Reiterate that DOE has not reached a final decision on the proposal itself.
• Make the document readable by writing clearly, succinctly, and avoiding the use of technical jargon. People cannot comment meaningfully on something they cannot understand.
• In addition to the Environmental Protection Agency’s Federal Register notice of receipt of the draft EIS that lists only the name of the document, consider the usefulness of a DOE notice in the Federal Register. A DOE notice of availability will attract the attention of those interested in DOE activities and will provide information that is not contained in the Environmental Protection Agency notice (e.g., background regarding the site, proposed action, alternatives, and potential environmental impacts, and details of the public comment process, such as the times and places of hearings). To facilitate effective public participation, notices should also be placed in local media to reach members of the public who may be interested in or affected by the proposed action.
• Normally, schedule the public hearing on the draft EIS near the end of the comment period (e.g., about two-thirds of the way through). This will provide the public with sufficient time to review the draft EIS before the public hearing and sufficient time after the hearing to provide comments, or to modify or supplement previous comments, based on information obtained at the public hearing.
• Consider providing more than the required minimum of 15 days notice of a public hearing on a draft EIS, particularly if the subject is unusually complex.
• In addition to the required public scoping meeting, consider holding other public meetings during the preparation of the draft EIS. These meetings can take the form of workshops or neighborhood meetings.
• Consider holding a press conference to brief the news media on the draft EIS and to answer questions.
• Draft EISs and referenced support documents should be made available in the relevant public reading rooms.

• considering and responding to public comments on the draft EIS,
• filing the final EIS with the Environmental Protection Agency and making it available to the public,
• publishing and disseminating the Record of Decision, and
• making copies of any Mitigation Action Plan that is prepared and any relevant monitoring results available to the public.

DOE must assess and consider both oral and written comments received on the draft EIS during the public comment period and must respond to these comments in the final EIS. Possible responses are to: (1) modify alternatives; (2) develop and evaluate alternatives not previously considered; (3) supplement, improve, or modify analyses; (4) make factual corrections; and (5) explain why the comment does not warrant further response (10 CFR 1021.313(c); 40 CFR 1503.4(a)). DOE must discuss at appropriate points in the final EIS any responsible opposing view that was not adequately discussed in the draft statement and must indicate the agency’s response to the issues raised (40 CFR 1502.9(b)).

DOE files the final EIS with the Environmental Protection Agency, which publishes each week in the Federal Register a notice of the EISs filed with the agency during the preceding week; the filing of the final EIS may not precede distribution to the public (40 CFR 1506.9). DOE must use appropriate means to publicize the availability of the final EIS; the methods of notice chosen should focus on reaching persons potentially interested in or affected by the proposed action (10 CFR 1021.313(d)).

DOE must circulate the final EIS, providing the entire document to any person, organization, or agency that has requested it or has submitted substantive comments on the draft EIS. DOE may circulate a summary of the final EIS to other parties if the final EIS is unusually long (40 CFR 1502.19).

DOE must make the final EIS, the comments received, and any referenced support documents available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552), without regard to the exclusion for interagency memoranda when a memorandum transmits a Federal agency’s comments on the environmental impact of the proposed action (40 CFR 1506.6(f)).

DOE may not make a decision on a proposal covered by an EIS during a 30-day "waiting period" following completion of the final EIS, except as provided at 40 CFR 1506.1 and 1506.10(b) and 10 CFR 1021.211. The 30-day period starts when the Environmental Protection Agency’s Notice of Availability is published in the Federal Register (10 CFR 1021.315(a)).

Except for interim actions under 40 CFR 1506.1 and 10 CFR 1021.211, if DOE decides to take action on a proposal covered by an EIS, a Record of Decision (ROD) shall be prepared as provided at 40 CFR 1505.2 (10 CFR 1021.315 (b)). DOE RODs shall be published in the Federal Register and made available to the public as specified in 40 CFR 1506.6 (10 CFR 1021.315 (c)). No action shall be taken until the decision has been made public. DOE may implement the decision before the ROD is published in the Federal Register if the ROD has been signed and the decision and the availability of the ROD have been made public by other means (e.g., press release, announcement in local media) (10 CFR 1021.315 (d)).

DOE must prepare a Mitigation Action Plan that addresses mitigation commitments expressed in the Record of Decision (10 CFR 1021.331(a)). DOE must make copies of any Mitigation Action Plan available for inspection in the appropriate DOE public reading rooms or in other appropriate locations for a reasonable time and must make copies available upon written request (10 CFR 1021.331(d)). In addition, DOE must make the results of any relevant environmental monitoring available to the public upon request (40 CFR 1505.3(d)).

• If there is uncertainty regarding the meaning of their comments, consult with commenters, especially those who are experts, in the process of considering and preparing responses to comments on the draft EIS.
• Provide clear, definite responses to substantive comments on the draft EIS. Differentiate between philosophical and factual differences. When there is a difference of opinion, explain the selection of one opinion over others.
• In addition to the Environmental Protection Agency’s Federal Register notice of receipt of the final EIS that only lists the name of the document, consider the usefulness of a DOE notice in the Federal Register regarding the availability of the final EIS. A DOE notice of availability will attract the attention of those interested in DOE activities and will provide information that is not contained in the Environmental Protection Agency’s notice (e.g., background information regarding the site, proposed action, alternatives, and potential environmental impacts). To facilitate effective public participation, notices should also be placed in local media to reach members of the public who may be interested in or affected by the proposed action.
• Where there is a high level of public interest, consider issuing a press release to announce the publication of the final EIS and holding a press conference to brief the news media on the final EIS. Consider using a similar process when the Record of Decision is issued.
• Final EISs, referenced support documents, and Records of Decision should be made available in the relevant public reading rooms.

• making the determination of whether to prepare a Supplemental EIS and the related Supplement Analysis available to the public; and
• for a Supplemental EIS, employing all the public participation activities required for other DOE EISs, except that the scoping process is optional.

When DOE prepares a Supplement Analysis to determine whether a Supplemental EIS is required, DOE must make the determination and the related Supplement Analysis available to the public. DOE must provide copies upon written request and make copies available in the appropriate public reading rooms or other appropriate locations for a reasonable time (10 CFR 1021.314(c)(3)).

DOE must prepare, circulate, and file a Supplemental EIS in the same manner as any other draft and final EIS, except that scoping is optional for a Supplemental EIS (10 CFR 1021.314(d); 40 CFR 1502.9(c)(4)).

If DOE decides to take an action on a proposal covered by a Supplemental EIS, it must prepare a Record of Decision in accordance with the requirements of 10 CFR 1021.315, the same requirements that apply to any other DOE EIS (10 CFR 1021.314(d)).

DOE must incorporate a Supplemental EIS, or the determination whether or not to prepare a supplement and supporting Supplement Analysis, into any related formal administrative record on the action that is the subject of the Supplemental EIS or determination (10 CFR 1021.314(e); 40 CFR 1502.9(c)(3)).

• A scoping process may be indicated for a Supplemental EIS when the scope of the proposed action has changed since the original EIS was issued, or when the importance, size, or complexity of the proposal warrant scoping.
• Another factor to consider when determining whether to employ scoping for a Supplemental EIS is the age of the EIS that is being supplemented and whether the original EIS is out of date in important respects.

• notifying the host state and host tribe, affected states and tribes as appropriate, and the general public whenever possible, of a decision to prepare an EA;
• making a draft EA available to host and affected states and tribes, and on request, members of the public for preapproval review;
• making a proposed FONSI available to the public before the final decision in certain circumstances; and
• making completed EAs and issued FONSIs available to the public.

DOE must notify the host state and host tribe of a DOE determination to prepare an EA for a DOE proposal. DOE should notify any other state or Indian tribe potentially affected by the DOE proposal (10 CFR 1021.301(c)).

DOE must involve the public to the extent practicable during the preparation of EAs (40 CFR 1501.4(b)). Under the Secretary’s NEPA Policy Statement, DOE will ordinarily provide early public notice of the intent to prepare an EA, concurrent with state and tribal notification.

Before approving an EA, DOE must make it available to the host state and host tribe for review and comment. At DOE’s discretion, this review period may be from 14 to 30 days (10 CFR 1021.301(d)). In addition, under the Secretary’s NEPA Policy Statement, DOE will ordinarily provide an opportunity for interested persons, on request, to review EAs concurrently with state and tribal review.

In certain circumstances, DOE must make FONSIs available for public review and comment for 30 days prior to approval. These circumstances arise when the proposed action is similar to one which normally requires an EIS or when the nature of the proposed action is one without precedent (10 CFR 1021.322(d); 40 CFR 1501.4(e)(2)).

DOE must make copies of a FONSI available for inspection in appropriate reading rooms for a reasonable time and must notify the public of its availability in accordance with Council on Environmental Quality’s public notice requirements at 40 CFR 1506.6 (10 CFR 1021.322(c)).

• Apply the sliding scale approach to determine the extent of public participation opportunities for each EA. In general, the extent of opportunities should increase as the potential for environmental impacts increases. However, substantial interest in or controversy regarding a proposed action, despite relatively insignificant environmental impacts, may warrant a higher degree of public participation opportunities. Note that DOE will only know the extent of public interest or controversy if DOE has engaged in open and early communication with potentially interested parties.
• Whenever possible, provide public notice of the intent to prepare an EA.
• Consider inviting comments on the scope of the EA. Also consider holding public scoping meetings for EAs, particularly when the proposed action is highly controversial or when, but for mitigation, the environmental impacts may be significant. When DOE has conducted public scoping for an EA, it will often be appropriate to provide a general public preapproval review opportunity in addition to providing preapproval review upon request.
• If, in special circumstances, it is not possible to provide advance notice of DOE’s intent to prepare an EA, try nevertheless to provide adequate public notice of the proposed action before issuing a FONSI.
• Whenever possible, provide EAs to any member of the public who specifically requests a preapproval comment opportunity, concurrent with state and tribal preapproval review.
• Generally, do not circulate a draft FONSI before the EA is approved, in order to avoid the impression that DOE has already made a decision regarding the significance of the impacts.
• EAs, FONSIs, and any referenced support documents should be made available in the relevant public reading rooms.

Neither the Council on Environmental Quality nor the DOE NEPA regulations require public participation for categorical exclusion determinations. Indeed, the purpose of categorical exclusions is to avoid "clogging the system" with documentation regarding proposed actions that clearly will have no significant impact on the environment. However, to increase public understanding of DOE’s activities and improve the agency’s credibility, consider periodically (e.g., monthly or quarterly) publishing a list of recent categorical exclusion determinations.

APPENDIX I

GUIDANCE ON IMPLEMENTATION OF

THE DEPARTMENT’S PUBLIC PARTICIPATION POLICY

SECRETARY HAZEL R. O’LEARY

JULY 29, 1994

APPENDIX II

NATIONAL ENVIRONMENTAL POLICY ACT POLICY STATEMENT

SECRETARY HAZEL R. O’LEARY

JUNE 13, 1994

APPENDIX III

COUNCIL ON ENVIRONMENTAL QUALITY REGULATIONS

REGARDING PUBLIC PARTICIPATION

40 CFR 1500.1 Purpose.

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40 CFR 1500.2 Policy.

Federal agencies shall to the fullest extent possible:

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40 CFR 1500.4 Reducing paperwork.

Agencies shall reduce excessive paperwork by:

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40 CFR 1501.4 Whether to prepare an environmental impact statement.

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There shall be an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action. This process shall be termed scoping. As soon as practicable after its decision to prepare an environmental impact statement and before the scoping process the lead agency shall publish a notice of intent (§1508.22) in the Federal Register except as provided in §1507.3(e).

40 CFR 1502.1 Purpose.

The primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government. It shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment. Agencies shall focus on significant environmental issues and alternatives and shall reduce paperwork and the accumulation of extraneous background data. Statements shall be concise, clear, and to the point, and shall be supported by evidence that the agency has made the necessary environmental analyses. An environmental impact statement is more than a disclosure document. It shall be used by Federal officials in conjunction with other relevant material to plan actions and make decisions.

40 CFR 1502.8 Writing.

Environmental impact statements shall be written in plain language and may use appropriate graphics so that decisionmakers and the public can readily understand them. Agencies should employ writers of clear prose or editors to write, review, or edit statements, which will be based upon the analysis and supporting data from the natural and social sciences and the environmental design arts.

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40 CFR 1502.12 Summary.

Each environmental impact statement shall contain a summary which adequately and accurately summarizes the statement. The summary shall stress the major conclusions, areas of controversy (including issues raised by agencies and the public), and the issues to be resolved (including the choice among alternatives). The summary will normally not exceed 15 pages.

40 CFR 1502.14 Alternatives including the proposed action.

This section is the heart of the environmental impact statement. Based on the information and analysis presented in the sections on the Affected Environment (§1502.15) and the Environmental Consequences (§1502.16), it should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public.

40 CFR 1502.19 Circulation of the environmental impact statement.

Agencies shall circulate the entire draft and final environmental impact statements except for certain appendices as provided in §1502.18(d) and unchanged statements as provided in §1503.4(c). However, if the statement is unusually long, the agency may circulate the summary instead, except that the entire statement shall be furnished to:

If the agency circulates the summary and thereafter receives a timely request for the entire statement and for additional time to comment, the time for that requestor only shall be extended by at least 15 days beyond the minimum period.

40 CFR 1502.21 Incorporation by reference.

Agencies shall incorporate material into an environmental impact statement by reference when the effect will be to cut down on bulk without impeding agency and public review of the action. The incorporated material shall be cited in the statement and its content briefly described. No material may be incorporated by reference unless it is reasonably available for inspection by potentially interested persons within the time allowed for comment. Material based on proprietary data which is itself not available for review and comment shall not be incorporated by reference.

40 CFR 1503.1 Inviting comments.

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40 CFR 1503.4 Response to comments.

40 CFR 1505.1 Agency decision making procedures.

Agencies shall adopt procedures (§1507.3) to ensure that decisions are made in accordance with the policies and purposes of the Act. Such procedures shall include but not be limited to:

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At the time of its decision (§1506.10) or, if appropriate, its recommendation to Congress, each agency shall prepare a concise public record of decision....

40 CFR 1505.3 Implementing the decision.

Agencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases. Mitigation (§1505.2(c)) and other conditions established in the

environmental impact statement or during its review and committed as part of the decision shall be implemented by the lead agency or other appropriate consenting agency. The lead agency shall:

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40 CFR 1506.6 Public involvement.

Agencies shall:

40 CFR 1506.8 Proposals for legislation.

40 CFR 1506.9 Filing requirements.

Environmental impact statements together with comments and responses shall be filed with the Environmental Protection Agency, attention Office of Federal Activities (A-104), 401 M Street SW., Washington, DC 20460. Statements shall be filed with EPA no earlier than they are also transmitted to commenting agencies and made available to the public. EPA shall deliver one copy of each statement to the Council, which shall satisfy the requirement of availability to the President. EPA may issue guidelines to agencies to implement its responsibilities under this section and §1506.10.

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40 CFR 1507.3 Agency procedures.

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40 CFR 1508.9 Environmental assessment.

"Environmental assessment":

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"Notice of intent" means a notice that an environmental impact statement will be prepared and considered. The notice shall briefly:

APPENDIX IV

DEPARTMENT OF ENERGY NEPA REGULATIONS REGARDING PUBLIC PARTICIPATION

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1. DOE shall use appropriate means to publicize the availability of draft and final EISs and the time and place for public hearings on a draft EIS. The methods chosen should focus on reaching persons who may be interested in or affected by the proposal and may include the methods listed in 40 CFR 1506.6(b)(3).

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