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CHAPTER 11
A. A lead agency has the responsibility to respond to all substantive comments
raising significant issues regarding a draft EIS. Section 1503.4. However,
cooperating agencies are generally under an obligation to raise issues or
otherwise participate in the EIS process during scoping and EIS preparation if
they reasonably can do so. In practical terms, if a cooperating agency fails
to cooperate at the outset, such as during scoping, it will find that its
comments at a later stage will not be as persuasive to the lead agency.
15. Q. Are EPA's responsibilities to review and comment on the environmental
effects of agency proposals under Section 309 of the Clean Air Act independent
of its responsibility as a cooperating agency?
A. Yes. EPA has an obligation under Section 309 of the Clean Air Act to review
and comment in writing on the environmental impact of any matter relating to
the authority of the Administrator contained in proposed legislation, federal
construction projects, other federal actions requiring EISs, and new
regulations. 42 U.S.C. Sec. 7609. This obligation is independent of its role
as a cooperating agency under the NEPA regulations.
16. Q. What is meant by the term "third party contracts" in connection with
the preparation of an EIS? See Section l506.5(c). When can "third party
contracts" be used?
A. As used by EPA and other agencies, the term "third party contract" refers
to the preparation of EISs by contractors paid by the applicant. In the case
of an EIS for a National Pollution Discharge Elimination System (NPDES)
permit, the applicant, aware in the early planning stages of the proposed
project of the need for an EIS, contracts directly with a consulting firm for
its preparation. See 40 C.F.R. 6.604(g). The "third party" is EPA that, under
Section 1506.5(c), must select the consulting firm, even though the applicant
pays for the cost of preparing the EIS. The consulting firm is responsible to
EPA for preparing an EIS that meets the requirements of the NEPA regulations
and EPA's NEPA procedures. It is in the applicant's interest that the EIS
comply with the law so that EPA can take prompt action on the NPDES permit
application. The "third party contract" method under EPA's NEPA procedures is
purely voluntary, though most applicants have found it helpful in expediting
compliance with NEPA.
If a federal agency uses "third party contracting," the applicant may
undertake the necessary paperwork for the solicitation of a field of
candidates under the agency's direction, so long as the agency complies with
Section 1506.5(c). Federal procurement requirements do not apply to the agency
because it incurs no obligations or costs under the contract, nor does the
agency procure anything under the contract.
17a. Q. If an EIS is prepared with the assistance of a consulting firm, the
firm must execute a disclosure statement. What criteria must the firm follow
in determining whether it has any "financial or other interest in the outcome
of the project" which would cause a conflict of interest?
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