07-98
CHAPTER 11
A. The Council's referral procedure is a pre-decision referral process for
interagency disagreements. Hence, Section 1504.3 requires that a referring
agency must deliver its referral to the Council not later than 25 days after
publication by EPA of notice that the final EIS is available (unless the lead
agency grants an extension of time under Section 1504.3(b)).
33b. Q. May a referral be made after the issuance of a Record of Decision?
A. No, except for cases where agencies provide an internal appeal procedure
which permits simultaneous filing of the final EIS and the record of decision
(ROD). Section 1506.10(b)(2). Otherwise, as stated above, the process is a
pre-decision referral process. Referrals must be made within 25 days after the
notice of availability of the final EIS, whereas the final decision (ROD) may
not be made or filed until after 30 days from the notice of availability of
the EIS. Sections 1504.3(b) and 1506.10(b)(3). If a lead agency has granted an
extension of time for another agency to take action on a referral, the ROD may
not be issued until the extension has expired
34a. Q Must Records of Decision (RODs) be made public? How should they be made
available?
A. Under the regulations, agencies must prepare a "concise public record of
decision," which contains the elements specified in Section 1505.2. This
public record may be integrated into any other decision record prepared by the
agency, or it may be separate if decision documents are not normally made
public. The Record of Decision is intended by the Council to be an
environmental document (even though it is not explicitly mentioned in the
definition of "environmental document" in Section 1508.10). Therefore, it must
be made available to the public through appropriate public notice as required
by Section 1506.6(b). However, there is no specific requirement for
publication of the ROD itself, either in the Federal Register or elsewhere.
34b. Q. May the summary section in the final Environmental Impact Statement
substitute for or constitute an agency's Record of Decision?
A. No. An environmental impact statement is supposed to inform the decision
maker before the decision is made. Sections 1502.1, 1505.2. The Council's
regulations provide for a 30-day period after notice is published that the
final EIS has been filed with EPA before the agency may take final action.
During that period, in addition to the agency's own internal final review, the
public and other agencies can comment on the final EIS prior to the agency's
final action on the proposal. In addition, the Council's regulations make
clear that the requirements for the summary in an EIS are not the same as the
requirements for a ROD. Sections 1502.12 and 1505.2.
34c. Q. What provisions should Records of Decision contain pertaining to
mitigation and monitoring?
A. Lead agencies "shall include appropriate conditions [including mitigation
measures and monitoring and enforcement programs] in grants, permits or other
approvals" and shall "condition funding of actions on mitigation." Section
1505.3. Any such measures that are adopted must be explained and committed in
the ROD.
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