(3) The proposed action conforms to the SIP's provisions for demonstrating reasonable further progress toward attainment of the national ambient air quality standards by the required date;

(4) The proposed action complies with all other provisions and requirements of the SIP.

(e) During the 30-day FNSI and 45day draft EIS review time periods EPA shall provide an opportunity for the State agency with primary responsibility for the SIP to concur or nonconcur with the determination of conformity. All State notifications of concurrence or nonconcurrence with the EPA conformity determination shall include a record of consultation with the appropriate section 174 agency and, where different, the MPO. There shall be a presumption of State concurrence if no objection is received by EPA during the review time period.

(f) The responsible official shall provide in the FNSI or the final EIS a response to a notification of state nonconcurrence with the EPA conformity determination. This response shall include the basis by which the conformity of the proposed action to the SIP will be assured. If the responsible official finds that the State nonconcurrence with the EPA conformity determination is unjustified, then an explanation of this finding shall be included in the FNSI or the final EIS.

Subpart D-Public and Other Federal Agency Involvement

§ 6.400 Public involvement.

(a) General. EPA shall make diligent efforts to involve the public in the environmental review process consistent with program regulations and EPA policies on public participation. The responsibile official shall ensure that public notice is provided for in accordance with 40 CFR 1506.6(b) and shall ensure that public involvement is carried out in accordance with EPA Public Participation Regulations, 40 CFR Part 25, and other applicable EPA public participation procedures.

(b) Publication of notices of intent. As soon as practicable after his decision to prepare an EIS and before the scoping process, the responsible offi

cial shall send the notice of intent to interested and affected members of the public and shall request the OFA to publish the notice of intent in the FEDERAL REGISTER. The responsible official shall send to OFA the signed original notice of intent for FEDERAL REGISTER publication purposes. The scoping process should be initiated as soon as practicable in accordance with the requirements of 40 CFR 1501.7. Participants in the scoping process shall be kept informed of substantial changes which evolve during the EIS drafting process.

(c) Public meetings or hearings. Public meetings or hearings shall be conducted consistent with Agency program requirements. There shall be a presumption that a scoping meeting will be conducted whenever a notice of intent has been published. The responsible official shall conduct a public hearing on a draft EIS. The responsible official shall ensure that the draft EIS is made available to the public at least 30 days in advance of the hearing.

(d) Findings of по significant impact. The responsible official shall allow for sufficient public review of a FNSI before it becomes final. The FNSI and attendant publication must state that interested persons disagreeing with the decision may submit comments to EPA. The responsible official shall not take administrative action on the project for at least thirty (30) calendar days after release of the FNSI and may allow more time for response. The responsible official shall consider fully comments submitted before taking administrative action. The FNSI shall be made available to the public in accordance with the requirements of 40 CFR 1506.6. One copy shall be submitted to OFA.

(e) Record of decision. The responsible official shall disseminate the record of decision to those parties which commented on the draft or final EIS. One copy shall be submitted to OFA.

(f) Categorical Exclusions. The responsible official shall make the documentation described in § 6.107(b) of this part available to the public and shall send a copy to the Office of Federal Activities.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]

§ 6.401 Official filing requirements.

(a) General.OFA is responsible for the conduct of the official filing system for EISS. This system was established as a central repository for all EISS which serves not only as means of advising the public of the availability of each EIS but provides a uniform method for the computation of minimum time periods for the review of EISS. OFA publishes a weekly notice in the FEDERAL REGISTER listing all EISS received during a given week. The 45-day and 30-day review periods for draft and final EISs, respectively, are computed from the Friday following a given reporting week. Pursuant to 40 CFR 1506.9, responsible officials shall comply with the guidelines established by OFA on the conduct of the filing system.

(b) Minimum time periods. No decision on EPA actions shall be made until the later of the following dates: (1) Ninety (90) days after the date established in § 6.401(a) of this part from which the draft EIS review time period is computed.

(2) Thirty (30) days after the date established in § 6.401(a) of this part from which the final EIS review time period is computed.

(c) Filing of EISS. All EISS, including supplements, must be officially filed with OFA. Responsible officials shall transmit each EIS in five (5) copies to the Director, Office of Environmental Review, EIS Filing Section (A-104). OFA will provide CEQ with one copy of each EIS filed. No EIS will be officially filed by OER unless the EIS has been made available to the public. OFA will not accept unbound copies of EISS for filing.

(d) Extensions or waivers. The responsible official may independently extend review periods. In such cases, the responsible official shall notify OFA as soon as possible so that adequate notice may be published in the weekly FEDERAL REGISTER report. OFA upon a showing of compelling reasons of national policy may reduce the prescribed review periods. Also, OFA upon a showing by any other Federal agency of compelling reasons of na

tional policy may extend prescribed review periods, but only after consultation with the responsible official. If the responsible official does not concur with the extension of time, OFA may not extend a prescribed review period more than 30 days beyond the minimum prescribed review period.

(e) Rescission of filed EISS. The responsible official shall file EISS with OFA at the same time they are transmitted to commenting agencies and made available to the public. The responsible official is required to reproduce an adequate supply of EISS to satisfy these distribution requirements prior to filing an EIS. If the EIS is not made available, OFA will consider retraction of the EIS or revision of the prescribed review periods based on the circumstances.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]

§ 6.402 Availability of documents.

(a) General. The responsible official will ensure sufficient copies of the EIS are distributed to interested and affected members of the public and are made available for further public distribution. EISS, comments received, and any underlying documents should be available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552(b)), without regard to the exclusion for interagency memoranda where such memoranda transmit comments of Federal agencies on the environmental impact of the proposed actions. To the extent practicable, materials made available to the public shall be provided without charge; otherwise, a fee may be imposed which is not more than the actual cost of reproducing copies required to be sent to another Federal agency.

(b) Public information. Lists of all notices of intent, EISS, FNSIS, and records of decision prepared by EPA shall be maintained by OFA for the public. Each responsible official will maintain a similar monthly status report for all environmental documents prepared. In addition, OFA will make available for public inspection copies of EPA EISS;

13-122 0-83-9

the responsible official shall do the same for any prepared EIS.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]

§ 6.403 The commenting process.

(a) Inviting comments. After preparing a draft EIS and before preparing a final EIS, the responsible official shall obtain the comments of Federal agencies, other governmental entities and the public in accordance with 40 CFR 1503.1.

(b) Response to comments. The responsible official shall respond to comments in the final EIS in accordance with 40 CFR 1503.4.

§ 6.404 Supplements.

(a) General. The responsible official shall consider preparing supplements to draft and final EISS in accordance with 40 CFR 1502.9(c). A supplement shall be prepared, circulated and filed in the same fashion (exclusive of scoping) as draft and final EISS.

(b) Alternative procedures. In the case where the responsible official wants to deviate from existing procedures, OFA shall be consulted. OFA shall consult with CEQ on any alternative arrangements.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]

(c) "Step 3 grant" means grant assistance for a project for erection and building of a publicly owned treatment works as described in 40 CFR 35.9301(a)(3).

(d) "Step 2 plus step 3 grant" means grant assistance for a project which combines the grants set forth in § 6.501 (b) and (c) of this part as described in 40 CFR 35.930-1(a)(4).

(e) "Applicant" means any individual, agency, or entity which has filed an application for grant assistance under 40 CFR Part 35.

(f) "Grantee" means any individual, agency, or entity which has been awarded assistance under 40 CFR 35.930-1.

§ 6.502 Applicability.

(a) Administrative actions covered. This subpart applies to administrative actions listed below (except as provided in § 6.503 of this part):

(1) Approval of a facilities plan; and (2) Award of grant assistance for a project involving step 2 or step 3 when the responsible official determines that a significant change has occurred in the project or its impact from that described in the facilities plan.

(b) Administrative actions excluded. The actions listed below are not subject to the requirements of this subpart:

(1) Approval of State priority lists; (2) Award of a step 1 grant; (3) Approval or award of a section 208 planning grant;

(4) Award of grant assistance for a step 2 or step 3 project unless the responsible official determines that a significant change has occurred in the project or its impact from that described in the facilities plan (see § 6.502(a)(2) of this part);

(5) Approval of issuing an invitation for bids or awarding a construction contract;

(6) Actual physical commencement of building construction;

(7) Award of a section 206 grant for reimbursement;

(8) Award of a grant increase unless the responsible official determines that a significant change has occurred in a project or its impact as described in the approved facilities plan; and

(9) Awards of training assistance under section 109(b) of the Clean Water Act;

(10) Approval of user charge system or industrial cost recovery system.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]

§ 6.503 Consultation during the environmental review process.

When there are overriding considerations of costs or impaired program effectiveness, the responsible official may award a Step 2 or Step 3 grant for a discrete segment of the project plans or construction before the environmental review is completed. The segmented portion of the project must be noncontroversial, necessary to correct water quality or other immediate environmental problems, and cannot, by its completion, foreclose any reasonable options being considered in the environmental review. If a project is segmented the entire project shall be evaluated to determine if an EIS is required. In applying the criteria to determine if an EIS is required, regional EIS preparation staff shall be consulted. In no case may these types of grant assistance for Step 2 or Step 3 projects be awarded unless the OFA has been consulted, an FNSI has been issued on the segments permitted to proceed at least 30 days prior to grant award, and the grant award contains a specific agreement prohibiting action on the segment of planning or construction for which the environmental review is not complete. The Director, OFA is responsible for consulting with the Assistant Administrator for Water. [47 FR 9832, Mar. 8, 1982]

§ 6.504 Public participation.

(a) General. It is EPA policy that public participation be achieved during the environmental review process as deemed appropriate by the responsible offical under 40 CFR Part 25 and implementing provisions of Part 35, Subpart E of this chapter. Compliance with Part 25 and implementing provisions constitutes compliance with public participation requirements under this part.

(b) Public participation activities undertaken in connection with the envi

ronmental review process should be coordinated with the facility planning public participation program wherever possible.

(c) The responsible official may institute such additional NEPA-related public participation procedures as he deems necessary during the environmental review process.

[47 FR 9830, Mar. 8, 1982]

§ 6.505 Limitations on actions during the environmental review process.

No administrative action under § 6.502(a) shall be taken until the environmental review process has been completed except as provided under § 6.106, § 6.107 and § 6.503 of this part. The responsible official shall ensure compliance in accordance with 40 CFR 1506.1 and Subparts A, C, and D of this part, and all policies, guidance and regulations adopted to implement the requirements under 42 U.S.C. 7616 of the Clean Air Act.

[47 FR 9830, Mar. 8, 1982]

§ 6.506 Criteria for preparing EISS and granting categorical exclusions.

(a) EISS. The responsible official shall assure that an EIS will be issued when he determines that any of the following conditions exist:

(1) The treatment works will induce significant changes (either absolute changes or increases in the rate of change) in industrial, commercial, agricultural, or residential land use concentrations or distributions. Factors that should be considered in determining if these changes are significant include but are not limited to:

(i) The vacant land subject to increased development pressure as a result of the treatment works;

(ii) The increases in population which may be induced;

(iii) The faster rate of change of population; changes in population density;

(iv) The potential for overloading sewage treatment works;

(v) The extent to which landowners may benefit from the areas subject to increased development;

(vi) The nature of land use regulations in the affected area and their potential effects on development;

(vii) And deleterious changes in the availability or demand for energy.

(2) The treatment works or collector system will have significant adverse effects on wetlands, including indirect effects, or any major part of the treatment works will be located on wetlands.

(3) The treatment works or collector system will significantly affect a habitat identified on the Department of the Interior's or a State's threatened and endangered species lists, or the treatment works will be located on the habitat.

(4) Implementation of the treatment works or plan may directly cause or induce changes that significantly:

(i) Displace population;

(ii) Alter the character of an existing residential area;

(iii) Adversely affect a floodplain; or (iv) Adversely affect significant amounts of prime or unique agricultural land, or agricultural operations on this land as defined in EPA's Policy to Protect Environmentally Significant Agricultural Land.

(5) The treatment works will have significant adverse direct or indirect effects on parklands, other public lands or areas of recognized scenic, recreational, archeological, or historic value.

(6) The treatment works may directly or through induced development have a significant adverse effect upon local ambient air quality, local ambient noise levels, surface or groundwater quality or quantity, fish, wildlife, and their natural habitats.

(7) The treated effluent is being discharged into a body of water where the present classification is too lenient or is being challenged as too low to protect present or recent uses, and the effluent will not be of sufficient quality or quantity to meet the requirements of these uses.

(b) When the treatment works shall threaten a violation of Federal, State, or local law or requirements imposed for the protection of the environment, the responsible official shall consider preparing an EIS.

(c) Categorical exclusions. Except as provided in § 6.107(d), the responsible official shall determine and document as provided in § 6.107(b) and § 6.507(a) that an action is consistent with the categories eligible for exclusion identified in § 6.506(c)(1). The responsible official shall ensure that actions consistent with the categories listed in § 6.506(c)(1) but requiring an environmental assessment under § 6.506(c)(2) are not granted categorical exclusions. (1) Categories of actions eligible for exclusion. For this subpart, actions consistent with the following categories are eligible for a categorical exclusion:

(i) Actions for which the facilities planning is solely directed toward minor rehabilitation of existing facilities, functional replacement of equipment, or towards the construction of new ancillary facilities adjacent or appurtenant to existing facilities which do not affect the degree of treatment or capacity of the existing facility. Such actions include but are not limited to infiltration and inflow analyses, sewer system evaluation studies, replacement of existing mechanical equipment or structures, and the construction of new small on-site structures.

(ii) Actions in sewered communities of less than 10,000 persons which are for minor upgrading and minor expansion of existing treatment works. This category does not include actions that directly or indirectly involve the extension of new collection systems funded with Federal or other sources of funds.

(iii) Actions in unsewered communities of less than 10,000 persons where onsite technologies are proposed.

(iv) Other actions developed in accordance with § 6.506(c)(3).

(2) Criteria for not granting a categorical exclusion. Notwithstanding the provisions of § 6.506(c)(1), the responsible official shall ensure that an adequate environmental information document and environmental assessment are prepared for actions that meet any of the following criteria. An action, therefore, that meets any of the following criteria shall not be granted a categorical exclusion.