NEPA and Environmental Planning : Tools, Techniques, and Approaches for Practitioners - Chapter 5 docx

Categorical Exclusions Actions, including categorical exclusions CATXs, that are exempt from the requirements of the National Environmental Policy Act NEPA are described in this chapter.

Categorical Exclusions

Actions, including categorical exclusions (CATXs), that are exempt from the requirements of the

National Environmental Policy Act (NEPA) are described in this chapter This chapter begins with

a comprehensive description of the CATX process and is followed by a discussion on the types of

actions that are generally excluded from the requirements of NEPA

CATXs, briefly described in Chapter 2, were not fully defined Because of their clear importance

to efficiency, this section has been prepared to provide the reader with a thorough understanding of

the entire CATX process A CATX is defined as

… a category of actions which do not individually or cumulatively have a significant effect on the human

environment and which have been found to have no such effect in procedures adopted by a Federal agency

in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental

assessment nor an environmental impact statement is required An agency may decide in its procedures

or otherwise, to prepare environmental assessments for the reasons stated in § 1508.9 even though it is

not required to do so Any procedures under this section shall provide for extraordinary circumstances

in which a normally excluded action may have a significant environmental effect (§ 1508.4).

Since the impacts have already been determined to be nonsignificant, neither an environmental

assessment (EA) nor an environmental impact statement (EIS) is required to be prepared for those

actions qualifying for a CATX Moreover, each agency is required to adopt implementing

proce-dures that include specific criteria for, and identification of, typical classes of action that

(ii) … normally do not require either an environmental impact statement or an environmental

assess-ment (categorical exclusions) 1

The Council on Environmental Quality (CEQ) recently published draft guidance on

establish-ing, revisestablish-ing, and using CATXs.2 This guidance is intended to assist federal agencies in improving

and modernizing their administration of CATXs under NEPA The draft guidance recommends

procedures and approaches for (1) establishing and revising CATXs; (2) involving the public;

(3) documenting development, revision, and use of CATXs; and (4) periodically reviewing CATXs

Additional direction can be found in § 1500.4[p], § 1500.5[k], § 1501.4[a], § 1507.3[b], and

§ 1508.4 Although CATXs are one of the most important streamlining tools available to the NEPA

practitioner, experience indicates their application is often underutilized

As far as NEPA’s requirements are concerned, once an action has been categorically excluded,

the agency is free to pursue the action The reader should note, however, that while a CATX satisfies

NEPA’s requirements, it does not necessarily satisfy the requirements of other environmental

stat-utes Some representative examples of CATXs promulgated by the Department of Energy (DOE)

are shown below.3

B2.1 Modifications of an existing structure to enhance workplace habitability (including, but not limited to, improvements to lighting, radiation shielding, or heating, ventilating, air conditioning and its instrumentation, and noise reduction)

•

B3.1 (a) Geological, geophysical (such as gravity, magnetic, electrical, seismic, and radar), geochemical, and engineering surveys and mapping, including the establishment of survey marks

B3.2 Aviation activities for survey, monitoring, or security purposes that comply with Federal Aviation Administration (FAA) regulations

B4.7 Adding fiber optic cable to transmission structures or burying fiber optic cable in existing transmission line rights-of-way

5.1.1 E XTRAORDINARY C IRCUMSTANCES

Occasionally, an action may be technically eligible for a CATX, but because of unusual

circum-stances, its potential impacts may be significant The NEPA regulations (Regulations) provides

for such “extraordinary circumstances.” Agencies are mandated to make provisions for situations

(§ 1508.4) under which an EA or EIS must be prepared even though the proposed action technically

falls within the scope of a CATX

The Regulations, however, do not define what constitutes extraordinary circumstances

Consis-tent with the rule of reason, the author suggests that this requirement be interpreted to mean

unique or unusual conditions in which a decision-maker, or responsible party, cannot conclude clearly

and quickly that the action would result in an insignificant impact.

The author suggests some basic factors that may be useful in devising specific criteria for

defining extraordinary circumstances:

Unresolved conflicts concerning alternate uses of available resources within the meaning

of NEPA (§ 102[2][E]) Actions that may involve effects that are highly controversial (§ 1508.28[b][4]) Proposals connected to other actions with potentially significant impacts (§ 1508.25[a][1]) Actions with effects that are uncertain, unique, or involve unknown risks (§ 1508.27[b][5]) Actions that establish a precedent for future actions with significant effects (§ 1508.27[b][6]) Again, consistent with the rule of reason, the author suggests some additional circumstances

where the application of a CATX may be inappropriate:

Where it has the potential to affect an undisturbed area When it is outside the size or scope of activities that would normally be excluded under

a CATX When it involves the use of hazardous, toxic, or radioactive chemicals that could harm the environment

When it involves unproven activities or technology When it could affect archaeological or cultural resource sites, ecologically critical areas or habitats, sensitive and endangered species, wild and scenic rivers, wetlands, floodplains,

or coastal zones

5.1.2 A DOPTING CATX S

Agencies are encouraged by the CEQ to review their list of exclusions periodically and where

appropriate update them The CEQ also encourages agencies to list out examples of activities that

fall within these categories.4

Agencies are expected to involve the CEQ in the review of proposed CATXs during the draft

stage A formal system should be established for screening proposed actions against CATX

eligi-bility criteria and extraordinary circumstances

•

•

•

•

•

•

•

•

•

•

•

•

•

One approach for identifying potential CATXs involves reviewing EAs that have previously

resulted in findings of no significant impact (FONSI) Conversely, CATXs should be revoked or

revised if experience indicates a history of inappropriate use as follows:

A scope that is excessively broad

A potential for significant impacts, either individually or cumulatively

As one example, prior to the approval of a medication, the Food and Drug Administration (FDA)

used to prepare an EA for each new drug brought to the market Yet, after many years of practice,

only one case had required the preparation of an EIS Many years of experience demonstrated a

general lack of significant environmental impacts related to the approval of new drugs Based on

this record, the FDA established a firm basis to broaden its CATXs for future drug approvals.5

The CEQ reviews and approves the adoption of CATXs to verify that they are consistent with

NEPA’s regulatory requirements Because NEPA is a public process, proposed CATXs are published

prior to their formal adoption, so that the public is given an opportunity to review and comment on them

As the final step in the adoption process, all CATXs must be published in the Federal Register.4

5.1.3 A PPLYING CATX S

As depicted in Figure 5.1, proposed actions should be carefully reviewed to ensure that they fall

appropriately within the scope of a CATX.6 Agencies might wish to consider the use of a

sliding-scale approach in reviewing an action’s eligibility for a CATX Based on such an approach, activities

considered routine or trivial in nature may receive only a cursory review, while more atypical or

complex activities are scrutinized with an increasing level of attention

•

•

Review proposal against agency’s list of CATXs

Does proposed action fit within an existing CATX?

Perform any necessary reviews (e.g., biological, cultural)

Extraordinary circumstances?

Does use of the CATX need

to be documented?

Prepare documentation

Proceed with the action

Begin preparation

of EA or EIS

Yes No

No Yes

No

Yes

FIGURE 5.1 Generalized process for categorically excluding actions.

If appropriate, a review is performed to confirm that the proposal does not trigger any of the

10 significant criteria (§ 1508.27[b]) listed in the Regulations Care should also be taken to ensure

that the context (e.g., historic or cultural resource, or ecologically sensitive area) in which the action

would occur is not overlooked (§ 1508.27[a]) Candidate actions with individually insignificant

impacts should also be reviewed to ensure that they are not connected or related to other actions

with potentially significant impacts (§ 1508.25[a]) Finally, the review should ensure that no

extraor-dinary circumstances are involved

Case law The courts have tended to give agencies broad discretion over the interpretation and

application of their CATXs For example, in 1985 the City of Alexandria, Virginia, challenged the

Federal Highway Administration over its decision in favor of a CATX for a highway ramp project.7

The city claimed that the project involved significant impacts The court ruled that the agency’s

interpretation of its own CATXs should be given greater weight than the interpretations of either

the court or the city The court went on to explain that it would defer to the agency’s interpretation

of its own regulations as long as the agency followed its procedures appropriately

However, in a second case, a court found that an agency’s existing record indicated that a

pro-posed CATX for increasing motorized boat traffic on a wild and scenic river had the potential to

impact turtles and salmon and to cause conflicts among user groups.8

In a third case, the FAA made a decision allowing an airline to schedule passenger service to

LaGuardia from a general aviation airport located in the vicinity of numerous historic parks The

FAA concluded that an additional 10 roundtrip flights per day would have a de minimus

environ-mental impact and that a CATX was appropriate The court concluded that the FAA’s failure to

prepare an EA or to consult with historic preservation agencies was a harmless error.9

5.1.4 D OCUMENTING CATX S

Some agencies document the execution of their CATX processes to demonstrate that they were

indeed reviewed, that the use of the CATX was appropriate, and that no unforeseen factors were

present that could cause a significant impact For example, the Forest Service has used a decision

memo, the DOE has used environmental checklists, and the Bureau of Reclamation has used a

categorical exclusion checklist (CXC) consisting of a 1–2 page narrative of the action and a set of

questions regarding its possible environmental impacts

One expert stated that, in his view, they amounted to “documenting the fact that an action does

not have to be documented.” Former CEQ chairman Alan Hill stated that, in his view, “… an agency

should rarely need to document the fact that an activity is categorically excluded from the NEPA

process.”10

In one case, an agency did not document its reliance on a CATX The court noted that no

docu-mentation existed in the record to show that the agency made the CATX determination at the time

the action was approved.11 As depicted by the third decision-making diamond in Figure 5.1, the

author suggests that such practices be reserved for important or potentially controversial situations

and for circumstances specified in the agency’s NEPA implementation procedures

5.1.5 S TREAMLINING R ECOMMENDATIONS

Methods that can be used to streamline an agency’s CATX process are described below

5.1.5.1 Electronic CATX Management Database

The DOE’s Westinghouse Savannah River Company has developed an electronic environmental

evaluation checklist (EEC) database to manage in an efficient manner the large volume of CATXs

that are generated at this site.12 The database electronically transfers the CATX request form from

the initial preparer (usually the project engineer) to the NEPA practitioner responsible for reviewing

the request

The electronic data flow mimics the hardcopy workflow originally developed for the site The

electronic system totally replaces the original hardcopy paperwork that once took weeks to route

through the review and approval process Barton Marcy, a manager at Westinghouse, has reported

that a CATX request was processed and approved in a time as short as an hour The system is fully

searchable and provides a graphical, real-time checklist status so that it can be quickly determined

if the request for a project has been approved A monthly activity report that includes a cover

let-ter to the DOE NEPA Compliance Officer is automatically generated by the database at the end of

each month

Figure 5.2 shows one design for such a system, depicting a system that could be designed to

allow a requestor (e.g., project engineer) to log into the database and fill out a short request form

Requestor (project engineer) identifies proposed action

Requestor logs on to database system using password and fills out NEPA request form

NEPA practitioner logs on

to system and reviews the NEPA request form

CATX is approved and archived

in database system System automatically generates approval notification with an electronic signature

Monthly status report is automatically generated from database

NEPA compliance officer receives monthly status report

NEPA office approves CATX request?

Database system notifies requestor of denied approval

Notify requestor of approval (approval form is transmitted electronically to requestor)

No Yes

Pursue action

Request form is electronically transmitted to NEPA office

Electronic notice

Electronic

notice

FIGURE 5.2 Example of an electronic database system for automating an agency’s categorical exclusion

process.

with information such as the nature of the action or even a proposed CATX that the action might

fit On receiving the request, the NEPA practitioner would then use the system, which includes

electronic signatures, to process and approve it automatically A password is used to authenticate

the signer’s identity and to place both the requestor’s and approver’s electronic signatures on the

approval form Electronic signatures can be scanned as pictures of actual signatures

5.1.5.2 Additional Recommendations

Additional recommendations are provided below for assisting agencies in streamlining their CATX

processes

Practice of documenting CATXs by some agencies should be either eliminated or restricted

to actions that are important or potentially controversial

Agency officials should periodically review their missions and, as appropriate, expand their supportive lists of exclusions For example, agencies may want to consider reviewing their lists of CATXs at least every 5 years

Agencies have been criticized for adopting CATXs that are too narrow in scope Prudence should be exercised in developing CATXs that are restrictive enough to prohibit activities that may be significant, yet broad enough to provide coverage for the community of activi-ties that are nonsignificant

Agencies should prepare lists of examples of activities that fall within the scope of a CATX Such examples can clarify the appropriate application of CATXs, reducing poten-tial abuses that may result from their inappropriate use

5.2 EXEMPTIONS FROM NEPA

NEPA’s mandate is both sweeping and comprehensive With a few exceptions, all proposals for

federal action are subject to NEPA’s requirements Only two categories of federal activities were

originally exempted from NEPA’s requirements (§ 1508.18[a]):

1 Funding assistance by general revenue bonds

2 Operation of the legal system

A limited number of additional circumstances deemed to be exempt from all or some of NEPA’s

requirements have been identified Some of these exemptions are noted in Table 5.1 To respond

effectively to such situations, federal officials and NEPA practitioners should be keenly aware of

these exemptions

Five categories of actions normally considered to be either partially or completely exempt from

NEPA are described below For additional information, the reader is directed to papers by Schmidt

and Swenson.17

Presidential and executive office exemptions Congressional (explicit statutory) exemptions Functional equivalency exemptions

Statutory conflict (implicit) exemptions Emergency situations

In practice, use of these exemptions is limited to a very narrow scope of actions Prudence must

be exercised to ensure that an action legitimately qualifies for exclusion Some exemptions involve

complexities beyond the scope of this book

•

•

•

•

•

•

•

•

•

TABLE 5.1

Exemptions from the Requirements of NEPA

Executive Order Exemptions

Federal Actions Abroad

For foreign countries when their environments are significantly affected by major federal actions, agency procedures are to

provide for the preparation of environmental review documents in the following situations … Where the environmental

effects of federal actions are within foreign countries, agencies have flexibility under the Executive Order to prepare either

concise environmental reviews of the issues involved or to undertake bilateral or multilateral environmental studies

Environmental impact statements will not be required in these circumstances 13

For Nuclear Activities Abroad

Unless not required … the Office of Export and Import Control shall promptly arrange for the preparation of an appropriate

environmental document … 14

Statutory Exemptions

Clean Air Act Exemption for the EPA

No action taken under the Clean Air Act shall be deemed a major federal action significantly affecting the quality of the

human environment within the meaning of the National Environmental Policy Act 15

Clean Water Act Exemption for EPA

Except for the provision of Federal assistance for the purpose of assisting the construction of publicly owned treatment

works … and the issuance of a permit … for the discharge of any pollutant by a new source … no action by the

Administrator taken pursuant to this Act shall be deemed a major federal action significantly affecting the quality of the

human environment within the meaning of the National Environmental Policy Act 16

Regulatory Exemptions

General Revenue Sharing (§ 1508.18[a] )

Actions do not include funding assistance solely in the form of general revenue sharing funds, distributed under the State

and Local Fiscal Assistance Act of 1972, 31 USC 1221 et seq., with no Federal agency control over the subsequent use of

such funds.

Judicial and Administrative Enforcement Actions

Actions do not include bringing judicial or administrative civil or criminal enforcement actions (§ 1508.18[a]).

Inconsistency of NEPA with Other Statutory Requirements

Parts § 1500–1508 of this title provide regulations applicable to and binding on all Federal agencies … except where

compliance would be inconsistent with other statutory requirements … (§ 1500.3).

The phrase “to the fullest extent possible” in Section 102 means that each agency of the Federal Government shall comply

… unless existing law applicable to the agency’s operation expressly prohibits or makes compliance impossible

(§ 1500.6).

Legislative Proposals

Preparation of a legislative environmental impact statement shall conform to the requirements of these regulations except as

follows: (1) there need not be a scoping process; (2) the legislative statement shall be prepared in the same manner as a

draft statement, but shall be considered the “detailed statement” required by statute (§ 1506.6).

Timing Requirements

An exception to the rules on timing may be made in the case of an agency decision which is subject to a formal internal

appeal (§ 1506.10[b]).

Emergencies

Where emergency circumstances make it necessary to take an action with significant environmental impact without

observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about

alternative arrangements Agencies and the Council will limit such arrangements to actions necessary to control the

immediate impacts of the emergency Other actions remain subject to NEPA review (§ 1506.11).

Inconsistency of Agency NEPA Procedures with Statutory Requirements

Agency procedures shall comply with these regulations except where compliance would be inconsistent with statutory

requirements … (§ 1507.3[b]).

(Continued)

5.2.1 P RESIDENTIAL E XEMPTIONS

As specified in Section 102 of the Act, NEPA applies to agencies of the federal government The

president is not a federal agency Thus, decisions made directly by the president (i.e., not generated

by a federal agency) are exempt from NEPA Consistent with this interpretation, the term federal

agency does not include the Congress, the judiciary, or the president The Regulations also exclude

“performance of staff functions for the President in his Executive Office” (§ 1508.12)

Court cases involving this exemption have been split Hence, there is some question

concern-ing its precise scope and validity Furthermore, some activities involvconcern-ing environmental impacts in

foreign countries (including nuclear activities abroad) are exempted under an Executive Order

5.2.2 E XPLICIT C ONGRESSIONAL E XEMPTIONS

Congress has the authority to exempt specific actions and legislation from NEPA’s requirements

For example, the Energy Supply and Coordination Act of 1974 granted an explicit statutory

exemp-tion to the Environmental Protecexemp-tion Agency (EPA) from complying with NEPA when the agency

undertook actions pursuant to the Clean Air Act (CAA) (see Table 5.1) Specifically, this act stated,

“No action taken under the Clean Air Act shall be deemed a major federal action significantly

affecting the quality of the human environment.”18

Similarly, certain actions taken by the EPA under the Clean Water Act are exempt from NEPA.19

Swenson reports several examples and states:

In addition there are a number of emergency powers given to EPA by various environmental statutes

that are intended to allow EPA to respond quickly, without formal regulatory findings to various threats

to the environment which will not wait for the normal process of regulation 20

A number of statutory exemptions applying to agency programs other than those of the EPA are

not shown in Table 5.1 Mandelker, who provides a partial list of such exemptions, reports:

Other environmental protection programs administered by EPA do not contain express exemptions

from NEPA Whether these programs are exempted depends on whether a court determines that their

environmental decision-making procedures are functionally equivalent to NEPA’s 21

The Disaster Relief Act allows the president to declare an emergency situation so that

imme-diate assistance can be provided This act exempts a number of emergency relief activities from

NEPA For instance, the repair and restoration of federal facilities that existed prior to the disaster

are exempt in cases where they are limited to restoring these facilities to the state

TABLE 5.1 (Continued)

Exemptions from the Requirements of NEPA

Classified Actions—National Security

Agency procedures may include specific criteria for providing limited exceptions … for classified proposals They are

proposed actions which are specifically authorized … to be kept secret in the interest of national defense or foreign

policy … Environmental assessments and environmental impact statements which address classified proposals may be

safeguarded and restricted from public dissemination in accordance with agencies’ own regulations applicable to

classified information These documents may be organized so that the classified portions can be included in annexes,

in order that the unclassified portions can be made available to the public (§ 1507.3[c]).

When Effects Are Only Economic or Social

This means that economic and social effects are not intended by themselves to require the preparation of an environmental

impact statement (§ 1508.14).

Congress has also exempted from NEPA review controversial projects such as the Alaska

pipe-line, the San Antonio freeway, and the logging in the Pacific Northwest.21 In recent years, Congress

has increasingly exempted various aspects of other projects and programs from NEPA

For example, in 2002, the Bush administration proposed a “Healthy Forests Initiative” that

exempted loggers from the NEPA process in certain fire-prone federal forests Instead of filing

individual NEPA statements for each concerned forest, the government would issue only one

all-embracing large-scale forest thinning plan

More exemptions are in the works Section 2055 of the proposed Energy Policy Act of 2005

(H.R 6) would waive public participation and environmental review under NEPA for many oil and

gas drilling activities Sections 1808 and 2014 of H.R 6 would allow oil and gas companies to

per-form their own NEPA analyses and would reimburse the companies for doing so This clause offers

no criteria for ensuring that such analyses would be unbiased and objective

Title V of H.R 6 would remove the application of federal laws such as NEPA and the National

Historic Preservation Act from energy development decisions on tribal lands Section 1702 of

H.R 6 limits the evaluation of alternatives to just two: the alternative proposed by the industry and

a “no-action” alternative

5.2.3 F UNCTIONAL E QUIVALENCY E XEMPTIONS

In certain instances, the courts have upheld a doctrine known as functional equivalency This

con-cept does not appear in any statute, regulation, or executive order The functional equivalency

doc-trine is based on an argument referred to as statutory redundancy, originally advanced by the EPA

with respect to its statutory mission Under this argument, certain instances exist where NEPA’s

requirements are essentially redundant when considered in conjunction with other applicable

envi-ronmental statutes That is, since other envienvi-ronmental statutes are essentially the functional

equiva-lent of NEPA, the Act does not apply Thus, the functional equivalency doctrine implies that

… A statute is so compatible with the goals of NEPA that an EIS is not needed to ensure protection of

the environment 20

To say the least, the issue of functional equivalence has been controversial Its legal foundation

has been supported by the courts in some cases but rejected in others Where courts have ruled in

favor of the functional equivalency argument, case law indicates that three criteria have been

estab-lished for its applicability:22

1 Agency’s organic statute must provide “substantive and procedural standards that ensure

full and adequate consideration of environmental issues.”23

2 Agency must afford public participation before a final alternative is selected.24

3 Action must be undertaken by an agency engaged primarily in the examination of

environ-mental issues.25

5.2.4 T HE EPA

The courts have generally found that the EPA’s activities in furtherance of various environmental

statutes are the functional equivalent of compliance with NEPA and that the agency is therefore not

required to comply with NEPA in those circumstances The following cases have concluded that, as

a result of functional equivalency, the EPA did not have to comply with NEPA for actions under

Clean Air Act;26 Ocean Dumping Act;24 Federal Insecticide, Fungicide, and Rodenticide Act;27 Resource Conservation and Recovery Act;28 and Safe Drinking Water Act.29

•

•

•

•

•

To date, however, the courts have generally declined to apply functional equivalency to any

agency other than the EPA, including departments that have substantial environmental

responsi-bilities For example, one court declined to grant functional equivalency to the National Marine

Fisheries Service:30

The mere fact that an agency has been given the role of implementing an environmental statute is

insufficient to invoke the functional equivalency exception.

The question of functional equivalency exemptions has been raised most notably with respect

to two major environmental laws administered by the EPA:

Comprehensive Environmental Restoration, Compensation, and Liability Act (CERCLA) Resource Conservation and Recovery Act (RCRA)

5.2.5 F UNCTIONAL E QUIVALENCE WITH CERCLA

Before discussing the applicability of functional equivalency to NEPA, it is instructive to

sum-marize some basic differences between the requirements of the NEPA and CERCLA processes

For example, analysis of an affected environment is interpreted much more broadly under NEPA

than CERCLA and may extend well beyond the boundaries of a contaminated site Moreover,

NEPA tends to require consideration of a much wider range of alternatives than does CERCLA

Under CERCLA, the public is afforded an opportunity to comment on the selected alternative

for remediation However, unlike NEPA, CERCLA does not require extensive public participation

throughout the process Moreover, CERCLA does not require indirect or cumulative impacts to be

addressed.22

Application of the functional equivalency doctrine to the cleanup of hazardous waste sites under

CERCLA remains somewhat unclear and controversial The EPA has argued that functional

equiva-lency extends to its actions under CERCLA, since its basic or organic mission is to protect the

envi-ronment Thus, NEPA’s goals are inherent in the activities performed as part of that mission Some

courts have upheld EPA’s claim, granting it a de facto exemption from NEPA.31

While the EPA has maintained that functional equivalency extends to its own activities, it has

generally held that such equivalency does not extend to remediation activities performed by other

federal agencies The CEQ has also maintained that functional equivalency does not extend to

agencies other than the EPA As viewed by the CEQ, a dual NEPA/CERCLA process enhances

environmental protection and provides the public with an opportunity to more fully participate in

the decision-making process.32

Opinions among various agencies have been mixed The Department of Justice has issued an

opinion generally supporting extension of the functional equivalency doctrine to other agencies

involved in CERCLA cleanup actions at their facilities In the past, some agencies such as the DOE

have pursued a middle course For example, rather than depending on functional equivalency,

DOE has integrated NEPA values with CERCLA documents Different departments within the

DOD have been split on the issue

Generally, however, the courts have been reluctant to extend functional equivalency to agencies

other than the EPA, even in instances where these other agencies have had significant

environmen-tal responsibilities

5.2.6 F UNCTIONAL E QUIVALENCE WITH RCRA

It has been argued that issuing RCRA permits for the treatment and storage of hazardous waste and

for disposal facilities is the functional equivalent of NEPA Such exemption is based on the fact

•

•