The Bureau of Land Management improperly used an “alternative approach” to predicting air pollution from a 5,000-well oilfield, the U.S. Environmental Protection Agency said as it joined a chorus of critics blasting approval of the Delaware-sized development near Douglas.
The federal environmental watchdog filed its objection to the agency’s decision along with 13 stakeholders that either objected to or protested against the final study.
If BLM ignored Audubon on grouse, it did provide the EPA with its reasoning for allowing more air pollution. EPA engaged the land and minerals agency from the start of the analysis providing a “detailed explanation” of why the BLM should use EPA methodologies in predicting whether air pollution will violate federal standards.
BLM first said EPA, which sets National Ambient Air Quality Standards, employed an inaccurate approach to gauge impact. EPA’s estimates are based on “impacts for stationary sources that remain in a given location for multiple years,” BLM contended. Instead, drill rigs and such usually don’t operate in a single location permanently.
EPA countered, saying that while a rig might move, it could, essentially, continue working all year. BLM’s “alternative approach” to predicting air pollution “did not align with EPA’s methods,” EPA wrote. That departure from standards makes it impossible to compare model results to the air standards, EPA said.
Operators sided with the land and minerals agency, which said it, the BLM, lacked authority “to require application of the air quality mitigation measures.”
BLM had the final word. It “may rely,” on Wyoming’s DEQ “to ensure permitted activities do not exceed or violate any state or federal air quality standards under the Clean Air Act,” the agency said.
Wyoming’s DEQ, would be the agency that would patrol for any violations, BLM said. That state agency, BLM said, “is subject to oversight by the EPA.”
Fascinating you would write about this, because the EPA did the exact same thing during the objection period of the Pike San Isabel NF travel management process. See this document: https://cara.ecosystem-management.org/Public/DownloadCommentFile?dmdId=FSPLT3_5558125
Even though Forest Service regulations prohibit other federal agencies from filing objections in FS NEPA proceedings (see 36 CFR § 218.5(e)), the EPA filed something during the objection process which they said was not an objection, just a letter asking the Forest to change its decision:
“Please note that this letter is not intended as an objection under the Forest Service’s objection process, rather it is intended to inform the Record of Decision.”
The EPA then went on to complain about how the alternative chosen in the Draft ROD didn’t close enough roads with high watershed risk ratings and they “recommend revising the ROD and selecting an alternative that affords more watershed protection to help move the PSI’ s aquatic resources toward their desired future conditions.”
So basically during the objection period the EPA filed a letter which is not an objection but which basically functioned as an objection and called for the Forest service to change the draft decision and adopt a different alternative in the final decision. I’m really curious what the EPA expected to accomplish by this, and how the Forest Service will actually handle this letter since legally they cannot treat it as an objection.
It seems to me the only thing they can do with it legally is set it aside from review the way they would with any other improperly filed objection that doesn’t meet the eligibility requirements in 36 CFR § 218.5. So what was the point of this letter?
Puzzling indeed. What’s even more puzzling is that it is signed by the NEPA person at EPA. My understanding was that the EPA’s NEPA folks’ input was supposed to help the FS with how to do NEPA, not provide comments (nor objections!) on the substantive nature of decisions. “”We recommend ensuring the consideration of whether the road and trail system is currently impacting fens, and if roads or trails are impacting these wetlands,
selecting appropriate mitigation or decommissioning as necessary to protect these irreplaceable resources.”
What was the point? Would be a good question to ask the folks at EPA.
The CEQ NEPA regulations require EPA to comment on certain kinds of decisions within the probable objection period:
Ҥ 1503.2 Duty to comment.
Cooperating agencies and agencies that are authorized to develop and enforce environmental standards shall comment on statements within their jurisdiction, expertise, or authority within the time period specified for comment in § 1506.11 of this chapter.”
§1506.11 rewards agencies that, “have a formally established appeal process after publication of the final environmental impact statement that allows other agencies or the public to take appeals on a decision and make their views known” by letting them publish a record of decision at the same time as a final EIS (which I assume would either allow EPA to use the objection period for its comments).
This duty to comment more obviously applies to EPA’s jurisdiction over air quality and water quality, and may be limited to EISs, but it would generally encourage EPA to review what other agencies are doing, and to go on record with what it thinks. I have commonly seen EPA comments on drafts, but the regulatory language in §1506.11 also applies to final EISs.
The language in §1503.2 is a result of the recent changes in the CEQ regulations. The language that may have been in effect for these examples said: “Federal agencies with jurisdiction by law or special expertise with respect to any environmental impact statement involved and agencies which are authorized to develop and enforce environmental standards shall comment on statements within their jurisdiction, expertise or authority.” This was arguably more mandatory and broader in scope.