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  • Disclaimer: Any opinions, findings, and recommendations expressed in the group area discussions are solely those of the authors and do not necessarily reflect the views of the United States Government, the Department of Transportation, or the Federal Highway Administration.
Post
Edited: 4/24/2012 8:34 AM
Consultant

Categorical Exclusions & Circumstances to Preclude Use

Wondering your thoughts on categorical exclusions.

If a proposed action is minor (determined not significant) and comes within a predefined categorical exclusion (CE), would the fact that the site may have contaminated soil (thus hazardous waste generated if digging invovled) result in inapplicability of a CE?

My thought is that the action alone is not significant, and the generation of soil would just have to conform to transport/disposal laws and not an issue that should raise the level of review to an EA/EIS.

thoughts?

thanks.
2011-07-20 22:02:24
Posted: 4/24/2012 8:34 AM
Noel Mehlo Jr.
In response to your email, I agree with the responses that you have been provided with thus far.  I would ask you and the group to consider the following when dealing with contamination issues:

1) Exactly what type of contamination issues are you dealing with?  A former gas station or garage holds the potential to yield vastly fifferrent scientific results then from say a Superfund site or heavy manufacturing site. 

2) Does the State DOT in the State in question have a procedure in place to address ESA/HAZMAT during NEPA?

www.dot.state.oh.us/Divisions/Planning/Environment/NEPA_policy_issues/ENVIRONMENTAL_ASSESSMENT/Documents/ESA_Manual_Apr09_revkhg.pdf

The website above is a link to a good manual in use by the Ohio DOT for hazmat.  The State of Ohio employs this as their ESA standard in place of ASTM E 1527 and related standards for assessing potential hazardous sites to be acquired as part of roadway projects. 

These two questions tie directly to Owen's response previously as to "significance."  You really need to discuss this with your State DOT project manager and resource person involved with the NEPA side of ESA activities.  You need to ensure that your project has been properly screened and evaluated to develop a sound project scope of services as with any project.  If the site is well documented and known as to the potential conaminants, then preparing a scope with "If authorized" studies, such as Phase I and Phase II work would be in good order. 

Once your team has a good nandle on this, then the ultimate decision can be reached as to environmental document classification for the project, and there again the State DOT, in conjunction with the FHWA Division Office will establish this based on the project information.

There is also the matter of whether or not the State in question has an established Programamatic Agreement (PA) between the State DOT and FHWA for processing CE's. 

In our State, a project may be processed as a CE under our PA with ESA concerns based on our agreement so long as the ESA concerns fall within the bounds of the specified terms of our agreement without elevating the document based on the contaminant(s) alone.  All required studies and documentation are of course required. 

Sorry for the book.
7/25/2011 2:08 PM
Posted: 4/24/2012 8:34 AM
Steve from Pittsburgh
I agree with Owen of FHWA.  However, the level of NEPA document does not always determine how much effort is put into actually properly dealing with waste management issue(s).  Additionally, my experience while serving as a DOT Environmental Manager had taught me that when you are dealing with potential contaminated waste issues (e.g. underground storage tanks, asbestos in buildings, lead/arsenic/petroleum products in soil), the design team should adequately characterize the type, as well as the quantity of waste which may be encountered.  Then, develop as detailed of a construction specification (include estimates for soil disposal, waste manifest sampling, and water disposal from on-site encountered surface/groundwater) as possible during preliminary/final design.  This effort will save the construction staff at the DOT, and ultimately the FHWA, extensive force account rip-offs from unscrupulous contractors.  It is all relative and is ultimately a calculated risk.  If the waste is too extensive, develop an avoidance alternative.   
7/21/2011 4:52 PM
Posted: 4/24/2012 8:34 AM
Owen Lindauer
Here are my thoughts. You say the proposed action is minor. How was it determined "not significant?"  If it was part of a class of actions whereby experience indicates the action normally results in no significant environmental effects, okay. It would be better if that determination was based on environmental analysis for that particular project.  If you believed there was a chance an EA or EIS would be more appropriate, you'd be required to conduct environmental studies in support of a decsion one way or another.

FHWA regulations (23 CFR 771.117(a)) indicate the conditions an action must meet to be classified as a CE. They also say that any action normally classified as a CE might have "unusual cirumstances" that might make a CE approval inappropriate. Those circumstances are listed in 23 CFR 771.117(b). This section of the regulation also says that if you think your action might involve unusual circumstances you are required to conduct appropriate environmental studies to determine whether the CE determination is proper. The "documentation" in "documented CEs" consists of the studies in consideration of "unusual circumstances" that support that the CE approval was appropriate.

7/21/2011 2:05 PM
Posted: 4/24/2012 8:34 AM
Depends on level of contamination and context and intensity...example, if it's a superfund site then more coordination and public involvement is necessary.  If it's just a low level soil or water contamination, then you can document everything in your hazmat study and do a CE no problem.
7/21/2011 1:17 PM
Posted: 4/24/2012 8:34 AM
A CE is absolutely appropriate, if in the opinion of the lead federal agency this was not a significant impact.  With proper supporting documentation to show that all cross-cutting laws and resource agency concerns are resolved, and appropriate mitigation will be implemented, CE's have been approved for projects with adverse impacts to threatened/endangered species, adverse effects to historic resources, impacts to wetlands, involvement with hazardous materials, relocations to homes and businesses, noise impacts, public comments and concerns, and other social and environmental impacts.  Obviously, the more issues you have, the more documentation is necessary to demonstrate that the CE designation is still appropiate, and a point can be reached where "if it looks like and EA and smells like an EA" then it probably should be an EA even if it is an action included within a predefined categorical exclusion.  These thresholds can differ from Division Office to Division Office. I'd check with your local State DOT and FHWA Division office regarding procedures for determining CE applicability in your state.
7/21/2011 11:23 AM