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6-21-1999 7:01PM ~ ~1HON EFFERT ~~,;. A less nr I.nst~ Mr. Chuck Williams Page 3 June l 1, 1999 FRO1,~ I HON ASSOCIATES 303 d36 9396 P. 4 Despite the scope of the project and the likely significance of its impacts, EPA never even mentions its NEPA obligations in the DSOB. It appears that EPA simply relies upon the BLM's flawed DEIS to satisfy EPA's obligations under NEPA. However, it cannot do so. EPA is responsible for its own part to provide a review of environmental impacts and the opportunity for public participation that NEPA contemplates. When the lead agency fails co comply with NEPA, a cooperating or adopting agency is not absolved of its own NEPA compliance obligations. See 40 C.F.R § 1506.3 ("An agency may adopt a Federal draft or final [EIS) .. . provided that the statement ...meets the standards for an adequate statement under these regulations.") In the case of the Yankee Gulch project, EPA should have been more active in the scoping and drafting process, making sure that the BLM's DEIS contained sufficient information to meet the requirements of NEPA. Significantly, as discussed below, see infra p~.8, EPA did not even ensure that the BLM's DEIS addressed the issues L•PA raised in its limited pazticipation in the DE[S process. Given EPA's failure to ensure the adequacy of BLM's DEIS, EPA must deaf[ its own EIS, or prepare a supplement to the deficient BLM document. B. The BLM E1S Draftine i'rocess Was Fatally Deficient. The NEPA implementing regulations, promulgated by the Council on Environmental Quality ("CEQ") and binding on federal agencies, mandate early and substantial opportunity for public participation in the EIS process, beginning with scoping. See 40 C.F.R. § 1501.7. During the scoping process, the lead agency is to share details about the proposed action with the public. Using the proposed action as a starting point, scoping participants identify the a:m~itonmental issues to be covered in the EI5 and identify the alternatives to be considered. ']~lre CEQ regulations characterize such alternatives analysis as "tire heart of the ETS." 40 C.F.R § 1502.14, if the scoping process is rushed, or if the lead agency does not fully disclose the proposed action, the selection of alternatives ~ nd the entire E1S arc flawed. Sometimes, such as in this case, the flaws are legally deficient. In the DEIS prepared by the BLM for Yankee Gulch, with no explanation, the BLM withheld the specifics of the proposed action-the proponent s Commercial Mine Plan-from the public. In fact American Soda's Commercial Mine Plan had not even been. presented to the EPA until two months after the scoping process was completed. Instead, once it received the Commercial Mine Plan, rather than allowing the public to adequately evaluate the scope and specifics of the Yankee Gulch Project, the BLM disclosed only a short summary and project description that left out many important project details. It was impossible for FSLM to conduct scoping that meets the requirements of NEPA without American Soda's Commercial Mine Plan and without allowing the public an opportunity to review the plan and identify potential impacts 3