[Federal Register Volume 76, Number 1 (Monday, January 3, 2011)]
[Proposed Rules]
[Pages 214-249]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32316]
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Part II
Department of Energy
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10 CFR Part 1021
National Environmental Policy Act Implementing Procedures; Proposed
Rule
Federal Register / Vol. 76 , No. 1 / Monday, January 3, 2011 /
Proposed Rules
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DEPARTMENT OF ENERGY
[Docket ID: DOE-HQ-2010-0002]
10 CFR Part 1021
RIN 1990-AA34
National Environmental Policy Act Implementing Procedures
AGENCY: Office of the General Counsel, U.S. Department of Energy.
ACTION: Notice of proposed rulemaking and public hearing.
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SUMMARY: The U.S. Department of Energy (DOE or the Department) proposes
to amend its existing regulations governing compliance with the
National Environmental Policy Act (NEPA). The majority of the changes
are proposed for the categorical exclusions provisions contained in its
NEPA Implementing Procedures, with a small number of related changes
proposed for other provisions. These proposed changes are intended to
better align the Department's regulations, particularly its categorical
exclusions, with DOE's current activities and recent experiences, and
to update the provisions with respect to current technologies and
regulatory requirements. DOE proposes to establish 20 new categorical
exclusions, and to remove two categorical exclusion categories, one
environmental assessment (EA) category, and two environmental impact
statement (EIS) categories. Other proposed changes modify and clarify
DOE's existing provisions.
DATES: Comments should be received by (or, if mailed, postmarked by)
February 17, 2011 to ensure consideration. Late comments may be
considered to the extent practicable. DOE will hold a public hearing on
February 4, 2011, from 1 p.m. to 4 p.m. in Washington, DC. Persons who
wish to speak at the public hearing should register before 3 p.m. on
February 1, 2011, as described in FOR FURTHER INFORMATION CONTACT.
ADDRESSES: Documents relevant to this rulemaking are posted at http://www.regulations.gov (Docket ID: DOE-HQ-2010-0002). Documents posted to
this docket include: This notice of proposed rulemaking, DOE's
``Technical Support Document'' that provides additional information
regarding certain proposed changes, and a ``redline/strikeout''
(markup) file of affected sections of the DOE NEPA regulations
indicating the changes proposed in this proposed rule.
Submit comments, labeled ``DOE NEPA Implementing Procedures, RIN
1990-AA34,'' by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the online instructions for submitting comments electronically. This
rulemaking is assigned Docket ID: DOE-HQ-2010-0002. Comments may be
entered directly on the Web site. Electronic files may be submitted to
this Web site.
2. Mail: Mail comments to NEPA Rulemaking Comments, Office of NEPA
Policy and Compliance (GC-54), U.S. Department of Energy, 1000
Independence Avenue, SW., Washington, DC 20585. Because security
screening may delay mail sent through the U.S. Postal Service, DOE
encourages electronic submittal of comments.
3. Public Hearing: A public hearing will be held at the U.S.
Department of Energy, Forrestal Building, Room 1E-245, 1000
Independence Avenue, SW., Washington, DC 20585. Oral and written
comments will be accepted at the public hearing. See DATES, above, and
Section III, Invitation to Comment, below, for procedures.
FOR FURTHER INFORMATION CONTACT: For general information about DOE's
NEPA procedures, contact Ms. Carol Borgstrom, Director, Office of NEPA
Policy and Compliance, at 202-586-4600 or leave a message at 800-472-
2756. To register to speak at the public hearing and for questions
concerning how to comment on this proposed rule, contact Ms. Yardena
Mansoor, Office of NEPA Policy and Compliance, at askNEPA@hq.doe.gov or
202-586-9326. For detailed information on submitting comments and the
public hearing, see Section III, Invitation to Comment, below.
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
What is NEPA?
The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) requires Federal agencies to consider the potential environmental
impacts of their ``proposed actions'' before taking action. (Please
note the terms ``effects'' and ``impacts'' as used in this proposed
rule are synonymous. See 40 CFR 1508.8.) Proposed actions include
actions directly undertaken by a Federal agency, as well as certain
actions undertaken by a State, local, or private entity with Federal
involvement, e.g., certain projects that may receive Federal funding,
permits, or other support.
What is environmental review under NEPA?
The Council on Environmental Quality's (CEQ's) NEPA implementing
regulations (40 CFR parts 1500-1508) establish three levels of review
for proposed actions--EIS, EA, and categorical exclusion
determinations--each involving different levels of information and
analysis. An EIS is a detailed analysis of the potential environmental
impacts of a proposed action (and alternatives) that may have a
significant impact on the environment. See NEPA Section 102(2)(C), 42
U.S.C. 4332(2)(C); 40 CFR 1508.11. An EA is a briefer analysis
conducted to determine whether a proposed action may have a significant
impact on the environment and thus whether an EIS is required. See 40
CFR 1508.9. A categorical exclusion is a class of actions that a
Federal agency has determined do not, absent extraordinary
circumstances, individually or cumulatively have a significant impact
on the human environment and for which, therefore, neither an EA nor an
EIS is required. See 40 CFR 1508.4. A categorical exclusion
determination is made when an agency finds that a proposed action fits
within a categorical exclusion and meets other applicable requirements,
such as the absence of extraordinary circumstances.
How does DOE establish categorical exclusions?
DOE establishes categorical exclusions pursuant to a rulemaking,
such as this one, for defined classes of actions that the Department
determines are supported by a record showing that they normally will
not have significant environmental impacts, individually or
cumulatively. DOE establishes categorical exclusions based on its
experience, the experience of other agencies, and information provided
by the public.
A complete list of DOE's current categorical exclusions can be
found at 10 CFR part 1021, subpart D, appendices A and B. Appendix A
lists categorical exclusions applicable to general agency actions (for
example, routine administrative, financial, and personnel actions).
Appendix B lists categorical exclusions that are applicable to specific
agency actions.
How does DOE make a categorical exclusion determination?
Under the regulations, before a proposed action may be
categorically excluded, DOE must determine in accordance with 10 CFR
1021.410(b) that: (1) The proposed action fits within
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a class of actions listed in appendix A or B to subpart D, (2) there
are no extraordinary circumstances related to the proposal that may
affect the significance of the environmental impacts of the proposed
action, and (3) there are no connected or related actions with
cumulatively significant impacts and, as appropriate, the proposed
action is not precluded as an impermissible interim action (40 CFR
1506.1 and 10 CFR 1021.211).
In addition, to fit within a class of actions in appendix B, a
proposed action must satisfy certain conditions known as ``integral
elements'' (appendix B, paragraphs (1) through (4)). Briefly, these
conditions ensure that an excluded action would not have the potential
to cause significant environmental impacts due to, for example, a
threatened violation of applicable environmental, safety, and health
requirements, or by disturbing hazardous substances such that there
would be uncontrolled or unpermitted releases.
What does DOE propose to change in its NEPA regulations?
With this proposed rule, DOE proposes to update its NEPA
regulations (10 CFR part 1021), primarily with changes to subpart D and
with a few changes to subpart C. Most changes are to categorical
exclusions (subpart D, appendices A and B, discussed in Sections IV.D
and IV.E below, respectively), including establishing new categorical
exclusions and modifying existing categorical exclusions. DOE also
proposes to make changes to its classes of actions that normally
require an EA (appendix C, discussed in Section IV.F) or EIS (appendix
D, discussed in Section IV.G). In addition, DOE proposes to change
several procedural provisions of the Department's regulations (Section
IV.C) and modify wording for consistency and clarity (Section IV.B).
II. Purpose and Development of the Proposed Changes
Why does DOE propose to amend its NEPA implementing procedures?
The Department last updated its categorical exclusions in 1996.
Since that time, the range of activities in which DOE is involved has
changed and expanded. For example, in recent years, DOE has received
more applications for financial support from private applicants for
actions that promote energy efficiency and energy independence. DOE has
received thousands of applications under grant and loan programs
established by the Energy Policy Act of 2005, the Energy Independence
and Security Act of 2007, and the American Recovery and Reinvestment
Act of 2009. Another change since 1996 is the growth and development of
new technologies in the private and public sectors, including energy
efficient and renewable energy technologies, and DOE's experience with
those technologies. Through this proposed rulemaking, DOE proposes to
update its categorical exclusions to address the Department's current
activities and its experience and bring the provisions up-to-date with
current technology and regulatory requirements.
How did DOE seek input on the proposed changes?
DOE has sought input from a number of different sources. First, DOE
issued an internal memorandum on December 7, 2009, soliciting
suggestions for new categorical exclusions or revisions from DOE
Program and Field Offices, including DOE's network of NEPA Compliance
Officers. Second, DOE Office of NEPA Policy and Compliance staff
identified additional candidates for new or expanded categorical
exclusions by reviewing the archive of DOE EAs that led to findings of
no significant impact (FONSIs), researched the existing categorical
exclusions established by approximately 50 Federal agencies, and
reviewed existing DOE categorical exclusions to identify potential new
categorical exclusions or revisions. Third, on December 29, 2009, DOE
published a Request for Information in the Federal Register (74 FR
68720) seeking suggestions from interested parties. Eleven entities
responded to the Request for Information: Endicott Biofuels, LLC;
Golder Associates, Inc.; INFORM (Information Network for Responsible
Mining); Johnson Controls, Inc.; Nuclear Watch New Mexico; Presco
Energy, LLC; Sierra Geothermal Power Corp.; Solar Energy Industries
Association; State of Oregon's Department of Energy; U.S. Chamber of
Commerce; and a contractor for DOE's Golden Field Office. The Request
for Information and these comments are available at http://www.regulations.gov.
The comments included proposals for new categorical exclusions and
suggested revisions to limit or expand existing categorical exclusions
or other related provisions. DOE addresses these comments in its
discussion of specific classes of actions in Section IV. Comments of a
more general nature that were not associated with a particular
provision are addressed below in Section V.
How did DOE develop the proposed changes?
As described above, DOE reviewed and evaluated each of the proposed
revisions, reviewed past DOE NEPA analyses and other agencies' NEPA
analyses and categorical exclusions, and drafted proposed categorical
exclusions and revisions. DOE created a Technical Support Document that
presents proposed changes and information that supplements the Preamble
discussion of the supporting basis for the changes. (See http://www.regulations.gov, Docket ID: DOE-HQ-2010-0002.) The proposed changes
were developed in consultation with CEQ (see 40 CFR 1507.3), and are
now, through this notice of proposed rulemaking, published for public
review and comment. Instructions for how to provide comments are
provided in Section III. DOE is also scheduling a public hearing to
accept comments on the proposed rule. Details regarding the public
hearing are provided in the DATES and ADDRESSES section and in Section
III.B below. DOE will review the comments received during the public
comment period, including those presented at the public hearing, and
revise its proposal as appropriate. The final rule with DOE responses
to comments would then be published in the Federal Register.
What kinds of changes does DOE propose?
DOE proposes to amend 10 CFR part 1021, subparts C and D. The
majority of changes are proposed for the categorical exclusion
provisions at 10 CFR part 1021, subpart D, appendices A and B, with a
small number of related changes proposed for other provisions within
subparts C and D.
DOE proposes to add 20 new categorical exclusions. These
categorical exclusions (in the order in which they appear in appendix
B) address: Stormwater runoff control; lead-based paint removal;
recycling stations; determinations of excess real property; small-scale
educational facilities; small-scale indoor research and development
projects using nanoscale materials; research activities in salt water
and freshwater environments; experimental wells for injection of small
quantities of carbon dioxide; combined heat and power or cogeneration
systems; small-scale renewable energy research and development and
pilot projects; solar photovoltaic systems; solar thermal systems; wind
turbines; ground source heat pumps; biomass power plants; methane gas
recovery and utilization systems; alternative fuel vehicle fueling
stations; electric vehicle charging
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stations; drop-in hydroelectric systems; and small-scale renewable
energy research and development and pilot projects in salt water and
freshwater environments. DOE proposes to remove two categorical
exclusion categories, one EA category, and two EIS categories.
DOE also proposes to modify many of the existing categorical
exclusions. These revisions include substantive changes, as well as
changes to reflect current regulatory or statutory references and
requirements, and punctuation and grammatical changes to improve
readability, clarity, and internal consistency. (By ``substantive''
changes DOE means a change that is more than a clarifying or
consistency change; this term includes changes that alter the scope or
meaning of a provision or that result in the addition or deletion of a
provision.)
What would result from DOE's proposed changes?
The proposed changes would better align DOE's categorical
exclusions with its current activities and its experience and bring the
provisions up-to-date with current technology and regulatory
requirements. The changes would also facilitate compliance with NEPA by
providing for more efficient review of actions (helping the Department
meet the goals set forth by Congress, for example, in the Energy Policy
Act of 2005), and allowing the Department to focus its resources on
proposed actions that have the potential for significant environmental
impacts.
III. Invitation To Comment
DOE invites interested persons to participate in this rulemaking by
submitting comments on the proposed rule and on the supporting
information for proposed changes set forth in the Preamble and the
Technical Support Document. Comments would be particularly useful to
DOE if those comments: (1) Provide information to support or oppose a
proposed change (for example, describing experience with similar
actions that did or did not have significant environmental impacts or
providing references to such experience); (2) justify increased or
lessened limitations on the application of a categorical exclusion; or
(3) explain recommended changes in addition to those that DOE proposes
and provide the rationale for such additional changes. As appropriate,
comments should refer to the specific section of the proposed rule to
which the comment applies, identify a comment as a general comment, or
identify a comment as a new proposal.
DOE will consider all timely comments received in response to this
notice of proposed rulemaking, whether presented orally at the public
hearing or written and submitted electronically or by mail.
A. Written Comments
Comments may be submitted by one of the methods in the ADDRESSES
section of this proposed rule. Comments received will be included in
the administrative record and will be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes information specifically identified as
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Information that you consider to
be CBI or otherwise protected should be submitted by mail, not through
http://www.regulations.gov. If you submit information that you believe
to be exempt by law from public disclosure, you should mail one
complete copy, as well as one copy from which the information claimed
to be exempt by law from public disclosure has been redacted. Please
include written justification as to why the redacted information is
exempt from disclosure. DOE is responsible for the final determination
with regard to disclosure or nondisclosure of the information and for
treating it accordingly under the DOE Freedom of Information Act
regulations at 10 CFR 1004.11.
The http://www.regulations.gov Web site is an ``anonymous access''
system, which means DOE will not know your contact information unless
you provide it. If you choose not to provide contact information and
DOE cannot read your comment due to technical difficulties, DOE may not
be able to consider your comment. Electronic files should avoid the use
of special characters and any form of encryption, and be free of any
defects or viruses.
B. Public Hearing
Attendance
The time, date, and location of the public hearing are listed in
the DATES and ADDRESSES sections at the beginning of this proposed
rule. Persons wishing to attend the public hearing must present
government-issued identification and pass through security screening
upon entering the building. Foreign nationals are subject to advance
security screening procedures. Any foreign national wishing to
participate or attend the public hearing should advise DOE promptly in
order to initiate the necessary procedures as soon as possible; see FOR
FURTHER INFORMATION CONTACT, above.
Registering To Speak
Any person who has an interest in the topics addressed in this
proposed rule may speak at the public hearing, either as an individual
or as a representative of a group or organization of interested
persons. Persons wishing to speak should register in advance, as
described in FOR FURTHER INFORMATION CONTACT. After registered speakers
have made their presentations, other persons may speak to the extent
that time allows.
Conduct of Public Hearing
DOE will designate an official or facilitator to preside at the
public hearing. The public hearing will be informal and not a judicial
or evidentiary-type hearing. DOE reserves the right to schedule the
order of speakers and to establish the procedures governing the conduct
of the hearing. To ensure that all persons wishing to make a
presentation can be heard, DOE may limit each presentation to 10
minutes or less. The presiding official or facilitator will announce
any further procedural rules needed for the proper conduct of the
public hearing. After the public hearing, interested persons may submit
further comments until the end of the comment period.
A transcript of the hearing will be made and posted at http://www.regulations.gov.
C. Issues on Which DOE Seeks Comment
DOE is particularly interested in receiving comments and views of
interested parties on several topics. As discussed in more detail in
Section IV.B below, DOE seeks comments on its use of the phrases
``including, but not limited to,'' and ``such as'' to introduce lists
of examples. Unless otherwise specified, DOE's lists of examples are
not intended to be exhaustive of all possible actions that fit within a
categorical exclusion. DOE also seeks comments on its use of the phrase
``would not have the potential to cause significant impacts'' (or a
similar construct) in lieu of the use of terms such as ``adverse'' or
``substantial'' as modifiers for potential impacts. DOE believes that
the proposed phrase more accurately reflects NEPA and the CEQ NEPA
regulations.
DOE is particularly interested in receiving comments and views of
interested parties on the proposals relating to the following classes
of actions:
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B3.7 New Terrestrial Infill Exploratory and Experimental Wells
B3.15 Small-Scale Indoor Research and Development Projects Using
Nanoscale Materials
B3.16 Research Activities in Salt Water and Freshwater Environments
B4.1 Contracts, Policies, and Marketing and Allocation Plans for
Electric Power
B4.11 Electric Power Substations and Interconnection Facilities
B4.12 Construction of Transmission Lines
B4.13 Upgrading and Rebuilding Existing Transmission Lines
B5.1(b) Actions To Conserve Energy or Water
B5.13 Experimental Wells for Injection of Small Quantities of Carbon
Dioxide
B5.15 Small-Scale Renewable Energy Research and Development and
Pilot Projects
B5.16 Solar Photovoltaic Systems
B5.17 Solar Thermal Systems
B5.18 Wind Turbines
B5.19 Ground Source Heat Pumps
B5.20 Biomass Power Plants
B5.24 Drop-in Hydroelectric Systems
B5.25 Small-Scale Renewable Energy Research and Development and
Pilot Projects in Salt Water and Freshwater Environments
B6.1 Cleanup Actions
C7 Contracts, Policies, and Marketing and Allocation Plans for
Electric Power
D5 [Removed and Reserved: Main Transmission System Additions]
D6 [Removed and Reserved: Integrating Transmission Facilities]
D7 Contracts, Policies, and Marketing and Allocation Plans for
Electric Power
DOE also welcomes comments on those categorical exclusions for
classes of actions for which DOE has not proposed any revisions at this
time.
IV. Description of Proposed Changes
A. Overview
This section describes and explains the proposed amendments to the
existing DOE NEPA regulations at 10 CFR part 1021, subparts C and D.
In subpart C, Implementing Procedures, the proposed amendments are
minor technical changes. Specifically, to correct internal references,
DOE proposes changes to three sections in subpart C: (1) 10 CFR
1021.311--Notice of intent and scoping; (2) 10 CFR 1021.322--Findings
of no significant impact; and (3) 10 CFR 1021.331--Mitigation action
plans. These proposed minor technical changes to subpart C are not
discussed further below.
In subpart D, DOE proposes extensive substantive and clarifying
changes. Recurring proposals for subpart D are described in Section
IV.B and then unique proposed changes to subpart D are described in
Sections IV.C through IV.G. Support for the proposed revisions is
summarized below, and more information regarding the supporting basis
for certain provisions is provided in the Technical Support Document.
What is subpart D of the DOE NEPA regulations?
DOE's NEPA regulations at 10 CFR part 1021 include subpart D, which
lists classes of actions and the typical level of NEPA review required
for those classes of actions. Subpart D appendices A and B describe
DOE's categorical exclusions. Appendix C describes classes of actions
that normally require preparation of an EA, but not necessarily an EIS,
and appendix D describes classes of actions that normally require
preparation of an EIS.
Listing a class of actions in these appendices does not constitute
a conclusive determination regarding the appropriate level of NEPA
review for a proposed action. Rather, the listing creates an initial
assumption that the defined level of review is appropriate for the
listed actions. As indicated in the existing 10 CFR 1021.400(c) and
(d), this assumption does not apply when there are extraordinary
circumstances related to the proposed action that may affect the
significance of the environmental effects of the action.
What types of changes does DOE propose to subpart D?
DOE proposes to make several types of changes to its subpart D
regulations: these revisions include substantive changes, as well as
changes to reflect current regulatory or statutory references and
requirements, and punctuation and grammatical changes to improve
readability, clarity, and internal consistency. A proposed change does
not imply that any previous application of these regulations was
inappropriate. See 10 CFR 1021.400(b).
DOE also proposes to delete the tables of contents for the classes
of actions in subpart D, and instead to precede each section or
paragraph with a short title. These short titles are included merely to
guide the reader and do not have any regulatory effect.
Some of the proposed changes apply multiple times throughout the
provisions; others are made in the context of a specific provision.
Section IV.B of this proposed rule contains an explanation of proposals
that recur, that is, that affect more than one class of actions,
instead of duplicating the explanation for multiple individual classes
of actions. Descriptions of specific individual proposed changes and
support for such changes begin with Section IV.C. With respect to
certain proposed changes, a more detailed explanation of the supporting
basis is provided in the Technical Support Document. (The Technical
Support Document and the ``redline/strikeout'' markup of DOE's existing
regulations that show the proposed changes are available at http://www.regulations.gov.)
B. Recurring Proposals, Technology Updates, and Minor Changes
DOE proposes certain changes to its regulations that recur
throughout subpart D. Seven recurring proposals are described below and
are followed by a listing of the existing provisions where the
recurring proposals occur. Discussion of these recurring proposals is
not repeated in the discussion of classes of actions in Section IV
below.
DOE also proposes to modify certain technology-specific vocabulary
to reflect current usage, updates to references, and minor changes to
punctuation and grammar to improve internal consistency. For example,
to update technology-specific vocabulary, DOE proposes to change
``electric powerlines'' to ``electric transmission lines'' in several
categorical exclusions. DOE also proposes to update references, as in
categorical exclusion B3.12, which would reference the latest edition
of a Centers for Disease Control manual. DOE is proposing to correct
typographical errors (for example, changing ``with'' to ``within'' in
categorical exclusion B1.13). Also, for certain classes of actions, DOE
is proposing the addition of cross-references to related classes of
actions. For example, DOE is proposing to add a cross-reference to the
proposed new categorical exclusion B1.33 into the existing categorical
exclusion B1.6.
B.1. Adjacent/Contiguous/Nearby
To clarify use of terms reflecting proximity, and to promote
consistency in its categorical exclusions, DOE is proposing to delete
the word ``adjacent'' from its categorical exclusions and use
``contiguous'' and ``nearby,'' as appropriate. DOE proposes to use the
word ``contiguous,'' where the intended application is ``touching along
a boundary or at a point'' or ``being in actual contact.'' In contrast,
DOE is proposing to use the word ``nearby,'' where the intended
application is ``not distant'' or ``in proximity, but not necessarily
touching.'' In order to facilitate consistent understanding and
application of this concept, DOE, therefore, proposes changes to the
following provisions: B1.31, B2.1, B4.7, B5.8, B5.12.
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B.2. Including, But Not Limited to/Including/Such as
DOE proposes to use the phrases ``including, but not limited to,''
``including,'' and ``such as'' to introduce lists of examples. DOE
considers the phrases to be synonymous. Unless otherwise specified,
DOE's lists of examples are not intended to be exhaustive of all
possible actions that fit within a class of actions. DOE proposes
generally to use ``including, but not limited to,'' the first time that
examples are introduced in a provision and ``such as'' for any needed
clarification of the examples. In order to facilitate consistent
understanding and application of this concept, DOE, therefore, proposes
changes to the following provisions: 1021.410(b)(2), A1, A6, A9, A12,
B(4), B1.3, B1.5, B1.9, B1.10, B1.11, B1.12, B1.13, B1.15, B1.16,
B1.17, B1.20, B1.21, B1.24, B1.27, B1.29, B1.31, B1.32, B2.4, B2.5,
B3.1, B3.4, B3.6, B3.7, B3.8, B3.9, B3.10, B3.11, B3.12, B3.13, B4.4,
B4.6, B4.7, B4.9, B4.10, B4.11, B5.1, B5.2, B5.3, B5.4, B5.5, B5.6,
B5.12, B6.1, B6.2, B6.3, B6.4, B7.2, C8, C16.
B.3. In Accordance With Applicable Requirements
DOE proposes to use the phrase ``in accordance with applicable
requirements'' in several of its categorical exclusions for emphasis.
DOE recognizes that all actions must be conducted in accordance with
all applicable requirements. However, with certain categorical
exclusions, DOE finds it appropriate to refer specifically to this
requirement, and, further, in some cases also to provide one or more
examples of applicable requirements. By referring to a specific
requirement, DOE does not imply that the requirement is relevant to all
actions to which the categorical exclusion may apply, or that the
referenced requirement is the only one that applies to a proposed
action. DOE's proposed wording is intended to allow for the evolution
of the requirements over time. In order to facilitate consistent
understanding and application of this concept, DOE, therefore, proposes
changes to the following provisions: B1.2, B1.3, B1.9, B1.16, B1.17,
B1.29, B2.5, B3.8, B3.12, B5.4, B5.6, B6.1, B7.2.
B.4. Would Not Have the Potential To Cause Significant Impacts
Appendices A and B contain a number of provisions that contain the
word ``adverse,'' or the use of ``any'' or ``no'' as descriptors of, or
surrogates for, impacts. Through this proposed rulemaking, DOE proposes
to replace these terms with ``would not have the potential to cause
significant impacts'' or a similar construct (for example, describing a
physical change that serves as a surrogate for impacts, such as in
categorical exclusions B1.18, B3.4, B3.9, and B5.2). By the proposed
changes, DOE's implementing regulations are now clearly aligned with
the regulatory standard in NEPA. See 40 CFR 1508.4. Additionally, by
this proposed change, DOE seeks to clarify the affected provisions and
to facilitate consistent application. See also 40 CFR 1508.27
(addressing the meaning of ``significantly'' as used in NEPA).
DOE's review of the existing provisions demonstrated the need for
clarification and consistency. For example, the existing categorical
exclusion B3.8 requires that the action ``would not result in any
permanent change to the ecosystem.'' A literal reading of this
categorical exclusion would bar its use if there were any permanent
change to the ecosystem, even a change that would not have the
potential to cause significant impacts. DOE acknowledges that this is
not what NEPA requires and thus DOE proposes to rephrase the
categorical exclusion to incorporate the appropriate NEPA standard,
phrased as ``would not have the potential to cause significant impacts
on the ecosystem.'' In order to facilitate consistent understanding and
application of this concept, DOE, therefore, proposes changes to the
following provisions: B(4), B1.5, B1.11, B1.18, B1.24, B1.31, B2.3,
B3.1, B3.3, B3.8, B3.9, B4.6, B5.1, B5.2, B5.12, C8.
B.5. On DOE Sites/Onsite/Employee
In recent years, DOE's proposed actions have included more
applicant proposals, including those for DOE loan guarantees, grants,
cooperative agreements, and other forms of financial assistance,
particularly for programs created under the Energy Policy Act of 2005,
the Energy Independence and Security Act of 2007, and the American
Recovery and Reinvestment Act of 2009. In an applicant situation, DOE's
proposed action normally would not be located on a DOE site, but rather
on private property or land administered by other agencies (e.g.,
Bureau of Land Management). In recognition of DOE's recently expanded
activities, DOE is proposing, where appropriate, to delete references
to ``DOE site,'' ``onsite,'' or ``employee'' from its classes of
actions. For example, DOE is proposing to amend existing categorical
exclusion B1.13, Pathways, short access roads, and rail lines, by
deleting ``onsite'' and instead inserting the condition that the
construction, acquisition, and relocation of these linear features be
``consistent with applicable right-of-way conditions and approved land
use or transportation improvement plans.'' The significance of
environmental impacts resulting from a class of actions does not depend
on whether they occur at DOE sites.
In order to facilitate consistent understanding and application of
this concept, DOE, therefore, proposes changes to the following
provisions: B1.13, B1.15, B1.29, B1.32, B3.1, B6.10, C7, D7.
B.6. Previously Disturbed or Developed Area
In DOE's experience, the potential for certain types of actions to
have significant impacts on the human environment is generally avoided
when that action takes place within a previously disturbed or developed
area, i.e., land that has been changed such that the former state of
the area and its functioning ecological processes have been altered.
Thus, DOE includes a requirement in several of its proposed provisions
that actions be located within previously disturbed or developed areas.
In other instances, the existing provision contains a similar
requirement, and DOE proposes to replace the existing language with the
phrase ``previously disturbed or developed area'' for purposes of
internal consistency. In order to facilitate consistent understanding
and application of this concept, DOE, therefore, proposes changes to
the following provisions: B1.31, B2.1, B3.6, B3.10, B3.12, B4.6, B4.7,
B4.8, B4.12, B5.1, B5.5, B5.8, B6.10, C4, C11.
B.7. Small/Small-Scale/Minor/Negligible/Short/Short-Term
DOE uses adjectives (such as ``small,'' ``small-scale,'' ``minor,''
``negligible,'' ``short,'' and ``short-term'') as limitations in a
variety of its existing and proposed provisions and recognizes that
these descriptors are subjective. In general, DOE did not and does not
propose to define these terms, and DOE would apply a reasonable
interpretation to such terms within the context of individual
proposals. The CEQ regulations state that ``significantly,'' as used in
NEPA, requires consideration of context and intensity. See 40 CFR
1508.27. Likewise, consideration of context and intensity is useful
when interpreting descriptors such as small, small-scale, minor, short,
and short-term, in making categorical exclusion determinations for
proposals. (DOE proposes to discontinue the use of the word
``negligible.'')
For example, in considering whether the use of 5-10 acres of land
is ``small''
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for a particular proposal, it is reasonable to conclude that 5-10 acres
of land at a large DOE site would likely be considered ``small,'' but
5-10 acres of land might not be considered ``small'' in an urban
environment. In some instances, however, the Department has quantified
these descriptors because the size is more directly linked to impacts.
For example, DOE categorizes a ``small'' area for outdoor ecological
and other environmental research as generally less than 5 acres in its
existing categorical exclusion B3.8. Additionally, DOE defines
``small'' water treatment facilities as those that have a total
capacity of less than 250,000 gallons/day in existing categorical
exclusion B1.26.
In order to facilitate consistent understanding and application of
this concept, DOE, therefore, proposes changes to the following
provisions: B1.2, B1.13, B1.15, B3.6, B3.8, B4.13, B5.1, B5.4, B5.7,
C8.
C. Proposed Changes to Subpart D (Other Than Appendices)
10 CFR 1021.410 Application of Categorical Exclusions (Classes of
Actions That Normally Do Not Require EAs or EISs)
DOE proposes to clarify four requirements in 10 CFR 1021.410.
First, DOE proposes to remove the reference to Section 102(2)(E) of
NEPA to clarify that DOE's consideration of unresolved conflicts
concerning alternative uses of available resources is independent of
the need to evaluate alternatives in an EA as indicated in Section
102(2)(E) of NEPA.
Second, in 10 CFR 1021.410(b)(3), DOE proposes to refer explicitly
to the requirement that a categorically excludable project has not been
segmented. DOE also proposes to change its references to the CEQ
regulations to clarify consideration of potential cumulative impacts
(40 CFR 1508.27(b)(7)), and to clarify that its references to 40 CFR
1506.1 and 10 CFR 1021.211 concern limitations on actions during EIS
preparation.
Third, DOE proposes to add site preparation and purchase and
installation of equipment to 10 CFR 1021.410(d) as examples of
activities foreseeably necessary to implement proposals that are
encompassed within the class of actions.
Fourth, DOE proposes to codify its policy to document and post
online appendix B categorical exclusion determinations at 10 CFR
1021.410(e), consistent with the policy established by the Deputy
Secretary of Energy's Memorandum to Departmental Elements on NEPA
Process Transparency and Openness, October 2, 2009.
D. Proposed Changes to Appendix A--General Agency Actions
For an explanation of recurring proposals applicable to the
appendix A categorical exclusions, please see Section IV.B, Recurring
Proposals, above, where these proposed revisions are discussed and
where the particular provisions affected are listed. The short titles
listed below for particular categorical exclusions reflect DOE's
proposed titles.
A1 Routine DOE Business Actions
DOE proposes to replace ``agency'' with ``DOE'' to clarify that
this categorical exclusion applies only to DOE business actions. DOE
also proposes to limit such actions to administrative, financial, and
personnel actions.
A7 [Removed and Reserved: Transfer of Property, Use Unchanged]
To increase transparency of DOE's NEPA processes, DOE proposes to
delete this categorical exclusion and to incorporate its key components
within B1.24, which also addresses property transfers, so that any
categorically excluded property transfers are documented and made
available to the public. (See proposed changes to 10 CFR 1021.410(e)
concerning documentation and public availability of DOE's appendix B
categorical exclusion determinations.)
In response to DOE's December 2009 Request for Information, a
commentor expressed concern that DOE, in making land transfer decisions
under existing categorical exclusion A7, would be ``circumventing local
authority'' and ``normal land use planning and zoning processes.'' See
the discussion of categorical exclusion B1.24 for DOE's response.
A9 Information Gathering, Analysis, and Dissemination
DOE proposes to clarify this categorical exclusion by providing
site visits as an additional example of an action included within the
category.
A13 Procedural Documents
DOE proposes to clarify this categorical exclusion by providing
additional examples of actions included within the class of actions
(e.g., Policies and Manuals within the DOE Directives System).
E. Proposed Changes to Appendix B
For an explanation of recurring proposals applicable to the
appendix B categorical exclusions, please see Section IV.B, Recurring
Proposals, above, where these proposed revisions are discussed and the
particular categorical exclusions affected are listed. The short titles
listed below for particular categorical exclusions reflect DOE's
proposed titles.
Integral Elements of the Classes of Actions in Appendix B
In appendix B(4), DOE proposes to clarify its use of
``environmentally sensitive resource,'' defining it as ``typically a
resource that has been identified as needing protection through
Executive Order, statute, or regulation by Federal, State, or local
government, or a Federally recognized Indian Tribe.'' This definition
is not intended to, and does not, grant, expand, create, or diminish
any legally enforceable rights, benefits, or responsibilities,
substantive or procedural, not otherwise granted or created under
existing law. Nor shall this language be construed to alter, amend,
repeal, interpret, or modify Tribal sovereignty, any treaty rights of
any Indian Tribes, or to preempt, modify, or limit the exercise of any
such rights.
In appendix B(4)(i), DOE proposes to add ``Federally recognized
Indian Tribe'' to its list of entities that designate property as
historically, archeologically, or architecturally significant. DOE also
proposes to redefine other environmentally sensitive properties as
``determined to be eligible'' for listing on the National Register of
Historic Places (rather than the phrase ``eligible for listing,'' which
is used in the existing provision, but is not the proper
characterization of an official listing). In appendix B(4)(iii), DOE
proposes to apply the same definition of floodplains and wetlands in
its NEPA regulations as that used in DOE's floodplain and wetland
environmental review regulations (10 CFR part 1022.4). In appendix
B(4)(iv), DOE proposes to supplement the list of areas having special
designation with additional examples (national monuments and scenic
areas). In appendix B(4)(v), DOE proposes changes to the prime
agricultural lands listing to conform to the terminology of the
applicable regulation (7 CFR 658.2(a), ``Farmland Protection Policy
Act: Definitions'').
In response to the Department's December 2009 Request for
Information, one commentor addressed DOE's list of ``environmentally
sensitive resources'' in appendix B(4). First, the commentor indicated
that DOE must recognize State and Tribal protected or candidate species
and habitat as equal to Federally designated or considered species and
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habitats. Currently, appendix B(4)(ii) includes consideration of State-
listed endangered and threatened species and their habitats, and DOE is
proposing to add Federally-protected marine mammals and Essential Fish
Habitat to the list of environmentally sensitive resources. DOE is not
proposing to include Tribal protected or candidate species and habitat
because it is DOE's understanding that Tribes do not have the authority
to designate species or habitat for protection outside of Tribal lands.
Second, the commentor stated that ``groundwater and aquifers are
State, not Federal resources'' and indicated that DOE's regulations
must protect and preserve all aquifers, and not just sole-source
aquifers. The commentor further stated that adverse impacts to rivers,
lakes, and bays, among other bodies of water, should not be allowed
``unless they are specifically covered by a State and/or Tribal
discharge permit under appropriate authority.'' DOE is not proposing a
change to the existing appendix B(4)(vi), which lists ``special sources
of water (such as sole source aquifers, wellhead protection areas, and
other water sources that are vital in a region)'' in its list of
environmentally sensitive resources, because those resources are listed
as examples and are not the only water sources to be considered in
applying a categorical exclusion. Further, the existing appendix B(4)
includes States and Federally recognized Tribes as entities with
jurisdiction to identify water sources needing protection.
Categorical Exclusions Applicable to Facility Operation (B1)
B1.1 Changing Rates and Prices
DOE proposes to change this categorical exclusion to encompass the
setting of ``prices'' as well as ``rates'' (prices apply to products,
and rates apply to services) and to consider price and rate changes
instead of only increases. DOE proposes to change the measure of
inflation specified in this categorical exclusion from the Gross
National Product fixed weight price index, which the Department of
Commerce no longer publishes, to the implicit price deflator for Gross
Domestic Product. (See the Technical Support Document.)
B1.2 Training Exercises and Simulations
DOE proposes to provide additional examples of training actions
(namely, small-scale and short-duration force-on-force exercises, and
decontamination and spill cleanup training), and has added the
condition that all training exercises and simulations be conducted
under appropriately controlled conditions and in accordance with
applicable requirements. The term ``force-on-force'' as used in this
categorical exclusion refers to activities such as assault and
defensive team exercises conducted by security forces or military
units, often on parcels of DOE property not in use. Exercises that test
the ability of security forces to defend a facility are one common
example of this type of training. DOE's experience with these types of
security force and military training actions and emergency response
training at its sites indicates that they fit within the class of
actions. (See the Technical Support Document.)
B1.3 Routine Maintenance
DOE proposes to clarify that routine maintenance actions may occur
as a result of nonroutine events (e.g., severe weather, such as
hurricanes, floods, and tornadoes, and wildfires) by adding a sentence
to that effect in its description of routine maintenance. Normally,
maintenance following a nonroutine event would qualify as routine
maintenance; however, for a nonroutine event, the potential for
extraordinary circumstances is higher (e.g., increased exposure to
pesticides due to extreme runoff).
DOE proposes to clarify the scope of the categorical exclusion by
providing additional examples of activities. Specifically, DOE is
proposing to clarify that replacement is included in the categorical
exclusion's scope under items (a), (c), and (e), as well as the
existing example of repair; to add ``lighting'' to those items that can
be repaired or replaced (item (e)); to add ``scraping and grading of
unpaved surfaces'' to the example of road and parking area resurfacing
(item (j)); and to add the additional example of ``removal of debris''
under item (p). DOE's experience with these activities has demonstrated
that they properly fit within this class of actions.
In response to the Department's December 2009 Request for
Information, one commentor stated that use of pesticides for outdoor or
aquatic use should not be the subject of a categorical exclusion;
instead an EA should be prepared. The commentor expressed a specific
concern about the possibility for environmental impacts beyond the
intended application. In existing categorical exclusion B1.3, DOE has
described routine maintenance activities including localized vegetation
and pest control. DOE now proposes to clarify that any routine
maintenance activities would be conducted in a manner in accordance
with applicable requirements. In the case of pesticides and other
chemicals, for example, the proposed change would provide that the
application would be in accordance with the registered and approved
uses established by appropriate authorities to minimize the possibility
of environmental impacts beyond the product's intended application.
B1.5 Existing Steam Plants and Cooling Water Systems
DOE proposes to delete the words ``within an existing building or
structure,'' so as to include modifications to ponds, which may be
outdoor components of cooling water systems. This proposed expansion of
the scope of this categorical exclusion would address the need for
improvements to an entire cooling water system, rather than only those
parts of a system associated with structures. Based on DOE experience,
minor improvements would not have the potential to cause significant
impacts, provided the three limitations placed on the scale and type of
improvements listed in the categorical exclusion are met.
DOE also proposes to add minor improvements of existing steam
plants in the scope of the categorical exclusion. DOE's experience is
that these actions, when subject to the three limitations placed on the
scale and type of such improvements, fit appropriately within this
class of actions and would not have the potential to cause significant
impacts.
B1.7 Electronic Equipment
DOE proposes to update the existing categorical exclusion by adding
examples of current technology and equipment that improve operational
efficiency and stability of the nation's power grid, commonly referred
to as ``smart grid'' technologies. Based on DOE's experience, such
technology and equipment (i.e., electricity transmission control and
monitoring devices for grid demand and response) fit within the scope
of this categorical exclusion.
B1.9 Airway Safety Markings and Painting
DOE proposes to include repair and in-kind replacement of lighting
within the scope of this categorical exclusion. Within the context of
this categorical exclusion, in-kind replacement is defined as
replacement that does not result in a significant change in the
expected useful life, design capacity (for example, energy output in
lumens), function, or shielding of existing
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lighting. The initial installation of such lighting would remain
ineligible for categorical exclusion. In addition, DOE proposes to add
wind turbines as structures similar to transmission lines and antenna
structures to which the exclusion applies. DOE has determined that
these proposed changes would not have the potential to cause
significant impacts.
B1.11 Fencing
DOE proposes to clarify that the limitation in this categorical
exclusion applies to fencing that would have the potential to cause
significant impacts to surface water flow or wildlife populations or
migration, as opposed to individual animal movements. Fencing can and
probably often does affect individual movements, but such impacts on
individual animals would not be considered significant unless the
context and intensity of the impacts would have the potential to cause
significant impacts to wildlife populations or migration.
B1.12 Detonation or Burning of Explosives or Propellants After Testing
DOE proposes to delete the restriction that explosives or
propellants must have failed in outdoor tests and thus to expand the
categorical exclusion to include explosives or propellants that failed
in indoor tests. Whether the explosives or propellants were tested
indoors or outdoors, the outdoor detonation or burning of those
explosives or propellants would not have the potential to cause
significant impacts. The phrase ``otherwise not consumed in testing''
refers to excess or residual explosive or propellant materials that
remain after a test is completed. DOE also proposes to specify one type
of permit under the Resource Conservation and Recovery Act that could
be applicable.
In response to DOE's December 2009 Request for Information, one
commentor requested that DOE specify the amount, types, and methods
allowed for the activities included in this categorical exclusion. DOE
has determined that the limits contained in this categorical exclusion
do not require quantification and is not proposing any changes to the
categorical exclusion in response to this comment.
B1.13 Pathways, Short Access Roads, and Rail Lines
DOE proposes to expand the scope of the categorical exclusion to
include more projects related to transportation, recreation, and
fitness (e.g., pedestrian walkways and trails, bicycle paths, and small
outdoor fitness areas). Other Federal agencies that have categorical
exclusions for comparable projects are the Bureau of Indian Affairs,
the Federal Highway Administration, and the Department of Homeland
Security, and the experience of these agencies supports DOE's proposed
expansion of this categorical exclusion.
DOE also proposes to include a condition in the categorical
exclusion that the actions be consistent with existing rights-of-way
and approved land use or transportation improvement plans. In addition,
DOE proposes to replace ``railroads'' with the term ``rail lines,''
adding branch or spur lines as examples. DOE's experience is that the
construction of rail access to or within an existing site has generally
occurred at a scale that is better characterized by these small-scale
activities--branch line (a secondary rail line which may branch off a
main line) and spur (a rail track on which cars are left for loading,
unloading, or rail car storage).
In response to the DOE's December 2009 Request for Information, a
commentor stated that road construction or expansion should not be the
subject of a categorical exclusion. Further, the commentor expressed a
concern about the potential for damage to ``high quality, high priority
habitat'' as a result of constructing and operating roads and that use
of such a categorical exclusion would limit or circumvent consideration
of appropriate mitigation for habitat disturbance or loss. As outlined
above, DOE's proposed amendments to categorical exclusion B1.13 require
the construction, acquisition, and relocation of short access roads and
rail lines to be consistent with applicable right-of-way conditions and
approved land use or transportation improvement plans. Furthermore,
consideration of the integral elements in applying this categorical
exclusion addresses the possibility of damage to ``high quality, high
priority habitat'' because, among other things, one of the
``environmentally sensitive resources'' to consider in those integral
elements is habitat for Federally or State-listed species. (See the
Technical Support Document.)
B1.15 Support Buildings
DOE proposes to expand the list of examples of support buildings
and support structures to include those for ``small-scale fabrication
(such as machine shop activities and modular buildings), assembly, and
testing of non-nuclear equipment or components.'' Such structures are
comparable to, or smaller in scale than, other structures given as
examples in the categorical exclusion, and DOE's experience at DOE
sites is that siting, construction, and operation of these activities
normally fit within the class of actions. Also, DOE proposes to further
clarify the scope of the categorical exclusion by specifying that it
excludes facilities for nuclear weapon activities.
B1.19 Microwave, Meteorological, and Radio Towers
DOE proposes to add ``modification,'' ``abandonment,'' and
``removal'' to the list of activities included in this class of actions
in order to describe the complete life cycle of categorically excluded
towers. In DOE's experience, modification, abandonment, and removal of
these towers and associated facilities, when subject to the
restrictions in this categorical exclusion, would have fewer impacts
than construction and would not have the potential to cause significant
impacts.
DOE proposes to include meteorological towers as an additional
example of applicable facilities within this categorical exclusion
because DOE has determined that the environmental impacts resulting
from siting, construction, modification, operation, abandonment, and
removal of meteorological towers would be similar to the impacts from
these activities relating to microwave and radio towers already
contained in the scope of the existing categorical exclusion.
DOE proposes to clarify the restriction in the existing categorical
exclusion, by replacing ``great visual value'' with a more objective
criteria of ``governmentally designated scenic area'' and cross-
referencing to the relevant integral element (appendix B(4)(iv)).
B1.20 Protection of Cultural Resources, Fish and Wildlife Habitat
DOE proposes to add to the scope of this categorical exclusion by
referencing activities taken to protect cultural resources and by
including examples of those activities (fencing, labeling, or
flagging). DOE's Power Marketing Administrations often engage in such
activities for cultural and wildlife protection purposes, and these
activities would not have the potential to cause significant impacts.
DOE also proposes to include a condition in the categorical exclusion
that the activities would be conducted in accordance with an existing
natural or cultural resource plan, if any.
B1.23 Demolition and Disposal of Buildings
In response to DOE's December 2009 Request for Information, one
commentor questioned whether there should be a
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size limitation for the activities under this categorical exclusion.
Further, the commentor asked how DOE takes into consideration possible
contamination when applying this categorical exclusion. In response to
these comments, DOE proposes to modify this categorical exclusion by
adding a limitation that these activities could be categorically
excluded only if there would be no potential for release of substances
at a level, or in a form, that could pose a threat to public health or
the environment.
The application of this categorical exclusion is intended to be
based on existing data and knowledge about historical uses of the area,
including chemical and other processes employed. DOE has extensive
experience (former Rocky Flats Site, Hanford Site, Idaho National
Laboratory, and other sites) in determining the potential for release
of harmful substances from activities through modeling and safety basis
authorization documentation. Potential hazards are considered before
taking action (for example, demolition actions), and monitoring is
conducted, as appropriate, to verify that there are no harmful releases
of radiological or hazardous materials. Potential for releases can
reliably be determined through site inventories, the use of well-
established release models, and established best practices.
B1.24 Property Transfers
As discussed under categorical exclusion A7 (above), DOE proposes
to delete A7 and incorporate its key components, including transfers of
personal property (equipment and materials), within B1.24. By doing
this, DOE makes categorical exclusion determinations for property
transfers subject to documentation and online posting. DOE proposes to
remove the reference to ``uncontaminated'' as unnecessary given the
incorporation of the substance of this limitation in the revised
categorical exclusion.
DOE proposes to delete the phrases ``there would not be any
lessening in quality or increases in volumes, concentrations, or
discharge rates, of wastes, air emissions, or water effluents'' and
``environmental impacts would generally be similar to those before the
transfer'' as potentially inconsistent. DOE proposes to replace these
phrases with ``there would be no potential for release of substances at
a level, or in a form, that could pose a threat to public health or the
environment'' and ``would not have the potential to cause a significant
change in impacts from the transfer.'' Such terminology will, in DOE's
experience, ensure that any property transfers under this categorical
exclusion would not have the potential to cause significant impacts.
In response to DOE's December 2009 Request for Information, a
commentor expressed concern that DOE, in making land transfer decisions
under existing categorical exclusion A7, would be ``circumventing local
authority'' and ``normal land use planning and zoning processes.'' The
potential applicability of such authority and processes to a potential
land transfer would be addressed on a case-by-case basis.
B1.25 Property Transfers for Cultural Resources Protection, Habitat
Preservation, and Wildlife Management
DOE proposes to include in B1.25 actions undertaken to protect
cultural resources. DOE's Power Marketing Administrations often engage
in property transfers for cultural protection purposes. Based on this
experience, DOE finds property transfers intended for protecting
cultural resources normally would not have the potential to cause
significant impacts. Further, DOE proposes to remove the limitation
that only associated buildings supporting certain purposes are to be
transferred with property under this categorical exclusion, because the
existing purpose of structures present on a property to be transferred
for wildlife or cultural resource purposes is unrelated to
environmental impacts associated with such transfer.
Also, for the reasons discussed for categorical exclusion B1.24,
above, DOE proposes to eliminate the references to ``uncontaminated,''
but include a limitation on actions subject to categorical exclusion
B1.25, that there would be no potential for release of a substance at a
level or in a form, that could pose a threat to public health or the
environment.
B1.29 Disposal Facilities for Construction and Demolition Waste
DOE proposes to add ``expansion'' and ``modification'' to the list
of activities included in this categorical exclusion in order to
include all aspects of the life cycle of the disposal facilities. In
DOE's experience, expansion and modification actions, when subject to
the limitations expressed in this categorical exclusion, would have
fewer impacts than construction, and would not have the potential to
cause significant impacts.
B1.30 Transfer Actions
DOE proposes to modify this categorical exclusion (based on its
experience transferring materials and equipment) to remove the
condition that the amounts of materials, equipment, or waste being
transferred must be ``small and incidental'' to the amount of such
material at the receiving site. Instead, DOE proposes to add a
condition that the receiving site has existing storage capacity and
management capability for the material.
In addition, DOE proposes to limit use of the categorical exclusion
to, as appropriate, facilities and operations that are already
permitted, licensed, and approved. That is, this proposed categorical
exclusion would not apply to circumstances where the receiving site
requires a permit or license amendment or variance from its existing
approvals in order to receive or manage the materials, and it also
would not apply to circumstances where the receiving facilities are not
yet completed and operational.
DOE has decades of experience transporting materials, including
various types of radioactive materials and waste, and has completed
NEPA reviews of such transportation under many different scenarios. DOE
NEPA reviews of such transfers consistently show that these actions
would not have the potential to cause significant impacts.
Nevertheless, DOE will continue to analyze transportation impacts in
EAs and EISs where the scope of the proposed action presents the
potential for significant impacts or where the proposed action fails to
meet the conditions contained in this categorical exclusion. (See the
Technical Support Document.)
B1.31 Installation or Relocation of Machinery and Equipment
DOE proposes several changes to this categorical exclusion. DOE
proposes to add ``installation'' to the list of actions, which is now
limited to the ``relocation'' of machinery and equipment; explicitly
include ``operation'' of installed or relocated machinery and
equipment; add ``manufacturing machinery'' in the list of examples of
machinery and equipment; and clarify that the scope of the categorical
exclusion includes modifications to an existing building, within or
contiguous to a previously disturbed or developed area, provided that
the modifications do not appreciably increase the footprint or height
of the existing building or have the potential to cause significant
changes to the type and magnitude of environmental impacts. DOE also
proposes to delete the restriction that uses of the installed or
relocated equipment be similar to their former uses, because it is
duplicative of the limitation that the actions be consistent with the
general missions of the receiving structure. DOE has determined
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that these proposed changes would not have the potential to cause
significant impacts.
In response to DOE's December 2009 Request for Information, one
commentor suggested that DOE categorically exclude projects (e.g.,
residential, commercial, and industrial) that involve retrofitting or
retooling of existing structures, provided that the projects do not
include new construction, disturb previously undisturbed areas, or
require new or significantly modified environmental permits. Further,
the commentor explained that such a categorical exclusion would help
facilitate alternative energy manufacturing projects (e.g., batteries,
solar equipment, and wind turbines) that are proposed to be located in
existing manufacturing/industrial facilities and complexes. As
described above, DOE has proposed several changes to this categorical
exclusion that address these comments.
B1.32 Traffic Flow Adjustments
Because DOE proposes to broaden the scope of this categorical
exclusion to include actions off DOE sites (see Recurring Proposals,
Section IV.B), DOE proposes to require that the activities in this
categorical exclusion occur within an existing right-of-way and be
consistent with approved land use or transportation improvement plans.
A ``traffic flow adjustment'' is a change to the flow of traffic on an
existing street or road. Statewide and Metropolitan Transportation
Planning processes are regulated by the U.S. Department of
Transportation (23 CFR part 450, subparts B and C, respectively) and
result in approved, legally-binding, multiyear plans that stipulate
transportation actions that may be carried out in a given area and over
a given length of time.
B1.33 Stormwater Runoff Control
DOE proposes a new categorical exclusion for stormwater runoff
control practices that reduce stormwater runoff and maintain natural
hydrology. The actions included in the proposed categorical exclusion
are found in Environmental Protection Agency's Guidance No. EPA 841-B-
09-001, Technical Guidance on Implementing the Stormwater Runoff
Requirements for Federal Projects under Section 438 of the Energy
Independence and Security Act (December 2009). Based on the experience
of Federal agencies, the opinions of subject matter experts, and
private sector experience developing and deploying stormwater runoff
control and low impact development practices, the types of actions
included in this categorical exclusion are, in most cases, mitigation
or best management practices commonly employed to protect surface water
quality and to reduce erosion associated with runoff. DOE has concluded
that such activities would not have the potential to cause significant
environmental impacts. (See the Technical Support Document.)
B1.34 Lead-Based Paint
DOE proposes a new categorical exclusion for the containment,
removal, and disposal of lead-based paint. This proposed categorical
exclusion is based on laws and regulations governing such activities
for buildings and other structures. Use of the proposed categorical
exclusion would require adherence to applicable laws and regulations.
Further, the creation of this categorical exclusion is supported by
existing lead paint removal categorical exclusions from the
Environmental Protection Agency and the Department of the Army. DOE has
determined that such paint removal actions would not have the potential
to cause significant impacts. (See the Technical Support Document.)
B1.35 Drop-Off, Collection and Transfer Facilities for Recyclable
Materials
DOE proposes a new categorical exclusion for the siting,
construction, modification, and operation of a recycling or compostable
material drop-off, collection, and transfer station on or contiguous to
developed or previously disturbed land and in an area where such a
facility would be consistent with existing zoning requirements. The
Department of Homeland Security and the Department of Agriculture's
Rural Utilities Service have existing categorical exclusions for
similar facilities. Specifically, Homeland Security has a categorical
exclusion for the recycling of non-hazardous materials from routine/
operational activities, and the Rural Utilities Service has a
categorical exclusion for the construction of facilities for the
transfer of waste that will be recycled or stored. DOE has determined
that the limitations placed on recycling stations proposed in this new
categorical exclusion would ensure that such actions would not have the
potential to cause significant impacts. (See the Technical Support
Document.)
B1.36 Determinations of Excess Real Property
DOE proposes a new categorical exclusion for determinations that
real property is excess to the needs of the Department. This proposed
categorical exclusion includes associated reporting of such
determinations to the General Services Administration and the Bureau of
Land Management, as appropriate. DOE would allow the categorical
exclusion of reporting of excess property, but the actual disposal of
real property is not included in the scope of this proposed categorical
exclusion.
Other Federal agencies (e.g., Department of Homeland Security) have
existing categorical exclusions for determinations of excess real
property and, based on a review of these categorical exclusions, DOE
has determined that it would be conducting the same or similar
activities under similar circumstances. Accordingly, DOE has concluded
that its activities under this proposed categorical exclusion would not
have the potential to cause significant impacts. (See the Technical
Support Document.)
Categorical Exclusions Applicable to Safety and Health (B2)
B2.1 Workplace Enhancements
DOE proposes to clarify that improvements to enhance workplace
habitability may include installation of equipment necessary for the
improvements by adding ``installation'' before its examples of
improvements. DOE has determined that installation and subsequent
operation of equipment necessary for improvements to workplace
habitability would not have the potential for significant environmental
impacts.
B2.2 Building and Equipment Instrumentation
DOE proposes clarifying the scope of the existing categorical
exclusion by providing additional examples of instrumentation (water
consumption monitors and controls).
B2.4 Equipment Qualification
DOE proposes to delete the reference to DOE Order 5480.6 (``Safety
of DOE owned Nuclear Reactors'') because it has been cancelled. Actions
previously encompassed by the Order are still performed by DOE and
other organizations to qualify equipment for use and are still
appropriate for a categorical exclusion, and DOE proposes to provide
examples of such actions. Calibration of sensors and diagnostic
equipment, crane and lift-gear certifications, and high efficiency
particulate air (``HEPA'') filter testing and certifications, to name a
few, are activities that DOE proposes to list as examples in the
categorical exclusion. These types of actions have been performed
routinely by DOE, other
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Federal agencies, and private entities. In DOE's experience, these
activities would not have the potential to cause significant impacts.
B2.6 Recovery of Radioactive Sealed Sources
DOE proposes changes to this categorical exclusion to better
reflect the current scope of DOE's sealed source recovery activities.
At the time the existing categorical exclusion was established, the
focus of DOE's efforts was primarily the recovery of DOE-owned
radioactive materials that had been loaned or leased, such as to
universities for research, and a small number of sealed sources. DOE
later established the Off-Site Source Recovery Project (OSRP) to
reflect an increased emphasis on recovery of sealed sources from
Nuclear Regulatory Commission (NRC) and Agreement State licensees in
response to requests from the NRC and other Federal or State agencies.
After 2001, DOE further expanded the scope of OSRP to focus on the
recovery of sources with a wider variety of radioisotopes of concern
from a public health, safety, or national security perspective. Due to
their high activity and portability, many sealed sources could be used
either individually or in aggregate in radiological dispersal devices
commonly referred to as ``dirty bombs.'' DOE prioritizes the recovery
of radioactive sealed sources based on threat reduction criteria
developed in coordination with the NRC. DOE's experience with the
recovery of more than 25,000 radioactive sealed sources since 1979
demonstrates that these activities are routinely conducted and do not
have the potential to cause significant environmental impact.
DOE proposes to simplify the existing categorical exclusion to
address the recovery of radioactive sealed sources and sealed source-
containing devices from domestic or foreign locations provided that (1)
the recovered items are transported and stored in compliant containers,
and (2) the receiving site has sufficient existing storage capacity and
all required licenses, permits, and approvals.
These proposed changes would reflect changes in DOE's source
recovery activities since the existing categorical exclusion was
formulated. First, recovery activities are no longer limited to
requests from NRC or other Federal or State agencies. DOE also
considers requests for source recovery from foreign governments and
private parties, including private parties in foreign countries. Also,
DOE provides financial and technical support to third parties
(principally the Conference of Radiation Control Program Directors) for
source recovery activities. Second, the scope of DOE activities is not
limited to materials or licensees addressed in 10 CFR 51.22(14).
The proposed changes also would remove the reference to certain
items that are not sealed sources (such as uranium shielding material
and packaged radioactive waste not exceeding 50 curies). DOE has
determined that the packaging, transportation, and storage of these
types of materials normally would fit within categorical exclusion
B1.30, Transfer actions. (See the Technical Support Document.)
Categorical Exclusions Applicable to Site Characterization, Monitoring,
and General Research (B3)
B3.1 Site Characterization and Environmental Monitoring
DOE proposes several changes to categorical exclusion B3.1. DOE
proposes to limit the scope of this categorical exclusion to
terrestrial characterization and monitoring, as DOE is proposing a new
categorical exclusion for such actions in salt water and freshwater
environments (categorical exclusion B3.16 below). DOE also proposes to
limit categorically excluded activities to those that would not have
the potential to cause significant impacts from ground disturbance.
Based on a project description for seismic surveying submitted by a
commentor in response to DOE's December 2009 Request for Information,
and after considering the potential scale of seismic surveying
projects, DOE proposes to also limit the scope of the categorical
exclusion so as not to include large-scale reflection or refraction
testing with regard to seismic techniques.
One commentor responding to DOE's Request for Information suggested
that DOE's list of categorical exclusions match all the categorical
exclusions currently being used by the Bureau of Land Management and
the U.S. Forest Service, particularly for geophysical surveys for
exploration of geothermal resources. Another commentor suggested that
DOE include a categorical exclusion for terrestrial seismic survey
activities. In response to both comments, DOE notes that item (a) of
the existing B3.1 categorical exclusion lists geological, geophysical,
and geochemical surveying and mapping, including seismic surveying, as
examples of actions in the scope of the categorical exclusion. Thus DOE
determined that it was not necessary to propose new categorical
exclusions in response to these comments.
DOE proposes to clarify the scope of the existing categorical
exclusion, however, by providing additional examples of actions that
DOE's experience has demonstrated properly fit within this class of
actions. In response to the suggestion above and from another commentor
concerning geothermal resources, DOE proposes to include temperature
gradient surveying as an example of geophysical surveying activities
encompassed within item (a). DOE also proposes to add underground
reservoir response testing for item (d). The potential impacts of
aquifer and reservoir response testing are well-known and normally
insignificant; underground reservoir response testing could help
determine, for example, whether further study of a reservoir for carbon
sequestration purposes is warranted. DOE also proposes to add drilling
using truck or mobile-scale equipment and modification, use, and
plugging of boreholes as representative examples of small-scale
drilling activities under item (f). DOE experience indicates that these
changes would not have the potential to cause significant impacts. (See
the Technical Support Document.)
B3.3 Research Related to Conservation of Fish, Wildlife, and Cultural
Resources
DOE proposes to modify this categorical exclusion to include
actions undertaken to protect cultural resources. These types of
actions (such as walking a site, visually surveying, and digging small,
shallow test holes with hand tools) are similar to types of actions
undertaken for wildlife protection and would not have the potential to
cause significant impacts.
B3.6 Small-Scale Research and Development, Laboratory Operations, and
Pilot Projects
DOE proposes changes to this categorical exclusion for clarity.
First, DOE proposes to delete the phrase ``indoor bench-scale
research,'' which DOE views as encompassed within ``small-scale
research and development,'' which is more easily understood. DOE also
proposes to define ``demonstration actions'' in the context of this
categorical exclusion and the related EA class of actions C12 as
``actions that are undertaken at a scale to show whether a technology
would be viable on a larger scale and suitable for commercial
deployment. Demonstration actions frequently follow research and
development and pilot projects that are directed at establishing proof
of
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concept.'' This definition reflects DOE's understanding of the
delineation between pilot projects and demonstration projects that
would be relevant to the scope of this categorical exclusion.
B3.7 New Terrestrial Infill Exploratory and Experimental Wells
DOE proposes to modify the scope of the categorical exclusion. DOE
proposes to expand the categorical exclusion by providing additional
examples of resources (brine, carbon dioxide, coalbed methane, gas
hydrate) for which exploratory or experimental wells may be drilled.
For carbon sequestration wells, DOE proposes to list examples of
possible uses, including, but not limited to, the study of saline
formations, enhanced oil recovery, and enhanced coalbed methane
extraction. DOE also proposes to expand the locations where the infill
wells may be drilled (now only in fields with operating wells) to
fields with properly abandoned wells or unminable coal seams.
DOE proposes to limit this categorical exclusion to the terrestrial
environment and to require that characterization has verified a low
potential for seismicity, subsidence, and contamination of freshwater
aquifers.
DOE experience with new infill exploratory and experimental (test)
oil, gas, and geothermal wells continues to show that they would not
have the potential to cause significant impacts. DOE experience also
shows that the potential impacts of infill exploratory and test wells
for substances such as brine, carbon dioxide, coalbed methane, and gas
hydrate would be similar and would not have the potential to cause
significant impacts under the limitations of this proposed categorical
exclusion. Based on DOE's experience, the proposal to expand the scope
of this categorical exclusion, subject to the proposed additional
limitations, would not have the potential to cause significant impacts.
DOE is particularly interested in receiving comments on the
proposed revisions to this categorical exclusion.
B3.8 Outdoor Terrestrial Ecological and Environmental Research
DOE is proposing two new categorical exclusions covering small-
scale research activities in salt water and freshwater environments,
and those two categorical exclusions limit the types of activities and
their location specifically to protect aquatic environments. (See B3.16
for research activities in salt water and freshwater environments and
B5.25 for small-scale renewable energy research and development and
pilot projects in salt water and freshwater environments.) DOE is
therefore proposing to clarify that the types of covered actions
included in B3.8 are solely limited to terrestrial environments.
DOE is also proposing to clarify that this categorical exclusion
includes small-scale biomass and biofuels research. Given the current
focus on the development of biomass and biofuel production and the need
for proof of concept research in this area, DOE proposes to state
explicitly that small test plots for energy-related biomass or biofuels
research (including the use of genetically engineered plants) are
within the scope of this categorical exclusion.
Research using genetically engineered plants to be grown
specifically for biomass production has reached the point where field
tests are being performed outdoors for proof of concept purposes. At
the same time, residues from biotechnology crops such as corn and
soybeans are being tested as feedstocks for biofuel production. Such
plants are currently regulated by the U.S. Department of Agriculture
and these existing regulatory regimes have analyzed the environmental
impacts resulting from the experimental and commercial growth of these
crops, so there is no need for DOE to analyze separately these impacts
to show their insignificance. DOE has determined that a categorical
exclusion would be appropriate for small field tests, provided that the
applicant already has all the necessary authorizations from the U.S.
Department of Agriculture and received all necessary permissions to
proceed with the trial. (See the Technical Support Document.)
B3.9 Projects To Reduce Emissions and Waste Generation
This categorical exclusion was initially created for demonstration
actions under DOE's Clean Coal Technology Demonstration Program.
However, after many years of experience with projects that reduce
emissions and waste generation at existing fossil fuel facilities and,
more recently, at alternative energy facilities, DOE is proposing
modifications to the categorical exclusion for these activities
regardless of whether or not they are part of DOE's Clean Coal
Technology Demonstration Program. Specifically, DOE is proposing to
expand the scope of this categorical exclusion to include projects to
reduce emissions and waste generation at alternative fuel (e.g.,
biomass) facilities, in addition to fossil fuel facilities. As a
result, DOE is proposing conforming revisions throughout this
categorical exclusion (e.g., replacing ``coal'' with ``fuel'').
Further, DOE proposes to define fuel to include ``coal, oil, natural
gas, hydrogen, syngas [synthesis gas], and biomass,'' and specifically
to exclude nuclear fuels.
Based on its experience with these activities, DOE has found that
projects that demonstrate ways to reduce emissions and waste generation
at existing fossil or alternative fuel combustion or utilization
facilities would not have the potential to cause significant impacts.
(See the Technical Support Document.) DOE also proposes to remove from
categorical exclusion B3.9(a) the 20 percent limitation on test
treatment of the throughput product (solid, liquid, or gas) generated
at existing, fully operational fuel combustion or utilization
facilities. Although test treatment on a fraction of the throughput
product (sometimes referred to as ``slipstream testing'') may be
helpful in evaluating new treatment technologies, DOE experience shows
that test treatment of the entire throughput product stream may be
needed to provide an adequate demonstration of the commercial viability
of technologies that could reduce emissions from existing facilities.
DOE analyses and experience show that such test treatment normally
would not have the potential to cause significant impacts under the
limitations of this categorical exclusion.
Further, DOE proposes to remove from B3.9(c) the two-year
limitation on the addition or replacement of equipment for reduction or
control of sulfur dioxide, oxides of nitrogen, or other regulated
substances at existing facilities. In DOE's experience, the potential
for significant impacts of such projects does not depend on the
duration of the demonstration. Moreover, two years may be too short a
period of time for an adequate demonstration of equipment whose
continued use is likely to be beneficial.
In addition to the provisions of B3.9(c), DOE proposes explicitly
to include the addition or modification of equipment for capture and
control of carbon dioxide or other regulated substances, provided that
adequate infrastructure is in place to manage such substances. The use
of such equipment offers the potential for environmental benefits by
providing needed information on the costs, operability, and reliability
of capture technologies that could enable their future deployment in
existing conventional coal and other fuel utilization facilities. DOE's
knowledge and experience with the physical or chemical unit processes
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that could capture carbon dioxide at existing facilities show such
processes would not have the potential to cause significant impacts
under the conditions specified in the proposed modification of this
categorical exclusion.
B3.10 Particle Accelerators
DOE proposes to modify this categorical exclusion by more clearly
specifying the operating parameters for particle accelerators. This
categorical exclusion currently has only one limiting parameter
(primary beam energy less than approximately 100 million electron volts
(MeV)). DOE's proposed modification would provide two additional
limiting parameters (average beam power less than approximately 250
kilowatts (kW) and average current of 2.5 milliamperes (mA)). The
voltage would be allowed to increase, as long as the resulting average
current was 2.5 mA. Such result could be accomplished by lowering the
power (wattage). Alternately, the wattage could increase if voltage
decreased to result in an average current of 2.5 mA. DOE has determined
that the use of three parameters will provide flexibility in the
application of the categorical exclusion, but the actions still would
not have the potential to cause significant impacts. (See the Technical
Support Document.)
B3.11 Outdoor Tests and Experiments on Materials and Equipment
Components
The existing categorical exclusion precludes DOE from categorically
excluding outdoor burn, impact, drop, puncture, and similar tests
involving radiological sources, whether or not they were encapsulated.
Because encapsulated sources can be used safely in these types of
tests, DOE proposes to expand the scope of the categorical exclusion to
cover their use under certain conditions. Specifically, DOE is
proposing that nondestructive actions such as detector/sensor
development and testing and first responder field training, using
encapsulated sources that contain source, special nuclear, or byproduct
materials, be included in the scope of this categorical exclusion. DOE
experience demonstrates that such activities can be done safely and
would not have the potential to cause significant impacts.
B3.14 Small-Scale Educational Facilities
DOE proposes a new categorical exclusion for the siting,
construction or modification, operation, and decommissioning of small-
scale educational facilities, including, but not limited to,
conventional teaching laboratories, libraries, classroom facilities,
auditoriums, museums, visitors centers, exhibits, and associated
offices within or contiguous to a previously disturbed or developed
area (where active utilities and currently used roads are readily
accessible). Based on DOE's experience, and supported by past NEPA
analyses, such activities, under the limitations provided, would not
have the potential to cause significant impacts. (See the Technical
Support Document.)
B3.15 Small-Scale Indoor Research and Development Projects Using
Nanoscale Materials
DOE proposes a new categorical exclusion for the siting,
construction, or modification, operation, and decommissioning of
facilities for indoor small-scale research and development and small-
scale pilot projects using nanoscale materials, in accordance with
applicable requirements necessary to ensure the containment of any
biohazardous materials. Construction or modification would be within or
contiguous to an already developed area (where active utilities and
currently used roads are readily accessible). This proposed categorical
exclusion includes activities that are already in the scope of B3.6
(Small-scale research and development, laboratory operations, and pilot
projects); however, as part of its rulemaking effort, DOE finds it
appropriate to propose a categorical exclusion that specifically
addresses nanoscale activities.
DOE has extensive small-scale or laboratory-scale experience
working with engineered (intentionally created, rather than natural or
incidentally formed) nanoscale materials. For example, DOE is
participating in interagency workgroups, such as the National
Nanotechnology Initiative (http://www.nano.gov/html/about/home_about.html), that seek to promote responsible research and development
of nanotechnology, ensure that the important benefits to environmental
protection that nanotechnology may offer are realized, and better
understand any potential risks from exposure to nanomaterials in the
environment. DOE conducts basic research and development that supports
the National Nanotechnology Initiative at its nanoscale research
centers, in accordance with DOE Policy 456.1 (DOE P 456.1, Secretarial
Policy Statement on Nanoscale Safety), and best management practices
and policies that ensure protection of workers and the environment,
such as DOE Nanoscale Science Research Centers: Approach to
Nanomaterials ES&H, (Rev3a, May 2008) (``Approach to Nanomaterial
ES&H'') (http://orise.orau.gov/ihos/Nanotechnology/nanotech_DOE_Nanoscale_SC.html). As explained in ``Approach to Nanomaterial ES&H,''
``laboratory-scale'' research excludes those activities whose function
is to produce commercial quantities of materials, as defined in 29 CFR
1910.1450(b)(2), ``Occupational Exposure to Hazardous Chemicals in
Laboratories, Definitions.''
Laboratory-scale experimentation with nanoscale materials has been
the subject of four DOE EAs, in which the Department has analyzed the
construction and operation of nanomaterials facilities. DOE has
determined that, with appropriate controls in place (as specified in
the proposed categorical exclusion and described above), these
activities would not have the potential to cause significant impacts.
(See the Technical Support Document.)
DOE is particularly interested in receiving comments on this
proposed categorical exclusion.
B3.16 Research Activities in Salt Water and Freshwater Environments
DOE proposes a new categorical exclusion for small-scale, temporary
surveying, site characterization, and research actions to be performed
in salt water and freshwater environments. DOE proposes limiting the
actions covered by this categorical exclusion to the acquisition of
rights-of-way, easements, and temporary use permits; data collection,
environmental monitoring, and nondestructive research programs;
resource evaluation activities; collection of various types of data and
samples; installation of monitoring and recording devices; installation
of equipment for flow testing of existing wells; and ecological and
environmental research in a small area.
DOE proposes specifically to exclude the construction or
installation of permanent facilities or devices and to exclude the
drilling of resource exploration or extraction wells. In addition, DOE
has included several limits on the type, scope, and location of covered
actions to protect the aquatic environment from potential significant
impacts.
DOE proposes to limit the covered actions in this categorical
exclusion through the following conditions. Covered actions under this
categorical exclusion would be conducted in accordance with, where
applicable, an approved spill prevention, control, and response plan,
and would incorporate appropriate control technologies and
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best management practices. Furthermore, none of the above activities
would occur within the boundary of an established marine sanctuary or
wildlife refuge, a governmentally proposed marine sanctuary or wildlife
refuge, or a recognized area of high biological sensitivity, or outside
those areas if the activities would have the potential to cause
significant impacts within those areas. Additionally, no permanent
facilities or devices would be constructed or installed. The
categorical exclusion also lists other factors, specific to aquatic
environments, to be considered by proponents of covered actions before
applying this categorical exclusion to ensure that the activities would
not have the potential to cause significant impacts.
DOE has determined that, subject to the proposed limitations, the
activities would not have the potential to cause significant impacts.
DOE is particularly interested in receiving comments on this
categorical exclusion due to heightened sensitivity to activities in
the salt water environment in light of recent oil-related incidents.
(See the Technical Support Document.)
Categorical Exclusions Applicable to Power Resources (B4)
DOE proposes to make a number of recurring changes to the
categorical exclusion provisions applicable to power resources. In
reference to adding electric power resources (such as wind farms) into
an electric power system, DOE proposes to use the term
``interconnection'' rather than the term ``integration'' now used in
its existing classes of actions. ``Interconnection'' is the current
term used in the electric transmission field for such actions. DOE,
therefore, proposes changes to the following provisions: B4.1, B4.11,
B4.12, B4.13.
DOE proposes to delete references to ``main transmission system''
in its existing classes of actions as unnecessary because DOE actions
would only apply to its own transmission system. DOE, therefore,
proposes changes to the following provisions: B4.11, B4.12.
DOE proposes to add pipeline rights-of-way as locations where
actions could occur that are now categorically excluded or proposed for
categorical exclusion in previously developed or disturbed transmission
line rights-of-way. The impacts from siting, constructing, operating,
or decommissioning actions in these linear rights-of-way are
essentially similar. DOE, therefore, proposes changes to the following
provisions: B4.7, B4.12. (DOE also proposes a similar change to EA
class of actions C4.)
B4.1 Contracts, Policies, and Marketing and Allocation Plans for
Electric Power
DOE proposes to simplify the description of the scope of this
categorical exclusion, without changing the scope. The categorical
exclusion would still apply to electric power contracts, policies, and
plans that do not involve a new generation resource and do not involve
changes in the normal operating limits of existing generation
resources. DOE proposes to delete the existing reference to ``excess
electric power'' as unnecessary as it simply applies to power that is
available for transmission. DOE is proposing changes to its
corresponding classes of actions for EAs (C7) and EISs (D7), as
discussed below in Section IV.F and IV.G, respectively.
DOE is particularly interested in receiving comments on the
proposed revisions to this categorical exclusion.
B4.4 Power Marketing Services and Activities
DOE proposes to clarify this categorical exclusion by adding
``power management activities'' to its existing categorical exclusion
for power marketing services to indicate that the activities that are
appropriately categorically excluded do not necessarily need to be
taken in the context of marketing power. The existing categorical
exclusion was established based on the experience of DOE's power
marketing administrations, but has been appropriately applied recently
by other elements of the Department, for example, in evaluating actions
under the American Recovery and Reinvestment Act. The proposed change
would provide transparency to DOE's application of this categorical
exclusion, and DOE has determined that the covered actions would not
have the potential to cause significant impacts.
B4.6 Additions and Modifications to Transmission Facilities
DOE proposes to add ``load shaping projects (such as the
installation and use of flywheels and battery arrays)'' to the list of
example actions in this categorical exclusion. With the wider
deployment and accompanying improvement in load shaping technologies,
DOE's experience indicates that these actions fit within the scope of
this categorical exclusion.
B4.7 Fiber Optic Cable
DOE proposes that certain actions associated with adding fiber
optic cable to transmission facilities (such as vaults and pulling and
tensioning sites) be within the scope of this categorical exclusion
with certain limitations. DOE has found that it is often necessary to
place vaults and pulling and tensioning sites outside of rights-of-way.
DOE has determined that, if vaults or such sites are in nearby
previously disturbed or developed areas, they would not have the
potential to cause significant environmental impact.
B4.9 Multiple Use of Transmission Line Rights-of-Way
DOE proposes to add examples of crossing agreements affecting a
transmission facility's rights-of-way that DOE has determined are in
the scope of this categorical exclusion, namely natural gas pipelines,
communications cables, and roads.
B4.10 Removal of Electric Transmission Lines and Substations
DOE proposes to add ``abandonment'' and ``restoration'' of rights-
of-way to the list of activities in this categorical exclusion, because
DOE has determined that these actions, which generally follow the
removal of electric transmission lines and substations, would not have
the potential to cause significant impacts.
B4.11 Electric Power Substations and Interconnection Facilities
DOE proposes to add interconnection facilities to its categorical
exclusion for construction or modification of electric power
substations because the facilities have similar equipment and function.
Substations switch, step down, or regulate voltage of electricity being
transmitted, and may serve as controls and transfer points on a
transmission system; interconnection facilities add electric power
resources to transmission systems through similar functions.
DOE proposes that actions under this categorical exclusion, instead
of being limited to those that do not interconnect a new generation
resource (under the existing categorical exclusion), be limited to
interconnecting new generation resources that meet two conditions: The
new generation resource (1) would be eligible for categorical exclusion
under the DOE NEPA regulations (that is, under proposed categorical
exclusions for combined heat and power or cogeneration systems (B5.14),
solar energy (B5.16 and B5.17), wind energy (B5.18), biomass power
plants (B5.20), methane gas recovery and utilization systems (B5.21)
and drop-in hydroelectric systems (B5.24)), and (2) would be equal to
or less than 50
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average megawatts (which is considered a major resource under the
Northwest Power Act).
DOE is also proposing to delete actions regarding construction,
upgrading, or rebuilding transmission lines from this categorical
exclusion because substation actions do not necessarily involve
transmission line actions. Categorically excluded transmission line
actions are addressed in proposed B4.12 and B4.13.
DOE is proposing to delete the restriction that facilities under
this categorical exclusion be limited to no more than 230 kilovolts
because DOE has determined that voltage of a substation or
interconnection facility is not a determinant of the potential for
significant environmental impacts.
In response to the Department's December 2009 Request for
Information, one commentor suggested that DOE categorically exclude
modifications and upgrades to existing substations to accommodate
electricity generated from renewable energy sources, to the extent that
an upgrade does not increase the overall capacity of the substation or
the disturbed areas associated with the substation, noting that
additional capacity is needed at substations throughout the electric
grid. DOE notes that it is proposing to delete the restriction that
facilities under this categorical exclusion be limited to no more than
230 kilovolts.
DOE is particularly interested in receiving comments on the
proposed revisions to this categorical exclusion.
B4.12 Construction of Transmission Lines
DOE proposes to incorporate within the scope of categorical
exclusion B4.12 an action currently addressed in the existing
categorical exclusion B4.11, that is ``relocation of existing electric
transmission lines approximately 20 miles in length or less.'' By doing
so, transmission line construction and rebuilding activities will be
consolidated in categorical exclusions B4.12 and B4.13, rather than
also included in categorical exclusion B4.11, which predominantly
relates to substations and interconnection facilities. DOE's long-term
experience with electric transmission line construction indicates that
the approximately 10-mile limit for categorical exclusion of
transmission line construction outside of a previously disturbed or
developed right-of-way, and the approximately 20-mile limit for
categorical exclusion of transmission line in a previously disturbed
right-of-way, have been reliable guides to the appropriate level of
NEPA review for the actions.
DOE proposes that actions under this categorical exclusion, instead
of being limited to those that do not interconnect a new generation
resource (as under the existing categorical exclusion), be limited to
interconnecting new generation resources that meet the two conditions
discussed with respect to categorical exclusion B4.11.
In response to the Department's December 2009 Request for
Information, one commentor suggested that the addition of transmission
lines to existing transmission line or pipeline rights-of-way be
categorically excluded. The commentor noted that additional
transmission capacity is required to move electricity generated by
renewable resources to population centers and that adding that capacity
in an existing right-of-way will have very little environmental impact.
DOE agrees and does not restrict the addition of transmission lines to
an existing transmission or pipeline right-of-way if the limitations
specified in the categorical exclusion are met.
DOE is particularly interested in receiving comments on the
proposed revisions to this categorical exclusion.
B4.13 Upgrading and Rebuilding Existing Transmission Lines
DOE proposes to continue to categorically exclude the upgrading and
rebuilding of existing transmission lines of approximately 20 miles in
length or less (including minor relocations of small segments of such
lines), as under the existing categorical exclusion B4.13. DOE also
proposes to categorically exclude the use of the upgraded or rebuilt
lines for the interconnection of new generation resources that meet the
two conditions discussed with respect to categorical exclusion B4.11.
Further, DOE proposes to delete the purposes for which minor
relocations of the existing line may occur.
DOE is particularly interested in receiving comments on the
proposed revisions to this categorical exclusion.
Categorical Exclusions Applicable to Conservation, Fossil, and
Renewable Energy Activities (B5)
B5.1 Actions To Conserve Energy or Water
In B5.1, DOE proposes four types of changes to the existing
categorical exclusion: (1) Adding examples to better represent the type
of energy conservation actions, including those for which DOE provides
financial assistance, that fall within the scope of this categorical
exclusion, (2) adding actions to conserve water, (3) deleting reference
to renewable energy research and development because DOE is proposing
separate categorical exclusions for those actions (under B5.15 and
B5.25 below), and (4) including new B5.1(b).
In B5.1(a), DOE proposes to clarify the scope of the categorical
exclusion by providing additional examples of conservation actions
similar in nature to the existing examples, such as weatherization,
energy efficiency for vehicles and transportation (such as fleet change
out), power storage (such as flywheels and batteries, generally less
than 10 MW), and transportation management systems (such as traffic
signal control systems). DOE's experience with these proposed covered
actions demonstrate that they fit within the scope of the categorical
exclusion. In addition, to ensure that the categorical exclusion would
not encompass actions with potentially significant impacts on the human
environment, DOE proposes to clarify that the actions include building
renovations or new structures, provided that they occur in a previously
disturbed or developed area. Also, DOE proposes to clarify that the
categorical exclusion could also involve actions in the academic or
institutional sectors.
In B5.1(b), DOE proposes to include rulemakings that establish
energy conservation standards in the scope of this categorical
exclusion. DOE has prepared numerous EAs and FONSIs for rulemakings
that establish energy conservation standards for consumer products and
industrial equipment and has determined that, within the limitations on
the scope of actions that could be taken under the proposed categorical
exclusion, establishment of such standards would not have the potential
to cause significant impacts. The limitations on scope of actions
concern changes in manufacturing infrastructure, uses of available
resources, disposal, and energy consumption. (See the Technical Support
Document.)
DOE is particularly interested in receiving comments on B5.1(b) of
this categorical exclusion.
B5.2 Modifications to Pumps and Piping
DOE proposes to broaden the scope of this categorical exclusion by
not limiting it to oil, gas, and geothermal facilities, but by
providing examples of materials that could be conveyed by pump and
piping configurations (that is, by adding as examples, air, brine,
carbon dioxide, produced water, steam, and water to the currently
listed materials). DOE also proposes to clarify
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that the existing reference to ``gas'' includes natural gas, hydrogen
gas, and nitrogen gas. DOE has determined that the environmental
impacts resulting from modifications to pump and piping configurations
on systems conveying such materials would be similar to impacts from
modifications to the pump and piping configurations on systems carrying
the existing categorically excluded materials. DOE's experience with
these materials has demonstrated that modifying such pump and piping
configurations would not have the potential to cause significant
impacts.
B5.3 Modification or Abandonment of Wells
DOE proposes to broaden the scope of this categorical exclusion for
storage and injection wells by not limiting the wells to those for oil,
brine, geothermal, and gas wells, but by adding these wells as
examples: Carbon dioxide, coalbed methane, and gas hydrate wells. DOE's
experience has demonstrated that actions associated with the
modification and abandonment (including plugging) of carbon dioxide and
similar wells normally do not have the potential to cause significant
impacts. DOE is proposing to limit use of the categorical exclusion to
situations where there is low potential for seismicity, subsidence, and
contamination of freshwater aquifers and where the actions are
otherwise consistent with best practices and DOE protocols, including
those that protect against uncontrolled releases of harmful materials.
DOE is also proposing to clarify that ``gas'' in the existing
categorical exclusion refers to natural gas.
B5.4 Repair or Replacement of Pipelines
DOE proposes to broaden the scope of this categorical exclusion by
not limiting it to actions including oil, produced water, brine, and
geothermal pipelines, but also to exclude repair and replacement
actions on pipelines carrying materials similar in nature (such as air,
carbon dioxide, hydrogen gas, natural gas, nitrogen gas, steam, and
water). In DOE's experience, the conveyance of the proposed additional
materials similar to those currently categorically excluded normally
does not pose a potential to cause significant impacts. DOE also
proposes to clarify that upgrading, rebuilding, and minor relocation
may be involved in repair or replacement of pipelines. Further, DOE
proposes to list Army Corps of Engineer permits as one type of
requirement that may apply to these actions, while also acknowledging
that there may be others.
B5.5 Short Pipeline Segments
DOE proposes to broaden the scope of this categorical exclusion by
not limiting it to oil, steam, geothermal or natural gas resources, but
by providing additional examples (air, brine, carbon dioxide, hydrogen
gas, nitrogen gas, produced water, and water) of materials potentially
conveyed by pipeline segments under this categorical exclusion. The
potential impacts resulting from pipelines conveying the additional
materials would be similar to those from the existing categorically
excluded materials. DOE's experience conveying these materials has
demonstrated that they would not have the potential to cause
significant impacts.
DOE further proposes to remove the limitation that pipelines must
be within a single industrial complex. DOE proposes to remove that
limitation because potential impacts do not depend on whether the
action is conducted within an arbitrary boundary. DOE is therefore
proposing to replace the reference to ``DOE facilities'' with
references to ``existing source facilities'' and ``existing receiving
facilities.'' Categorically excluded actions are limited to short
pipelines, which DOE proposes be generally less than 20 miles in length
in previously developed or disturbed areas.
B5.6 Oil Spill Cleanup
DOE is proposing to clarify that the National Oil and Hazardous
Substances Pollution Contingency Plan is not necessarily the only
applicable requirement for oil spill cleanup by making this an example
of an applicable requirement.
B5.7 Import or Export Natural Gas, With Operational Changes
DOE proposes to add disapprovals to the current scope (approvals)
for consistency with existing classes of actions C13, D8, and D9.
B5.8 Import or Export Natural Gas, With New Cogeneration Powerplant
DOE proposes to add disapprovals to the current scope (approvals)
for consistency with existing classes of actions C13, D8, and D9. DOE
proposes to include in the scope of this categorical exclusion
pipelines generally less than 20 miles in length in previously
disturbed or developed rights-of-way.
B5.10 Certain Permanent Exemptions for Existing Electric Powerplants
DOE proposes to delete two references to provisions of the
Powerplant and Industrial Fuel Use Act as those provisions have been
deleted from the Act.
B5.12 Workover of Existing Wells
DOE proposes to broaden the scope of this categorical exclusion by
not limiting it to oil, gas, and geothermal wells, but by providing
additional examples (brine, carbon dioxide, coalbed methane and gas
hydrate) of wells that could be restored to functionality. DOE's
experience with these materials has demonstrated that the potential
impacts would be similar in nature to the impacts of wells using
materials named in the existing categorical exclusion and that workover
of such wells would not have the potential to cause significant
impacts. In addition, DOE is proposing to limit use of the categorical
exclusion to situations where there is low potential for seismicity,
subsidence, and contamination of freshwater aquifers, and where the
actions are otherwise consistent with best practices and DOE protocols,
including those that protect against uncontrolled releases of harmful
materials. DOE is also proposing to clarify that ``gas'' in the
existing categorical exclusion refers to ``natural gas.''
B5.13 Experimental Wells for the Injection of Small Quantities of
Carbon Dioxide
DOE proposes a new categorical exclusion for experimental wells for
the injection of small quantities of carbon dioxide in locally
characterized geologically secure storage formations at or near
existing carbon dioxide sources. The activities encompassed in the new
proposed categorical exclusion are intended to help determine the
suitability of geological formations for large-scale sequestration, as
information from small-scale projects can be used to ensure that
commercial-scale projects can be conducted safely and in an
environmentally sound manner.
The proposed categorical exclusion is supported by DOE's National
Energy Technology Laboratory's experience with carbon sequestration
wells, through DOE-directed research projects and collaboration with
the nationwide network of regional carbon sequestration partnerships
tasked with determining the best technologies for carbon capture,
storage, and sequestration. Through this work, DOE has gained
substantial experience with small-scale carbon sequestration, showing
that these projects can be managed safely and would not have the
potential to cause significant impacts. In addition, the proposed
categorical exclusion is supported by FONSIs for
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three DOE EAs for projects with scales ranging up to one million tons
of carbon dioxide over the lifetime of the project (typically one to
four years).
Based on experience with small-scale projects, DOE proposes that
the injection of carbon dioxide under this categorical exclusion be
limited to, in aggregate, less than 500,000 tons over the duration of a
project. In addition, DOE also proposes a number of conditions that the
project must meet in order for the activity to be categorically
excluded. For example, the proposed categorical exclusion would require
that characterization has verified a low potential for seismicity,
subsidence, and contamination of freshwater aquifers. DOE's proposed
limitations will ensure that injection of carbon dioxide at this scale
would not have significant impacts. (See the Technical Support
Document.)
DOE is particularly interested in receiving comments on this
categorical exclusion, including the limit of 500,000 tons of carbon
dioxide over the duration of the project.
B5.14 Combined Heat and Power or Cogeneration Systems
DOE proposes a new categorical exclusion for the conversion to, and
replacement or modification of, combined heat and power or cogeneration
systems at existing facilities provided that the action would not have
the potential to cause a significant increase in the quantity or rate
of air emissions and would not have the potential to cause significant
impacts to water resources.
DOE has determined that combined heat and power or cogeneration
system activities under this categorical exclusion, when subject to the
proposed limitations, would not have the potential to cause significant
impacts because (1) these systems would be modifications to existing
systems, and thus generally would not involve more than minor changes
to facility footprints and do not involve major new construction, and
(2) these systems would improve operating efficiency (such as making
use of otherwise waste heat) and thus would be designed to lessen
potential impacts.
B5.15 Small-Scale Renewable Energy Research and Development and Pilot
Projects
As part of DOE's proposal to clarify and focus existing categorical
exclusion B5.1 on energy efficiency and conservation actions (including
research and development-related actions), DOE proposes a separate
categorical exclusion for small-scale renewable energy research and
development and pilot projects. In doing so, DOE proposes to limit the
covered actions to those in previously disturbed and developed areas
and to emphasize that such actions would be in accordance with
applicable requirements and incorporate appropriate controls and
practices. See also B5.25 for small-scale renewable energy research and
development and pilot projects in salt water and freshwater
environments.
In addition, this proposal is responsive to a commentor's
suggestion to have a categorical exclusion for small-scale pilot
projects for renewable energy generation, modeled on DOE's existing
categorical exclusion B6.2 for pilot-scale waste collection and
treatment facilities.
DOE is particularly interested in receiving comments on this
categorical exclusion.
B5.16-B5.24
As part of DOE's proposal to clarify and focus existing categorical
exclusion B5.1 on energy efficiency and conservation actions, and in
response to commentors' suggestions to include more explicitly
renewable energy technologies, DOE is proposing several new categorical
exclusions. DOE proposes eight new categorical exclusion classes of
actions involving renewable energy technologies, as described below.
The proposed categorical exclusions apply to the installation,
modification, operation, and removal of small-scale, commercially
available renewable energy technologies. DOE proposes to specify
conditions by technology (e.g., wind) to ensure appropriate
limitations, but does not generally set limits on energy output because
DOE experience and data review suggest that the potential for
significant impacts is more closely related to the site selected for a
renewable energy project and the interaction of resources at a selected
site with the renewable technology. DOE has proposed specific
limitations for these categorical exclusions to ensure that any
renewable energy technology project that would have the potential to
cause significant impacts to particular resources would be identified
as outside the scope of the categorical exclusion. Further, DOE
proposes one new class of actions involving electric vehicle charging
stations.
The proposed categorical exclusions in B5.16-B5.24 identify many of
the types of projects for which DOE has made categorical exclusion
determinations based on existing categorical exclusion B5.1. The
actions listed in these proposed categorical exclusions are also
consistent with categorical exclusions promulgated by other Federal
agencies, EAs and FONSIs prepared by DOE and other Federal agencies,
the opinions of subject matter experts, and private sector experience
developing and deploying renewable energy technologies. DOE has
determined that the activities under these categorical exclusions, when
subject to the proposed limitations, would not have the potential to
cause significant impacts because the categorical exclusions apply
specifically to systems that are: (1) Located on or adjacent to
existing structures, or on previously developed or disturbed land, (2)
sited in accordance with local land use and zoning requirements, and
(3) designed to incorporate appropriate control technologies and best
management practices to lessen potential impacts.
The proposed categorical exclusions are responsive to the numerous
suggestions that DOE received, both from within DOE and in response to
its December 2009 Request for Information, to include explicitly
renewable energy technologies and associated equipment in its
categorical exclusions. Several commentors also suggested that DOE
categorically exclude actions intended to ``co-locate renewables'' or
to support ``distributed generation projects.'' These suggestions
describe similar actions that: (1) Support the operation of an existing
facility by providing a renewable energy source on-site, (2) would be
compatible with existing land use, and (3) would require minimal to no
expansion of the footprint of an existing facility. As a result, DOE's
review of available data led it to propose to exclude select small-
scale, renewable energy technology projects, under specified proposed
conditions, for the purpose of providing a renewable energy generation
capability to existing facilities (specifically, B5.16-B5.21).
B5.16 Solar Photovoltaic Systems
The actions listed in categorical exclusion B5.16 apply to the
installation, modification, operation, and removal of commercially
available solar photovoltaic systems located on a building or other
existing structure (e.g., covered parking facility), or on land
generally comprising less than 10 acres. The actions listed are
consistent with DOE and other Federal agency experience with ``co-
located'' solar photovoltaic energy projects generally comprising less
than 10 acres within a previously disturbed or developed area,
categorical exclusion determinations DOE has made based on existing
regulations, categorical exclusions
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promulgated by other Federal agencies, EAs and FONSIs prepared by DOE
and other Federal agencies, and the opinions of subject matter experts.
(See the Technical Support Document.)
DOE has determined that the solar photovoltaic system activities
under this categorical exclusion, when subject to proposed limitations,
would not have the potential to cause significant impacts because (1)
these are systems located on or adjacent to existing structures, or on
previously developed or disturbed land, and thus generally involve no
more than minor changes to facility footprints and do not involve major
new construction, and (2) these systems generally would support the
operation of an existing facility (e.g., providing an on-site,
renewable electricity generation source). Such activities also may
serve to lessen potential air emissions impacts when compared to
electricity generated by fossil fuel (e.g., coal) sources.
DOE is particularly interested in receiving comments on this
categorical exclusion.
B5.17 Solar Thermal Systems
DOE proposes a new categorical exclusion for the installation,
modification, operation, and removal of commercially available small-
scale solar thermal systems (e.g., solar hot water systems) at an
existing facility or on land generally comprising less than 10 acres
within a previously disturbed or developed area. These actions are
consistent with categorical exclusion determinations DOE has made based
on existing regulations and EAs and FONSIs prepared by DOE. (See the
Technical Support Document.)
DOE has determined that the solar thermal system activities under
this categorical exclusion, when subject to proposed limitations, would
not have the potential to cause significant impacts because (1) these
are small-scale systems located on or contiguous to an existing
building, or in a previously developed or disturbed area, and thus
generally involve no more than minor changes to facility footprints and
do not involve major new construction, and (2) these systems generally
would support the operation of an existing building (e.g., providing an
on-site, renewable source of energy for heat). Such activities also may
serve to lessen potential air emissions impacts when compared to
electricity generated by fossil fuel (e.g., coal) sources.
DOE is particularly interested in receiving comments on this
categorical exclusion.
B5.18 Wind Turbines
DOE proposes a new categorical exclusion for the installation,
modification, operation, and removal of small (i.e., generally 200 feet
in height or less when measured from ground to maximum vertical blade
rotation), commercially available wind turbines. Such turbines must be
located within previously disturbed or developed areas; more than 10
miles from an airport or aviation navigation aid; and more than 1.5
nautical miles from National Weather Service or Federal Aviation
Administration Doppler weather radar. Also such turbines must not have
the potential to cause significant impacts to bird or bat species and
must be appropriately designed and located so as to not cause
significant impacts to persons (e.g., noise or shadow flicker). These
actions are consistent with categorical exclusion determinations DOE
has made based on existing regulations, EAs and FONSIs prepared by DOE
and other Federal agencies, and the opinions of subject matter experts.
(See the Technical Support Document.)
DOE has determined that the activities under this categorical
exclusion, when subject to proposed limitations, would not have the
potential to cause significant impacts because (1) these are small-
scale wind turbines located within a previously developed or disturbed
area, and thus generally involve no more than minor changes to an
existing footprint and do not involve major new construction, and (2)
these systems generally would support improved operation of an existing
facility (e.g., providing an on-site, renewable source of energy for
electricity). Such activities also may serve to lessen potential air
emissions impacts when compared to electricity generated by fossil fuel
(e.g., coal) sources.
DOE is particularly interested in receiving comments on this
categorical exclusion.
B5.19 Ground Source Heat Pumps
DOE proposes a new categorical exclusion for commercially
available, small-scale ground source heat pumps, designed to include
appropriate leakage and contaminant control measures (e.g., grouting)
to support the operation of single facilities (e.g., a school) or
contiguous facilities (e.g., an office complex), and sited only in
previously disturbed and developed areas where associated activities
(e.g., drilling or geothermal water discharge) are regulated by a
local, regional, or State authority. The actions listed in this
proposed categorical exclusion are consistent with categorical
exclusion determinations DOE has made based on existing regulations,
categorical exclusions promulgated by other Federal agencies, and EAs
and FONSIs prepared by DOE. (See the Technical Support Document.)
DOE has determined that the ground source heat pump system
activities under this categorical exclusion, when subject to the
proposed limitations, would not have the potential to cause significant
impacts because (1) these are systems located within or adjacent to
existing structures, or on previously developed or disturbed land, and
thus generally involve no more than minor changes to facility
footprints and do not involve major new construction, and (2) these
systems generally would support the operation of an existing facility
(e.g., providing an on-site, renewable heating or cooling source) that
would serve to lessen potential air emissions impacts when compared to
energy provided by traditional fossil fuel (e.g., coal) sources. DOE
has proposed limitations for this categorical exclusion to ensure that
any project that may result in a significant change in subsurface
temperature would be outside the scope of the categorical exclusion.
DOE is particularly interested in receiving comments on this
categorical exclusion.
B5.20 Biomass Power Plants
DOE proposes a new categorical exclusion for small-scale biomass
power plants, designed using commercially available technologies for an
average energy output of 10 megawatts, to support the operation of
single facilities (e.g., a school) or contiguous facilities (e.g., an
office complex), and sited within previously disturbed and developed
areas. The actions listed in this proposed categorical exclusion are
consistent with EAs and FONSIs prepared by DOE. (See the Technical
Support Document.)
DOE has determined that the activities covered by this categorical
exclusion, when subject to the proposed limitations, would not have the
potential to cause significant impacts because (1) these are systems
located within or adjacent to existing structures, or within previously
developed or disturbed areas, and thus generally involve no more than
minor changes to facility footprints or land use, and (2) these systems
generally would support the operation of an existing building or
contiguous facilities (e.g., providing an on-site, renewable
electricity generation source). Such activities also may serve to
lessen potential air emissions impacts
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when compared to electricity generated by fossil fuel (e.g., coal)
sources. DOE has proposed limitations for this categorical exclusion to
ensure that any project that may result in a significant increase in
the quantity or rate of air emissions or have the potential to cause
significant impacts to water resources would be outside the scope of
the categorical exclusion.
DOE is particularly interested in receiving comments on this
categorical exclusion.
B5.21 Methane Gas Recovery and Utilization Systems
DOE proposes a new categorical exclusion for the installation,
modification, operation, and removal of commercially available methane
gas recovery and utilization systems on or contiguous to an existing
landfill or wastewater treatment plant, or within a previously
disturbed and developed area. The actions listed in this proposed
categorical exclusion are consistent with categorical exclusion
determinations for methane gas recovery and utilization technologies
that DOE has made based on existing regulations.
DOE has determined that the methane recovery and utilization system
activities under this categorical exclusion, when subject to the
proposed limitations, would not have the potential to cause significant
impacts because (1) these are modifications to existing waste disposal
or treatment facilities, and thus generally involve no more than minor
changes to facility footprints and do not involve major new
construction, and (2) these modifications generally would improve
operating efficiency (e.g., making use of otherwise waste gas for
energy production at existing facilities) and thus would be designed to
lessen potential impacts. Such activities also may serve to lessen
potential air emissions impacts when compared to electricity generated
by fossil fuel (e.g., coal) sources. DOE has proposed limitations for
this categorical exclusion to ensure that any project that may result
in a significant increase in quantity or rate of air emissions would be
outside the scope of the categorical exclusion.
B5.22 Alternative Fuel Vehicle Fueling Stations
DOE proposes a new categorical exclusion for the installation,
modification, operation, and removal of fueling stations for compressed
natural gas, hydrogen, ethanol or other commercially available biofuels
that are located on the site of a current or former fueling station, or
in a previously disturbed or developed area controlled by the owner of
the existing facility and vehicle fleet the station is meant to
service. The actions listed in this proposed categorical exclusion are
consistent with categorical exclusion determinations DOE has made based
on existing regulations for alternative fuel vehicle fueling
technologies and an EA and FONSI prepared by DOE. (See the Technical
Support Document.)
DOE has determined that the alternative vehicle fueling system
activities under this categorical exclusion, when subject to proposed
limitations, would not have the potential to cause significant impacts
because these are systems located at existing stations, or on
previously developed or disturbed land, and thus generally involve no
more than minor changes to facility footprints and do not involve major
new construction. These systems would support the operation and use of
alternative fuel vehicles (e.g., providing the fueling infrastructure
necessary to support the use of vehicles run on alternative fuels).
Such activities also may serve to lessen potential air emissions
impacts when compared to traditional fossil fuel combustion engine
vehicles.
B5.23 Electric Vehicle Charging Stations
DOE proposes a new categorical exclusion for the installation,
modification, operation, and removal of electric vehicle stations
within a previously disturbed or developed area. The actions listed in
this proposed categorical exclusion are consistent with categorical
exclusion determinations DOE has made based on existing regulations.
DOE has determined that the electric vehicle charging station
activities under this categorical exclusion, when subject to proposed
limitations, would not have the potential to cause significant impacts
because these are systems located on previously developed or disturbed
land, and thus generally do not involve major new construction. These
systems would support the use of electric vehicles (e.g., providing
infrastructure necessary to support current and future use of electric
vehicles). Such activities also may serve to lessen potential air
emissions impacts when compared to traditional fossil fuel combustion
engine vehicles.
B5.24 Drop-in Hydroelectric Systems
DOE proposes a new categorical exclusion for the installation,
modification, operation, and removal of commercially available small-
scale, drop-in, run-of-the-river hydroelectric systems where there
would not be the potential for significant impacts to threatened and
endangered species or significant impacts on water quality,
temperature, flow, or volume.
The term ``run-of-the-river'' as used in this categorical exclusion
refers to hydroelectric systems that would be fully dependent on the
natural flow of the river or stream at the point of system
installation; would have no water storage, such as in an impoundment;
and would involve no water diversion from the stream or river. The term
``drop-in'' refers to prefabricated systems that are placed in a river
or stream, not systems that are constructed in a river or stream such
as a dam. Under this categorical exclusion, DOE envisions small
turbines placed in a stream or river for small operations, where all
energy would likely be consumed on-site (e.g., for a home, ranch, or
other small commercial operation) and unlikely to be put on the
commercial grid. Hydroelectric systems capable of producing electricity
for the commercial grid would likely be secured in a channel (requiring
the use of heavy equipment), may require channel modification, and may
have a potential to significantly affect fish, wildlife, habitat, and
water flow and quality; these systems would be excluded from the scope
of this categorical exclusion. The actions listed in this proposed
categorical exclusion are consistent with the opinions of subject
matter experts, including fish biologists with regulatory and fisheries
management experience. (See the Technical Support Document.)
DOE has determined that the activities under this categorical
exclusion would not have the potential to cause significant impacts
when subject to the proposed limitations: involve no water storage or
water diversion; be located only in areas upstream of a natural
anadromous fish barrier (such as a waterfall that has historically
prevented anadromous fish passage); and involve no major construction,
modification of stream or river channels, or the use of heavy
equipment. Projects in the scope of this categorical exclusion
generally support adjacent uses with a renewable source of direct
electricity production. Such activities also may serve to lessen
potential air emissions impacts when compared to traditional systems
where electrical energy is generated by fossil fuel sources.
DOE is particularly interested in receiving comments on this
categorical exclusion.
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B5.25 Small-Scale Renewable Energy Research and Development and Pilot
Projects in Salt Water and Freshwater Environments
DOE proposes to create a new categorical exclusion for small-scale
renewable energy research and development and pilot projects in salt
water and freshwater environments. Research with respect to wave or
tidal energy or the growth and harvest of algae as biomass for proof of
concept purposes would be appropriate projects in this class of
actions. However, as with B3.16, DOE proposes to impose similar limits
on the scope and location of the activities to ensure that renewable
energy research is conducted in a manner that would not have the
potential to cause significant impacts. These actions are consistent
with categorical exclusion determinations DOE has made based on
existing regulations, EAs and FONSIs prepared by other Federal
agencies, and the opinions of subject matter experts. (See the
Technical Support Document.)
DOE proposes specifically to exclude the construction or
installation of permanent facilities or devices and to exclude the
drilling of wells for resource exploration or extraction. In addition,
DOE has included several limits on the type, scope, and location of
covered actions to protect the aquatic environment from potential
significant impacts.
DOE proposes to limit the covered actions in this categorical
exclusion through the following conditions. Covered actions under this
categorical exclusion would be conducted in accordance with, where
applicable, an approved spill prevention, control, and response plan,
and would incorporate appropriate control technologies and best
management practices. Furthermore, none of the above activities would
occur (1) within areas of hazardous natural bottom conditions, or (2)
within the boundary of an established marine sanctuary or wildlife
refuge, a governmentally proposed marine sanctuary or wildlife refuge,
or a recognized area of high biological sensitivity, or outside those
areas if the activities would have the potential to cause significant
impacts within those areas. Additionally, no permanent facilities or
devices would be constructed or installed. The categorical exclusion
also lists other factors, specific to aquatic environments, to be
considered by proponents of covered actions before applying this
categorical exclusion to ensure that the activities would not have the
potential to have significant impacts.
DOE is particularly interested in receiving comments on this
categorical exclusion.
Categorical Exclusions Applicable to Environmental Restoration and
Waste Management Activities (B6)
B6.1 Cleanup Actions
DOE proposes to remove the specified limit of 5 years duration for
categorically excluded short-term, small-scale cleanup actions because
in DOE's experience that duration has not been representative of the
potential for significant environmental impacts. DOE proposes to retain
a specified limit to cost, but to raise the limit from approximately $5
million to approximately $10 million, in light of the fact that this
cost limitation has not been revised since 1996. DOE also proposes to
add encapsulation, physical or chemical separation, and compaction to
the examples of treatment methods. DOE proposes to change the text of
the categorical exclusion from ``would not affect future groundwater
remediation'' to ``would not unduly limit future groundwater
remediation'' because a literal reading of the existing categorical
exclusion would bar its use if there were any affect on future
groundwater remediation.
DOE is particularly interested in receiving comments on the
proposed revisions to this categorical exclusion.
B6.7 [Removed and Reserved: Granting/Denying Petitions for Allocation
of Commercial Disposal Capacity]
Existing B6.7 refers to a DOE regulation that was repealed in 1995.
That regulation implemented a provision of the Low-Level Radioactive
Waste Policy Amendments Act of 1985, which is no longer in effect.
Therefore, DOE proposes deleting this categorical exclusion, marking
B6.7 as ``removed and reserved'' in the regulations.
B6.10 Upgraded or Replacement Waste Storage Facilities
DOE proposes to identify ``expansion'' as within the scope of this
categorical exclusion, which limits total facility size to 50,000
square feet.
F. Proposed Changes to Appendix C
For an explanation of recurring proposals applicable to the
appendix C classes of actions, please see Section IV.B, Recurring
Proposals, above, where they are discussed and the particular classes
of actions affected are listed. The short titles listed below for
particular classes of actions reflect DOE's proposed titles.
C2 [Removed and Reserved: Rate Increases More Than Inflation, Not Power
Marketing]
DOE proposes to delete EA class of actions C2 because DOE has not
prepared an EA and FONSI under C2.
C4 Upgrading, Rebuilding, or Construction of Electric Transmission
Lines
DOE proposes changes to this class of actions to conform to the
changes DOE is proposing for categorical exclusions B4.12 and B4.13.
Proposed changes to C4 would address electric transmission lines of
lengths greater than those to which categorical exclusions might apply.
C7 Contracts, Policies, and Marketing and Allocation Plans for Electric
Power
DOE proposes changes to this class of actions to conform to the
changes DOE has proposed for categorical exclusion B4.1. This provision
addresses the establishment and implementation of contracts, policies,
and marketing and allocation plans related to electric power
acquisition or transmission that involve (1) the interconnection of, or
acquisition of power from, new generation resources that are equal to
or less than 50 average megawatts and that would not be eligible for
categorical exclusion under 10 CFR part 1021; (2) changes in the normal
operating limits of generation resources equal to or less than 50
average megawatts; or (3) service to discrete new loads of less than 10
average megawatts over a 12-month period. DOE also proposes to delete
the description that implies that this class of actions applies only to
DOE power marketing operations and facilities at DOE sites.
DOE is particularly interested in receiving comments on the
proposed revisions to this provision.
C8 Protection of Cultural Resources and Fish and Wildlife Habitat
DOE proposes changes to this class of actions to conform to the
changes DOE is proposing for categorical exclusion B1.20. Proposed
changes to C8 would address large-scale activities undertaken to
protect cultural resources.
C11 Particle Acceleration Facilities
DOE proposes to change the parameters for when an EA would normally
be required to conform to the changes DOE is proposing for categorical
exclusion B3.10. Whether an EA would normally be required would depend
upon the energy associated with the particle acceleration facility.
[[Page 234]]
C12 Energy System Demonstration Actions
DOE proposes changes to this class of actions to conform to the
changes DOE is proposing for categorical exclusion B3.6. Proposed
changes to C12 would address ``demonstration actions,'' which are
outside the scope of B3.6.
C13 Import or Export Natural Gas Involving Minor New Construction
DOE proposes changes for consistency with categorical exclusions
B5.7 and B5.8.
G. Proposed Changes to Appendix D
For an explanation of recurring proposals applicable to the
appendix D classes of actions, please see Section IV.B, Recurring
Proposals, above, where they are discussed and the particular classes
of actions affected are listed. The short titles listed below for
particular classes of actions reflect DOE's proposed titles.
D5 [Removed and Reserved: Main Transmission System Additions]
D6 [Removed and Reserved: Integrating Transmission Facilities]
DOE proposes deleting D5, Main transmission system additions, and
D6, Integrating transmission facilities, because there is redundancy
and ambiguity between D5 and D6 that makes them of limited utility.
Furthermore, there is overlap between D5 (addition of new lines) and C4
(construction of new lines) in the current regulations, which makes it
difficult to discern which category is appropriate for a specific
project. DOE also proposes not to have EIS categories that correspond
to the categorical exclusions and the EA class of actions that address
the level of NEPA review for electric transmission facilities and lines
(B4.11, B4.12, B4.13, and C4). Based on DOE experience, the level of
NEPA review for transmission facilities and lines that are not
categorically excluded is at least at an EA level, but does not
necessarily warrant an EIS level. DOE has found that the determination
whether an EA or an EIS is appropriate is project-specific (e.g., type
and size of facility) and site-specific (e.g., site conditions, other
facilities and lines in the area, or the proximity of residences).
Working with its stakeholders, DOE has often successfully mitigated
potentially significant impacts so that an EA level of review is often
adequate. In those cases where an EA is not applicable, DOE completes
an EIS, and the lack of an EIS category in this proposed rulemaking
does not preclude such action in the future. (See the Technical Support
Document.)
DOE is particularly interested in receiving comments on these
provisions.
D7 Contracts, Policies, and Marketing and Allocation Plans for Electric
Power
DOE proposes changes to this class of actions to conform to changes
that DOE is proposing for both categorical exclusion B4.1 and the EA
class of actions C7. This provision addresses establishment and
implementation of contracts, policies, and marketing and allocation
plans related to electric power acquisition or transmission that
involve (1) the interconnection of, or acquisition of power from, new
generation resources greater than 50 average megawatts; (2) changes in
the normal operating limits of generation resources greater than 50
average megawatts; or (3) service to discrete new loads of 10 average
megawatts or more over a 12-month period. DOE also proposes to delete
the description that implies that this class of actions applies only to
its power marketing operations and facilities at its sites.
DOE is particularly interested in receiving comments on the
proposed revisions to this provision.
D8 Import or Export of Natural Gas Involving Major New Facilities
DOE proposes changes for consistency with categories B5.7, B5.8,
and C13.
D9 Import or Export of Natural Gas Involving Major Operational Change
DOE proposes changes for consistency with categories B5.7, B5.8,
and C13.
V. General Comments Received in Response to the December 2009 Request
for Information
DOE reviewed and evaluated each of the suggestions provided by the
11 respondents to its December 2009 Request for Information, as
discussed above in Section II. Many of the comments included proposals
for new categorical exclusions and revisions to limit or expand
existing categorical exclusions, or were related to other existing
provisions in subpart D of the DOE NEPA regulations. In addition to
comments related to specific provisions, which are discussed above in
Section IV.C through IV.G, DOE received comments of a more general
nature, not associated with a particular provision. These comments and
DOE's responses are presented below.
Categorical exclusions, generally. In its Request for Information,
DOE described categorical exclusions as categories of actions that
normally do not have the potential, individually or cumulatively, to
have a significant effect on the ``human environment.'' One commentor
expressed a concern that DOE focused too narrowly on the human
environment and ``seems to miss the true purpose of the NEPA process.''
In addition, a commentor stated that the DOE categorical exclusion
process should ``explicitly include recognition of the Department's
trust and trustee duties and responsibilities that ensure actions
evaluated for categorical exclusion do not adversely impact the
environment or violate these responsibilities.'' DOE's characterization
of a categorical exclusion in its Request for Information is consistent
with the definition of categorical exclusion in the CEQ NEPA
regulations (40 CFR 1508.4), and DOE applies the comprehensive
interpretation of ``human environment'' as defined in the CEQ NEPA
regulations (40 CFR 1508.14) ``to include the natural and physical
environment and the relationship of people with that environment.''
Land transfers. A commentor stated that DOE should not use a
categorical exclusion when land transfers have the potential to impact
Tribal Nations' rights, uses, or historical, religious or cultural
assets, or DOE should ensure that those rights are preserved and that
there is adequate government-to-government consultation.
DOE conducts its government-to-government consultations with Tribal
Nations in accordance with its American Indian Tribal Government
Policy, as outlined in DOE Order 1230.2. With respect to Federally
recognized Indian Tribe interests, also see Section IV.E for a
discussion of appendix B(4) conditions that are integral elements of
appendix B categorical exclusions.
Land and water contaminated with radioactive and/or hazardous
materials. A commentor noted that many of DOE's facilities, and the
land and water beneath these facilities, are contaminated with
radioactive and/or hazardous materials. The commentor stated that DOE
should not allow for the transfer or lease of contaminated facilities
and land through a categorical exclusion. DOE is proposing changes to
DOE's land transfer-related categorical exclusions. Proposed
categorical exclusions B1.24 and B1.25 pertain to the transfer, lease,
disposition, or acquisition of interests (personal property and real
property). Both proposed B1.24 and B1.25 contain limitations such that
they may not be applied if there is a ``potential for release of
substances at a level, or in a form, that could pose a threat to public
health
[[Page 235]]
and the environment.'' For further information, see the detailed
discussion of proposed changes to A7, B1.24, and B1.25 in Section IV.D
and IV.E, above.
Construction and operation of facilities. A commentor stated that
``most construction of facilities (even temporary)'' should not be
performed under a categorical exclusion. Construction and operation
under the Department's existing and proposed categorical exclusions are
limited to certain types of small-scale facilities that DOE has
determined would not have potential to cause significant impacts when
the conditions specified in the categorical exclusion and the integral
elements in appendix B(4) are considered. Under DOE's existing NEPA
regulations these include, for example, support buildings (such as
cafeterias), small-scale wastewater and surface water treatment
facilities, and microwave and communications towers. DOE is now
proposing to add recycling drop-off stations and small-scale
educational facilities to that list. DOE has determined that, absent
extraordinary circumstances, these types of actions are appropriately
categorically excluded.
Mitigation actions. A commentor stated that mitigation actions,
such as reseeding and revegetation, should not conflict with existing
mitigation, restoration, and preservation activities or exacerbate
environmental contamination, and that DOE's procedures for categorical
exclusion determinations should include a checklist to ensure that the
potential for such conflicts is considered in applying a categorical
exclusion. DOE's existing and proposed categorical exclusion
regulations require determinations that there are no extraordinary
circumstances related to the proposal that may affect the significance
of the proposal's environmental effects. The regulations also require
that the proposal not be connected to other actions with significant
impacts or related to other actions with cumulatively significant
impacts. DOE believes that these existing procedures adequately address
this concern.
Rulemaking process. A commentor stated that DOE should distribute
draft categorical exclusion determinations and supporting documents to
those who have specific interests or oversight responsibilities for DOE
sites, providing a 30-day comment period. DOE respectfully disagrees
with this proposal. Such a process would be counter to the purpose of a
categorical exclusion, which is to expedite the environmental review
process for proposed actions that normally do not require more resource
intensive EAs or EISs. Before an agency can establish a categorical
exclusion, however, an agency is required to provide an opportunity for
public review of those actions that it intends to exclude. Through the
publication of this notice of proposed rulemaking, DOE is providing its
proposed changes to the public and providing an opportunity for public
review and comment. Additionally, DOE is required to consult with CEQ
on conformity of the proposed categorical exclusions with NEPA and the
CEQ NEPA implementing procedures.
A commentor requested that DOE's December 2009 Request For
Information ``not be used to remove types of projects that are
currently required to perform an EA or EIS.'' As discussed further in
Section IV.G, DOE is proposing to remove two classes of actions that
are now listed as normally requiring an EIS, D5, Main transmission
system additions, and D6, Integrating transmission facilities. DOE has
found that, for the most part, it has been able to mitigate impacts
such that those impacts are not significant. DOE is proposing to remove
one EA class of actions (C2, Rate increases more than inflation, not
power marketing). DOE has not been able to identify any proposed action
that has been included in that class of actions.
New technologies. A commentor requested that ``if the effects of
new technologies in the private and public sectors are going to
influence'' the proposed categorical exclusions, the technologies and
their impacts must be fully explained. DOE has based its proposed
categorical exclusions on its previous NEPA reviews, expert advice,
categorical exclusions of other Federal agencies, and private sector
experience, and it has explained the basis for its proposed decisions
both here and in the Technical Support Document.
Geothermal. A commentor requested that no further regulations be
promulgated that would make it more difficult to obtain permitting for
the installation of geothermal wells. The commentor also emphasized the
``tremendous energy savings'' provided by geothermal heat pumps for
heating and cooling buildings.
DOE currently has an existing categorical exclusion, B3.7, for the
siting, construction, and operation of new infill exploratory and
experimental (test) wells, including geothermal wells, drilled in a
geological formation that has existing operating wells. Although DOE is
proposing to add certain restrictions, DOE does not believe these
changes would make the permitting process for geothermal wells more
difficult. In addition, DOE is proposing a new categorical exclusion,
B5.19, for the installation, modification, operation, and removal of
commercially available small-scale ground source heat pumps to support
operations in single facilities or contiguous facilities. (See
discussion of B3.7 and B5.19 in Section IV.E, above.)
Renewable energy projects. A commentor suggested that DOE adopt a
``fast-track'' review process for renewable energy projects, similar to
a process that the Bureau of Land Management, an agency within the
Department of the Interior, has adopted. DOE is a cooperating agency
with the Bureau of Land Management on several of its EISs for renewable
energy proposals (for example, for proposals for which an application
for a loan guarantee has been submitted to DOE), and is familiar with
the Bureau's process. In other cases, DOE's Program Offices (for
example, the Office of Electricity Delivery and Energy Reliability, the
Loan Program Office, and Bonneville Power Administration) work as
expeditiously as possible on NEPA and other necessary reviews (such as
electric system reliability review and financial review) needed before
project approval. Part of DOE's aim in proposing updates to its
categorical exclusions is to expedite the environmental review process
for proposals that normally do not require more resource intensive EAs
or EISs. DOE's proposed new categorical exclusions include (1) eight
specifically for installation, modification, operation, and removal of
commercially available renewable energy technologies (as listed in the
proposed categorical exclusions B5.16 to B5.22, inclusive, and B5.24)
and (2) small-scale renewable energy research and development and pilot
projects (B5.15 and B5.25). DOE expects that the use of these
categorical exclusions will allow for more expeditious NEPA review for
projects that fit within the classes of actions.
Biofuels production projects. A commentor suggested that DOE
categorically exclude new biofuels production projects, ``provided that
certain conditions are met with respect to air and water emissions,
water consumption and other high-level considerations.'' At this time,
DOE is not proposing a categorical exclusion for commercial-scale
biofuels production projects. First, the Department conducted a survey
of Federal agencies' NEPA regulations and did not identify existing (or
proposed) categorical exclusions for new commercial biofuels projects
that could guide DOE in proposing an appropriate scope for such
[[Page 236]]
a category. Second, a Notice of Funds Availability published by the
U.S. Department of Agriculture's Rural Business Cooperative Service
regarding new construction and retrofitting of advanced biofuels
facilities (non-corn ethanol) concluded that such facilities would not
meet the classification of a categorical exclusion (75 FR 25076; May 6,
2010). DOE, nevertheless, is requesting input from the public as to
whether a categorical exclusion for commercial-scale biofuel production
projects would be appropriate, and, if so, what limits might be
applicable (for example, throughput and operation parameters).
Consistency among Federal and State categorical exclusions. A
commentor suggested that DOE should work with States to create
consistency among Federal and State categorical exclusions because
there is a disconnect between what the Federal government categorically
excludes under NEPA and what States exclude under their environmental
review provisions. DOE develops its categorical exclusions based on
classes of actions it has identified that do not individually or
cumulatively have a significant effect on the environment based on
actions it has considered nationwide. DOE does not have any involvement
in how a State assigns particular classes of actions to a particular
level of environmental review. However, States have the opportunity to
comment on an agency's proposed categorical exclusions and associated
administrative records and also to consider whether to change their own
categorical exclusions or other implementing procedures based on a
Federal agency's exclusions. DOE welcomes comments from States on DOE's
categorical exclusions and, in particular, as to a State's experience
with similar exclusions.
Evaluation of greenhouse gases. A commentor noted that CEQ had
stated that it sees no basis for excluding greenhouse gases from NEPA
jurisdiction. The commentor suggested that DOE have additional
categorical exclusions ``to protect against abuse of this expansive new
jurisdiction by entities seeking to stop or stall projects.'' In
proposing 20 new categorical exclusions and modifying others to promote
efficiency in the NEPA process while ensuring protection of the
environment, DOE has considered the potential for significant
environmental impacts, including potential impacts from greenhouse gas
emissions. DOE's approach in this regard is consistent with draft
guidance issued in February 2010 by CEQ, Consideration of the Effects
of Climate Change and Greenhouse Gas Emissions (http://ceq.hss.doe.gov/nepa/regs/Consideration_of_Effects_of_GHG_Draft_NEPA_Guidance_FINAL_02182010.pdf). The draft guidance states, ``In many cases, the
[greenhouse gas] emissions of the proposed action may be so small as to
be a negligible consideration. Agency NEPA procedures may identify
actions for which [greenhouse gas] emissions and other environmental
effects are neither individually or cumulatively significant. 40 CFR
1507.3.'' The draft guidance further states that, in proposing that the
NEPA process incorporate consideration of both the impact of an agency
action on the environment through the mechanism of greenhouse gas
emissions and the impact of changing climate on that agency action,
``This is not intended as a `new' component of NEPA analysis, but
rather as a potentially important factor to be considered within the
existing NEPA framework.''
Level of involvement necessary to require a NEPA review (or
``Federal handle''). A commentor requested that DOE provide guidance on
the level of Federal involvement necessary to categorize a project as
``Federal,'' thereby triggering an environmental review under NEPA.
Specifically, the commentor suggested that DOE consider setting a
minimum threshold of 10% of the overall project budget as a funding
level that would trigger NEPA, and further, that only Federal funds
actually allocated to the project should be counted (that is, budgeted
or anticipated funds should be excluded in determining the level of
Federal financing). The commentor requested that factors be specified
to help determine what level of Federal control or involvement is
needed for NEPA to be triggered.
In determining whether an action constitutes a major Federal action
for purposes of NEPA, DOE considers the degree of Federal control over
or involvement in a project. As part of this consideration, DOE
examines the total amount and percentage of Federal funding among other
factors. In many cases, the fact that Federal government funding is in
the range of 10 percent (or less) of total project costs will make the
percentage of Federal funding an important factor in finding that an
action is not a major Federal action. These are essentially the same
factors suggested by the commentor. DOE also may consider other factors
specific to the proposed action at issue. DOE finds this case-by-case
approach workable and consistent with applicable precedent and does not
propose to establish specific criteria through this proposed rulemaking
for determining whether a proposed action constitutes a major Federal
action.
Uranium mineral activities. A commentor, noting interest in uranium
mineral exploration, development, and reclamation activities on DOE
uranium leases in Western Colorado, stated that ``activities related to
mining and mineral exploration on Department of Energy mineral leases
should remain barred from categorical exclusion.'' DOE's proposed
revisions to the Department's NEPA regulations would not allow
categorical exclusion of uranium mineral development. However, under
certain conditions, some exploration and reclamation actions could be
categorically excluded under DOE's existing and proposed categorical
exclusions, such as, categorical exclusion B3.1, Site characterization
and environmental monitoring, and categorical exclusion B6.1, Cleanup
actions.
Cost parameters for environmental review under NEPA. A commentor
suggested that the estimated cost of a project be factored into the
categorical exclusion process. Specifically, the commentor suggested
that DOE establish an upper limit of $25 million (estimated cost) for a
proposed action that can be categorically excluded and a lower limit of
$100 million (estimated cost) over which a proposed action requires an
EIS. DOE has determined that cost is generally not a reliable indicator
of environmental impacts and is not proposing to establish general cost
parameters to dictate the level of NEPA review in its regulations. One
exception is categorical exclusion B6.1, which contains a cost limit
for small-scale, short-term cleanup actions. See discussion of B6.1 in
Section IV.E above.
VI. Procedural Requirements
A. Review Under Executive Order 12866
Today's proposed rule has been determined to be a significant
regulatory action under Executive Order 12866, ``Regulatory Planning
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action
was subject to review under that Executive Order by the Office of
Information and Regulatory Affairs (OIRA) of the Office of Management
and Budget (OMB).
B. Review Under National Environmental Policy Act
In this proposed rule, DOE proposes amendments that establish,
modify, and clarify procedures for considering the environmental
effects of DOE actions within DOE's decisionmaking process,
[[Page 237]]
thereby enhancing compliance with the letter and spirit of NEPA. DOE
has determined that this proposed rule qualifies for categorical
exclusion under 10 CFR part 1021, subpart D, appendix A6, because it is
a strictly procedural rulemaking and no extraordinary circumstances
exist that require further environmental analysis. Therefore, DOE has
determined that promulgation of these amendments is not a major Federal
action significantly affecting the quality of the human environment
within the meaning of NEPA, and does not require an EA or an EIS.
C. Review Under Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process (68 FR 7990). DOE has made its
procedures and policies available on the Office of General Counsel's
Web site: http://gc.doe.gov.
DOE has reviewed today's proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. The proposed revisions to 10 CFR part 1021
streamline the environmental review for proposed actions, resulting in
a decrease in burdens associated with carrying out such reviews. For
example, the proposed revisions are expected to reduce in aggregate the
number of EAs that DOE is required to prepare, thus reducing the burden
on applicants to prepare an EA for DOE's consideration, pay for the
preparation of an EA, and/or provide environmental information for
DOE's use in preparing an EA. During the past 10 years, DOE has
completed approximately 30 EAs per year. The number of EAs completed
each year has not varied significantly. However, in 2010, DOE expects
to complete more than 75 EAs which reflect an increase in the number of
proposed projects as a result of the American Recovery and Reinvestment
Act. DOE expects the number of EAs it prepares after 2010 will be
closer to historical norms. The cost per EA has ranged from $3,000 to
$630,000; the average and median cost has been $100,000 and $65,000,
respectively. DOE expects that although the number of EAs it prepares
annually could increase in response to recent emphasis on certain
program areas, such as renewable energy technologies, proposed new
categorical exclusions in these areas would reduce the number of EAs
that might otherwise be required. In addition, the costs of making a
categorical exclusion determination are less than those to prepare an
EA. DOE estimates that DOE's administrative costs for research, staff
time, and Web-posting for a categorical exclusion determination would
most likely be less than $2,000 on average. Applicants may sometimes
incur costs in providing environmental information DOE requires when
making a categorical exclusion determination. While DOE does not have
data on such applicant costs, DOE estimates that such costs would be
similar to DOE's costs for a categorical exclusion determination, and
much less than the cost of a typical EA. Although the number of EAs
that would be avoided and the associated costs saved by applicants is
uncertain, the proposed revisions are expected to result in a net
decrease in environmental review costs and thus, are expected to have a
beneficial cost impact. DOE estimates that approximately 15 percent of
the EAs prepared in the last 10 years were funded by applicants, while
the other 85 percent were funded by DOE. Although DOE does not have
data on what percentage of those applicants qualified as small
entities, a beneficial cost impact is expected to be felt by entities
of all sizes.
On the basis of the foregoing, DOE tentatively certifies that this
proposed rule would not have a significant economic impact on a
substantial number of small entities. Accordingly, DOE has not prepared
a regulatory flexibility analysis for this proposed rulemaking. DOE's
certification and supporting statement of factual basis will be
provided to the Chief Counsel for Advocacy of the Small Business
Administration pursuant to 5 U.S.C. 605(b).
D. Review Under Paperwork Reduction Act
This proposed rulemaking will impose no new information or record-
keeping requirements. Accordingly, OMB clearance is not required under
the Paperwork Reduction Act. (44 U.S.C. 3501 et seq.)
E. Review Under Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires Federal agencies to examine closely the impacts of regulatory
actions on State, local, and Tribal governments. Subsection 101(5) of
title I of that law defines a Federal intergovernmental mandate to
include any regulation that would impose upon State, local, or Tribal
governments an enforceable duty, except a condition of Federal
assistance or a duty arising from participating in a voluntary Federal
program. Title II of that law requires each Federal agency to assess
the effects of Federal regulatory actions on State, local, and Tribal
governments, in the aggregate, or to the private sector, other than to
the extent such actions merely incorporate requirements specifically
set forth in a statute. Section 202 of that title requires a Federal
agency to perform a detailed assessment of the anticipated costs and
benefits of any rule that includes a Federal mandate which may result
in costs to State, local, or Tribal governments, or to the private
sector, of $100 million or more in any one year (adjusted annually for
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title
requires each agency that proposes a rule containing a significant
Federal intergovernmental mandate to develop an effective process for
obtaining meaningful and timely input from elected officers of State,
local, and Tribal governments. 2 U.S.C. 1534.
The proposed rule would amend DOE's existing regulations governing
compliance with NEPA to better align DOE's regulations, particularly
its categorical exclusions, with its current activities and recent
experiences, and update the provisions with respect to current
technologies and regulatory requirements. The proposed rule would not
result in the expenditure by State, local, and Tribal governments in
the aggregate, or by the private sector, of $100 million or more in any
one year. Accordingly, no assessment or analysis is required under the
Unfunded Mandates Reform Act of 1995.
F. Review Under Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule that may affect family
well being. The proposed rule would not have any impact on the autonomy
or integrity of the family as an institution. Accordingly, DOE has
[[Page 238]]
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
G. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999)
imposes certain requirements on agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined this proposed rule and has
determined that it would not preempt State law and would not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
H. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the proposed rule meets the relevant standards of Executive Order
12988.
I. Review Under Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB.
OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
DOE has reviewed today's proposed rule under the OMB and DOE guidelines
and has concluded that it is consistent with applicable policies in
those guidelines.
J. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001) requires Federal agencies to prepare and submit to OMB a
Statement of Energy Effects for any proposed significant energy action.
A ``significant energy action'' is defined as any action by an agency
that promulgated or is expected to lead to promulgation of a final
rule, and that: (1)(i) Is a significant regulatory action under
Executive Order 12866, or any successor order, and (ii) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy; or (2) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use. Today's regulatory
action would not have a significant adverse effect on the supply,
distribution, or use of energy, and is therefore not a significant
energy action. Accordingly, DOE has not prepared a Statement of Energy
Effects.
K. Review Under Executive Order 12630
DOE has determined pursuant to Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights,'' 53 FR 8859 (March 18, 1988), that this proposed rule
would not result in any takings which might require compensation under
the Fifth Amendment to the United States Constitution.
Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of
proposed rulemaking.
List of Subjects in 10 CFR Part 1021
Environmental impact statements.
Issued in Washington, DC, on December 20, 2010.
Scott Blake Harris,
General Counsel.
For the reasons stated in the Preamble, DOE proposes to amend part
1021 of chapter X of title 10 of the Code of Federal Regulations as set
forth below:
PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING
PROCEDURES
1. The authority citation for part 1021 continues to read as
follows:
Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 4321 et seq.; 50
U.S.C. 2401 et seq.
2. Section 1021.311 is amended by revising the first sentence in
paragraph (d) and revising paragraph (f) to read as follows:
Sec. 1021.311 Notice of intent and scoping.
* * * * *
(d) Except as provided in paragraph (f) of this section, DOE shall
hold at least one public scoping meeting as part of the public scoping
process for a DOE EIS. * * *
* * * * *
(f) A public scoping process is optional for DOE supplemental EISs
(40 CFR 1502.9(c)(4)). If DOE initiates a public scoping process for a
supplemental EIS, the provisions of paragraphs (a) through (e) of this
section shall apply.
3. Section 1021.322 is amended by revising the last sentence of
paragraph (f) to read as follows:
Sec. 1021.322 Findings of no significant impact.
* * * * *
(f) * * * A revised FONSI is subject to all provisions of this
section.
4. Section 1021.331 is amended by revising paragraph (b) to read as
follows:
Sec. 1021.331 Mitigation action plans.
* * * * *
(b) In certain circumstances, as specified in Sec. 1021.322(b)(1),
DOE shall also prepare a Mitigation Action Plan for commitments to
mitigations that are essential to render the impacts of the proposed
action not significant.
* * * * *
5. Subpart D is revised to read as follows:
[[Page 239]]
Subpart D--Typical Classes of Actions
Sec.
1021.400 Level of NEPA review.
1021.410 Application of categorical exclusions (classes of actions
that normally do not require EAs or EISs).
Appendix A to Subpart D of Part 1021--Categorical Exclusions
Applicable to General Agency Actions
Appendix B to Subpart D of Part 1021--Categorical Exclusions
Applicable to Specific Agency Actions
Appendix C to Subpart D of Part 1021--Classes of Actions That
Normally Require EAs But Not Necessarily EISs
Appendix D to Subpart D of Part 1021--Classes of Actions That
Normally Require EISs
Sec. 1021.400 Level of NEPA review.
(a) This subpart identifies DOE actions that normally:
(1) Do not require preparation of either an EIS or an EA (are
categorically excluded from preparation of either document) (appendices
A and B to this subpart D);
(2) Require preparation of an EA, but not necessarily an EIS
(appendix C to this subpart D); or
(3) Require preparation of an EIS (appendix D to this subpart D).
(b) Any completed, valid NEPA review does not have to be repeated,
and no completed NEPA documents need to be redone by reasons of these
regulations, except as provided in Sec. 1021.314.
(c) If a DOE proposal is encompassed within a class of actions
listed in the appendices to this subpart D, DOE shall proceed with the
level of NEPA review indicated for that class of actions, unless there
are extraordinary circumstances related to the specific proposal that
may affect the significance of the environmental effects of the
proposal.
(d) If a DOE proposal is not encompassed within the classes of
actions listed in the appendices to this subpart D, or if there are
extraordinary circumstances related to the proposal that may affect the
significance of the environmental effects of the proposal, DOE shall
either:
(1) Prepare an EA and, on the basis of that EA, determine whether
to prepare an EIS or a FONSI; or
(2) Prepare an EIS and ROD.
Sec. 1021.410 Application of categorical exclusions (classes of
actions that normally do not require EAs or EISs).
(a) The actions listed in appendices A and B to this subpart D are
classes of actions that DOE has determined do not individually or
cumulatively have a significant effect on the human environment
(categorical exclusions).
(b) To find that a proposal is categorically excluded, DOE shall
determine the following:
(1) The proposal fits within a class of actions that is listed in
appendix A or B to this subpart D;
(2) There are no extraordinary circumstances related to the
proposal that may affect the significance of the environmental effects
of the proposal. Extraordinary circumstances are unique situations
presented by specific proposals, including, but not limited to,
scientific controversy about the environmental effects of the proposal;
uncertain effects or effects involving unique or unknown risks; and
unresolved conflicts concerning alternative uses of available
resources; and
(3) The proposal has not been segmented to meet the definition of a
categorical exclusion. Segmentation can occur when a proposal is broken
down into small parts in order to avoid the appearance of significance
of the total action. The scope of a proposal must include the
consideration of connected and cumulative actions, that is, the
proposal is not connected to other actions with potentially significant
impacts (40 CFR 1508.25(a)(1)), is not related to other actions with
individually insignificant but cumulatively significant impacts (40 CFR
1508.27(b)(7)), and is not precluded by 40 CFR 1506.1 or Sec. 1021.211
of this part concerning limitations on actions during EIS preparation.
(c) All categorical exclusions may be applied by any organizational
element of DOE. The sectional divisions in appendix B to this subpart D
are solely for purposes of organization of that appendix and are not
intended to be limiting.
(d) A class of actions includes activities foreseeably necessary to
proposals encompassed within the class of actions (such as award of
implementing grants and contracts, site preparation, purchase and
installation of equipment, and associated transportation activities).
(e) Categorical exclusion determinations for actions listed in
appendix B shall be documented and made available to the public by
posting online, generally within two weeks of the determination, unless
additional time is needed in order to review and protect classified
information, ``confidential business information,'' or other
information that DOE would not disclose pursuant to the Freedom of
Information Act (FOIA) (5 U.S.C. 552). Posted categorical exclusion
determinations shall not disclose classified information,
``confidential business information,'' or other information that DOE
would not disclose pursuant to FOIA. (See also 10 CFR 1021.340.)
Appendix A to Subpart D of Part 1021--Categorical Exclusions Applicable
to General Agency Actions
A1 Routine DOE Business Actions
Routine actions necessary to support the normal conduct of DOE
business limited to administrative, financial, and personnel
actions.
A2 Clarifying or Administrative Contract Actions
Contract interpretations, amendments, and modifications that are
clarifying or administrative in nature.
A3 Certain Actions by Office of Hearings and Appeals
Adjustments, exceptions, exemptions, appeals and stays,
modifications, or rescissions of orders issued by the Office of
Hearings and Appeals.
A4 Interpretations and Rulings for Existing Regulations
Interpretations and rulings with respect to existing
regulations, or modifications or rescissions of such interpretations
and rulings.
A5 Interpretive Rulemakings With no Change in Environmental Effect
Rulemakings interpreting or amending an existing rule or
regulation that does not change the environmental effect of the rule
or regulation being amended.
A6 Procedural Rulemakings
Rulemakings that are strictly procedural, including, but not
limited to, rulemaking (under 48 CFR chapter 9) establishing
procedures for technical and pricing proposals and establishing
contract clauses and contracting practices for the purchase of goods
and services, and rulemaking (under 10 CFR part 600) establishing
application and review procedures for, and administration, audit,
and closeout of, grants and cooperative agreements.
A7 [Reserved]
A8 Awards of Certain Contracts
Awards of contracts for technical support services, management
and operation of a government-owned facility, and personal services.
A9 Information Gathering, Analysis, and Dissemination
Information gathering (including, but not limited to, literature
surveys, inventories, site visits, and audits), data analysis
(including, but not limited to, computer modeling), document
preparation (including, but not limited to, conceptual design,
feasibility studies, and analytical energy supply and demand
studies), and information dissemination (including, but not limited
to, document publication and distribution, and classroom training
and informational programs), but not including site
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characterization or environmental monitoring. (See also B3.1 of
appendix B to this subpart.)
A10 Reports and Recommendations on non-DOE Legislation
Reports and recommendations on legislation or rulemaking that
are not proposed by DOE.
A11 Technical Advice and Assistance to Organizations
Technical advice and planning assistance to international,
national, State, and local organizations.
A12 Emergency Preparedness Planning
Emergency preparedness planning activities, including, but not
limited to, the designation of onsite evacuation routes.
A13 Procedural Documents
Administrative, organizational, or procedural Policies, Orders,
Notices, Manuals, and Guides.
A14 Approval of Technical Exchange Arrangements
Approval of technical exchange arrangements for information,
data, or personnel with other countries or international
organizations (including, but not limited to, assistance in
identifying and analyzing another country's energy resources, needs
and options).
A15 International Agreements for Energy Research and Development
Approval of DOE participation in international ``umbrella''
agreements for cooperation in energy research and development
activities that would not commit the U.S. to any specific projects
or activities.
Appendix B to Subpart D of Part 1021--Categorical Exclusions Applicable
to Specific Agency Actions
B. Conditions That Are Integral Elements of the Classes of Actions in
Appendix B
The classes of actions listed below include the following
conditions as integral elements of the classes of actions. To fit
within the classes of actions listed below, a proposal must be one
that would not:
(1) Threaten a violation of applicable statutory, regulatory, or
permit requirements for environment, safety, and health, or similar
requirements of DOE or Executive Orders;
(2) Require siting and construction or major expansion of waste
storage, disposal, recovery, or treatment facilities (including
incinerators), but the proposal may include categorically excluded
waste storage, disposal, recovery, or treatment actions or
facilities;
(3) Disturb hazardous substances, pollutants, contaminants, or
CERCLA-excluded petroleum and natural gas products that preexist in
the environment such that there would be uncontrolled or unpermitted
releases; or
(4) Have the potential to cause significant impacts on
environmentally sensitive resources. An environmentally sensitive
resource is typically a resource that has been identified as needing
protection through Executive Order, statute, or regulation by
Federal, State, or local government, or a Federally recognized
Indian Tribe. An action may be categorically excluded if, although
sensitive resources are present, the action would not have the
potential to cause significant impacts on those resources (such as
construction of a building with its foundation well above a sole-
source aquifer or upland surface soil removal on a site that has
wetlands). Environmentally sensitive resources include, but are not
limited to:
(i) Property (such as sites, buildings, structures, and objects)
of historic, archeological, or architectural significance designated
by Federal, State, or local governments, or a Federally recognized
Indian Tribe, or property determined to be eligible for listing on
the National Register of Historic Places;
(ii) Federally-listed threatened or endangered species or their
habitat (including critical habitat) or Federally-proposed or
candidate species or their habitat (Endangered Species Act); State-
listed endangered or threatened species or their habitat; and
Federally-protected marine mammals and Essential Fish Habitat
(Marine Mammals Protection Act; Magnuson-Stevens Fishery
Conservation and Management Act);
(iii) Floodplains and wetlands (as defined in 10 CFR 1022.4,
``Compliance with Floodplain and Wetland Environmental Review
Requirements: Definitions,'' or its successor);
(iv) Areas having a special designation such as Federally- and
State-designated wilderness areas, national parks, national
monuments, national natural landmarks, wild and scenic rivers, State
and Federal wildlife refuges, scenic areas (such as National Scenic
and Historic Trails or National Scenic Areas), and marine
sanctuaries;
(v) Prime or unique farmland, or other farmland of statewide or
local importance, as defined at 7 CFR 658.2(a), ``Farmland
Protection Policy Act: Definitions,'' or its successor;
(vi) Special sources of water (such as sole-source aquifers,
wellhead protection areas, and other water sources that are vital in
a region); and
(vii) Tundra, coral reefs, or rain forests.
B1. Categorical Exclusions Applicable to Facility Operation
B1.1 Changing Rates and Prices
Changing rates for services or prices for products marketed by
parts of DOE other than Power Marketing Administrations, and
approval of rate or price changes for non-DOE entities, that are
consistent with the change in the implicit price deflator for the
Gross Domestic Product published by the Department of Commerce,
during the period since the last rate or price change.
B1.2 Training Exercises and Simulations
Training exercises and simulations (including, but not limited
to, firing-range training, small-scale and short-duration force-on-
force exercises, emergency response training, fire fighter and
rescue training, and decontamination and spill cleanup training)
conducted under appropriately controlled conditions and in
accordance with applicable requirements.
B1.3 Routine Maintenance
Routine maintenance activities and custodial services for
buildings, structures, rights-of-way, infrastructures (including,
but not limited to, pathways, roads, and railroads), vehicles and
equipment, and localized vegetation and pest control, during which
operations may be suspended and resumed, provided that the
activities would be conducted in a manner in accordance with
applicable requirements. Custodial services are activities to
preserve facility appearance, working conditions, and sanitation
(such as cleaning, window washing, lawn mowing, trash collection,
painting, and snow removal). Routine maintenance activities,
corrective (that is, repair), preventive, and predictive, are
required to maintain and preserve buildings, structures,
infrastructures, and equipment in a condition suitable for a
facility to be used for its designated purpose. Such maintenance may
occur as a result of severe weather (such as hurricanes, floods, and
tornados), wildfires, and other such events. Routine maintenance may
result in replacement to the extent that replacement is in-kind and
is not a substantial upgrade or improvement. In-kind replacement
includes installation of new components to replace outmoded
components, provided that the replacement does not result in a
significant change in the expected useful life, design capacity, or
function of the facility. Routine maintenance does not include
replacement of a major component that significantly extends the
originally intended useful life of a facility (for example, it does
not include the replacement of a reactor vessel near the end of its
useful life). Routine maintenance activities include, but are not
limited to:
(a) Repair or replacement of facility equipment, such as lathes,
mills, pumps, and presses;
(b) Door and window repair or replacement;
(c) Wall, ceiling, or floor repair or replacement;
(d) Reroofing;
(e) Plumbing, electrical utility, lighting, and telephone
service repair or replacement;
(f) Routine replacement of high-efficiency particulate air
filters;
(g) Inspection and/or treatment of currently installed utility
poles;
(h) Repair of road embankments;
(i) Repair or replacement of fire protection sprinkler systems;
(j) Road and parking area resurfacing, including construction of
temporary access to facilitate resurfacing, and scraping and grading
of unpaved surfaces;
(k) Erosion control and soil stabilization measures (such as
reseeding and revegetation);
(l) Surveillance and maintenance of surplus facilities in
accordance with DOE Order 435.1, ``Radioactive Waste Management,''
or its successor;
(m) Repair and maintenance of transmission facilities, such as
replacement
[[Page 241]]
of conductors of the same nominal voltage, poles, circuit breakers,
transformers, capacitors, crossarms, insulators, and downed
transmission lines, in accordance, where appropriate, with 40 CFR
part 761 (Polychlorinated Biphenyls Manufacturing, Processing,
Distribution in Commerce, and Use Prohibitions) or its successor;
(n) Routine testing and calibration of facility components,
subsystems, or portable equipment (such as control valves, in-core
monitoring devices, transformers, capacitors, monitoring wells,
lysimeters, weather stations, and flumes);
(o) Routine decontamination of the surfaces of equipment, rooms,
hot cells, or other interior surfaces of buildings (by such
activities as wiping with rags, using strippable latex, and minor
vacuuming), and removal of contaminated intact equipment and other
material (not including spent nuclear fuel or special nuclear
material in nuclear reactors); and
(p) Removal of debris.
B1.4 Air Conditioning Systems for Existing Equipment
Installation or modification of air conditioning systems
required for temperature control for operation of existing
equipment.
B1.5 Existing Steam Plants and Cooling Water Systems
Minor improvements to existing steam plants and cooling water
systems (including, but not limited to, modifications of existing
cooling towers and ponds), provided that the improvements would not:
(1) Create new sources of water or involve new receiving waters; (2)
have the potential to cause significant impacts on water withdrawals
or the temperature of discharged water; or (3) increase
introductions of, or involve new introductions of, hazardous
substances, pollutants, contaminants, or CERCLA-excluded petroleum
and natural gas products.
B1.6 Tanks and Equipment To Control Runoff and Spills
Installation or modification of retention tanks or small
(normally under one acre) basins and associated piping and pumps for
existing operations to control runoff or spills (such as under 40
CFR part 112). Modifications include, but are not limited to,
installing liners or covers. (See also B1.33 of this appendix.)
B1.7 Electronic Equipment
Acquisition, installation, operation, modification, and removal
of electricity transmission control and monitoring devices for grid
demand and response, communication systems, data processing
equipment, and similar electronic equipment.
B1.8 Screened Water Intake and Outflow Structures
Modifications to screened water intake and outflow structures
such that intake velocities and volumes and water effluent quality
and volumes are consistent with existing permit limits.
B1.9 Airway Safety Markings and Painting
Placement of airway safety markings on, painting of, and repair
and in-kind replacement of lighting on electrical transmission lines
and antenna structures, wind turbines, and similar structures in
accordance with applicable requirements (such as Federal Aviation
Administration standards).
B1.10 Onsite Storage of Activated Material
Routine, onsite storage at an existing facility of activated
equipment and material (including, but not limited to, lead) used at
that facility, to allow reuse after decay of radioisotopes with
short half-lives.
B1.11 Fencing
Installation of fencing, including, but not limited to border
marking, that would not have the potential to cause significant
impacts on wildlife populations or migration or surface water flow.
B1.12 Detonation or Burning of Explosives or Propellants After
Testing
Outdoor detonation or burning of explosives or propellants that
failed (duds), were damaged (such as by fracturing), or were
otherwise not consumed in testing. Outdoor detonation or burning
would be in areas designated and routinely used for those purposes
under existing applicable permits issued by Federal, State, and
local authorities (such as a permit for a RCRA miscellaneous unit
(40 CFR part 264, subpart X)).
B1.13 Pathways, Short Access Roads, and Rail Lines
Construction, acquisition, and relocation, consistent with
applicable right-of-way conditions and approved land use or
transportation improvement plans, of pedestrian walkways and trails,
bicycle paths, small outdoor fitness areas, and short access roads
and rail lines (such as branch and spur lines).
B1.14 Refueling of Nuclear Reactors
Refueling of operating nuclear reactors, during which operations
may be suspended and then resumed.
B1.15 Support Buildings
Siting, construction or modification, and operation of support
buildings and support structures (including, but not limited to,
trailers and prefabricated and modular buildings) within or
contiguous to an already developed area (where active utilities and
currently used roads are readily accessible). Covered support
buildings and structures include, but are not limited to, those for
office purposes; parking; cafeteria services; education and
training; visitor reception; computer and data processing services;
health services or recreation activities; routine maintenance
activities; storage of supplies and equipment for administrative
services and routine maintenance activities; security (such as
security posts); fire protection; small-scale fabrication (such as
machine shop activities), assembly, and testing of non-nuclear
equipment or components; and similar support purposes, but exclude
facilities for nuclear weapons activities and waste storage
activities, such as activities covered in B1.10, B1.29, B1.35, B2.6,
B6.2, B6.4, B6.5, B6.6, and B6.10 of this appendix.
B1.16 Asbestos Removal
Removal of asbestos-containing materials from buildings in
accordance with applicable requirements (such as 40 CFR part 61,
``National Emission Standards for Hazardous Air Pollutants''; 40 CFR
part 763, ``Asbestos''; 29 CFR part 1910, subpart I, ``Personal
Protective Equipment''; and 29 CFR part 1926, ``Safety and Health
Regulations for Construction''; and appropriate State and local
requirements, including certification of removal contractors and
technicians).
B1.17 Polychlorinated Biphenyl Removal
Removal of polychlorinated biphenyl (PCB)-containing items
(including, but not limited to, transformers and capacitors), PCB-
containing oils flushed from transformers, PCB-flushing solutions,
and PCB-containing spill materials from buildings or other
aboveground locations in accordance with applicable requirements
(such as 40 CFR part 761).
B1.18 Water Supply Wells
Siting, construction, and operation of additional water supply
wells (or replacement wells) within an existing well field, or
modification of an existing water supply well to restore production,
provided that there would be no drawdown other than in the immediate
vicinity of the pumping well, and the covered actions would not have
the potential to cause significant long-term decline of the water
table, and would not have the potential to cause significant
degradation of the aquifer from the new or replacement well.
B1.19 Microwave, Meteorological, and Radio Towers
Siting, construction, modification, operation, abandonment, and
removal of microwave, radio communication, and meteorological towers
and associated facilities, provided that the towers and associated
facilities would not be in a governmentally designated scenic area
(see B(4)(iv) of this appendix) unless otherwise authorized by the
appropriate governmental entity.
B1.20 Protection of Cultural Resources, Fish and Wildlife Habitat
Small-scale activities undertaken to protect cultural resources
(such as fencing, labeling, and flagging) or to protect, restore, or
improve fish and wildlife habitat, fish passage facilities (such as
fish ladders and minor diversion channels), or fisheries. Such
activities would be conducted in accordance with an existing natural
or cultural resource plan, if any.
B1.21 Noise Abatement
Noise abatement measures (including, but not limited to,
construction of noise barriers and installation of noise control
materials).
B1.22 Relocation of Buildings
Relocation of buildings (including, but not limited to, trailers
and prefabricated buildings) to an already developed area
[[Page 242]]
(where active utilities and currently used roads are readily
accessible).
B1.23 Demolition and Disposal of Buildings
Demolition and subsequent disposal of buildings, equipment, and
support structures (including, but not limited to, smoke stacks and
parking lot surfaces), provided that there would be no potential for
release of substances at a level, or in a form, that could pose a
threat to public health or the environment.
B1.24 Property Transfers
Transfer, lease, disposition, or acquisition of interests in
personal property (including, but not limited to, equipment and
materials) or real property (including, but not limited to,
permanent structures and land), provided that under reasonably
foreseeable uses (1) there would be no potential for release of
substances at a level, or in a form, that could pose a threat to
public health or the environment and (2) the covered actions would
not have the potential to cause a significant change in impacts from
before the transfer, lease, disposition, or acquisition of
interests.
B1.25 Property Transfers for Cultural Resources Protection, Habitat
Preservation, and Wildlife Management
Transfer, lease, disposition, or acquisition of interests in
land and associated buildings for cultural resources protection,
habitat preservation, or fish and wildlife management, provided that
there would be no potential for release of substances at a level, or
in a form, that could pose a threat to public health or the
environment.
B1.26 Small Water Treatment Facilities
Siting, construction, expansion, modification, replacement,
operation, and decommissioning of small (total capacity less than
approximately 250,000 gallons per day) wastewater and surface water
treatment facilities whose liquid discharges are externally
regulated, and small potable water and sewage treatment facilities.
B1.27 Disconnection of Utilities
Activities that are required for the disconnection of utility
services (including, but not limited to, water, steam,
telecommunications, and electrical power) after it has been
determined that the continued operation of these systems is not
needed for safety.
B1.28 Placing a Facility in an Environmentally Safe Condition
Minor activities that are required to place a facility in an
environmentally safe condition where there is no proposed use for
the facility. These activities would include, but are not limited
to, reducing surface contamination, and removing materials,
equipment or waste (such as final defueling of a reactor, where
there are adequate existing facilities for the treatment, storage,
or disposal of the materials, equipment or waste). These activities
would not include conditioning, treatment, or processing of spent
nuclear fuel, high-level waste, or special nuclear materials.
B1.29 Disposal Facilities for Construction and Demolition Waste
Siting, construction, expansion, modification, operation, and
decommissioning of small (less than approximately 10 acres) solid
waste disposal facilities for construction and demolition waste, in
accordance with applicable requirements (such as 40 CFR part 257,
``Criteria for Classification of Solid Waste Disposal Facilities and
Practices,'' and 40 CFR part 61, ``National Emission Standards for
Hazardous Air Pollutants'') that would not release substances at a
level, or in a form, that could pose a threat to public health or
the environment.
B1.30 Transfer Actions
Transfer actions, in which the predominant activity is
transportation, provided that (1) the receipt and storage capacity
and management capability for the amount and type of materials,
equipment, or waste to be moved already exists at the receiving site
and (2) all necessary facilities and operations at the receiving
site are already permitted, licensed, or approved, as appropriate.
Such transfers are not regularly scheduled as part of ongoing
routine operations.
B1.31 Installation or Relocation of Machinery and Equipment
Installation or relocation and operation of machinery and
equipment (including, but not limited to, laboratory equipment,
electronic hardware, manufacturing machinery, maintenance equipment,
and health and safety equipment), provided that uses of the
installed or relocated items are consistent with the general
missions of the receiving structure. Covered actions include
modifications to an existing building, within or contiguous to a
previously disturbed or developed area, that are necessary for
equipment installation and relocation. Such modifications would not
appreciably increase the footprint or height of the existing
building or have the potential to cause significant changes to the
type and magnitude of environmental impacts.
B1.32 Traffic Flow Adjustments
Traffic flow adjustments to existing roads (including, but not
limited to, stop sign or traffic light installation, adjusting
direction of traffic flow, and adding turning lanes), and road
adjustments (including, but not limited to, widening and
realignment) that are within an existing right-of-way and consistent
with approved land use or transportation improvement plans.
B1.33 Stormwater Runoff Control
Design, construction, and operation of control practices to
reduce stormwater runoff and maintain natural hydrology. Activities
include, but are not limited to, those that reduce impervious
surfaces (such as vegetative practices and use of porous pavements),
best management practices (such as silt fences, straw wattles, and
fiber rolls), and use of green infrastructure or other low impact
development practices (such as cisterns and green roofs).
B1.34 Lead-based Paint
Containment, removal, and disposal of lead-based paint in
accordance with applicable requirements (such as provisions relating
to the certification of removal contractors and technicians at 40
CFR part 745, ``Lead-Based Paint Poisoning Prevention In Certain
Residential Structures'').
B1.35 Drop-off, Collection and Transfer Facilities for Recyclable
Materials
Siting, construction, modification, and operation of recycling
or compostable material drop-off, collection, and transfer stations
on or contiguous to a previously disturbed or developed area and in
an area where such a facility would be consistent with existing
zoning requirements. The stations would have appropriate facilities
and procedures established in accordance with applicable
requirements for the handling of recyclable or compostable materials
and household hazardous waste (such as paint and pesticides). Except
as specified above, the collection of hazardous waste for disposal
and the processing of recyclable or compostable materials are not
included in this class of actions.
B1.36 Determinations of Excess Real Property
Determinations that real property is excess to the needs of DOE
and, in the case of acquired real property, the subsequent reporting
of such determinations to the General Services Administration or, in
the case of lands withdrawn or otherwise reserved from the public
domain, the subsequent filing of a notice of intent to relinquish
with the Bureau of Land Management, Department of the Interior.
Covered actions would not include disposal of real property.
B2. Categorical Exclusions Applicable to Safety and Health
B2.1 Workplace Enhancements
Modifications within or contiguous to an existing structure, in
a previously disturbed or developed area, to enhance workplace
habitability (including, but not limited to, installation or
improvements to lighting, radiation shielding, or heating/
ventilating/air conditioning and its instrumentation, and noise
reduction).
B2.2 Building and Equipment Instrumentation
Installation of, or improvements to, building and equipment
instrumentation (including, but not limited to, remote control
panels, remote monitoring capability, alarm and surveillance
systems, control systems to provide automatic shutdown, fire
detection and protection systems, water consumption monitors and
flow control systems, announcement and emergency warning systems,
criticality and radiation monitors and alarms, and safeguards and
security equipment).
B2.3 Personnel Safety and Health Equipment
Installation of, or improvements to, equipment for personnel
safety and health (including, but not limited to, eye washes,
[[Page 243]]
safety showers, radiation monitoring devices, fumehoods, and
associated collection and exhaust systems), provided that the
covered actions would not have the potential to cause a significant
increase in emissions.
B2.4 Equipment Qualification
Activities undertaken to (1) qualify equipment for use or
improve systems reliability or (2) augment information on safety-
related system components. These activities include, but are not
limited to, transportation container qualification testing, crane
and lift-gear certification or recertification testing, high
efficiency particulate air filter testing and certification, stress
tests (such as ``burn-in'' testing of electrical components and leak
testing), and calibration of sensors or diagnostic equipment.
B2.5 Facility Safety and Environmental Improvements
Safety and environmental improvements of a facility (including,
but not limited to, replacement and upgrade of facility components)
that do not result in a significant change in the expected useful
life, design capacity, or function of the facility and during which
operations may be suspended and then resumed. Improvements include,
but are not limited to, replacement/upgrade of control valves, in-
core monitoring devices, facility air filtration systems, or
substation transformers or capacitors; addition of structural
bracing to meet earthquake standards and/or sustain high wind
loading; and replacement of aboveground or belowground tanks and
related piping, provided that there is no evidence of leakage, based
on testing in accordance with applicable requirements (such as 40
CFR part 265, ``Interim Status Standards for Owners and Operators of
Hazardous Waste Treatment, Storage, and Disposal Facilities'' and 40
CFR part 280, ``Technical Standards and Corrective Action
Requirements for Owners and Operators of Underground Storage
Tanks''). These actions do not include rebuilding or modifying
substantial portions of a facility (such as replacing a reactor
vessel).
B2.6 Recovery of Radioactive Sealed Sources
Recovery of radioactive sealed sources and sealed source-
containing devices from domestic or foreign locations provided that
(1) the recovered items are transported and stored in compliant
containers, and (2) the receiving site has sufficient existing
storage capacity and all required licenses, permits, and approvals.
B3. Categorical Exclusions Applicable to Site Characterization,
Monitoring, and General Research
B3.1 Site Characterization and Environmental Monitoring
Site characterization and environmental monitoring (including,
but not limited to, siting, construction, modification, operation,
and dismantlement and abandonment of characterization and monitoring
devices, and siting, construction, and associated operation of a
small-scale laboratory building or renovation of a room in an
existing building for sample analysis). Such activities would not
have the potential to cause significant impacts from ground
disturbance. Covered activities include, but are not limited to,
site characterization and environmental monitoring under CERCLA and
RCRA. (This class of actions excludes activities in salt water and
freshwater. See B3.16 of this appendix for salt water and freshwater
activities.) Specific activities include, but are not limited to:
(a) Geological, geophysical (such as gravity, magnetic,
electrical, seismic, radar, and temperature gradient), geochemical,
and engineering surveys and mapping, and the establishment of survey
marks. Seismic techniques would not include large-scale reflection
or refraction testing;
(b) Installation and operation of field instruments (such as
stream-gauging stations or flow-measuring devices, telemetry
systems, geochemical monitoring tools, and geophysical exploration
tools);
(c) Drilling of wells for sampling or monitoring of groundwater
or the vadose (unsaturated) zone, well logging, and installation of
water-level recording devices in wells;
(d) Aquifer and underground reservoir response testing;
(e) Installation and operation of ambient air monitoring
equipment;
(f) Sampling and characterization of water, soil, rock, or
contaminants (such as drilling using truck- or mobile-scale
equipment, and modification, use, and plugging of boreholes);
(g) Sampling and characterization of water effluents, air
emissions, or solid waste streams;
(h) Installation and operation of meteorological towers and
associated activities (such as assessment of potential wind energy
resources);
(i) Sampling of flora or fauna; and
(j) Archeological, historic, and cultural resource
identification in compliance with 36 CFR part 800 and 43 CFR part 7.
B3.2 Aviation Activities
Aviation activities for survey, monitoring, or security purposes
that comply with Federal Aviation Administration regulations.
B3.3 Research Related to Conservation of Fish, Wildlife, and
Cultural Resources
Field and laboratory research, inventory, and information
collection activities that are directly related to the conservation
of fish and wildlife resources or to the protection of cultural
resources, provided that such activities would not have the
potential to cause significant impacts on fish and wildlife habitat
or populations or to cultural resources.
B3.4 Transport Packaging Tests for Radioactive or Hazardous
Material
Drop, puncture, water-immersion, thermal, and fire tests of
transport packaging for radioactive or hazardous materials to
certify that designs meet the applicable requirements (such as 49
CFR 173.411 and 173.412 and 10 CFR 71.73).
B3.5 Tank Car Tests
Tank car tests under 49 CFR part 179 (including, but not limited
to, tests of safety relief devices, pressure regulators, and thermal
protection systems).
B3.6 Small-Scale Research and Development, Laboratory Operations,
and Pilot Projects
Siting, construction, modification, operation, and
decommissioning of facilities for small-scale research and
development projects; conventional laboratory operations (such as
preparation of chemical standards and sample analysis); and small-
scale pilot projects (generally less than 2 years) frequently
conducted to verify a concept before demonstration actions, provided
that construction or modification would be within or contiguous to a
previously disturbed or developed area (where active utilities and
currently used roads are readily accessible). For purposes of this
category, ``demonstration actions'' means actions that are
undertaken at a scale to show whether a technology would be viable
on a larger scale and suitable for commercial deployment.
Demonstration actions frequently follow research and development and
pilot projects that are directed at establishing proof of concept.
B3.7 New Terrestrial Infill Exploratory and Experimental Wells
Siting, construction, and operation of new terrestrial infill
exploratory and experimental (test) wells in a locally characterized
geological formation in a field that contains existing operating
wells, properly abandoned wells, or unminable coal seams containing
natural gas, provided that the site characterization has verified a
low potential for seismicity, subsidence, and contamination of
freshwater aquifers, and the actions are otherwise consistent with
applicable best practices and DOE protocols, including those that
protect against uncontrolled releases of harmful materials. Such
wells may include those for brine, carbon dioxide, coalbed methane,
gas hydrate, geothermal, natural gas, and oil. Uses for carbon
sequestration wells include, but are not limited to, the study of
saline formations, enhanced oil recovery, and enhanced coalbed
methane extraction.
B3.8 Outdoor Terrestrial Ecological and Environmental Research
Outdoor terrestrial ecological and environmental research in a
small area (generally less than 5 acres), including, but not limited
to, siting, construction, and operation of a small-scale laboratory
building or renovation of a room in an existing building for
associated analysis, provided that such activities would not have
the potential to cause significant impacts on the ecosystem. These
actions include, but are not limited to, small test plots for
energy-related biomass or biofuels research. Such research may
include the use of genetically engineered plants where the test plot
of such plants and associated activities have been authorized by the
U.S. Department of Agriculture, in accordance with applicable
requirements (such as 7 CFR part 340),
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including the use of any required confinement measures and buffer
zones.
B3.9 Projects To Reduce Emissions and Waste Generation
Projects to reduce emissions and waste generation at existing
fossil or alternative fuel combustion or utilization facilities,
provided that these projects would not have the potential to cause a
significant increase in the quantity or rate of air emissions. For
this category of actions, ``fuel'' includes coal, oil, natural gas,
hydrogen, syngas, and biomass. Neither ``fuel'' nor ``alternative
fuel'' herein includes nuclear fuels. Covered actions include, but
are not limited to:
(a) Test treatment of the throughput product (solid, liquid, or
gas) generated at an existing and fully operational fuel combustion
or utilization facility;
(b) Addition or replacement of equipment for reduction or
control of sulfur dioxide, oxides of nitrogen, or other regulated
substances that requires only minor modification to the existing
structures at an existing fuel combustion or utilization facility,
for which the existing use remains essentially unchanged;
(c) Addition or replacement of equipment for reduction or
control of sulfur dioxide, oxides of nitrogen, or other regulated
substances that involves no permanent change in the quantity or
quality of fuel burned or used and involves no permanent change in
the capacity factor of the fuel combustion or utilization facility;
and
(d) Addition or modification of equipment for capture and
control of carbon dioxide or other regulated substances, provided
that adequate infrastructure is in place to manage such substances.
B3.10 Particle Accelerators
Siting, construction, modification, operation, and
decommissioning of particle accelerators, including electron beam
accelerators, with primary beam energy less than approximately 100
million electron volts (MeV) and average beam power less than
approximately 250 kilowatts (kW), and associated beamlines, storage
rings, colliders, and detectors, for research and medical purposes
(such as proton therapy), and isotope production, within or
contiguous to a previously disturbed or developed area (where active
utilities and currently used roads are readily accessible), or
internal modification of any accelerator facility regardless of
energy, that does not increase primary beam energy or current. In
cases where the beam energy exceeds 100 MeV, the average beam power
must be less than 250 kW, so as not to exceed an average current of
2.5 milliamperes (mA).
B3.11 Outdoor Tests and Experiments on Materials and Equipment
Components
Outdoor tests and experiments for the development, quality
assurance, or reliability of materials and equipment (including, but
not limited to, weapon system components) under controlled
conditions. Covered actions include, but are not limited to, burn
tests (such as tests of electric cable fire resistance or the
combustion characteristics of fuels), impact tests (such as
pneumatic ejector tests using earthen embankments or concrete slabs
designated and routinely used for that purpose), or drop, puncture,
water-immersion, or thermal tests. Covered actions would not involve
source, special nuclear, or byproduct materials, except that
encapsulated sources that contain source, special nuclear, or
byproduct materials may be used for nondestructive actions such as
detector/sensor development and testing and first responder field
training.
B3.12 Microbiological and Biomedical Facilities
Siting, construction, modification, operation, and
decommissioning of microbiological and biomedical diagnostic,
treatment and research facilities (excluding Biosafety Level-3 and
Biosafety Level-4), in accordance with applicable requirements or
best practices (such as Biosafety in Microbiological and Biomedical
Laboratories, 5th Edition, Feb. 2007, U.S. Department of Health and
Human Services, Centers for Disease Control and Prevention, and the
National Institutes of Health) including, but not limited to,
laboratories, treatment areas, offices, and storage areas, within or
contiguous to a previously disturbed or developed area (where active
utilities and currently used roads are readily accessible).
Operation may include the purchase, installation, and operation of
biomedical equipment (such as commercially available cyclotrons that
are used to generate radioisotopes and radiopharmaceuticals, and
commercially available biomedical imaging and spectroscopy
instrumentation).
B3.13 Magnetic Fusion Experiments
Performing magnetic fusion experiments that do not use tritium
as fuel, within existing facilities (including, but not limited to,
necessary modifications).
B3.14 Small-Scale Educational Facilities
Siting, construction, modification, operation, and
decommissioning of small-scale educational facilities (including,
but not limited to, conventional teaching laboratories, libraries,
classroom facilities, auditoriums, museums, visitor centers,
exhibits, and associated offices) within or contiguous to a
previously disturbed or developed area (where active utilities and
currently used roads are readily accessible). Operation may include,
but is not limited to, purchase, installation, and operation of
equipment (such as audio/visual and laboratory equipment)
commensurate with the educational purpose of the facility.
B3.15 Small-Scale Indoor Research and Development Projects Using
Nanoscale Materials
Siting, construction, modification, operation, and
decommissioning of facilities for indoor small-scale research and
development projects and small-scale pilot projects using nanoscale
materials in accordance with applicable requirements (such as
engineering, worker safety, procedural, and administrative
regulations) necessary to ensure the containment of any biohazardous
materials. Construction and modification activities would be within
or contiguous to a previously disturbed or developed area (where
active utilities and currently used roads are readily accessible).
B3.16 Research Activities in Salt Water and Freshwater Environments
Small-scale, temporary surveying, site characterization, and
research activities in salt water and freshwater environments,
limited to:
(a) Acquisition of rights-of-way, easements, and temporary use
permits;
(b) Data collection, environmental monitoring, and
nondestructive research programs;
(c) Resource evaluation activities including surveying and
mapping, but excluding seismic activities other than passive
techniques;
(d) Collection of geological, paleontological, mineralogical,
geochemical, biological, and geotechnical data and samples, but
excluding large-scale vibratory coring techniques;
(e) Installation of monitoring and recording devices;
(f) Installation of equipment for flow testing of existing wells
including equipment for fluid analysis; and
(g) Ecological and environmental research provided that such
activities would not have the potential to cause significant impacts
on the ecosystem.
These activities would be conducted in accordance with, where
applicable, an approved spill prevention, control, and response plan
and would incorporate appropriate control technologies and best
management practices. None of the above activities would occur
within the boundary of an established marine sanctuary or wildlife
refuge, a governmentally proposed marine sanctuary or wildlife
refuge, or a governmentally recognized area of high biological
sensitivity (such as protected areas and other areas of known
ecological importance, whale and marine mammal mating and calving/
pupping areas, and fish and invertebrate spawning and nursery areas
recognized as being limited or unique and vulnerable to
perturbation; these areas can occur in bays, estuaries, near shore,
and far offshore, and may vary seasonally), or outside those areas
if the activities would have the potential to cause significant
impacts within those areas. No permanent facilities or devices would
be constructed or installed. Covered actions do not include drilling
of resource exploration or extraction wells.
B4. Categorical Exclusions Applicable to Power Resources
B4.1 Contracts, Policies, and Marketing and Allocation Plans for
Electric Power
Establishment and implementation of contracts, policies, and
marketing and allocation plans related to electric power acquisition
or transmission that involve only the use of the existing
transmission system and existing generation resources operating
within their normal operating limits.
B4.2 Export of Electric Energy
Export of electric energy as provided by Section 202(e) of the
Federal Power Act over existing transmission systems or using
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transmission system changes that are themselves categorically
excluded.
B4.3 Electric Power Marketing Rate Changes
Rate changes for electric power, power transmission, and other
products or services provided by a Power Marketing Administration
that are based on a change in revenue requirements if the operations
of generation projects would remain within normal operating limits.
B4.4 Power Marketing Services and Activities
Power marketing services and power management activities
(including, but not limited to, storage, load shaping, seasonal
exchanges, and other similar activities), provided that the
operations of generating projects would remain within normal
operating limits.
B4.5 Temporary Adjustments to River Operations
Temporary adjustments to river operations to accommodate day-to-
day river fluctuations, power demand changes, fish and wildlife
conservation program requirements, and other external events,
provided that the adjustments would occur within the existing
operating constraints of the particular hydrosystem operation.
B4.6 Additions and Modifications to Transmission Facilities
Additions or modifications to electric power transmission
facilities that would not have the potential to cause significant
impacts beyond the previously disturbed or developed facility area
(including, but not limited to, switchyard rock grounding upgrades,
secondary containment projects, paving projects, seismic upgrading,
tower modifications, load shaping projects (such as the installation
and use of flywheels and battery arrays), changing insulators, and
replacement of poles, circuit breakers, conductors, transformers,
and crossarms).
B4.7 Fiber Optic Cable
Adding fiber optic cables to transmission facilities or burying
fiber optic cable in existing transmission line or pipeline rights-
of-way. Covered actions may include associated vaults and pulling
and tensioning sites outside of rights-of-way in nearby previously
disturbed or developed areas.
B4.8 Electricity Transmission Agreements
New electricity transmission agreements, and modifications to
existing transmission arrangements, to use a transmission facility
of one system to transfer power of and for another system, provided
that no new generation projects would be involved and no physical
changes in the transmission system would be made beyond the
previously disturbed or developed facility area.
B4.9 Multiple Use of Transmission Line Rights-of-Way
Granting or denying requests for multiple uses of a transmission
facility's rights-of-way (including, but not limited to, grazing
permits and crossing agreements for electric lines, water lines,
natural gas pipelines, communications cables, roads, and drainage
culverts).
B4.10 Removal of Electric Transmission Lines and Substations
Deactivation, dismantling, and removal of electric transmission
facilities (including, but not limited to, electric transmission
lines, substations, and switching stations) and abandonment and
restoration of rights-of-way (including, but not limited to,
associated access roads).
B4.11 Electric Power Substations and Interconnection Facilities
Construction or modification of electric power substations or
interconnection facilities (including, but not limited to, switching
stations and support facilities) that are not for the
interconnection of a new generation resource into a Power Marketing
Administration's transmission system, unless: (1) The new generation
resource would be eligible for categorical exclusion under this part
and (2) the new generation resource would be equal to or less than
50 average megawatts.
B4.12 Construction of Transmission Lines
Construction of electric transmission lines approximately 10
miles in length or less inside or outside of previously disturbed or
developed transmission line or pipeline rights-of-way, or
approximately 20 miles in length or less inside of previously
disturbed or developed transmission line or pipeline rights-of-way,
that are not for the interconnection of a new generation resource
into a Power Marketing Administration's transmission system, unless:
(1) The new generation resource would be eligible for categorical
exclusion under this part and (2) the new generation resource would
be equal to or less than 50 average megawatts.
B4.13 Upgrading and Rebuilding Existing Transmission Lines
Upgrading or rebuilding approximately 20 miles in length or less
of existing electric transmission lines, which may involve minor
relocations of small segments of the transmission lines, that is not
for the interconnection of a new generation resource into a Power
Marketing Administration's transmission system, unless: (1) The new
generation resource would be eligible for categorical exclusion
under this part and (2) the new generation resource would be equal
to or less than 50 average megawatts.
B5. Categorical Exclusions Applicable to Conservation, Fossil, and
Renewable Energy Activities
B5.1 Actions To Conserve Energy or Water
(a) Actions to conserve energy or water, demonstrate potential
energy or water conservation, and promote energy efficiency that
would not have the potential to cause significant changes in the
indoor or outdoor concentrations of potentially harmful substances.
These actions may involve financial and technical assistance to
individuals (such as builders, owners, consultants, manufacturers,
and designers), organizations (such as utilities), and governments
(such as State, local, and Tribal). Covered actions include, but are
not limited to weatherization (such as insulation and replacing
windows and doors); programmed lowering of thermostat settings;
placement of timers on hot water heaters; installation or
replacement of energy efficient lighting, low-flow plumbing fixtures
(such as faucets, toilets, and showerheads), heating, ventilation,
and air conditioning systems, and appliances; installation of drip-
irrigation systems; improvements in generator efficiency and
appliance efficiency ratings; efficiency improvements for vehicles
and transportation (such as fleet changeout); power storage (such as
flywheels and batteries, generally less than 10 megawatt
equivalent); transportation management systems (such as traffic
signal control systems, car navigation, speed cameras, and automatic
plate number recognition); development of energy-efficient
manufacturing, industrial, or building practices; and small-scale
energy efficiency and conservation research and development and
small-scale pilot projects. Covered actions include building
renovations or new structures, provided that they occur in a
previously disturbed or developed area. Covered actions could
involve commercial, residential, agricultural, academic,
institutional, or industrial sectors. Covered actions do not include
rulemakings, standard-settings, or proposed DOE legislation, except
for those actions listed in B5.1(b) of this appendix.
(b) Covered actions include rulemakings that establish energy
conservation standards for consumer products and industrial
equipment, provided that the actions would not: (1) Have the
potential to cause a significant change in manufacturing
infrastructure (such as construction of new manufacturing plants
with considerable associated ground disturbance); (2) involve
significant unresolved conflicts concerning alternative uses of
available resources (such as rare or limited raw materials); (3)
have the potential to result in a significant increase in the
disposal of materials posing significant risks to human health and
the environment (such as RCRA hazardous wastes); or (4) have the
potential to cause a significant increase in energy consumption in a
State or region.
B5.2 Modifications to Pumps and Piping
Modifications to existing pump and piping configurations
(including, but not limited to, manifolds, metering systems, and
other instrumentation on such configurations conveying materials
such as air, brine, carbon dioxide, geothermal system fluids,
hydrogen gas, natural gas, nitrogen gas, oil, produced water, steam,
and water). Covered modifications would not have the potential to
cause significant changes to design process flow rates or permitted
air emissions.
B5.3 Modification or Abandonment of Wells
Modification (but not expansion) or plugging and abandonment of
wells, provided that site characterization has verified a low
potential for seismicity, subsidence, and contamination of
freshwater aquifers, and the actions are otherwise consistent with
best practices and DOE
[[Page 246]]
protocols, including those that protect against uncontrolled
releases of harmful materials. Such wells may include, but are not
limited to, storage and injection wells for brine, carbon dioxide,
coalbed methane, gas hydrate, geothermal, natural gas, and oil.
Covered modifications would not be part of site closure.
B5.4 Repair or Replacement of Pipelines
Repair, replacement, upgrading, rebuilding, or minor relocation
of pipelines within existing rights-of-way, provided that the
actions are in accordance with applicable requirements (such as Army
Corps of Engineers permits under section 404 of the Clean Water
Act). Pipelines may convey materials including, but not limited to,
air, brine, carbon dioxide, geothermal system fluids, hydrogen gas,
natural gas, nitrogen gas, oil, produced water, steam, and water.
B5.5 Short Pipeline Segments
Construction and subsequent operation of short (generally less
than 20 miles in length) pipeline segments conveying materials (such
as air, brine, carbon dioxide, geothermal system fluids, hydrogen
gas, natural gas, nitrogen gas, oil, produced water, steam, and
water) between existing source facilities and existing receiving
facilities (such as facilities for use, reuse, transportation,
storage, and refining), provided that the pipeline segments are
within previously disturbed or developed rights-of-way.
B5.6 Oil Spill Cleanup
Removal of oil and contaminated materials recovered in oil spill
cleanup operations and disposal of these materials in accordance
with applicable requirements (such as the National Oil and Hazardous
Substances Pollution Contingency Plan).
B5.7 Import or Export Natural Gas, With Operational Changes
Approvals or disapprovals of new authorizations or amendments of
existing authorizations to import or export natural gas under
section 3 of the Natural Gas Act that involve minor operational
changes (such as changes in natural gas throughput, transportation,
and storage operations) but not new construction.
B5.8 Import or Export Natural Gas, With New Cogeneration Powerplant
Approvals or disapprovals of new authorizations or amendments of
existing authorizations to import or export natural gas under
section 3 of the Natural Gas Act that involve new cogeneration
powerplants (as defined in the Powerplant and Industrial Fuel Use
Act of 1978, as amended) within or contiguous to an existing
industrial complex and requiring generally less than 10 miles of new
natural gas pipeline or 20 miles within previously disturbed or
developed rights-of-way.
B5.9 Temporary Exemptions For Electric Powerplants
Grants or denials of temporary exemptions under the Powerplant
and Industrial Fuel Use Act of 1978, as amended, for electric
powerplants.
B5.10 Certain Permanent Exemptions For Existing Electric
Powerplants
For existing electric powerplants, grants or denials of
permanent exemptions under the Powerplant and Industrial Fuel Use
Act of 1978, as amended, other than exemptions under section 312(c)
relating to cogeneration and section 312(b) relating to certain
State or local requirements.
B5.11 Permanent Exemptions Allowing Mixed Natural Gas and Petroleum
For new electric powerplants, grants or denials of permanent
exemptions from the prohibitions of Title II of the Powerplant and
Industrial Fuel Use Act of 1978, as amended, to permit the use of
certain fuel mixtures containing natural gas or petroleum.
B5.12 Workover of Existing Wells
Workover (operations to restore production, such as deepening,
plugging back, pulling and resetting lines, and squeeze cementing)
of existing wells (including, but not limited to, activities
associated with brine, carbon dioxide, coalbed methane, gas hydrate,
geothermal, natural gas, and oil) to restore functionality, provided
that workover operations are restricted to the existing wellpad and
do not involve any new site preparation or earthwork that would have
the potential to cause significant impacts on nearby habitat; that
site characterization has verified a low potential for seismicity,
subsidence, and contamination of freshwater aquifers; and the
actions are otherwise consistent with best practices and DOE
protocols, including those that protect against uncontrolled
releases of harmful materials.
B5.13 Experimental Wells for Injection of Small Quantities of
Carbon Dioxide
Siting, construction, operation, plugging, and abandonment of
experimental wells for the injection of small quantities of carbon
dioxide (and other incidentally co-captured gases) in locally
characterized, geologically secure storage formations at or near
existing carbon dioxide sources to determine the suitability of the
formations for large-scale sequestration, provided that (1) the
characterization has verified a low potential for seismicity,
subsidence, and contamination of freshwater aquifers; (2) the wells
are otherwise in accordance with applicable requirements, best
practices, and DOE protocols, including those that protect against
uncontrolled releases of harmful materials; and (3) the wells and
associated drilling activities are sufficiently remote so that they
would not have the potential to cause significant impacts related to
noise and other vibrations. Wells may be used for enhanced oil or
natural gas recovery or for secure storage of carbon dioxide in
saline formations or other secure formations. Over the duration of a
project, the wells would be used to inject, in aggregate, less than
500,000 tons of carbon dioxide into the geologic formation. Covered
actions exclude activities in salt water and freshwater
environments. (See B3.16 of this appendix for activities in salt
water and freshwater environments.)
B5.14 Combined Heat and Power or Cogeneration Systems
Conversion to, replacement of, or modification of combined heat
and power or cogeneration systems (the sequential or simultaneous
production of multiple forms of energy, such as thermal and
electrical energy, in a single integrated system) at existing
facilities, provided that the conversion, replacement, or
modification would not have the potential to cause a significant
increase in the quantity or rate of air emissions and would not have
the potential to cause significant impacts to water resources.
B5.15 Small-Scale Renewable Energy Research and Development and
Pilot Projects
Small-scale renewable energy research and development projects
and small-scale pilot projects located within a previously disturbed
or developed area. Covered actions would be in accordance with
applicable requirements (such as local land use and zoning
requirements) in the proposed project area and would incorporate
appropriate control technologies and best management practices.
B5.16 Solar Photovoltaic Systems
The installation, modification, operation, and removal of
commercially available solar photovoltaic systems located on a
building or other structure (such as rooftop, parking lot or
facility, and mounted to signage, lighting, gates, or fences), or if
located on land, generally comprising less than 10 acres within a
previously disturbed or developed area. Covered actions would be in
accordance with applicable requirements (such as local land use and
zoning requirements) in the proposed project area and would
incorporate appropriate control technologies and best management
practices.
B5.17 Solar Thermal Systems
The installation, modification, operation, and removal of
commercially available small-scale solar thermal systems (including,
but not limited to, solar hot water systems) located on or
contiguous to a building, and if located on land, generally
comprising less than 10 acres within a previously disturbed or
developed area. Covered actions would be in accordance with
applicable requirements (such as local land use and zoning
requirements) in the proposed project area and would incorporate
appropriate control technologies and best management practices.
B5.18 Wind Turbines
The installation, modification, operation, and removal of
commercially available small wind turbines, with a total height
generally less than 200 feet (measured from the ground to the
maximum height of blade rotation) that (1) are located within a
previously disturbed or developed area; (2) are located more than 10
nautical miles from an airport or aviation navigation aid; (3) are
located more than 1.5 nautical miles from National Weather Service
or Federal Aviation Administration Doppler weather radar; (4) would
not have the potential to cause significant impacts on bird or bat
species; and (5) are sited or designed such that the project would
not have the potential to cause significant impacts to
[[Page 247]]
persons (such as shadow flicker and other visual impacts, and
noise). Covered actions would be in accordance with applicable
requirements (such as local land use and zoning requirements) in the
proposed project area and would incorporate appropriate control
technologies and best management practices.
B5.19 Ground Source Heat Pumps
The installation, modification, operation, and removal of
commercially available small-scale ground source heat pumps to
support operations in single facilities (such as a school and
community center) or contiguous facilities (such as an office
complex) (1) only where major associated activities (such as
drilling and discharge) are regulated, and appropriate leakage and
contaminant control measures would be in place; (2) that would not
have the potential to cause significant changes in subsurface
temperature; and (3) would be located within a previously disturbed
or developed area. Covered actions would be in accordance with
applicable requirements (such as local land use and zoning
requirements) in the proposed project area and would incorporate
appropriate control technologies and best management practices.
B5.20 Biomass Power Plants
The installation, modification, operation, and removal of small-
scale biomass power plants (generally less than 10 megawatts), using
commercially available technology (1) intended primarily to support
operations in single facilities (such as a school and community
center) or contiguous facilities (such as an office complex); (2)
that would not affect the air quality attainment status of the area
and would not have the potential to cause a significant increase in
the quantity or rate of air emissions and would not have the
potential to cause significant impacts to water resources; and (3)
would be located within a previously disturbed or developed area.
Covered actions would be in accordance with applicable requirements
(such as local land use and zoning requirements) in the proposed
project area and would incorporate appropriate control technologies
and best management practices.
B5.21 Methane Gas Recovery and Utilization Systems
The installation, modification, operation, and removal of
commercially available methane gas recovery and utilization systems
installed within a previously disturbed or developed area on or
contiguous to an existing landfill or wastewater treatment plant
that would not have the potential to cause a significant increase in
the quantity or rate of air emissions. Covered actions would be in
accordance with applicable requirements (such as local land use and
zoning requirements) in the proposed project area and would
incorporate appropriate control technologies and best management
practices.
B5.22 Alternative Fuel Vehicle Fueling Stations
The installation, modification, operation, and removal of
alternative fuel vehicle fueling stations (such as for compressed
natural gas, hydrogen, ethanol and other commercially available
biofuels) on the site of a current or former fueling station, or
within a previously disturbed or developed area within the
boundaries of a facility managed by the owners of a vehicle fleet.
Covered actions would be in accordance with applicable requirements
(such as local land use and zoning requirements) in the proposed
project area and would incorporate appropriate control technologies
and best management practices.
B5.23 Electric Vehicle Charging Stations
The installation, modification, operation, and removal of
electric vehicle charging stations, using commercially available
technology, within a previously disturbed or developed area. Covered
actions are limited to areas where access and parking are in
accordance with applicable requirements (such as local land use and
zoning requirements) in the proposed project area and would
incorporate appropriate control technologies and best management
practices.
B5.24 Drop-In Hydroelectric Systems
The installation, modification, operation, and removal of
commercially available small-scale, drop-in, run-of-the-river
hydroelectric systems that would (1) involve no water storage or
water diversion from the stream or river channel where the system is
installed and (2) not have the potential to cause significant
impacts on water quality, temperature, flow, or volume. Covered
systems would be located up-gradient of a natural anadromous fish
barrier and where there would not be the potential for significant
impacts to threatened or endangered species. Covered actions would
involve no major construction or modification of stream or river
channels, and the hydroelectric systems would be placed and secured
in the channel without the use of heavy equipment. Covered actions
would be in accordance with applicable requirements (such as local
land use and zoning requirements) in the proposed project area and
would incorporate appropriate control technologies and best
management practices.
B5.25 Small-Scale Renewable Energy Research and Development and
Pilot Projects in Salt Water and Freshwater Environments
Small-scale renewable energy research and development projects
and small-scale pilot projects located in salt water and freshwater
environments. Activities would be in accordance with, where
applicable, an approved spill prevention, control, and response
plan, and would incorporate appropriate control technologies and
best management practices. Covered actions would not occur (1)
within areas of hazardous natural bottom conditions or (2) within
the boundary of an established marine sanctuary or wildlife refuge,
a governmentally proposed marine sanctuary or wildlife refuge, or a
governmentally recognized area of high biological sensitivity (such
as protected areas and other areas of known ecological importance,
whale and marine mammal mating and calving/pupping areas, and fish
and invertebrate spawning and nursery areas recognized as being
limited or unique and vulnerable to perturbation; these areas can
occur in bays, estuaries, near shore, and far offshore, and may vary
seasonally), or outside those areas if the activities would have the
potential to cause significant impacts within those areas. No
permanent facilities or devices would be constructed or installed.
Covered actions do not include drilling of resource exploration or
extraction wells, use of large-scale vibratory coring techniques, or
seismic activities other than passive techniques.
B6. Categorical Exclusions Applicable to Environmental Restoration and
Waste Management Activities
B6.1 Cleanup Actions
Small-scale, short-term cleanup actions, under RCRA, Atomic
Energy Act, or other authorities, less than approximately 10 million
dollars in cost, to reduce risk to human health or the environment
from the release or threat of release of a hazardous substance other
than high-level radioactive waste and spent nuclear fuel, including
treatment (such as incineration, encapsulation, physical or chemical
separation, and compaction), recovery, storage, or disposal of
wastes at existing facilities currently handling the type of waste
involved in the action. These actions include, but are not limited
to:
(a) Excavation or consolidation of contaminated soils or
materials from drainage channels, retention basins, ponds, and spill
areas that are not receiving contaminated surface water or
wastewater, if surface water or groundwater would not collect and if
such actions would reduce the spread of, or direct contact with, the
contamination;
(b) Removal of bulk containers (such as drums and barrels) that
contain or may contain hazardous substances, pollutants,
contaminants, CERCLA-excluded petroleum or natural gas products, or
hazardous wastes (designated in 40 CFR part 261 or applicable State
requirements), if such actions would reduce the likelihood of
spillage, leakage, fire, explosion, or exposure to humans, animals,
or the food chain;
(c) Removal of an underground storage tank including its
associated piping and underlying containment systems in accordance
with applicable requirements (such as RCRA, subtitle I; 40 CFR part
265, subpart J; and 40 CFR part 280, subparts F and G) if such
action would reduce the likelihood of spillage, leakage, or the
spread of, or direct contact with, contamination;
(d) Repair or replacement of leaking containers;
(e) Capping or other containment of contaminated soils or
sludges if the capping or containment would not unduly limit future
groundwater remediation and if needed to reduce migration of
hazardous substances, pollutants, contaminants, or CERCLA-excluded
petroleum and natural gas products into soil, groundwater, surface
water, or air;
(f) Drainage or closing of man-made surface impoundments if
needed to maintain the integrity of the structures;
(g) Confinement or perimeter protection using dikes, trenches,
ditches, or diversions,
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or installing underground barriers, if needed to reduce the spread
of, or direct contact with, the contamination;
(h) Stabilization, but not expansion, of berms, dikes,
impoundments, or caps if needed to maintain integrity of the
structures;
(i) Drainage controls (such as run-off or run-on diversion) if
needed to reduce offsite migration of hazardous substances,
pollutants, contaminants, or CERCLA-excluded petroleum or natural
gas products or to prevent precipitation or run-off from other
sources from entering the release area from other areas;
(j) Segregation of wastes that may react with one another or
form a mixture that could result in adverse environmental impacts;
(k) Use of chemicals and other materials to neutralize the pH of
wastes;
(l) Use of chemicals and other materials to retard the spread of
the release or to mitigate its effects if the use of such chemicals
would reduce the spread of, or direct contact with, the
contamination;
(m) Installation and operation of gas ventilation systems in
soil to remove methane or petroleum vapors without any toxic or
radioactive co-contaminants if appropriate filtration or gas
treatment is in place;
(n) Installation of fences, warning signs, or other security or
site control precautions if humans or animals have access to the
release; and
(o) Provision of an alternative water supply that would not
create new water sources if necessary immediately to reduce exposure
to contaminated household or industrial use water and continuing
until such time as local authorities can satisfy the need for a
permanent remedy.
B6.2 Waste Collection, Treatment, Stabilization, and Containment
Facilities
The siting, construction, and operation of temporary (generally
less than 2 years) pilot-scale waste collection and treatment
facilities, and pilot-scale (generally less than 1 acre) waste
stabilization and containment facilities (including siting,
construction, and operation of a small-scale laboratory building or
renovation of a room in an existing building for sample analysis),
provided that the action (1) supports remedial investigations/
feasibility studies under CERCLA, or similar studies under RCRA
(such as RCRA facility investigations/corrective measure studies) or
other authorities and (2) would not unduly limit the choice of
reasonable remedial alternatives (such as by permanently altering
substantial site area or by committing large amounts of funds
relative to the scope of the remedial alternatives).
B6.3 Improvements to Environmental Control Systems
Improvements to environmental monitoring and control systems of
an existing building or structure (such as changes to scrubbers in
air quality control systems or ion-exchange devices and other
filtration processes in water treatment systems), provided that
during subsequent operations (1) any substance collected by the
environmental control systems would be recycled, released, or
disposed of within existing permitted facilities and (2) there are
applicable statutory or regulatory requirements or permit conditions
for disposal, release, or recycling of any hazardous substance or
CERCLA-excluded petroleum or natural gas products that are collected
or released in increased quantity or that were not previously
collected or released.
B6.4 Facilities for Storing Packaged Hazardous Waste for 90 Days or
Less
Siting, construction, modification, expansion, operation, and
decommissioning of an onsite facility for storing packaged hazardous
waste (as designated in 40 CFR part 261) for 90 days or less or for
longer periods as provided in 40 CFR 262.34(d), (e), or (f) (such as
accumulation or satellite areas).
B6.5 Facilities for Characterizing and Sorting Packaged Waste and
Overpacking Waste
Siting, construction, modification, expansion, operation, and
decommissioning of an onsite facility for characterizing and sorting
previously packaged waste or for overpacking waste, other than high-
level radioactive waste, provided that operations do not involve
unpacking waste. These actions do not include waste storage (covered
under B6.4, B6.6, B6.10 of this appendix, and C16 of appendix C) or
the handling of spent nuclear fuel.
B6.6 Modification of Facilities for Storing, Packaging, and
Repacking Waste
Modification (excluding increases in capacity) of an existing
structure used for storing, packaging, or repacking waste other than
high-level radioactive waste or spent nuclear fuel, to handle the
same class of waste as currently handled at that structure.
B6.7 [Reserved]
B6.8 Modifications for Waste Minimization and Reuse of Materials
Minor operational changes at an existing facility to minimize
waste generation and for reuse of materials. These changes include,
but are not limited to, adding filtration and recycle piping to
allow reuse of machining oil, setting up a sorting area to improve
process efficiency, and segregating two waste streams previously
mingled and assigning new identification codes to the two resulting
wastes.
B6.9 Measures To Reduce Migration of Contaminated Groundwater
Small-scale temporary measures to reduce migration of
contaminated groundwater, including the siting, construction,
operation, and decommissioning of necessary facilities. These
measures include, but are not limited to, pumping, treating,
storing, and reinjecting water, by mobile units or facilities that
are built and then removed at the end of the action.
B6.10 Upgraded or Replacement Waste Storage Facilities
Siting, construction, modification, expansion, operation, and
decommissioning of a small upgraded or replacement facility (less
than approximately 50,000 square feet in area) within or contiguous
to a previously disturbed or developed area (where active utilities
and currently used roads are readily accessible) for storage of
waste that is already at the site at the time the storage capacity
is to be provided. These actions do not include the storage of high-
level radioactive waste, spent nuclear fuel or any waste that
requires special precautions to prevent nuclear criticality. (See
also B6.4, B6.5, B6.6 of this appendix, and C16 of appendix C.)
B7. Categorical Exclusions Applicable to International Activities
B7.1 Emergency Measures Under the International Energy Program
Planning and implementation of emergency measures pursuant to
the International Energy Program.
B7.2 Import and Export of Special Nuclear or Isotopic Materials
Approval of import or export of small quantities of special
nuclear materials or isotopic materials in accordance with
applicable requirements (such as the Nuclear Non-Proliferation Act
of 1978 and the ``Procedures Established Pursuant to the Nuclear
Non-Proliferation Act of 1978'' (43 FR 25326, June 9, 1978)).
Appendix C to Subpart D of Part 1021--Classes of Actions That Normally
Require EAs But Not Necessarily EISs
C1 [Reserved]
C2 [Reserved]
C3 Electric Power Marketing Rate Changes, Not Within Normal Operating
Limits
Rate changes for electric power, power transmission, and other
products or services provided by Power Marketing Administrations
that are based on changes in revenue requirements if the operations
of generation projects would not remain within normal operating
limits.
C4 Upgrading, Rebuilding, or Construction of Electric Transmission
Lines
Upgrading or rebuilding more than approximately 20 miles in
length of existing electric transmission lines; or construction of
electric transmission lines (1) more than approximately 10 miles in
length outside previously disturbed or developed transmission line
or pipeline rights-of-way or (2) more than approximately 20 miles in
length within previously disturbed or developed transmission line or
pipeline rights-of-way.
C5 Vegetation Management Program
Implementation of a Power Marketing Administration system-wide
vegetation management program.
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C6 Erosion Control Program
Implementation of a Power Marketing Administration system-wide
erosion control program.
C7 Contracts, Policies, and Marketing and Allocation Plans for Electric
Power
Establishment and implementation of contracts, policies, and
marketing and allocation plans related to electric power acquisition
or transmission that involve (1) the interconnection of, or
acquisition of power from, new generation resources that are equal
to or less than 50 average megawatts and that would not be eligible
for categorical exclusion under this part; (2) changes in the normal
operating limits of generation resources equal to or less than 50
average megawatts; or (3) service to discrete new loads of less
than10 average megawatts over a 12-month period.
C8 Protection of Cultural Resources and Fish and Wildlife Habitat
Large-scale activities undertaken to protect cultural resources
(such as fencing, labeling, and flagging) or to protect, restore, or
improve fish and wildlife habitat, fish passage facilities (such as
fish ladders and minor diversion channels), or fisheries.
C9 Wetlands Demonstration Projects
Field demonstration projects for wetlands mitigation, creation,
and restoration.
C10 [Reserved]
C11 Particle Acceleration Facilities
Siting, construction or modification, operation, and
decommissioning of low- or medium-energy (when the primary beam
energy exceeds approximately 100 million electron volts and the
average beam power exceeds approximately 250 kilowatts or where the
average current exceeds 2.5 milliamperes) particle acceleration
facilities, including electron beam acceleration facilities, and
associated beamlines, storage rings, colliders, and detectors for
research and medical purposes, within or contiguous to a previously
disturbed or developed area (where active utilities and currently
used roads are readily accessible).
C12 Energy System Demonstration Actions
Siting, construction, and operation of energy system
demonstration actions (including, but not limited to, wind resource,
hydropower, geothermal, fossil fuel, biomass, and solar energy, but
excluding nuclear). For purposes of this category, ``demonstration
actions'' means actions that are undertaken at a scale to show
whether a technology would be viable on a larger scale and suitable
for commercial deployment. Demonstration actions frequently follow
research and development and pilot projects that are directed at
establishing proof of concept.
C13 Import or Export Natural Gas Involving Minor New Construction
Approvals or disapprovals of authorizations to import or export
natural gas under section 3 of the Natural Gas Act involving minor
new construction (such as adding new connections, looping, or
compression to an existing natural gas or liquefied natural gas
pipeline, or converting an existing oil pipeline to a natural gas
pipeline using the same right-of-way).
C14 Water Treatment Facilities
Siting, construction (or expansion), operation, and
decommissioning of wastewater, surface water, potable water, and
sewage treatment facilities with a total capacity greater than
approximately 250,000 gallons per day, and of lower capacity
wastewater and surface water treatment facilities whose liquid
discharges are not subject to external regulation.
C15 Research and Development Incinerators and Nonhazardous Waste
Incinerators
Siting, construction (or expansion), and operation of research
and development incinerators for any type of waste and of any other
incinerators that would treat nonhazardous solid waste (as
designated in 40 CFR 261.4(b)).
C16 Large Waste Packaging and Storage Facilities
Siting, construction, modification to increase capacity,
operation, and decommissioning of packaging and unpacking facilities
(such as characterization operations) and large storage facilities
(greater than approximately 50,000 square feet in area) for waste,
except high-level radioactive waste, generated onsite or resulting
from activities connected to site operations. These actions do not
include storage, packaging, or unpacking of spent nuclear fuel. (See
also B6.4, B6.5, B6.6, and B6.10 of appendix B.)
Appendix D to Subpart D of Part 1021--Classes of Actions That Normally
Require EISs
D1 Strategic Systems
Strategic Systems, as defined in DOE Order 430.1, ``Life-Cycle
Asset Management,'' or its successor, and designated by the
Secretary.
D2 Nuclear Fuel Reprocessing Facilities
Siting, construction, operation, and decommissioning of nuclear
fuel reprocessing facilities.
D3 Uranium Enrichment Facilities
Siting, construction, operation, and decommissioning of uranium
enrichment facilities.
D4 Reactors
Siting, construction, operation, and decommissioning of power
reactors, nuclear material production reactors, and test and
research reactors.
D5 [Reserved]
D6 [Reserved]
D7 Contracts, Policies, and Marketing and Allocation Plans for Electric
Power
Establishment and implementation of contracts, policies, and
marketing and allocation plans related to electric power acquisition
or transmission that involve (1) the interconnection of, or
acquisition of power from, new generation resources greater than 50
average megawatts; (2) changes in the normal operating limits of
generation resources greater than 50 average megawatts; or (3)
service to discrete new loads of 10 average megawatts or more over a
12-month period.
D8 Import or Export of Natural Gas Involving Major New Facilities
Approvals or disapprovals of authorizations to import or export
natural gas under section 3 of the Natural Gas Act involving
construction of major new natural gas pipelines or related
facilities (such as liquefied natural gas terminals and
regasification or storage facilities) or significant expansions and
modifications of existing pipelines or related facilities).
D9 Import or Export of Natural Gas Involving Major Operational Change
Approvals or disapprovals of authorizations to import or export
natural gas under section 3 of the Natural Gas Act involving major
operational changes (such as a major increase in the quantity of
liquefied natural gas imported or exported).
D10 Treatment, Storage, and Disposal Facilities for High-Level Waste
and Spent Nuclear Fuel
Siting, construction, operation, and decommissioning of major
treatment, storage, and disposal facilities for high-level waste and
spent nuclear fuel, including geologic repositories, but not
including onsite replacement or upgrades of storage facilities for
spent nuclear fuel at DOE sites where such replacement or upgrade
would not result in increased storage capacity.
D11 Waste Disposal Facilities for Transuranic Waste
Siting, construction or expansion, and operation of disposal
facilities for transuranic (TRU) waste and TRU mixed waste (TRU
waste also containing hazardous waste as designated in 40 CFR part
261).
D12 Incinerators
Siting, construction, and operation of incinerators, other than
research and development incinerators or incinerators for
nonhazardous solid waste (as designated in 40 CFR 261.4(b)).
[FR Doc. 2010-32316 Filed 12-30-10; 8:45 am]
BILLING CODE 6450-01-P