# National Environmental Policy Act Implementing Procedures

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-25413

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** October 13, 2011
- **Citation:** 76 FR 63764

## Text

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:

Final rule.

SUMMARY:

The U.S. Department of Energy (DOE or the Department) is revising its National Environmental Policy Act (NEPA) Implementing Procedures. The majority of the changes are being made to the categorical exclusion provisions. These revisions 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 is establishing 20 new categorical exclusions and removing two categorical exclusion categories, one environmental assessment category, and three environmental impact statement categories. Other changes modify and clarify DOE's existing provisions.

DATES:

Effective Date:
These rule changes will become effective November 14, 2011.

FOR FURTHER INFORMATION CONTACT:

For information regarding DOE's NEPA implementation regulations or general information about DOE's NEPA procedures, contact Ms. Carol Borgstrom, Director, Office of NEPA Policy and Compliance, at
askNEPA@hq.doe.gov
or 202-586-4600 or leave a message at 800-472-2756.

SUPPLEMENTARY INFORMATION:

I. Background

DOE promulgated its regulations entitled “National Environmental Policy Act Implementing Procedures” (10 CFR part 1021) on April 24, 1992 (57 FR 15122), and revised these regulations on July 9, 1996 (61 FR 36222), December 6, 1996 (61 FR 64603), and August 27, 2003 (68 FR 51429). The DOE NEPA regulations at 10 CFR part 1021 contain procedures that DOE shall use to comply with section 102(2) of the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4332(2)) and the Council on Environmental Quality (CEQ) regulations for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508). DOE published a Notice of Proposed Rulemaking on January 3, 2011 (76 FR 214), to solicit public comments on its proposal to further revise these regulations by adding new categorical exclusions, revising existing categorical exclusions, and making certain other changes.

Publication of the Notice of Proposed Rulemaking began a 45-day public comment period, scheduled to end on February 17, 2011, which included a public hearing on February 4, 2011, at DOE headquarters in Washington, DC. On February 23, 2011, in response to a request from the National Wildlife Federation, on behalf of itself and 9 other organizations, for additional time to review the proposed rule and submit comments, DOE re-opened the comment period until March 7, 2011 (76 FR 9981).

DOE received comments from private citizens, trade associations, nongovernmental organizations, Federal agencies, and a tribal government agency. The transcript of the public hearing, a request to extend the comment period, and the 29 comment documents received by DOE, including two documents received after the close of the comment period, are available on the DOE NEPA Web site (
http://energy.gov/nepa
) and on the Regulations.gov Web site (
http://www.regulations.gov
) at docket ID: DOE-HQ-2010-0002.

DOE considered all comments received, including those comments on categorical exclusions for which DOE did not propose any changes. DOE's response to the comments is contained in section IV, Comments Received and DOE's Responses, below.

The revisions DOE is making are consistent with guidance issued by CEQ on establishing, applying, and revising categorical exclusions under NEPA (CEQ, “Final Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act”; hereafter, CEQ Categorical Exclusion Guidance) (75 FR 75628; December 6, 2010). On December 29, 2009, DOE initiated its periodic review by publishing a Request for Information in the
Federal Register
(74 FR 68720) (
http://www.gpo.gov/fdsys/pkg/FR-2009-12-29/pdf/E9-30829.pdf
) that sought input from interested parties to help identify activities that should be considered for new or revised categorical exclusions. Moreover, DOE evaluated each of its existing categorical exclusions in preparing these revisions, and this rulemaking satisfies CEQ's recommendation for periodic review of an agency's categorical exclusions.

This document adopts the revisions proposed in the Notice of Proposed Rulemaking, with certain changes discussed below, and amends DOE's existing regulations at 10 CFR part 1021. In accordance with 40 CFR 1507.3, CEQ reviewed this final rule and concluded that the proposed amendment of DOE's NEPA implementing regulations is in conformance with NEPA and the CEQ regulations. The Secretary of Energy has approved this final rule for publication.

Within this document, “existing rule” refers to DOE's current NEPA implementing regulations (as last modified in 2003, before the revisions announced in this document); “proposed rule” refers to changes identified in DOE's Notice of Proposed Rulemaking published on January 3, 2011; and “new rule” or “final rule” refers to the changes identified in this document, which will become effective on November 14, 2011.

II. Statement of Purpose

The Department last revised the categorical exclusions in its NEPA implementing regulations 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 reviewed thousands of applications from private entities requesting financial support for projects to develop new or improved energy technologies, including for renewable energy sources. This experience highlighted the potential for new and revised categorical exclusions and helped DOE identify appropriate limits to include in these categorical exclusions to ensure that the activities described normally would not have the potential for significant environmental impact.

The purpose of this rulemaking is to revise certain provisions of DOE's NEPA implementing regulations to better align DOE's categorical exclusions with its current activities and its experience and to bring the provisions up-to-date with current technology, operational practices, and regulatory requirements. The changes will facilitate compliance with NEPA by providing for more efficient review of actions (for example, helping the Department meet the goals set forth in the Energy Policy Act of 2005), and allowing the Department to focus its resources on evaluating proposed actions that have the potential for significant environmental impacts. The changes will also increase transparency by providing the public more specific information as to the circumstances in which DOE is likely to invoke a categorical exclusion.

What kinds of changes is DOE making?

DOE is amending 10 CFR part 1021, subparts B, C, and D. Most of the changes affect the categorical exclusion provisions at 10 CFR part 1021, subpart D, appendices A and B.

DOE is adding 20 new categorical exclusions. These categorical exclusions address stormwater runoff control; lead-based paint containment, removal, and disposal; drop-off, collection, and transfer facilities for recyclable material; determinations of excess real property; small-scale educational facilities; small-scale indoor research and development projects using nanoscale materials; research activities in aquatic 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 stations; drop-in hydroelectric systems; and small-scale renewable energy research and development and pilot projects in aquatic environments. These new categorical exclusions include criteria (
e.g.,
acreage, location, and height limitations), based on DOE and other agency experience and regulatory requirements, that limit the covered actions to those that normally would not have the potential to cause significant impacts. DOE is removing two categorical exclusion categories, one environmental assessment category, and three environmental impact statement categories.

DOE also is modifying many of the existing categorical exclusions. These revisions include substantive changes, changes to update regulatory or statutory references and requirements, and editorial changes. 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.

DOE is making several minor technical and organizational changes in the final rule, four of which were not identified at the time of the Notice of Proposed Rulemaking. First, after issuing the Notice of Proposed Rulemaking, DOE noted that 10 CFR 1021.215(d) includes an outdated reference to § 1021.312. In the DOE NEPA regulations promulgated in 1992, § 1021.312 addressed environmental impact statement implementation plans. In 1996, DOE removed this requirement, and the section number was reserved. Therefore, DOE is deleting the reference to § 1021.312 from § 1021.215. Second, in the Notice of Proposed Rulemaking, DOE proposed two changes to correct cross-references within § 1021.311. After further consideration, DOE is modifying the proposed change to § 1021.311(d) to improve clarity by deleting the introductory clause, rather than only correcting the cross-reference in that clause. (As described in the Notice of Proposed Rulemaking, DOE is also revising § 1021.311(f) (
i.e.,
correcting one cross-reference).) Third, in the Notice of Proposed Rulemaking, DOE proposed to change the title for the group of categorical exclusions from B4.1 through B4.13. After further consideration, DOE is further modifying the title to “Categorical Exclusions Applicable to Electric Power and Transmission.” Fourth, a comment from Tri-Valley CAREs (at page 1) requested that DOE not remove the table of contents from its NEPA regulations (as proposed in the Notice of Proposed Rulemaking), explaining that the table of contents is “extremely useful.” In response, DOE is retaining a table of contents in each appendix. These changes have no regulatory effect.

III. Overview of Categorical Exclusions

What is a categorical exclusion?

A categorical exclusion is a category (class) of actions that a Federal agency has determined normally do not, individually or cumulatively, have a significant impact on the human environment and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. See 40 CFR 1508.4. A categorical exclusion determination is made when an agency finds that a particular proposed action fits within a categorical exclusion and meets other applicable requirements, including the absence of extraordinary circumstances (
i.e.,
circumstances in which a normally excluded action may have a significant environmental effect).

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. This record is based on DOE's experience, the experience of other agencies, completed environmental reviews, professional and expert opinion, and scientific analyses. DOE also considers public comment received during the rulemaking, as detailed in section IV, Comments Received and DOE's Responses, below.

As CEQ states in its Categorical Exclusion Guidance, “Categorical exclusions are not exemptions or waivers of NEPA review; they are simply one type of NEPA review * * *. Once established, categorical exclusions provide an efficient tool to complete the NEPA environmental review process for proposals that normally do not require more resource-intensive EAs [environmental assessments] or EISs [environmental impact statements]. The use of categorical exclusions can reduce paperwork and delay, so that EAs or EISs are targeted toward proposed actions that truly have the potential to cause significant environmental effects” (75 FR at 75631).

How does DOE use a categorical exclusion in its decisionmaking?

As part of its environmental review responsibilities under NEPA, a DOE NEPA Compliance Officer examines an individual proposed action to determine whether it qualifies for a categorical exclusion. DOE's process is consistent with that described in CEQ's Categorical Exclusion Guidance: “When determining whether to use a categorical exclusion for a proposed activity, a Federal agency must carefully review the description of the proposed action to ensure that it fits within the category of actions described in the categorical exclusion. Next, the agency must consider the specific circumstances associated with the proposed activity, to rule out any extraordinary circumstances that might give rise to significant environmental effects requiring further analysis and documentation” in an environmental assessment or environmental impact statement (75 FR at 75631).

DOE's existing and new regulations ensure that the NEPA Compliance Officer follows the steps described by CEQ. Before DOE may apply a categorical exclusion to a particular proposed action, DOE must determine in accordance with 10 CFR 1021.410(b) that: (1) The proposed action fits within an established categorical exclusion as 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) the proposal is not “connected” to other actions with potentially significant impacts and is not related to other actions with cumulatively significant impacts, and the proposed action is not precluded as

an impermissible interim action pursuant to 40 CFR 1506.1 and 10 CFR 1021.211.

To fit within a categorical exclusion listed in appendix B, a proposed action also must satisfy certain conditions known as “integral elements” (appendix B, paragraphs (1) through (5)). Briefly, these conditions require that a categorical exclusion listed in appendix B not be applied to a proposed action with the potential to cause significant environmental impacts due to, for example, threatening a violation of applicable environmental, safety, and health requirements; requiring siting and construction, or major expansion, of a new waste storage, disposal, recovery, or treatment facility; disturbing hazardous substances such that there would be uncontrolled or unpermitted releases; having the potential to cause significant impacts on environmentally sensitive resources; or involving genetically engineered organisms, unless the proposed activity would be contained in a manner to prevent unauthorized release into the environment and conducted in accordance with applicable requirements.

The level of detail necessary to evaluate the potential for extraordinary circumstances and otherwise to determine whether a categorical exclusion is appropriate for a particular proposed action varies. For example, appendix A to subpart D lists categorical exclusions for several routine administrative actions, studies, and planning activities. A NEPA Compliance Officer normally can determine whether a categorical exclusion listed in appendix A is appropriate by reviewing a description of the proposed project. However, to determine whether a categorical exclusion from appendix B applies, in addition to the project description, a NEPA Compliance Officer also would consider information about a proposed project site and the result of reviews by other agencies (such as of historic properties or threatened and endangered species), as well as other related information.

IV. Comments Received and DOE's Responses

DOE has considered the comments on the proposed rulemaking received during the public comment period as well as all late comments. DOE has incorporated some revisions suggested in these comments into the final rule. The following discussion describes the comments received, provides DOE's response to the comments, and describes changes to the rule resulting from public comments and from DOE's further consideration of its proposal. DOE does not repeat discussion of topics in this final rule that have not changed relative to what was described in the Notice of Proposed Rulemaking. Thus, the Notice of Proposed Rulemaking may be consulted for further explanation regarding changes in the final rule.

DOE received no comments or only supportive comments on the following sections of the rule and is not making any changes beyond those discussed in the Notice of Proposed Rulemaking: In subpart C, sections 1021.322 and 1021.331; in subpart D, sections 1021.400; all of appendix A; in appendix B, paragraphs (1) through (2), and categorical exclusions B1.1, B1.2, B1.4, B1.6 through B1.8, B1.10, B1.12, B1.13, B1.15 through B1.17, B1.20 through B1.23, B1.27, B1.28, B1.30 through B1.32, B1.35, B1.36, B2.1, B2.2, B2.4 through B2.6, B3.2 through B3.5, B3.10, B3.13, B4.2, B4.3, B4.5, B4.8, B5.1, B5.2, B5.6, B5.7, B5.9 through B5.12, B5.14, B5.21 through B5.23, B6.2 through B6.10, B7.1, B7.2; in appendix C, C1 through C3, C5, C6, C9 through C11, C13, C14, C16; and in appendix D, D2 through D6, D8 through D12. In the final rule, therefore, these sections remain as discussed in the Notice of Proposed Rulemaking and are not discussed further. In addition, this final rule does not further discuss editorial changes described in the Notice of Proposed Rulemaking or in section II, Statement of Purpose, above.

A. General Comments on Proposed Amendments

The U.S. Environmental Protection Agency stated that the “proposed changes will enhance the efficiency of DOE's environmental review process while maintaining appropriate consideration of environmental effects pursuant to NEPA” and, accordingly, did not object to the proposed rulemaking.

In addition, several comments expressed support for the establishment of particular new categorical exclusions, especially for renewable energy technologies. DOE received comments expressing support for the following categorical exclusions as proposed: B1.7 (electronic equipment) from Edison Electric Institute (at page 2); B3.9 (projects to reduce emissions and waste generation) from Edison Electric Institute (at page 2) and National Wildlife Federation (at page 1); B3.16 (research activities in aquatic environments) from Biotechnology Industry Organization (at page 3) and Pacific Northwest National Laboratory, a DOE government research laboratory (at page 1); B5.13 (experimental wells for injection of small quantities of carbon dioxide) from Pacific Northwest National Laboratory (at page 1); B5.14 (combined heat and power or cogeneration systems) from Pacific Northwest National Laboratory (at page 1); B5.15 (small-scale renewable energy research and development and pilot projects) from Biotechnology Industry Organization (at page 3), Defenders of Wildlife (at page 2), and Pacific Northwest National Laboratory (at page 1); B5.16 (solar photovoltaic systems) from Pacific Northwest National Laboratory (at page 1); B5.17 (solar thermal systems) from Pacific Northwest National Laboratory (at page 1); B5.18 (wind turbines) from Granite Construction Company (at page 2) and Pacific Northwest National Laboratory (at page 1); B5.19 (ground source heat pumps) from Pacific Northwest National Laboratory (at page 1); B5.20 (biomass power plants) from Pacific Northwest National Laboratory (at page 1); B5.21 (methane gas recovery and utilization systems) from Pacific Northwest National Laboratory (at page 1); B5.22 (alternative fuel vehicle fueling stations) from Pacific Northwest National Laboratory (at page 1); B5.23 (electric vehicle charging stations) from National Electrical Manufacturers Association (at page 1), National Wildlife Federation (at page 1), and Pacific Northwest National Laboratory (at page 1); B5.24 (drop-in hydroelectric systems) from Pacific Northwest National Laboratory (at page 1); and B5.25 (small-scale renewable energy research and development and pilot projects in aquatic environments) from Biotechnology Industry Organization (at page 3), Ocean Renewable Power Company (at page 1), and Pacific Northwest National Laboratory (at page 1). DOE received a comment from the Biotechnology Industry Organization (at pages 1 and 3) in support of the use of algal biomass for renewable energy production, stating that the existing regulatory framework was sufficient to protect human health and the environment. The comment supported the use of categorical exclusions for related small-scale and laboratory research and pilot projects. Finally, DOE received a comment from the Blue Ridge Environmental Defense League (at page 1) indicating general support for solar photovoltaic and solar thermal facilities and wind turbines, but cautioned that the public may see categorical exclusions as loopholes, which could undermine support for these technologies. DOE notes these comments. Section 1021.410 describes

the process for applying a categorical exclusion.

Several comments expressed general objections to or concerns regarding DOE's proposed revision of its NEPA regulations. A comment from an anonymous individual (at pages 1-2) rejected all proposed changes, and a comment from the Blue Ridge Environmental Defense League (at page 1) opposed the addition of any categorical exclusions. DOE notes these comments. A comment from Jean Public (at page 1) listed wildlife, birds, reptiles, and mammals as environmental resources to be protected and stated that environmental assessments should never be allowed or used. DOE responds that DOE's NEPA regulations provide for the consideration of potential impacts on environmentally sensitive resources, and the provisions relating to environmental assessments are consistent with NEPA and the requirements of the CEQ NEPA regulations. A comment from Joyce Dillard (at page 1) stated that public health and safety should be a consideration first and foremost; DOE notes that public health and safety are among the key considerations in all NEPA reviews, including the establishment and application of categorical exclusions.

DOE received a comment from the Chesapeake Bay Foundation (at page 2) asking that DOE provide “a clear explanation and evidential support,” in accordance with the CEQ Categorical Exclusion Guidance, when proposing categorical exclusions. DOE establishes categorical exclusions based on Departmental experience, the experience of other agencies, completed environmental reviews, professional and expert opinion, and scientific analyses. For example, some of DOE's proposed categorical exclusions are supported by existing comparable categorical exclusions from other Federal agencies and their related experience. DOE prepared a Technical Support Document to provide analysis and identify reference documents supporting the revisions described in the Notice of Proposed Rulemaking. In preparation of this final rule, DOE updated and expanded the Technical Support Document. The Technical Support Document is available at
http://energy.gov/nepa/downloads/technical-support-document-supplement-department-energys-notice-final-rulemaking.

A comment from the Biotechnology Industry Organization (at page 2) expressed support for science-based regulation that “focuses on reducing and eliminating actual risks to the natural and human environment” and applauded DOE's goals of removing barriers toward the adoption of innovative research on renewable energy.

A comment from the Kaibab Band of Paiute Indians (at page 1), citing the April 2010 Gulf oil spill, expressed opposition to the use of categorical exclusion determinations for experimental and research and development projects because of their unpredictability, and recommended that DOE analyze experimental or unproven techniques in environmental assessments or environmental impact statements. The comment recommends a similar approach for proven techniques employed in extreme situations. In response to this and other comments related to research and development activities, DOE reviewed its categorical exclusions and revised some of the listed actions and associated limits, such as described for categorical exclusions below. Limits on the size, scope, and other aspects (such as containment), combined with other criteria, restrict the application of categorical exclusions for research and development activities to projects that normally would not have a potential for significant environmental impacts. For proposed projects involving proven techniques in extreme situations, DOE would evaluate whether extraordinary circumstances are present such that application of a categorical exclusion is not appropriate.

DOE received a comment from Brian Musser (at page 2) regarding the regulation of coal combustion residue under Resource Conservation and Recovery Act Subtitle C. DOE considers this comment to be out of scope because it does not relate to the DOE NEPA regulations. However, DOE would consider potential impacts associated with coal combustion residue where relevant to NEPA review of a specific proposal.

B. Comments on DOE's NEPA Process

A comment from the Ocean Renewable Power Company (at pages 1-2), referring to a pilot project for which DOE provides funding and another agency has licensing authority, stated that the NEPA process involves duplicative and unnecessary reviews by multiple agencies, which increases costs for both the agencies and the applicant and imposes delays that can jeopardize private financing. This comment does not propose specific changes to DOE's NEPA regulations, but suggests that coordination with other environmental review requirements could be improved. DOE's NEPA regulations state, in § 1021.341, that “DOE shall integrate the NEPA process and coordinate NEPA compliance with other environmental review requirements to the fullest extent possible.” DOE appreciates the concern expressed by the comment and will continue to seek ways to improve coordination of environmental review requirements.

A comment from the Chesapeake Bay Foundation (at page 2) supported the recommendation in the CEQ Categorical Exclusion Guidance that an agency such as DOE develop a schedule for the periodic review of its categorical exclusions at least every 7 years. DOE also agrees with the recommendation for periodic review and considers this rulemaking to satisfy the CEQ recommendation for the near term. DOE intends to review its categorical exclusions periodically, consistent with CEQ guidance, to ensure that DOE's categorical exclusions “remain current and appropriate,” as stated in the CEQ guidance.

C. Comments on Amendments to Subpart D

1. Placement of Categorical Exclusions in Appendix A vs. Appendix B

A comment from Pacific Northwest National Laboratory (at page 3) asked DOE to evaluate moving several categorical exclusions from appendix B, for which determinations are documented and made publicly available, to appendix A, for which determinations are not required to be documented. For example, the comment stated that requiring documentation for routine maintenance (categorical exclusion B1.3) that is performed many times daily is an inefficient use of resources and results in gaps in compliance. DOE decided not to move any categorical exclusion from appendix B to appendix A because such a change would reduce transparency in the Department's NEPA compliance program. To address the potential inefficiency identified by the comment, DOE is adding a new paragraph (10 CFR 1021.410(f)) to the final rule that describes current practice to address proposed recurring activities to be undertaken during a specified time period, such as routine maintenance activities for a year, in a single categorical exclusion determination after considering the potential aggregated impacts.

Another comment from Sandy Beranich (at page 1) stated that many categorical exclusions in appendix A are for routine activities, and NEPA should not be required for routine activities. The comment stated that, if some level

of scale is not provided to indicate when an appendix A review is triggered, then DOE should post such appendix A categorical exclusion determinations online to inform the public how DOE uses its resources. DOE responds that the application of categorical exclusions listed in appendix A normally is a simple matter that entails minimal cost. DOE has not found use of these categorical exclusions to be problematic and has not identified any need to establish a level of activity below which NEPA normally would not apply. Some DOE offices choose to post to the Web their determinations for categorical exclusions listed in appendix A, but DOE does not require this practice.

A comment from Sandy Beranich (at page 3) stated that NEPA “is all about ground-disturbing actions—not routine activities.” DOE disagrees that NEPA is limited to ground-disturbing activities (for example, activities could also have air or water impacts that would be appropriate for NEPA review), and is not making any change in response to this comment.

Another comment from Sandy Beranich (at page 3) provided an example of a proposed action, the components of which, in her opinion, fell within six different appendix A and appendix B categorical exclusions. DOE agrees that it is possible for a project to be covered by more than one categorical exclusion. Furthermore, as stated in DOE's NEPA regulations (10 CFR 1021.410(d)), a class of actions includes activities foreseeably necessary to proposals encompassed within the class of actions (such as associated transportation activities and award of implementing grants and contracts). Where an action might fit within multiple categorical exclusions, a NEPA Compliance Officer should use the categorical exclusion(s) that best fits the proposed action.

2. Previously Disturbed or Developed Area

DOE received comments (
e.g.,
from Chesapeake Bay Foundation (at page 4), Defenders of Wildlife (at page 2), and National Wildlife Federation (at pages 1, 4-5)) on the use of the phrase “previously disturbed or developed,” which appears in several categorical exclusions. In the Notice of Proposed Rulemaking, DOE explained that the phrase referred to “land that has been changed such that the former state of the area and its functioning ecological processes have been altered.” Comments (
e.g.,
from Defenders of Wildlife (at page 2), National Wildlife Federation (at page 5)) expressed concern that the phrase was too vague to provide a useful limit and suggested, for example, including in the condition a requirement for the existence of infrastructure; further clarification is necessary, comments said. A comment from Sandy Beranich (at page 3) pointed out that land disturbed or developed in the past could, if abandoned, have reverted to a natural state and, therefore, suggested that “previously disturbed or developed” should be bounded by a timeframe. Comments (
e.g.,
from Defenders of Wildlife (at page 2) and National Wildlife Federation (at page 4)) also suggested that DOE mention the many brownfield, Superfund, and abandoned mine locations that have been identified through the Environmental Protection Agency's Repowering America Program, in partnership with DOE. In response, DOE clarifies that the phrase “previously disturbed or developed” refers to land that has been changed such that its functioning ecological processes have been and remain altered by human activity. The phrase encompasses areas that have been transformed from natural cover to non-native species or a managed state, including, but not limited to, utility and electric power transmission corridors and rights-of-way, and other areas where active utilities and currently used roads are readily available. This clarification applies to all uses of the phrase “previously disturbed or developed.” This clarification has been added to § 1021.410(g).

In addition, DOE notes that two definitions offered in a public comment may help readers understand the meaning of previously disturbed and developed. A comment from the Chesapeake Bay Foundation (at page 4) suggested that “previously disturbed” should refer to land that has largely been transformed from natural cover to a managed state and that has remained in that managed state (rather than reverted back to largely natural cover). The comment (at page 4) also suggested that “developed area” should refer to land that is largely covered by man-made land uses and activities (residential, commercial, institutional, industrial, and transportation).

A few comments (
e.g.,
from the Chesapeake Bay Foundation (at page 4) and Defenders of Wildlife (at page 2)) pointed out that the interpretation of the phrase depends on the context, and that, in some contexts, there is a potential for significant impacts when a particular action is taken, even if it occurs in a disturbed area. Although DOE agrees with this possibility, the potential for such impacts would be unlikely and would constitute an “extraordinary circumstance,” where application of a categorical exclusion would be inappropriate. Before applying a categorical exclusion, a NEPA Compliance Officer will evaluate the context of the proposed action to determine whether it complies with the integral elements of the categorical exclusion (listed in appendix B, paragraphs (1) through (5)) and whether there are any associated extraordinary circumstances that would affect the significance of impacts.

3. Small or Small-Scale

Several comments (
e.g.,
DOI (at page 3), Ocean Renewable Energy Coalition (at page 2)) asserted that DOE's use of “small” and “small-scale” was too vague to adequately define the scope of classes of actions and asked DOE to more narrowly define or clarify its use of these terms. Comments (
e.g.,
Chesapeake Bay Foundation (at page 5), Defenders of Wildlife (at page 4), Sandy Beranich (at page 2)) requested that DOE add a physical limitation such as acreage or a megawatt limitation or number of turbines (in categorical exclusion B5.18) to further define “small” or “small-scale.” A comment from the Chesapeake Bay Foundation (at page 5) asked DOE to impose a 5-acre or smaller limit for small-scale educational facilities in categorical exclusion B3.14 and expressed concern regarding the potential size (footprint) of a facility for nanoscale research in categorical exclusion B3.15. A comment from the Chesapeake Bay Foundation (at page 3) noted that determining what is a small size is influenced by the location of a proposed action on the landscape. In response, DOE provides a general discussion of “small” and “small-scale” below and also discusses the use of these terms in the context of specific classes of actions (B1.26, B1.29, B3.14, B3.15, B5.18, B5.25, B6.1, C8 (distinguishing small scale and large scale)) later in this preamble.

In determining whether a particular proposed action qualifies for a categorical exclusion, DOE considers terms such as “small” and “small-scale” in the context of the particular proposal, including its proposed location. In assessing whether a proposed action is small, in addition to the actual magnitude of the proposal, DOE considers factors such as industry norms, the relationship of the proposed action to similar types of development in the vicinity of the proposed action, and expected outputs of emissions or waste. When considering the physical size of a proposed facility, for example, a DOE NEPA Compliance Officer would review the surrounding land uses, the

scale of the proposed facility relative to existing development, and the capacity of existing roads and other infrastructure to support the proposed action. This clarification has been added to § 1021.410(g).

DOE has reviewed the proposed categorical exclusions and classes of action on a case-by-case basis to further consider size or scale issues in response to comments received on the Notice of Proposed Rulemaking. Among other factors, DOE considered that these terms appear in its existing categorical exclusions and have been applied by NEPA Compliance Officers for more than 15 years. As a result of this review, DOE concludes that the terms “small” and “small-scale” remain appropriate for describing the types of activities contemplated by categorical exclusions. The provisions of the individual categorical exclusions using these terms, together with the integral elements at appendix B, paragraphs (1) through (5), the general restrictions on the application of categorical exclusions at 10 CFR 1021.410, and extraordinary circumstances, provide the necessary safeguards to ensure that categorical exclusions are not applied to activities that could result in significant environmental impacts. Therefore, DOE is retaining its proposed use of “small” and “small-scale” in its final rule.

4. Would Not Have the Potential To Cause Significant Impacts

DOE received comments (
e.g.,
from Columbia Riverkeeper (at page 6), National Wildlife Federation (at page 3)) on its proposed use of the phrase “would not have the potential for significant impact” in both the integral element provision (at appendix B, paragraph (4)) of appendix B categorical exclusions and a number of specific categorical exclusions (categorical exclusions B1.11, B1.18, B1.24, B2.3, and B5.18). In response to these comments, DOE reviewed each use of the phrase in the Notice of Proposed Rulemaking. After further consideration, DOE is revising related text in several categorical exclusions. See discussion of categorical exclusions B1.5, B1.11, B3.1, B3.8, and B4.6 below. DOE is continuing to use the phrase in other categorical exclusions and related text.

A comment from Tri-Valley CAREs (at pages 2-3) expressed concern that DOE was expanding the categorical exclusions “without providing an analysis of whether there was actually a potential for significant environmental impact.” A comment from Sandy Beranich (at page 1) stated that use of “significant” would leave the degree of impact open to interpretation, whereas, the use of “adversely affect” was clearer. DOE's support for its categorical exclusions is provided in this preamble and in the Technical Support Document. For a description of how DOE creates and applies its categorical exclusions, please see Section III above.

To understand why DOE is changing some conditions in categorical exclusions that previously used the phrase “not adversely affect” or that required no change in a particular parameter, it is helpful to understand that it was never DOE's intent or practice that identification of any adverse impact or change whatsoever—no matter how small—would disqualify the use of a categorical exclusion for a particular proposed project. Also, the changes are consistent with the purpose of categorical exclusions, which is to define a set of activities that normally pose no potential for significant environmental impacts, and with the CEQ NEPA regulations and its Categorical Exclusion Guidance.

One change DOE is making, for example, is in the integral elements applicable to all categorical exclusions in appendix B. The existing regulation states that a proposed action “must not adversely affect environmentally sensitive resources.” DOE is changing this to state that a proposed action must not “have the potential to cause significant impacts on environmentally sensitive resources.” This is consistent with the CEQ Categorical Exclusion Guidance, which states that an agency may define its extraordinary circumstances “so that a particular situation, such as the presence of a protected resource, is not considered an extraordinary circumstance per se, but a factor to consider when determining if there are extraordinary circumstances, such as a significant impact to that resource.”

In the case of individual categorical exclusions, use of the term “significant” helps to highlight a type of potential impact that a NEPA Compliance Officer must consider when reviewing a particular proposed action. This is consistent with the CEQ Categorical Exclusion Guidance, which suggests that it may be useful for agencies to “identify additional extraordinary circumstances and consider the appropriate documentation when using certain categorical exclusions.”

5. Definition of “State”

DOE uses the phrase “Federal, state, or local government” (and similar phrases) in 10 CFR part 1021. Unless otherwise specified, the term “state” refers broadly to any of the states that comprise the United States, any territory or possession of the United States (such as Puerto Rico, Guam, and American Samoa), and the District of Columbia. This definition is a clarification of, not a change in, DOE practice because DOE always has applied, and continues to apply, this meaning to the word “state” in 10 CFR part 1021.

6. Comments on Section 1021.410

Comments (
e.g.,
from Tri-Valley CAREs (at pages 2-4)) asked how DOE would meet the CEQ requirement that an agency's categorical exclusion procedures “provide for extraordinary circumstances in which a normally [categorically] excluded action may have a significant environmental effect” (40 CFR 1508.4). DOE's regulations require that, before a categorical exclusion may be applied to a proposed action, a determination must be made that there are no extraordinary circumstances related to a proposal that may affect the significance of the proposal's environmental effects (10 CFR 1021.410(b)(2)). In the final rule, DOE describes extraordinary circumstances as “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” (10 CFR 1021.410(b)(2)). If DOE identifies an extraordinary circumstance that would result in a potentially significant impact, then it would not apply a categorical exclusion to that proposed action. Further, under DOE's NEPA regulations, before a categorical exclusion from appendix B of subpart D may be applied, DOE must determine that the proposed action satisfies all of the conditions known as “integral elements” (appendix B, paragraphs (1) through (5)). These conditions ensure that a categorical exclusion is not applied to any proposed action that would 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. Together, DOE's extraordinary circumstances and integral elements provisions require the Department to consider whether there are conditions surrounding a proposal that may affect the significance of the proposal's environmental effects.

Another comment (from Columbia Riverkeeper (at page 5)) expressed concern that DOE's extraordinary

circumstances are not consistent with CEQ guidance and asserted that DOE's examples of extraordinary circumstances set a “higher bar” than CEQ's examples. The comment suggested that, to be consistent with CEQ guidance, DOE's extraordinary circumstances be based on the “presence of an endangered or threatened species or a historic resource.” DOE based its approach to extraordinary circumstances on the definitions of categorical exclusion and significance in the CEQ regulations. See 40 CFR 1508.4 and 1508.27. DOE finds its approach to be consistent with the CEQ Categorical Exclusion Guidance, which states (II.C), “An extraordinary circumstance requires the agency to determine how to proceed with the NEPA review. For example, the presence of a factor, such as a threatened or endangered species or a historic resource, could be an extraordinary circumstance, which, depending on the structure of the agency's NEPA implementing procedures, could either cause the agency to prepare an EA or an EIS, or cause the agency to consider whether the proposed action's impacts on that factor require additional analysis in an EA or an EIS. In other situations, the extraordinary circumstance could be defined to include both the presence of the factor and the impact on that factor. Either way, agency NEPA implementing procedures should clearly describe the manner in which an agency applies extraordinary circumstances and the circumstances under which additional analysis in an EA or an EIS is warranted” (75 FR at 75633). Under DOE's categorical exclusion process, therefore, it is an action's potential for significant impacts, for example, on a sensitive resource, and not simply the presence of a sensitive resource, that is the basis for determining the need for an environmental assessment or environmental impact statement. It is the responsibility of the DOE NEPA Compliance Officer to consider this potential for significant impacts and to consult with other agencies as necessary when considering a proposed action. This is expressly addressed in an integral element at appendix B, paragraph (4).

DOE received a comment from Columbia Riverkeeper (at page 4) referring to CEQ's guidance that agencies: Consider cumulative effects; define physical, temporal, and environmental factors that would constrain the use of a categorical exclusion; and consider extraordinary circumstances. The comment cited the CEQ provisions, but did not recommend any particular change to DOE's regulations. DOE considered each of the cited issues in formulating its rule, and the rule is consistent with the CEQ Categorical Exclusion Guidance. Further, DOE consulted with CEQ throughout the rulemaking process in accordance with 40 CFR 1507.3.

DOE is codifying at 10 CFR 1021.410(e) its policy to document and post online appendix B categorical exclusion determinations. As stated in the Notice of Proposed Rulemaking, such postings will not include information that DOE would not disclose pursuant to the Freedom of Information Act (FOIA). A comment from Tri-Valley CAREs (at page 2) expressed concern that the public would be deprived of a right to challenge such withholdings under FOIA. Further, the comment asked DOE to explain the process by which the public can challenge potentially improper withholdings related to an online posting of a categorical exclusion determination. DOE is committed to openness, as is evidenced by its decision to post appendix B categorical exclusion determinations online. The procedures for requesting information related to a categorical exclusion determination are the same as for any other DOE document. If applicable, DOE will apply FOIA exemptions to a categorical exclusion determination—as it would with any document—to appropriately limit the release of particular types of information (
e.g.,
classified or confidential business information). To the fullest extent possible, DOE will segregate information that is exempt from release under FOIA to allow public review of the remainder of the document. See 10 CFR 1021.340. For further information on FOIA processes at DOE, see DOE's FOIA resources posted at
http://energy.gov/management/office-management/operational-management/freedom-information-act,
including a handbook on procedures for filing a request at
http://energy.gov/sites/prod/files/maprod/documents/Handbook.pdf.

The addition of paragraphs (f) and (g) to 10 CFR 1021.410 is discussed in section IV.C.1-3, above.

7. Integral Elements

Federally Recognized Indian Tribe

In its Notice of Proposed Rulemaking, DOE proposed adding “Federally recognized Indian tribe” to its list of entities that designate property as historically, archeologically, or architecturally significant in appendix B, paragraph (4)(i). In addition, in the final rule, to be consistent with the Advisory Council on Historic Preservation implementing regulations (36 CFR part 800) for the National Historic Preservation Act, DOE has added “Native Hawaiian organization” to the list of entities that may designate such properties. The Advisory Council on Historic Preservation regulations provide consultative roles to both Indian tribes and Native Hawaiian organizations in the Section 106 process under the National Historic Preservation Act. The Advisory Council's regulations define a Native Hawaiian organization as “any organization which serves and represents the interests of Native Hawaiians; has as a primary and stated purpose the provision of services to Native Hawaiians; and has demonstrated expertise in aspects of historic preservation that are significant to Native Hawaiians”; and the regulations define Native Hawaiian as “any individual who is a descendent of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii” (36 CFR 800.16(s)).

Further, DOE clarifies that use of “Federally recognized Indian tribe” in subpart D, appendix B of 10 CFR part 1021, is intended to include Indian and Alaska Native tribes that the Secretary of the Interior recognizes as eligible for programs and services provided by the United States to Indians because of their status as Indians. (25 U.S.C. 479a-1). Each year, the Bureau of Indian Affairs (BIA) publishes a list in the
Federal Register
of the recognized tribal entities. For purposes of appendix B to subpart D of 10 CFR part 1021, Federally recognized Indian tribes are those entities included on the BIA list. (A link to the list and a supplement, current at the time of this final rule's publication, can be found on the BIA Web site at
http://www.bia.gov/DocumentLibrary/index.htm.
) DOE would refer to the most current BIA list when considering the integral element.

Environmentally Sensitive Resources

DOE received comments (
e.g.,
from the Chesapeake Bay Foundation (at page 3), the Ocean Renewable Energy Coalition (at page 5), and Pacific Northwest National Laboratory (at page 1)) suggesting further modifications or clarifications to the list of environmentally sensitive resources that are part of the integral elements applicable to appendix B categorical exclusions (appendix B, paragraph (4)). DOE does not intend the examples in B(4) to be an exhaustive list of environmentally sensitive resources, but

agrees that additional examples would be helpful. DOE is adding the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act to B(4)(ii). In addition, DOE is correcting a typographical error in the reference to the Marine Mammal Protection Act in B(4)(ii). Another comment (from the Chesapeake Bay Foundation (at page 4)) asked DOE to expand its listing of environmentally sensitive resources to “recognize and protect * * * resources of high local, state, or federal value and concern that may not enjoy, or may not yet have received, specific regulatory or statutory protection.” Specifically, the comment (at page 3) asserted that DOE's clarification of environmentally sensitive resources was too limited because it would not include “riparian stream buffers * * * large forest or contiguous woodland assemblages, locally specified high value farmland * * * `candidate' state or federal threatened or endangered species or their habitat * * * drinking water supply streams or reservoirs * * * or * * * headwater streams.” In response to the comment, DOE is adding “state-proposed endangered or threatened species or their habitat” to the description of environmentally sensitive resources listed in integral element B(4)(ii), which already explicitly provides for consideration of “Federally-proposed or candidate species or their habitat.” DOE is not adding the other resources described in the comment because they are not generally resources that have been identified as needing protection through Executive Order, statute, or regulation by Federal, state, or local government, or a Federally recognized Indian tribe. However, DOE acknowledges that the resource examples contained in the comment may be considered as extraordinary circumstances in making an individual categorical exclusion determination.

Similarly, another comment (from Joyce Dillard (at page 1)) expressed general concern regarding destruction of wetlands and aquifers and salt water intrusion. DOE's existing integral elements B(4)(iii) and (vi) provide for consideration of wetlands as well as special sources of water (including sole source aquifers) as environmentally sensitive resources. With respect to salt water intrusion, DOE would consider the potential for salt water intrusion, including whether it constitutes an extraordinary circumstance, before making a categorical exclusion determination. Also, see discussion of “would not have the potential to cause significant impacts” in section IV.C.4 of this preamble.

Genetically Engineered Organisms, Synthetic Biology, Governmentally Designated Noxious Weeds, and Invasive Species

DOE received several comments (in reference to categorical exclusions B3.6, B3.8, B3.12, B3.15, B5.15, B5.20, and B5.25;
e.g.,
from Center for Food Safety on behalf of itself and 3 other organizations (at pages 3-5) and National Wildlife Federation (at page 2)) regarding the use of genetically engineered organisms, noxious weeds, and invasive non-native species, such as non-native algae. These comments suggested that the development and use of such organisms could affect entire ecosystems. The comments expressed concern that these organisms could not be contained and could escape into the environment and potentially cause a variety of environmental and human health impacts.

DOE received similar comments (
e.g.,
from Center for Food Safety on behalf of itself and 3 other organizations (at pages 2 and 3)) regarding “synthetic biology,” suggesting that the impacts of developing and releasing genetically engineered organisms, using man-made DNA sequences, were largely unknown and that such organisms could interact with native species and adversely affect the environment and entire ecosystems.

In addition, a comment from Center for Food Safety on behalf of itself and 3 other organizations (at page 2) asserted that DOE has provided more than $700 million in funding for synthetic biology research since 2006 and that this level of funding amounts to a programmatic research program that should be analyzed in an environmental impact statement. The comment also asserted that DOE is attempting to segment the potential environmental impacts of this research by seeking categorical “exemptions” from NEPA for individual research projects. As an initial matter, DOE disagrees with the comment's funding estimate. For example, almost all the funding is attributed to the Genomics Science Program and the Joint Genomics Institute, both of which are ongoing initiatives (begun in the 1980s and 1990s, respectively) that support research in several areas, only some of which can be referred to as synthetic biology. Moreover, DOE disagrees with the assertion that an amount of funding is sufficient to define a programmatic research program for which DOE should prepare an environmental impact statement. In determining whether an environmental impact statement is required or would be beneficial to its decisionmaking, DOE considers the nature of decisions to be made and the relationships among proposed actions and potential environmental impacts, among other factors. DOE has determined that, at this time, its activities related to synthetic biology do not constitute a programmatic research program and do not require an environmental impact statement.

DOE received several comments regarding research into bioenergy technologies, either performed or funded by DOE. Some of the comments (
e.g.,
from the Biotechnology Industry Organization (at page 3)) were supportive of this research and encouraged the use of categorical exclusions to remove barriers to the adoption of these technologies. Some comments (
e.g.,
from Center for Food Safety on behalf of itself and 3 other organizations (at page 5), National Wildlife Federation (at pages 2 and 4)) expressed concern about bioenergy research and the harvest of biomass involving invasive and non-native species, including non-native and genetically engineered algal species, specifically citing categorical exclusions B3.6, B3.8, and B5.25. The comments suggested that intentional or inadvertent release of invasive or non-native species, especially in aquatic environments, could have unanticipated consequences, including threats to local ecosystems, and the National Wildlife Federation (at page 2) suggested that categorical exclusions were appropriate only for plant species that “successfully pass[ed] an established weed risk assessment.” Another comment (from the Biotechnology Industry Organization (at page 2)) requested that any regulations regarding biotechnology reflect the principles laid out in the Coordinated Framework for the Regulation of Biotechnology (51 FR 23302; June 26, 1986) and articulated by the White House Emerging Technologies Interagency Policy Coordination Committee.

To address these comments, DOE considered the addition of further restrictions to individual categorical exclusions, but opted instead to add a new integral element that will be applicable to all appendix B categorical exclusions. This integral element requires that, to fit the classes of actions in appendix B, a proposal must be one that would not “[i]nvolve genetically engineered organisms, synthetic biology, governmentally designated noxious weeds, or invasive species, unless the proposed activity would be contained or confined in a manner designed and operated to prevent unauthorized release [that is, a release

not subject to an experimental use permit issued by the Environmental Protection Agency (EPA), a permit or notification issued by the Department of Agriculture (USDA), or a granting of nonregulated status by the USDA] into the environment and conducted in accordance with applicable requirements, such as those of the Department of Agriculture, the Environmental Protection Agency, and the National Institutes of Health.” Examples of applicable guidelines and requirements include National Institutes of Health “Guidelines for Research Involving Recombinant DNA Molecules” (
http://oba.od.nih.gov/rdna/nih_guidelines_oba.html
); USDA “Noxious Weed Regulations” (7 CFR part 360) and regulations for the “Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which Are Plant Pests or Which There Is Reason to Believe Are Plant Pests” (7 CFR part 340); and EPA Reporting Requirements and Review Processes for Microorganisms (40 CFR part 725, particularly 40 CFR 725.200-470). These regulations impose appropriate containment and confinement measures to address the risk of inadvertent release of experimental organisms. In order to qualify for a categorical exclusion, a proposed action would have to prevent unauthorized releases into the environment, comply with all applicable requirements, and meet other conditions of the applicable categorical exclusion.

This new integral element obviates the need for the last sentence in categorical exclusion B3.8, as proposed, and that sentence is removed in the final rule. This integral element limits the activities that can receive a categorical exclusion determination to those that will not be released into the environment without proper authorization and will be conducted in accordance with applicable requirements, which include containment, confinement, or other requirements for working with these organisms. The new integral element takes into account both the principles laid out in the Coordinated Framework for the Regulation of Biotechnology and by the White House Emerging Technologies Interagency Policy Coordination Committee.

A comment relating to categorical exclusion B3.8 (from the National Wildlife Federation (at page 2) and also from Center for Food Safety on behalf of itself and 3 other organizations (at page 4)) stated that USDA approval of a genetically engineered crop does not guarantee environmental safety. DOE believes that, in general, it is reasonable to consider compliance with applicable regulations as a factor in determining whether a proposed action would have the potential to cause significant environmental impacts. In the case of genetically engineered plants regulated by USDA, its regulations require the agency to perform independent NEPA analysis before the plants may be grown outdoors (7 CFR part 372). When grown for research purposes, USDA regulations further require that field trials of genetically engineered plants are conducted with sufficient confinement methods in place such that the plants will not persist in the environment or pose the risk for significant environmental impacts (7 CFR part 340).

DOE is generally limiting categorical exclusions involving the activities mentioned in the comments to small-scale, as opposed to commercial-scale, actions. In DOE's experience, small-scale research and development activities normally do not have the potential to cause significant environmental impacts (see section IV.C.3).

A few comments (
e.g.,
Center for Food Safety on behalf of itself and 3 other organizations (at page 4)) suggested that genetically engineered crops grown for biofuels production might cause environmental impacts different from genetically engineered plants grown for other purposes, but the comments did not indicate what those differential impacts would be. DOE foresees no difference in environmental impacts from a small research plot of genetically engineered plants grown for the purpose of food or fiber as compared to the impacts from the same plants grown for biomass.

Another comment from the National Wildlife Federation (at page 2) and the Center for Food Safety (on behalf of itself and 3 other organizations; at page 4) suggested that, once DOE provided funding to a researcher to perform work with non-genetically engineered organisms under a categorical exclusion, the researcher could switch to the use of a genetically engineered organism without incurring further NEPA review. Under the terms of DOE funding agreements, the scope of work is disclosed by the researcher, and fundamental changes such as those suggested in the comment would require further NEPA analysis.

8. Powerlines

In the Notice of Proposed Rulemaking DOE proposed to change “electric powerlines” to “electric transmission lines” in several categorical exclusions to update technology-specific vocabulary. DOE received a general comment from Edison Electric Institute (at page 2) requesting that it further revise the proposed phrase to include distribution lines and related facilities to ensure that the relevant categorical exclusions are not limited to just transmission lines, but apply to energy delivery facilities more generally. Upon further consideration, DOE is using the term “powerlines” to be inclusive of both transmission and distribution lines (see categorical exclusions B1.3(m), B1.9, B4.7, B4.10, B4.12, B4.13, and class of actions C4).

9. Appendix B—Categorical Exclusions

Categorical Exclusions Applicable to Facility Operations (B1)

B1.3 Routine Maintenance

DOE received comments (
e.g.,
from Pacific Northwest National Laboratory (at page 3)) suggesting that categorical exclusion B1.3 covers minor types of activities that are of a sufficiently small scale not to warrant the documentation required of an appendix B categorical exclusion and, therefore, such actions should be listed in appendix A. DOE is committed to increasing the transparency of its NEPA implementing regulations and practices, and DOE decided not to move this categorical exclusion from appendix B, for which a public document is prepared and posted on DOE's NEPA Web site (
http://energy.gov/nepa/doe-nepa-documents/categorical-exclusion-determinations
), to appendix A, for which no documentation is required. Further, the actions under categorical exclusion B1.3 include physical activities in contrast to the more administrative functions covered by categorical exclusions in appendix A. Thus, DOE is not making any changes based on these comments.

DOE also received a comment from Sandy Beranich (at page 1) regarding item (k) in categorical exclusion B1.3. The comment suggested DOE insert additional examples of erosion control and soil stabilization measures, specifically “gabions” and “grading.” The examples already provided in the proposed B1.3(k), reseeding and revegetation, were not meant to serve as an exhaustive list, and other measures could qualify for categorical exclusion under B1.3(k). Nonetheless, DOE is adding the two examples suggested in the comment because they will help illustrate the types of erosion control and soil stabilization measures that are encompassed by B1.3(k).

B1.5 Existing Steam Plants and Cooling Water Systems

In its Notice of Proposed Rulemaking, DOE proposed modifying the second condition of this categorical exclusion from would not “adversely affect water withdrawals or the temperature of discharged water” to would not “have the potential to cause significant impacts on water withdrawals or the temperature of discharged water.” After further consideration, DOE is revising the language in this categorical exclusion to further specify the conditions. DOE is changing these provisions to: “Improvements would not: * * * (2) have the potential to significantly alter water withdrawal rates; (3) exceed the permitted temperature of discharged water * * *.”

B1.11 Fencing

After further consideration, DOE is modifying this categorical exclusion to better focus on the types of impacts to wildlife that might be caused by fencing. DOE is replacing “would not have the potential to cause significant impacts on wildlife populations or migration * * *” with “would not have the potential to significantly impede wildlife population movement (including migration) * * *.” Also, see discussion of “would not have the potential to cause significant impacts” in section IV.C.4 of this preamble.

B1.14 Refueling of Nuclear Reactors

DOE received a comment from Sandy Beranich (at page 2) asking which section of the DOE NEPA regulations addresses the disposition of spent nuclear fuel. Management and disposition of spent nuclear fuel would typically be the subject of the NEPA review for the facility (
e.g.,
an environmental impact statement is required under class of action D4, for “siting, construction, operation, and decommissioning of power reactors, nuclear material production reactors, and test and research reactors”). The comment does not propose a change to this categorical exclusion, and DOE is retaining the proposed language in the final categorical exclusion.

B1.18 Water Supply Wells

For DOE's response to comments on this categorical exclusion, see discussion of “would not have the potential to cause significant impacts” in section IV.C.4 of this preamble.

B1.19 Microwave, Meteorological, and Radio Towers

In its Notice of Proposed Rulemaking, DOE proposed adding “abandonment” to the list of activities included in this class of actions in order to encompass the complete life cycle of the towers addressed by the categorical exclusion. After further consideration, DOE acknowledges that abandonment could be misconstrued so as to absolve DOE of all responsibility for a tower, including for maintenance. This was not DOE's intent. Thus, DOE is removing “abandonment” from the list of activities in this categorical exclusion (but is keeping “modification” and “removal”). For towers that are no longer used, DOE's normal practice would be to remove the tower or transfer responsibility to another party.

As noted elsewhere in this preamble, DOE received public comments related to potential impacts on bird populations that could be associated with the use of categorical exclusions. Though none of the public comments was specific to categorical exclusion B1.19, DOE nonetheless considered the comments in the context of the activities addressed in this categorical exclusion and reviewed current information related to the potential impacts of relevant towers on bird populations. DOE concluded that its existing provisions, including for determining whether a proposal meets the integral elements of the categorical exclusion (particularly appendix B, paragraph (4)) and whether there are any associated extraordinary circumstances that would affect the significance of impacts, ensure appropriate consideration of proposed tower design (height, use of guy wires, lighting) and location. Therefore, DOE is not further revising categorical exclusion B1.19.

In addition, a comment from Edison Electric Institute (at page 2) asked DOE to add individual electric transmission towers and distribution poles to the scope of this categorical exclusion. Because electric transmission towers and distribution poles are already included in the scope of DOE's existing B4 categorical exclusions, DOE is not making any changes to categorical exclusion B1.19 in response to this comment.

B1.24 Property Transfers

A comment from Natural Resources Defense Council and Committee to Bridge the Gap (at page 2) expressed concern that the reference to contamination was being removed from the categorical exclusion. DOE's existing categorical exclusion is limited to property that is uncontaminated, which is defined to mean that there “would be no potential for release of substances at a level, or in a form, that would pose a threat to public health or the environment.” A comment from Columbia Riverkeeper (at page 5) stated that this categorical exclusion is not warranted. DOE is not changing the scope of the categorical exclusion but is merely re-wording the categorical exclusion to incorporate the definition of “uncontaminated” in a different way. Thus, DOE is making no change to the categorical exclusion in response to this comment. A separate comment stated that a categorical exclusion for the transfer, lease, or disposition of contaminated property is not warranted. DOE agrees, and, as described above, the categorical exclusion is limited to property for which there would be no potential for release of substances at a level, or in a form, that would pose a threat to public health or the environment. Therefore, DOE is not making a change to the categorical exclusion based on this comment.

A comment from Columbia Riverkeeper (at page 6) stated that DOE's approach does not account for the environmental impacts of future operations after the transfer. DOE responds that the second limitation proposed for the categorical exclusion states that “under reasonably foreseeable uses * * * the covered actions would not have the potential to cause a significant change in impacts from before the transfer * * *” This limitation would require the NEPA Compliance Officer to consider the significance of potential environmental impacts of reasonably foreseeable future uses (including during operations, as indicated by the comment) of the transferred property.

Several comments (
e.g.,
from Columbia Riverkeeper (at page 6) and Natural Resources Defense Council/Committee to Bridge the Gap (at page 1)) questioned how DOE can assess whether an action is appropriately covered by this categorical exclusion without preparing an environmental assessment or environmental impact statement. The process DOE uses for making a categorical exclusion determination is described in this notice under section III, Overview of Categorical Exclusions, above.

A comment from Columbia Riverkeeper (at page 6) stated that there would be no pathway for public involvement or comment on DOE's review under categorical exclusion B1.24. DOE is increasing public involvement and comment opportunities with regard to categorical exclusion A7, transfers of personal property, by combining it into categorical exclusion B1.24. The result is that the scope of B1.24 includes both personal and real property, and since it

is an appendix B categorical exclusion, it is subject to the online posting requirement of 10 CFR 1021.410(e). Under this new rule, DOE is codifying 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. This process provides an opportunity for public review of the categorical exclusion determination. In addition, see discussion of “would not have the potential to cause significant impacts” in section IV.C.4 of this preamble.

B1.25 Real Property Transfers for Cultural Protection, Habitat Preservation, and Wildlife Management

A comment from Edison Electric Institute (at page 2) encouraged DOE to stipulate in the categorical exclusion that any permit holders and owners of facilities on land involved in the transfers must be given advance notice so they can protect their rights. This comment raises concerns unrelated to environmental review under NEPA, which is the scope of this regulation. For this reason, DOE is retaining the proposed language in the final categorical exclusion. Separately, DOE is adding the word “Real” to the title of this categorical exclusion to clarify that the scope of the categorical exclusion does not include personal property.

B1.26 Small Water Treatment Facilities

Although DOE did not propose to substantively change this categorical exclusion, a comment from the Chesapeake Bay Foundation (at page 4) disagreed with the existing categorical exclusion's characterization that a “small” surface water or wastewater treatment facility is one with “a total capacity less than approximately 250,000 gallons per day,” and stated that an environmental assessment might be appropriate if the context of a facility so warrants. DOE's experience over many years is that a water or wastewater treatment facility processing 250,000 gallons or less per day is of a size that normally would not have the potential for significant impacts. For further information, see discussion of “small” and “small-scale” in section IV.C.3 of this preamble. A NEPA Compliance Officer would consider location and context in determining whether a proposal meets the integral elements of the categorical exclusion (listed in appendix B, paragraph (4)) and whether there are any associated extraordinary circumstances that would affect the significance of impacts. In accordance with integral element B(1) of the DOE NEPA regulations, DOE would ensure that water treatment facilities under this categorical exclusion would not threaten a violation of applicable statutory, regulatory, or permit requirements. For example, a wastewater treatment facility would comply with the National Pollutant Discharge Elimination System permit issued by the cognizant regulatory authority, which would ensure that pollutant loads are consistent with applicable water quality standards. For these reasons, DOE is retaining the proposed language in the final categorical exclusion.

B1.29 Disposal Facilities for Construction and Demolition Waste

A comment from the Chesapeake Bay Foundation (at page 5) recommended that the existing limitation of less than approximately 10 acres be reduced to less than approximately 5 acres; the comment did not provide the basis or any support for this recommendation. DOE is retaining the existing limitation of less than 10 acres. The comment also referred to consideration of context and intensity, including the location, landscape setting, and other resources present, in determining whether a given project is “small.” DOE agrees. For further information, see discussion of “small” and “small-scale” in section IV.C.3 of this preamble. Under DOE's NEPA regulations, a NEPA Compliance Officer would evaluate the considerations cited in determining whether a proposal meets the integral elements of the categorical exclusion (listed in appendix B, paragraphs (1) through (5)) and whether there are any associated extraordinary circumstances that would affect the significance of impacts. For these reasons, DOE is retaining the proposed language in the final categorical exclusion.

B1.33 Stormwater Runoff Control

DOE received a comment from Joyce Dillard (at page 1) stating that stormwater control is another potential money maker for local policymakers and the danger is high. DOE notes this comment and is not making any changes to this categorical exclusion in response.

B1.34 Lead-Based Paint Containment, Removal, and Disposal

DOE is adding “containment, removal, and disposal” to the title of this categorical exclusion for clarification.

Categorical Exclusions Applicable to Safety and Health

B2.3 Personal Safety and Health Equipment

For DOE's response to comments on this categorical exclusion, see discussion of “would not have the potential to cause significant impacts” in section IV.C.4 of this preamble.

Categorical Exclusions Applicable to Site Characterization, Monitoring and General Research (B3)

B3.1 Site Characterization and Environmental Monitoring

After further consideration, DOE is clarifying the means by which to address potential impacts from ground disturbance. DOE is replacing the second sentence of the categorical exclusion (as proposed in the Notice of Proposed Rulemaking) with the following: “Such activities would be designed in conformance with applicable requirements and use best management practices to limit the potential effects of any resultant ground disturbance.”

A comment from Sandy Beranich (at page 2) requested clarification of the size of certain projects covered by this categorical exclusion, saying that the difference between small and large-scale projects is subject to interpretation. DOE's discussion of “small” and “small-scale” appears in section IV.C.3 of this preamble.

In its Notice of Proposed Rulemaking, DOE included “abandonment” in the list of potential activities included in this categorical exclusion and in categorical exclusion B1.19 in order to encompass the complete life cycle of the characterization and monitoring devices in B3.1 and the towers in B1.19. As described with respect to B1.19, after further consideration, DOE acknowledges that abandonment could be misconstrued so as to absolve DOE of all responsibility for such devices or facilities, including for maintenance. This was not DOE's intention. Therefore, DOE is removing “abandonment” (and adding “removal or otherwise proper closure (such as of a well)”) in the text describing the life cycle of characterization and monitoring devices and facilities addressed by the categorical exclusion.

To simplify the categorical exclusion, DOE is changing “salt water and freshwater” to “aquatic environments.” Aquatic, as used herein, may refer to salt water, freshwater, or areas with shifting delineation between the two; this is not a substantive change.

B3.6 Small-Scale Research and Development, Laboratory Operations, and Pilot Projects

Categorical exclusion B3.6 does not include demonstration actions, as stated in the Notice of Proposed Rulemaking. However, after reviewing public comments and further internal consideration, DOE is revising the text to state this condition more clearly. Separately, a comment (
e.g.,
from Friends of the Earth and from Center for Food Safety on behalf of itself and 3 other organizations (at page 1)) stated that this categorical exclusion should be rejected, because its use could cause significant impacts; DOE has determined that this categorical exclusion, by its terms and in light of the integral element and extraordinary circumstances requirements, is appropriate and would not have the potential for significant impacts.

DOE received comments regarding the use of genetically engineered organisms, synthetic biology, noxious weeds, and non-native species, such as non-native algae in projects that may be categorically excluded under this section of the rule. For further information, see discussion of “Genetically engineered organisms, synthetic biology, governmentally designated noxious weeds, or invasive species” in section IV.C.7 of this preamble.

DOE received a comment from Center for Food Safety on behalf of itself and 3 other organizations (at page 3) that the difference between a pilot study and a demonstration action, which could require an environmental assessment or environmental impact statement, is unclear and suggested that this categorical exclusion could be applied to large-scale, open-pond projects involving genetically engineered algae or algae altered through synthetic biology without review of environmental risks. DOE disagrees. This categorical exclusion applies only to small-scale projects, such as those performed for proof of concept purposes. For further information, see discussion of “small” and “small-scale” in section IV.C.3 of this preamble. Further, before a categorical exclusion determination can be made, the proposed action undergoes review, for example, to determine whether it is consistent with the integral elements and the conditions of the particular categorical exclusion.

B3.7 New Terrestrial Infill Exploratory and Experimental Wells

DOE received a comment from Joyce Dillard (at page 1) regarding the risks associated with injection wells. Categorical exclusion B3.7 requires that the well be sited within an existing, characterized well field and requires that the site characterization has verified a low potential for seismicity. DOE has experience in the construction and operation of exploratory and experimental wells and, in DOE's experience, these conditions are appropriate. Therefore, DOE is retaining the proposed language in the final categorical exclusion. (The issue is also relevant to categorical exclusions B5.3, B5.12, and B5.13.)

DOE intended this categorical exclusion to include both extraction and injection wells. After further consideration, DOE is adding “for either extraction or injection use” to clarify the scope of new terrestrial infill exploratory and experimental well activities under this categorical exclusion.

B3.8 Outdoor Terrestrial Ecological and Environmental Research

After further consideration, DOE is clarifying the means by which to address potential impacts from ground disturbance. DOE is deleting the following words from the end of the first sentence of the categorical exclusion: “provided that such activities would not have the potential to cause significant impacts on the ecosystem” (as proposed in the Notice of Proposed Rulemaking). The following new second sentence is being inserted: “Such activities would be designed in conformance with applicable requirements and use best management practices to limit the potential effects of any resultant ground disturbance.”

DOE is deleting the following sentence to avoid confusion: “These actions include, but are not limited to, small test plots for energy related biomass or biofuels research.” Although this categorical exclusion is appropriate for small biomass or biofuels research, it is only one example of a variety of research projects that could be included in the class of actions described by categorical exclusion B3.8. Another comment (from Friends of the Earth and from Center for Food Safety on behalf of itself and 3 other organizations (at page 1)) stated that this categorical exclusion should be rejected because its use could cause significant impacts; DOE has determined that this categorical exclusion, by its terms and in light of the integral element and extraordinary circumstances requirements, is appropriate and would not have the potential for significant impacts.

DOE received comments regarding the use of genetically engineered organisms, synthetic biology, noxious weeds, and non-native species, such as non-native algae in projects that may be categorically excluded under this section of the rule. For further information, see discussion of “Genetically engineered organisms, synthetic biology, governmentally designated noxious weeds, or invasive species” in section IV.C.7 of this preamble. DOE is deleting the last sentence of the categorical exclusion (as proposed in the Notice of Proposed Rulemaking), because the use of genetically engineered organisms is now addressed by the new integral element.

B3.9 Projects To Reduce Emissions and Waste

DOE received a comment from Edison Electric Institute (at page 2) expressing concern that the list of fuels provided in this categorical exclusion did not encompass all fuels with the potential to reduce emissions and waste. It was DOE's intention that the list be illustrative, rather than exhaustive, so DOE is replacing the second and third sentences of the categorical exclusion with the following sentence: “For this category of actions, `fuel' includes, but is not limited to, coal, oil, natural gas, hydrogen, syngas, and biomass; but `fuel' does not include nuclear fuel.”

B3.11 Outdoor Tests and Experiments on Materials and Equipment Components

DOE received a comment from Tri-Valley CAREs (at page 4) regarding the use of encapsulated source, special nuclear, or byproduct materials for nondestructive tests and experiments. The comment expressed concern that the encapsulation could be accidentally destroyed, releasing the contents into the environment. The comment also noted that the categorical exclusion did not limit the amount of encapsulated materials that could be used. DOE responds that capsules for source, special nuclear, and byproduct material are designed using technologies and materials to enable their safe transport and use. These capsules are tested to withstand extremes of temperature and pressure and to resist severe impacts, puncture, and vibration without allowing their contents to escape. Such encapsulation can readily withstand the types of handling that would occur during the nondestructive tests and experiments covered by the categorical exclusion. Performance requirements for such testing are based on factors such as the type and amount of radioactive material involved and intended use of the source. Therefore, there is minimal risk that encapsulated materials will be

inadvertently released into the environment. Because encapsulation addresses the risk of environmental release, DOE is not including a limit on the amount of encapsulated source, special nuclear, or byproduct material that could be used in the nondestructive tests and experiments covered by the categorical exclusion. Any such limit would be part of the design of a nondestructive test or experiment, which would include appropriate protocols to protect participants and the environment. DOE is retaining the proposed language and adding a reference to applicable standards to the categorical exclusion in the final rule.

B3.12 Microbiological and Biomedical Facilities

Comments (
e.g.,
from Friends of the Earth and Center for Food Safety on behalf of itself and 3 other organizations (at page 1)) stated that this categorical exclusion should be rejected, because its use could cause significant impacts; DOE has determined that this categorical exclusion, by its terms and in light of the integral element and extraordinary circumstances requirements, is appropriate and would not have the potential for significant impacts. DOE received comments from Center for Food Safety on behalf of itself and 3 other organizations (at page 4) raising concerns that the environmental release of genetically engineered organisms or synthetic organisms (including genetically engineered algae or synthetic biology) from a microbiological or biomedical facility (including facilities to house such organisms for the production of biofuels) could pose risks to local ecosystems, during both the operation and decommissioning of these facilities. In response, DOE points out that facilities covered by this categorical exclusion must be constructed and maintained in accordance with all applicable regulations, including provisions (
e.g.,
the use of biological safety cabinets and chemical fume hoods) to ensure the containment of organisms that may pose environmental risks as well as the destruction of these organisms when they are no longer needed. Generally, these regulations and practices have been effective in preventing unintended releases of research organisms and thereby prevented impacts to the environment from these organisms. Further, DOE received comments regarding the use of genetically engineered organisms, synthetic biology, noxious weeds, and non-native species, such as non-native algae in projects that may be categorically excluded under this section of the rule. For further information, see discussion of “Genetically engineered organisms, synthetic biology, governmentally designated noxious weeds, or invasive species” in section IV.C.7 of this preamble.

In addition, DOE is updating the reference to the manual on Biosafety in Microbiological and Biomedical Laboratories to the most current version.

B3.14 Small-Scale Educational Facilities

A comment from the Chesapeake Bay Foundation (at page 5) stated that a specific small size limitation should be added for the facilities under the proposed categorical exclusion or the categorical exclusion should be eliminated from the rulemaking. The comment suggested that DOE consider including a limit of 5 acres or smaller, and be restricted to placement in a developed area. When considering the physical size and location of a proposed educational facility, a DOE NEPA Compliance Officer would review the surrounding land uses, the scale of the proposed facility relative to existing development, and the capacity of existing roads and other infrastructure. The NEPA Compliance Officer would have to determine that the size of the proposed facility, in the context of its location and surroundings, was sufficiently small that it would not have the potential to cause significant environmental impacts. Thus, DOE is not proposing any modifications to this categorical exclusion. For further information, see discussion of “small” and “small-scale” in section IV.C.3 of this preamble.

In addition, DOE received a comment from Joyce Dillard (at page 1) that states, rather than the Federal government, are responsible for education and its related facilities. DOE acknowledges this comment and notes that the categorical exclusion is intended to address small facilities that are generally educational in nature, such as visitor centers, small museums, libraries, and similar facilities. Such facilities may be part of a school or university. Therefore, DOE is retaining the proposed language in the final categorical exclusion.

B3.15 Small-Scale Indoor Research and Development Projects Using Nanoscale Materials

A comment from Center for Food Safety on behalf of itself and 3 other organizations (at page 1) stated that this categorical exclusion should be rejected, because its use could cause significant impacts; DOE has determined that this categorical exclusion, by its terms and in light of the integral element and extraordinary circumstances requirements, is appropriate and would not have the potential for significant impacts. Additionally, DOE received comments (
e.g.,
from Friends of the Earth (in attachment titled Nanotechnology, Climate and Energy), and Center for Food Safety on behalf of itself and 3 other organizations (at page 4)) expressing a wide range of environmental and human health concerns regarding a potential release of nanoscale materials into the environment or commercial-scale use of nanoscale materials. DOE reiterates that this categorical exclusion may be used only for facilities for indoor small-scale research activities and not involving the environmental release, or commercial-scale production, of nanoscale materials. For further information, see discussion of “small” and “small-scale” in section IV.C.3 of this preamble. Covered facilities employing nanoscale materials would be constructed and operated in accordance with applicable requirements to ensure worker safety and to prevent environmental releases. Therefore, DOE is retaining the proposed language in the final categorical exclusion, with one exception. DOE is changing “biohazardous materials” to “hazardous materials,” in the final categorical exclusion. Hazardous materials is a broader category that includes biohazardous materials, and thus better reflects the range of materials that would need to be safely managed for this type of research and development work.

B3.16 Research Activities in Aquatic Environments

To simplify the categorical exclusion, DOE is changing “salt water and freshwater” to “aquatic.” Aquatic, as used herein, may refer to salt water, freshwater, or areas with shifting delineation between the two; this is not a substantive change. In addition, DOE is clarifying in the preamble that passive seismic techniques in item (c) refers to activities (
e.g.,
use of seismometers) that do not involve the introduction of energy or vibration that would have the potential for significant environmental impacts.

A comment from Pacific Northwest National Laboratory (at page 2) suggested that many of the activities described in this categorical exclusion, such as sample collection, installation of environmental monitoring devices, and other ecological research, should be allowed within the boundary of a marine sanctuary or wildlife refuge, if conducted in a manner consistent with

sanctuary goals and objectives. DOE agrees that, if the listed activities are authorized by the government agency responsible for the management of the sanctuary or refuge, or after consultation with such responsible agency when authorization is not applicable, then the activity may be categorically excluded under B3.16. Therefore, DOE is modifying categorical exclusion B3.16 (and B5.25) to now allow covered actions within, or having effects on, existing or proposed marine sanctuaries, wildlife refuges, or governmentally recognized areas of high biological sensitivity, if the action receives authorization from, or after consultation with, the responsible agency. The DOE NEPA Compliance Officer would take concerns from the responsible agency into account when considering whether to apply this categorical exclusion.

DOE also received a comment from DOI (at page 1) stating that it has initiated the process of reviewing and potentially revising or deleting some of its own categorical exclusions. DOE had relied on some of these DOI categorical exclusions, as well as categorical exclusions from the Department of the Navy and the National Oceanic and Atmospheric Administration, when developing this categorical exclusion. In response to the DOI comment, DOE is revising categorical exclusion B3.16 in the final rule to remove certain research activities adapted from DOI's categorical exclusions. The remaining activities are consistent with other Federal agencies' existing categorical exclusions, as well as activities included in other DOE categorical exclusions, such as flow measurements (see categorical exclusion B3.1).

DOE received a comment from DOI (at page 2) expressing concern that DOE would categorically exclude proposed actions located in unsurveyed areas of the seafloor under categorical exclusions B3.16 and B5.25. The comment suggested that DOE should perform an assessment of survey data within the area of potential effect or complete an assessment of potential seafloor impacts from the proposed activities before DOE makes a categorical exclusion determination. In response, DOE notes that a NEPA Compliance Officer, when considering a proposed action in an unsurveyed area, would gather additional information about the proposed project site needed to support a categorical exclusion determination under B3.16 and B5.25. It is the responsibility of the DOE NEPA Compliance Officer to consider the potential for significant impacts and to consult with other agencies as necessary when considering a proposed action.

DOE received comments regarding the use of genetically engineered organisms, synthetic biology, noxious weeds, and non-native species, such as non-native algae, in projects that may be categorically excluded under this section of the rule. For further information, see discussion of “Genetically engineered organisms, synthetic biology, governmentally designated noxious weeds, or invasive species” in section IV.C.7 of this preamble.

DOE received a comment from National Wildlife Federation (at page 4) expressing strong support for “removing unnecessary barriers to the commercialization of deepwater offshore wind technology,” and stating that “[w]ith siting screens, research and demonstration projects in these technologies will not have significant impacts.” DOE does not currently have the experience to support expanding the categorical exclusion to include such projects, but this may change as DOE gains experience over time.

Categorical Exclusions Applicable to Electrical Power and Transmission (B4)

DOE is changing the title of this group of categorical exclusions to state that they are applicable to “electrical power and transmission,” rather than to “power resources,” as used in the existing regulations and the Notice of Proposed Rulemaking. This change better identifies the subject of this group of categorical exclusions.

B4.1 Contracts, Policies, and Marketing and Allocation Plans for Electric Power

In the Notice of Proposed Rulemaking, DOE proposed to clarify the scope of this categorical exclusion by stating that the contracts, policies, and marketing and allocation plans are “related to electric power acquisition or transmission.” After further consideration, DOE will not explicitly refer to transmission in this categorical exclusion; transmission activities are included in the contracts, policies, and marketing plans, or are covered primarily in other classes of actions, such as categorical exclusion B4.11.

B4.4 Power Marketing Services and Activities

Upon further consideration, DOE is changing the example of “load shaping” to “load shaping and balancing.” Load balancing helps ensure system reliability by managing energy resources to be equal with load.

B4.6 Additions and Modifications to Transmission Facilities

After further consideration, DOE will not adopt its proposal to apply this categorical exclusion to facilities that “would not have the potential to cause significant impacts beyond the previously disturbed or developed facility area” and instead this categorical exclusion will be limited to actions “within a previously disturbed or developed facility area.” DOE is making this change to conform the categorical exclusion to others that relate to proposed actions in a previously disturbed or developed area. In addition, after further consideration, DOE is making a clarifying improvement by moving the activity examples to a separate sentence. For further information, see discussion of “Previously disturbed or developed area” in section IV.C.2 of this preamble.

B4.9 Multiple Uses of Transmission Line Rights-of-Way

A comment from Edison Electric Institute (at page 3) on this categorical exclusion, for granting or denying requests for multiple uses of a transmission facility's rights-of-way, requested that DOE specify that multiple uses need to accommodate technical and other concerns that may be raised by the owners of the transmission facilities involved. This categorical exclusion is used by DOE entities, for example Power Marketing Administrations, in responding to a request regarding their own transmission facility rights-of-way, not those owned by other parties. Therefore, DOE is retaining the proposed language in the categorical exclusion in the final rule.

B4.10 Removal of Electric Transmission Facilities

A comment from Edison Electric Institute (at page 3) expressed agreement with the proposed changes to the categorical exclusion, but requested that DOE stipulate that any permit holders and owners of facilities affected by the abandonment must be given advance notice so they can protect their rights. This comment raises concerns unrelated to environmental review under NEPA, which is the scope of this regulation. For this reason, DOE is retaining its proposed categorical exclusion as the final categorical exclusion.

DOE is changing the title of this categorical exclusion to more closely reflect the wording of the categorical exclusion.

B4.11 Electric Power Substations and Interconnection Facilities

DOE is simplifying the wording of this categorical exclusion. In the Notice of Proposed Rulemaking, DOE proposed that actions under this categorical exclusion be restricted to interconnecting new generation resources that meet two conditions—that the new generation resource would be eligible for a categorical exclusion and that it would be equal to or less than 50 average megawatts. DOE determined that these limitations on the generation resource were more limiting than necessary to ensure appropriate application of this categorical exclusion. The appropriate limit is that the generation resource not pose the potential for significant environmental impacts. This limit already is addressed in DOE's existing NEPA regulations, which state, in part, that before applying a categorical exclusion, DOE must determine that the proposed action is not “connected” (40 CFR 1508.25(a)(1)) to other actions with potentially significant impacts (10 CFR 1021.410(b)(3)).

DOE received a comment from the Chesapeake Bay Foundation (at page 5) stating that “a categorical exclusion without any limitations or conditions on what can be fairly substantial development is inappropriate” and that DOE should consider context and size to ensure that actions with significant impacts are not categorically excluded. In applying this categorical exclusion, a NEPA Compliance Officer considers context and size, along with other factors associated with potential for significant impacts, and DOE prepares an environmental assessment or environmental impact statement if a categorical exclusion determination is not appropriate.

B4.12 Construction of Powerlines

DOE is simplifying the wording of this categorical exclusion with respect to activities not in previously disturbed or developed rights-of-way. Upon further consideration, DOE is removing the limitation on interconnection of new generation resources proposed for this categorical exclusion for the same reason described above for categorical exclusion B4.11.

B4.13 Upgrading and Rebuilding Existing Powerlines

DOE is simplifying the wording of this categorical exclusion by removing the limitation on interconnection of new generation resources. The existing categorical exclusion B4.13 does not include a condition regarding interconnections, and DOE has determined that it is not necessary to add one. Also, any proposed upgrade or rebuild of existing powerlines would be subject to the same consideration regarding connected actions as described above for categorical exclusion B4.11.

Categorical Exclusions Applicable to Conservation, Fossil, and Renewable Energy Activities (B5)

B5.3 Modification or Abandonment of Wells

DOE received a comment from the Chesapeake Bay Foundation (at page 6) that well abandonment should be accompanied by revegetation and rehabilitation of the area. In response, DOE notes that abandonment of a well normally includes actions such as plugging, welding, or crimping and backfilling to ensure safety and prevent contamination from entering the well. DOE's proposed language adds new conditions, including that this categorical exclusion could only apply if the well abandonment were to be conducted “consistent with best practices and DOE protocols,” such as those to address revegetation and rehabilitation, among other issues. Therefore, DOE is retaining the proposed language in the categorical exclusion in the final rule. DOE notes, however, that revegetation and rehabilitation may not always be part of a proposed abandonment, where, for example, continued maintenance of cleared areas may be necessary because of ongoing operations near the abandoned well.

B5.4 Repair or Replacement of Pipelines, B5.5 Short Pipeline Segments, and B5.8 Import or Export Natural Gas, With New Cogeneration Powerplant

A comment from an anonymous individual (at page 2) objected to the categorical exclusions for pipelines because “major pipelines blow up” and asserted that DOE has allowed major oil firms to fail to maintain pipelines and has failed to adequately punish these companies for oil spills. DOE's experience is that the types of pipeline projects addressed by these categorical exclusions do not pose significant risk of accident and, indeed, repair, replacement, and similar activities can reduce such risks. DOE is retaining the proposed language in the categorical exclusions in the final rule.

B5.13 Experimental Wells for the Injection of Small Quantities of Carbon Dioxide

A comment from Sandy Beranich (at page 2) expressed concern that the injection of carbon dioxide into experimental wells should be allowed only after completing an environmental assessment. The comment also inquired as to DOE experience with these wells and their potential impacts. DOE has identified, in the Technical Support Document, multiple environmental assessments and findings of no significant impact and the results of field projects that demonstrate DOE experience with wells of a scale covered by this categorical exclusion. These environmental assessments and findings of no significant impact demonstrate that the operation of such wells normally does not result in significant environmental impacts.

To simplify the categorical exclusion, DOE is changing “salt water and freshwater” to “aquatic environments.”Aquatic, as used herein, may refer to salt water, freshwater, or areas with shifting delineation between the two; this is not a substantive change.

B5.15, B5.16, B5.17, B5.18, and B5.25 Renewable Energy

Certain of DOE's proposed categorical exclusions for small-scale renewable energy projects include a condition that a proposed project “would incorporate appropriate control technologies and best management practices.” DOE received a comment from Defenders of Wildlife (at pages 2-5) recommending that the control technologies and best management practices for five categorical exclusions (B5.15, B5.16, B5.17, B5.18, and B5.25) include pre-development surveys, mitigation measures, continued monitoring, and decommissioning/reclamation. In response, DOE notes that it normally would consider these and other practices during its NEPA review, including when determining whether to apply one of the categorical exclusions referenced by the comment.

The comment first recommended inclusion of pre-development surveys for endangered and threatened species and other sensitive resources. DOE already evaluates the likelihood of potential impacts to threatened and endangered species and sensitive ecological resources through the integral elements applicable to all appendix B categorical exclusions, as well as the consideration of extraordinary circumstances. Furthermore, predevelopment surveys may be required as part of compliance with

other regulations (
e.g.,
those pertaining to the Endangered Species Act, Bald and Golden Eagle Protection Act) and would be considered by DOE in its decision whether to apply a categorical exclusion to a particular proposed action.

The second recommendation in the comment was to include mitigation measures to compensate for impacts to ecological resources. In response, compensating for impacts to biological resources is not required by NEPA for application of a categorical exclusion, and DOE declines to adopt such a requirement. However, DOE considers all mitigation measures and best management practices that are incorporated into a proposed action as part of its decision whether to apply any categorical exclusion. This approach is supported by the CEQ final guidance on the “Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact” (CEQ Mitigation and Monitoring Guidance) (76 FR 3843; January 14, 2011). In its guidance, CEQ noted that “[m]any Federal agencies rely on mitigation to reduce adverse environmental impacts as part of the planning process for a project, incorporating mitigation as integral components of a proposed project design before making a determination about the significance of the project's environmental impacts. Such mitigation can lead to an environmentally preferred outcome and in some cases reduce the projected impacts of agency actions to below a threshold of significance. An example of mitigation measures that are typically included as part of the proposed action are agency standardized best management practices such as those developed to prevent storm water runoff or fugitive dust emissions at a construction site” (CEQ Mitigation and Monitoring Guidance).

The comment also recommended continued monitoring of environmental impacts resulting from categorically excluded actions. In response, ongoing monitoring is a part of many DOE programs, often in conjunction with an environmental management system, and private project proponents may include such monitoring (
e.g.,
for compliance with environmental protection requirements). However, when DOE is providing funding, its ability to require or oversee ongoing monitoring may be limited. In sum, DOE supports the objective of monitoring, but is not able to ensure that monitoring occurs in all circumstances.

The fourth recommendation in the comment was to include decommissioning/reclamation plans that restore impacted areas. DOE considers available information on decommissioning/reclamation plans as part of its decision whether to apply a categorical exclusion. Decommissioning and reclamation plans are not prerequisites for application of a categorical exclusion and, while they may be appropriate in some instances, DOE does not elect to require them in every situation.

DOE is not making any changes to categorical exclusions B5.15, B5.16, B5.17, B5.18, and B5.25 in response to the comments discussed above.

B5.15 Small-Scale Renewable Energy Research and Development and Pilot Projects

A comment from DOI (at page 3) asked for clarification regarding whether actions covered under the proposed categorical exclusion included both research and development projects and pilot projects located in previously disturbed or developed areas. DOE is modifying the categorical exclusion to more clearly state that both types of projects must be located in a previously disturbed or developed area. Therefore, DOE is changing the first sentence to read: “Small-scale renewable energy research and development projects and small-scale pilot projects, provided that the projects are located within a previously disturbed or developed area.” For further information, see discussion of “Previously disturbed or developed area” in section IV.C.2. of this preamble. Another comment requested that the term “small-scale” be defined. For further information, see discussion of “small” and “small-scale” in section IV.C.3 of this preamble.

DOE received comments regarding the use of genetically engineered organisms, synthetic biology, noxious weeds, and non-native species, such as non-native algae, in projects that may be categorically excluded under this section of the rules. For further information, see discussion of “Genetically engineered organisms, synthetic biology, governmentally designated noxious weeds, or invasive species” in section IV.C.7 of this preamble.

For discussion of additional comments on this categorical exclusion, see “B5.15, B5.16, B5.17, B5.18, and B5.25—Renewable energy” above in this preamble.

B5.16 Solar Photovoltaic Systems

DOE received a comment from William Kirk Williams (at page 1) objecting to DOE's proposed categorical exclusion for solar photovoltaic projects because of the potentially large amount of land involved, associated impacts on ecosystems, and the economic interests of local communities who might be restricted from existing economic uses of Federal lands. The comment said that such projects should not be built without preparation of an environmental impact statement to consider alternatives. DOE agrees that some solar projects are large and appropriately analyzed in an environmental assessment or environmental impact statement. However, DOE is not making any changes in response to this comment because the categorical exclusion could only be applied to projects “on a building or other structure” or on land “generally less than 10 acres within a previously disturbed or developed area.” At this scale, solar photovoltaic projects normally would not have the potential to cause significant impacts. For further information, see discussion of “Previously disturbed or developed area” in section IV.C.2 of this preamble.

Two comments (from Granite Construction Company (at pages 1-2) and Amonix (at pages 1-2)) asked DOE to increase the allowable footprint (acreage) for actions under this categorical exclusion to 100 acres when the projects would be located on heavily developed land such as mine or quarry sites. However, DOE does not have an adequate record to support a conclusion that larger photovoltaic systems, including up to 100 acres, normally would not have the potential for significant environmental impacts. For all proposed projects, including those at the mine and quarry locations, DOE would need to consider numerous site-specific factors, including the current state of animal and plant systems, reclamation, and alternative uses (
e.g.,
grazing). The scale of construction activities and the potential impacts for systems on 100 acres of land could be significantly different than those for a project located on 10 acres or less. DOE will continue to collect and review data and could revise or add a new categorical exclusion at a future time, if warranted. At a minimum, DOE would consider this during the next periodic review of its categorical exclusions.

A comment from William Kirk Williams (at page 1) also expressed concerns regarding negative impacts to species such as the sage grouse from activities under this categorical exclusion. Under integral element B(4)(ii), a provision applicable to all categorical exclusions in appendix B, DOE would not categorically exclude an action with the potential for significant impacts on threatened and endangered species, including Federal and state-

listed and proposed species and otherwise Federally protected species.

For discussion of additional comments on this categorical exclusion, see “B5.15, B5.16, B5.17, B5.18, and B5.25—Renewable energy” above in this preamble.

B5.17 Solar Thermal Systems

For DOE's response to comments on this categorical exclusion, see discussion of “B5.15, B5.16, B5.17, B5.18, and B5.25 Renewable energy” above in this preamble.

B5.18 Wind Turbines

In response to comments, DOE is making three changes to the categorical exclusion. A comment from Pacific Northwest National Laboratory (at page 2) asked for exclusionary wording stating that wind turbines would not be located in an established marine sanctuary or wildlife refuge. In response to the comment, DOE is limiting the categorical exclusion to land activities by adding the following sentence to the end of the categorical exclusion: “Covered actions include only those related to wind turbines to be installed on land.” DOE also received a comment supporting the use of categorical exclusions for deepwater floating offshore wind energy projects. DOE does not currently have the experience to support expanding the categorical exclusion to include such projects, but this may change as DOE gains experience over time. Second, DOE received comments (
e.g.,
from Defenders of Wildlife (at page 4), Sandy Beranich (at page 2)) expressing uncertainty or concern as to the scope or size of a proposed action to which this categorical exclusion may apply, asking whether this categorical exclusion could cover the establishment of a wind farm. In order to clarify that DOE intends the categorical exclusion to apply to proposals for a limited number of wind turbines, DOE is changing the first sentence of the categorical exclusion to refer to a small number of wind turbines (generally not more than 2), which is the number of turbines generally analyzed in the environmental assessments and findings of no significant impact identified in the Technical Support Document. Third, DOE identified distances for siting turbines from air safety and navigational devices in nautical miles in its Notice of Proposed Rulemaking. DOE is adding the conversion to miles to ensure the limitation is readily understood by both experts and the general public.

In addition, upon further consideration, DOE is clarifying the examples of significant impacts to persons, so that the examples now read “(such as from shadow flicker and other visual effects, and noise).” DOE also is changing a condition that a proposed action “would not have the potential to cause significant impacts on bird or bat species” to “would not have the potential to cause significant impacts on bird or bat populations.” The appropriate context for considering potential impacts is the local populations of birds and bats (including those nesting or foraging in, or flying through, the vicinity of the proposed project site).

DOE also received several other comments in response to which DOE is not making changes to the categorical exclusion. As noted previously (section IV.C.4), DOE received comments on its proposed use of “would not have the potential for significant impact” in a number of its categorical exclusions, including B5.18. In the context of categorical exclusion B5.18, comments asserted that the phrase would be open to interpretation or was too vague. DOE is including the limitations “would not have the potential to cause significant impacts on bird or bat populations” and “would not have the potential to cause significant impacts to persons (such as from shadow flicker and other visual effects, and noise)” in categorical exclusion B5.18 to highlight the types of potential impacts that a NEPA Compliance Officer must consider when reviewing a proposed action specific to wind turbines. As explained in section IV.C.4, this is consistent with CEQ's NEPA regulations and its Categorical Exclusion Guidance.

DOE received comments that expressed concern that the phrase “previously disturbed or developed area” was too vague and prone to interpretation. As indicated in its Notice of Proposed Rulemaking, DOE is limiting categorical exclusion B5.18 to actions located within previously disturbed or developed areas to avoid potential impacts to resources. For further information, see discussion of “Previously disturbed or developed area” in section IV.C.2 of this preamble.

DOE received a comment from William Kirk Williams (at page 1) that expressed concern over the scale of wind farms as too large and consuming too much land. Other comments (
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-25413. Public record. Not legal advice.