National Environmental Policy Act Implementing Procedures

SUMMARY: The Department of Energy (DOE) is amending its existing

regulations governing compliance with the National Environmental Policy

Act (NEPA). The amendments incorporate changes that improve DOE's

efficiency in implementing NEPA requirements by reducing costs and

preparation time while maintaining quality, consistent with the DOE

Secretarial Policy Statement on NEPA issued in June 1994. These

amendments also incorporate changes necessary to conform to recent

changes in DOE's missions, programs, and policies that have evolved in

response to changing national priorities since the current regulations

were issued in 1992.

EFFECTIVE DATE: These amendments to the rule will become effective

August 8, 1996.

FOR FURTHER INFORMATION CONTACT: Carol Borgstrom, Director, Office of

NEPA Policy and Assistance, EH-42, U.S. Department of Energy, 1000

Independence Avenue, SW., Washington, DC 20585-0119, (202) 586-4600 or

leave a message at (800) 472-2756.

SUPPLEMENTARY INFORMATION:

I. Background

The National Environmental Policy Act of 1969 (42 USC 4321 et seq.)

requires that Federal agencies prepare environmental impact statements

for major Federal actions that may ``significantly affect the quality

of the human environment.'' NEPA also created the President's Council

on Environmental Quality (CEQ), which issued regulations in 1978

implementing the procedural provisions of NEPA. Among other

requirements, the CEQ NEPA regulations (40 CFR parts 1500-1508) require

Federal agencies to adopt their own implementing procedures to

supplement the Council's regulations. DOE's current NEPA implementing

regulations were promulgated in 1992 (57 FR 15122, April 24, 1992) and

are codified at 10 CFR part 1021.

On February 20, 1996, DOE published a proposed rulemaking that

would revise its existing NEPA implementing regulations (61 FR 6414).

Publication of the Notice of Proposed Rulemaking began a 45-day public

comment period that originally ended on April 5, 1996. In response to

requests, the comment period was subsequently reopened on April 19,

1996 (61 FR 17257), and extended until May 10, 1996. As part of the

notice and comment process and also in response to requests, DOE held a

public hearing on the proposed amendments on May 6, 1996. Comments were

received from approximately 39 sources, including Federal and state

agencies, public interest groups, other organizations, and individuals.

Seven commenters also spoke at the public hearing. Copies of all

written comments and the transcript of the public hearing have been

provided to CEQ and are available for public inspection at the DOE

Freedom of Information Reading Room, Room 1E-190, Forrestal Building,

1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-6020.

The amendments revise subparts A, C and D of the existing

regulations. Among the changes are various revisions to the lists of

``typical classes of actions'' (appendices A, B, C, and D to subpart

D), including the addition of new categorical exclusions, modifications

that expand or remove existing categorical exclusions, and

clarifications. Other changes pertain to the DOE requirement for an

implementation plan for each environmental impact statement and DOE's

required content for findings of no significant impact. DOE is also

clarifying its public notification requirements for records of

decisions.

DOE is continuing to consider its proposed amendments to subpart D

that relate to the Federal power marketing administrations.

Accordingly, as described in a separate Notice published elsewhere in

this issue, DOE will reopen the public comment period on the proposed

amendments to subpart D that apply primarily to power marketing

activities (B4.1, B4.2, B4.3, B4.6, B4.10, B4.11, B4.12, B4.13, C4, C7,

and D7). This final rule addresses the remainder of the proposed

amendments.

This Notice adopts the amendments proposed in the Notice of

Proposed Rulemaking (except for the power marketing classes of actions

listed above), with certain changes discussed below, and amends the

existing regulations at 10 CFR Part 1021. Copies of the final

amendments to the rule are available upon request from the information

contact listed above.

In accordance with the CEQ NEPA regulations, 40 CFR 1507.3, DOE has

consulted with CEQ regarding these final amendments to the DOE NEPA

rule. CEQ has found that the amendments conform with NEPA and the CEQ

regulations and has no objection to their promulgation.

II. Statement of Purpose

The amendments to the DOE NEPA regulations are intended to improve

the efficiency of DOE's implementation of NEPA by clarifying and

streamlining certain DOE requirements, thereby reducing implementation

costs and time. This goal is consistent with the DOE Secretarial Policy

Statement on NEPA (June 1994), which encourages actions to streamline

the NEPA process without sacrificing quality and to make the process

more useful to decision makers and the public. Full compliance with the

letter and spirit of NEPA is an essential priority for DOE. In

addition, DOE's missions, programs, and policies have evolved in

response to changing national priorities since the current DOE NEPA

regulations were issued in 1992, and DOE needs to make conforming

changes in its NEPA regulations, e.g., to provide efficient NEPA

procedures for waste management and property transfer actions, which

are occurring with increasing frequency.

III. Comments Received and DOE's Responses

DOE has considered and evaluated the comments received during the

public comment period. Many revisions suggested in these comments have

been incorporated into the final amendments to the rule. The following

discussion describes the comments received, provides DOE's responses to

the comments, and describes any resulting changes to the proposed

amendments. As a result of changes made in response to comments,

several number designations of classes of actions have been changed in

the final rule; section references, unless otherwise indicated, are to

those in the proposed amendments.

Several commenters expressed overall support for DOE's efforts to

increase efficiency and reduce NEPA compliance costs. One Federal

agency (the Food and Drug Administration) and one state agency (the

Virginia Department of Environmental Quality) stated that they had no

objections to DOE's proposed amendments. No comments or only positive

comments were received on the following proposed amendments to subpart

D of the rule: Integral element B(1), B1.8, B1.18, B1.21, B1.31, B3.3,

and D1. These proposed amendments, therefore, remain unchanged in the

final rulemaking, and are not discussed further.

[[Page 36223]]

A. Procedural Comments

A few commenters addressed procedural aspects of this rulemaking.

Specifically, one commenter stated that public Notice of Proposed

Rulemaking was inadequate. DOE notes that the Notice of Proposed

Rulemaking was published in the Federal Register on February 20, 1996.

In addition, the Notice was mailed to more than 400 stakeholders and

was made available for review and comment through the World Wide Web at

DOE's NEPA Web Site. DOE believes that its effort to notify the public

of its proposed rulemaking was sufficient.

In addition, two commenters requested that DOE hold public hearings

on the proposed rulemaking at locations in close proximity to various

DOE facilities and a reopening of the comment period until 90 days

after publication of the schedule for public hearings. Other commenters

also asked that the comment period be reopened.

In response, DOE reopened the comment period from April 19, 1996,

through May 10, 1996. Further, as described in a separate Notice

published elsewhere in this issue, DOE will again reopen the comment

period, but only on the proposals to modify the typical classes of

actions pertaining primarily to power marketing activities. DOE also

held a public hearing in Washington, DC., on May 6, 1996, with

accommodations for commenters who wished to present their views by

conference telephone call from DOE regional offices throughout the

United States.

DOE has fully considered all oral and written comments received

through May 10, 1996. DOE believes that it has provided sufficient and

appropriate public participation opportunities in its proposed

rulemaking, and does not believe that additional hearings or an

additional 90-day comment period on the entire proposed rulemaking is

necessary.

Two commenters questioned the procedures DOE followed in

determining that the proposed new and modified categorical exclusions

would result in no significant impact, and indicated the need for

documentation of this finding for each categorical exclusion in

addition to the statement that appears in the preamble to the proposed

rulemaking. In accordance with the CEQ regulations (40 CFR 1508.4), DOE

initiated this rulemaking, in part, to define those classes of actions

that DOE has found to have no significant effect on the human

environment, either individually or cumulatively. DOE is not required

by the CEQ regulations to set forth in the preamble a detailed,

individualized explanation for its finding of no significant impact for

each of the classes of actions in appendices A and B, but provides an

overall finding in Section III.F, below.

One commenter requested that DOE prepare an environmental impact

statement addressing the cumulative impacts of the proposed amendments.

Two other commenters stated that an environmental assessment was

necessary to determine whether the proposed amendments constituted a

major Federal action.

DOE believes that its proposal to amend its NEPA implementing

regulations falls within the categorical exclusion for procedural

rulemaking (10 CFR part 1021, appendix A to subpart D, categorical

exclusion A6). DOE's NEPA regulations prescribe the process under which

the Department examines the environmental impacts of its proposed

actions. The regulations do not set out substantive criteria for

reaching a decision on a particular action, and thus are procedural

only. For this reason, these amendments to the DOE NEPA regulations are

properly excluded from NEPA documentation requirements. See also

Section IV.A.

One commenter requested that DOE impose a moratorium on

privatization pending completion of public hearings and an

environmental impact statement on the proposed amendments. This request

is outside the scope of this rulemaking, and DOE does not believe that

the scope, which is restricted to DOE's proposed changes to 10 CFR part

1021, should be expanded. Any moratorium on privatization activities

should be determined on the basis of the particular facts and

circumstances and not in this rulemaking.

A commenter disagreed with DOE's statement in the preamble to the

proposed rule that a review under the Unfunded Mandates Reform Act was

not required because the DOE NEPA regulations affect only DOE. The

commenter stated that many DOE facilities and actions have profound

effects on other government agencies and the private sector. While DOE

recognizes that its activities do affect other government agencies and

the private sector, its regulations to implement the procedural

provisions of NEPA impose obligations only on DOE, not on any state,

local, or tribal government or on the private sector. Thus, further

review by DOE under the Unfunded Mandates Reform Act is not required,

and DOE is reiterating in this final rule its previous finding in the

proposed rule. See Section IV.G.

B. General Comments on Proposed Amendments

Comments on Public Involvement Opportunities

Many commenters stated that the proposals regarding implementation

plans, records of decision, and additions and modifications to the list

of categorical exclusions would have the effect of reducing the

public's knowledge of, and opportunities to participate in, DOE's

decision making process. One commenter expressed concern that new and

modified categorical exclusions would reduce the range of DOE actions

subject to meaningful environmental review.

In proposing certain streamlining amendments to subpart C, DOE

carefully weighed the benefits of improved efficiency against the

acknowledged reduction in public information. DOE has reconsidered each

such proposal in light of public comments and made some adjustments, as

described below in Section III.D.

However, with regard to categorical exclusions, while the CEQ

regulations encourage public participation in the NEPA process, they

also direct agencies to use categorical exclusions (which, by

definition, have no significant impact on the environment, either

individually or cumulatively) to reduce paperwork (40 CFR 1500.4(p))

and delays (40 CFR 1500.5(k)). Consistent with this streamlining

approach, the CEQ regulations do not provide for public participation

in an agency's determination that a particular proposed action is

categorically excluded.

DOE is amending its list of categorical exclusions by adding

certain DOE classes of actions and modifying or clarifying other

classes of actions currently on its list of categorical exclusions. In

doing so, DOE has determined that these classes of actions do not have

significant impacts on the environment, either individually or

cumulatively. See Section III.F below. Thus, for these particular

classes of actions, the environmental review that the commenter

requested would not be meaningful in terms of evaluating significant

impacts to the environment. DOE believes that it will serve

environmental concerns and the public's interest best by focusing its

efforts on the careful analysis of those actions that actually have the

potential for significant impact.

DOE has considered comments on the merits of each proposed

categorical exclusion amendment as discussed in Section III.F, but has

decided generally to proceed with listing and modifying categorical

exclusions, with the

[[Page 36224]]

knowledge that in some respects doing so would diminish opportunities

for public involvement or information sharing.

Comments Outside the Scope of Proposed Rulemaking

DOE proposed changes to specific sections of its NEPA implementing

procedures. DOE considers any comments received regarding the proposed

changes to be within the scope of this rulemaking and has addressed

such comments in this final rulemaking.

DOE received several comments that it considers to be outside the

scope of this rulemaking. These include suggested modifications to

provisions of the existing DOE NEPA regulations other than those DOE is

proposing to modify or expand, suggestions for additional categorical

exclusions, suggestions for broad changes to the DOE NEPA process, and

comments on particular DOE proposed actions and DOE policies or

procedures not related to DOE's NEPA regulations. Such comments are

briefly discussed below.

Suggested Changes to Other Provisions of Existing DOE NEPA Regulations

Some commenters suggested changes to provisions of existing DOE

NEPA regulations in addition to provisions that DOE proposed to modify

or expand. These commenters sought changes to Secs. 1021.216

(Procurement, financial assistance, and joint ventures), 1021.301

(Agency review and public participation), 1021.410 (Application of

categorical exclusions (classes of actions that normally do not require

EAs or EISs)), and B3.11 (Outdoor tests and experiments on materials

and equipment components). While DOE is not considering such changes to

its NEPA regulations at this time, DOE is taking these suggestions

under advisement and may address them in a future rulemaking.

Suggestions for Additional Categorical Exclusions

A few commenters offered suggestions for additional categorical

exclusions to cover facility deactivation activities; onsite

transportation of packaged spent nuclear fuel or transuranic waste;

onsite transportation of hazardous, mixed, and radioactive waste;

relocation or reconfiguration of existing facilities, buildings, and

operations within and between DOE sites; replacement of existing

facilities in kind and in place; and treatment or disposal of hazardous

waste at an existing offsite permitted facility. To the extent that

these suggestions were not addressed in DOE's proposed additions and

modifications to its list of typical classes of action, DOE considers

them to be outside the scope of this rulemaking. DOE is taking these

suggestions under advisement and may address them in a future

rulemaking.

Suggested Changes to DOE's NEPA Process

Other commenters offered general suggestions for what they

considered to be improvements to the DOE NEPA process; topics included

the codification of DOE's enhanced public involvement procedures,

improvement of DOE's notification procedures, the timing of NEPA

actions, page limits for DOE environmental impact statements,

coordination with state historic preservation officers, actions taken

under consent orders, defining when the choice of reasonable

alternatives becomes limited, use of ``worst case'' scenarios in NEPA

documents, and delegation of decision making authority. One commenter

requested that DOE ensure that its implementing rules and related

policies, orders, and procedures are not applied unnecessarily to

actions that are not ``major Federal actions.'' Although these comments

are outside the scope of DOE's proposed rulemaking, DOE may consider

these suggestions in a future rulemaking.

Comments Not Related to NEPA Regulations

A few commenters offered comments that are related to particular

DOE proposed actions or other DOE policies and procedures. These

include comments regarding whistleblower protection, privatization of

DOE facilities, hearings on the Multi-Purpose Canister Environmental

Impact Statement, management of spent nuclear fuel, cleanup of

contaminated sites, Federal Acquisition Regulations, the Waste

Management Programmatic Environmental Impact Statement, and contractor

oversight. Because these comments relate to specific DOE actions and

not to DOE's procedures for NEPA compliance, DOE finds these comments

to be outside the scope of this rulemaking. Accordingly, they were not

considered in developing the final rule.

Other Comments

One commenter stated that DOE should provide language in the rule

that requires all DOE NEPA documents to substantiate compliance with

all applicable environmental laws, Executive Orders, and other similar

requirements. DOE notes that it must comply with all applicable

environmental laws, Executive Orders, and similar requirements. With

respect to the application of the categorical exclusions in appendix B

to subpart D, DOE's NEPA regulations currently require that a proposed

action must be one that would not ``[t]hreaten a violation of

applicable statutory, regulatory, or permit requirements for

environment, safety, and health'' in order to fit within a categorical

exclusion (appendix B to subpart D, integral element B(1)).

One commenter objected to documenting the application of

categorical exclusions to each and every activity that DOE undertakes;

on the other hand, several commenters suggested the need for

documentation to ensure that the integral elements (appendix B, B (1)

through B(4) to subpart D of DOE's NEPA regulations) were properly

considered and cumulative impacts would not result. DOE notes that

neither the CEQ nor DOE NEPA regulations, nor DOE's internal NEPA

procedures, require documenting the application of categorical

exclusions (DOE Order 451.1, Section 5(d)(2)). The appropriate NEPA

Compliance Officer is responsible for the proper application of

categorical exclusions.

Another commenter stated that DOE should regularly prepare a list

of the actions to which categorical exclusions were applied and make

that list available to the public. DOE recognizes the value in

informing the interested and affected public around DOE sites of its

activities at those sites. However, a requirement for the periodic

publication of a list of activities that have been categorically

excluded would tend to undermine CEQ's strategy of using categorical

exclusions to streamline the NEPA process.

One commenter stated that DOE's environmental review processes for

compliance with NEPA and the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA) should be integrated. Another

commenter expressed concern that the proposed amendments did not

adequately address DOE's current policy on compliance with NEPA for

CERCLA actions, as set forth in the Secretarial Policy Statement on

NEPA (June 1994).

Under the current policy, DOE will rely on the CERCLA process for

review of actions to be taken under CERCLA and will address NEPA values

and public involvement procedures in its CERCLA processes to the extent

practicable. DOE may choose, however, after consultation with

stakeholders and as a matter of policy, to integrate the NEPA and

CERCLA processes for specific proposed actions. The CERCLA/NEPA policy

is applied on a case-by-

[[Page 36225]]

case basis, and DOE is satisfied that the new approach is clear and

working adequately as a matter of policy that does not warrant

codification in the regulations.

One commenter asked whether DOE should consider NEPA to be

sufficiently specific and detailed to warrant the commitment to the

``letter'' of NEPA that DOE stated in its preamble to the proposed

amendments. The commenter stated that such a commitment can create

unnecessary concerns about the degree to which the responsibility for

decision making can be delegated and justify unnecessarily restrictive

and arbitrary decisions. While DOE agrees that the statute itself

imposes few specific requirements, DOE believes that it is important to

stress its commitment to complying with the express requirements, as

well as with the intent of the statute to preserve, protect, and

enhance the environment.

C. Comments on Amendments to Subpart A--General

Section 1021.105 Oversight of Agency NEPA Activities

One commenter expressed concern that the Office of NEPA Policy and

Assistance was being eliminated and that the amendment proposed that

oversight of DOE NEPA activities would be assumed by the Assistant

Secretary for Environment, Safety and Health.

The oversight of DOE's NEPA activities has been and continues to be

conducted by the Assistant Secretary for Environment, Safety and

Health. On December 18, 1994, the office under the Assistant Secretary

with specific responsibility for NEPA activities was renamed the Office

of NEPA Policy and Assistance (formerly the Office of NEPA Oversight).

The only modification to this section is a conforming change to

incorporate the new name for the office.

D. Comments on Amendments to Subpart C--Implementing Procedures

Section 1021.312 EIS Implementation Plan

DOE received several comments supporting and several comments

opposing the proposal to eliminate the requirement to prepare an

implementation plan for every environmental impact statement.

Several commenters expressed concern that the public's opportunity

for involvement would be reduced if an implementation plan were not

prepared for every environmental impact statement. They stated that

implementation plans provide an opportunity for the public to see how

scoping comments will be addressed in the environmental impact

statement, to formulate options and comments, to review contractor

disclosure statements, and to keep the environmental impact statement

on track. One commenter stated that the public has valuable insight to

provide. Another commenter suggested that implementation plans are

useful educational tools and an excellent introduction to the DOE NEPA

process.

As discussed above in Section III.B, DOE weighed the benefits of

improved efficiency from eliminating the implementation plan

requirement against the acknowledged reduction in publicly available

information. After considering all the comments received, DOE

determined that because the public has the opportunity to provide

comments on the scope of an environmental impact statement and can see

how scoping comments were addressed and considered in the draft

environmental impact statement, the value to the public and DOE of

continuing the requirement for an implementation plan does not justify

the cost, time, and resources required in preparing an implementation

plan for every environmental impact statement.

With respect to contractor disclosure statements, DOE stated in the

preamble to the proposed amendments that it would continue to prepare

and require the execution of such statements by contractors, as

required by 40 CFR 1506.5(c) of the CEQ regulations. In response to

comments, however, DOE will include the contractor disclosure

statements in draft and final environmental impact statements, and has

modified 10 CFR 1021.310 accordingly.

One commenter stated that eliminating the implementation plan

requirement will preclude requests from interested parties for

environmental assessments and environmental impact statements before

the agency proceeds with actions. Because an implementation plan is

prepared after a decision has been made to prepare an environmental

impact statement, and is not prepared at all for environmental

assessments, DOE believes that eliminating the implementation plan

requirement will not have any effect on the public's ability to request

an environmental impact statement or an environmental assessment.

While some commenters supported eliminating the implementation plan

requirement, they requested that notes from public scoping meetings be

made available in public reading rooms or that DOE prepare a detailed

administrative record of the disposition of public scoping comments and

make it available to the public upon request. Another commenter,

although supportive of the proposed amendment, suggested that DOE

include a response to public scoping comments in the draft

environmental impact statement.

DOE believes that the purpose in eliminating the implementation

plan requirement (i.e., to achieve cost and time savings without

meaningfully reducing public involvement in the DOE environmental

impact statement process) would not be served by adopting the

alternative suggestions (preparing a detailed administrative record or

including a response to public scoping comments in a draft

environmental impact statement) in place of the implementation plan

requirement. The public scoping process under DOE's amended rule fully

complies with the CEQ NEPA regulations, which require only that draft

environmental impact statements be prepared in accordance with the

scope decided upon in the scoping process (40 CFR 1502.9(a)).

One commenter stated that the environmental impact statement

implementation plan should be optional. DOE agrees and intends for the

elimination of the implementation plan requirement to have the effect

of making such plans optional.

Finally, in its proposal to eliminate the requirement to prepare an

implementation plan for an environmental impact statement, DOE

inadvertently omitted making a corresponding change to

Sec. 1021.311(f), which included a reference to the EIS implementation

plan. Section 1021.311(f) has now been removed from the final rule;

paragraph (g) has been redesignated accordingly.

Section 1021.315 Records of Decision

Section 1021.315(c). Commenters opposed two aspects of this

proposed amendment. First, some commenters expressed concern that DOE's

proposal to allow publication in the Federal Register of a brief

summary and notice of availability of a record of decision, rather than

the full text, would shift to the public the cost of obtaining copies

of a record of decision, and would not assure timely availability of

the record of decision. Another commenter suggested that any savings

achieved from not publishing the full text of a record of decision in

the Federal Register would not be sufficient to justify the public's

increased burden in seeking a record of decision. DOE has reconsidered

the proposal in light of the commenters' concerns, and has decided that

the cost-savings do not justify the burden associated with the proposed

[[Page 36226]]

change. Therefore, DOE will continue to publish the full text of

records of decision in the Federal Register.

Second, commenters also expressed concern about the proposed

clarification to Sec. 1021.315(c) that, if a decision has been

publicized by other means (e.g., press release or announcement in local

media), DOE need not defer taking action until its record of decision

has been published in the Federal Register. The commenters suggested

that these other means of communication were not as reliable, accurate,

easily available, or effective as the Federal Register.

This amendment is a clarification, not a substantive change, to

DOE's regulations. Section 1021.315(b) currently states that ``No

action shall be taken until the decision has been made public.'' One

way to make a decision public is to publish the record of decision in

the Federal Register, but decisions can be made public in other ways,

such as through press releases or announcements in local media. DOE's

proposed amendment merely clarifies the practice that DOE has followed

previously under which DOE may proceed with an action after its

decision has been made public but before that decision is published in

the Federal Register. DOE needs to retain the ability to implement an

action after making the record of decision public, but before

publication of that decision in the Federal Register, in those

instances when timing is critical.

One commenter questioned whether DOE was proposing to implement an

action before the decision is articulated in writing and signed. DOE is

not making such a proposal. To clarify this point, DOE has modified the

final language in a new Sec. 1021.315(d) by indicating that DOE may

implement a decision if the record of decision has been signed and the

decision and the availability of the record of decision have been made

public.

Another commenter indicated confusion over DOE's proposal to modify

Sec. 1021.315(c) rather than Sec. 1021.315(b). In response, and to

provide further clarification, DOE has moved the second sentence from

current Sec. 1021.315(b) to begin a new Sec. 1021.315(d), and added to

the new subsection (d) the language previously proposed for

Sec. 1021.315(c), as modified above. Section 1021.315(c) remains as in

the current regulation, and current Sec. 1021.315(d) is now

Sec. 1021.315(e). Pertinent sections of Sec. 1021.315 are now changed

as follows:

(a) (no change)

(b) If DOE decides to take action on a proposal covered by an EIS,

a ROD shall be prepared as provided at 40 CFR 1505.2 (except as

provided at 40 CFR 1506.1 and Sec. 1021.211 of this part).

(c) (no change)

(d) No action shall be taken until the decision has been made

public. DOE may implement the decision before the ROD is published in

the Federal Register if the ROD has been signed and the decision and

the availability of the ROD have been made public by other means (e.g.,

press release, announcement in local media).

(e) DOE may revise a ROD at any time, so long as the revised

decision is adequately supported by an existing EIS. A revised ROD is

subject to the provisions of paragraphs (b), (c), and (d) of this

section.

Section 1021.322 Findings of No Significant Impact

Section 1021.322(b)(1). Under the proposed amendment, and in

accordance with 40 CFR 1508.13, DOE would either incorporate the

environmental assessment by reference in a finding of no significant

impact and attach the environmental assessment, or summarize the

environmental assessment in the finding. A few commenters supported the

proposal to remove the requirement to summarize the environmental

assessment in the finding of no significant impact in all cases. Others

expressed concern that DOE was proposing to eliminate information that

is currently being provided to the public.

This proposal is intended to eliminate redundancy by requiring

either the attachment of an environmental assessment to the related

finding of no significant impact or the inclusion of a summary of an

environmental assessment in the related finding of no significant

impact, but not both. This would change DOE's current practice of

summarizing the environmental assessment in each finding of no

significant impact and also attaching the environmental assessment to

the finding of no significant impact. For a finding of no significant

impact published in the Federal Register, it would be necessary to

summarize the environmental assessment in the finding of no significant

impact, because the environmental assessment would not be published in

the Federal Register.

E. General Comments on Subpart D--Typical Classes of Actions

Many of the commenters suggested, both generally and with regard to

specific proposed amendments to classes of actions in subpart D, that

DOE's terminology was too vague or subjective to adequately define

classes of actions. For example, commenters objected to DOE's use of

such terms as ``small-scale,'' ``short-term,'' ``minor,'' and

``generally,'' among others, as being too imprecise. On the other hand,

where DOE had proposed using specific quantities to aid in defining a

class of actions (e.g., 50,000 square feet of area and 100 MeV (million

electron-volts) of energy), commenters asked why DOE had picked the

proposed value rather than any other, and how DOE could justify such

apparent precision.

DOE has considered all such comments in the context of the

individual proposed amendments to subpart D classes of actions

presented in Section III.F, below. To provide additional information

and to simplify the more specific discussions, DOE is providing the

following general response.

DOE formulates subpart D classes of actions based on DOE's

experience, other agencies' experience as reflected in their NEPA

procedures, technical judgments regarding impacts from actions, and

public comments on a proposed rule. To minimize subjectivity in

interpretation, DOE uses both numerical values of quantities (which

have clear meaning) and descriptive words such as ``minor'' and

``small-scale,'' which suggest the smaller actions in a class, not the

larger. DOE also uses examples, both to clarify that the class of

actions includes the specific examples cited, and to suggest the nature

of actions that may be included.

With regard to DOE's use of specific quantities in several of the

proposed classes of actions, commenters had two general objections.

First, they noted correctly that using ``generally'' in defining a

class of actions (e.g., proposed B1.26 and B3.10) could allow the class

to be applied to proposed actions that would otherwise not even

approximately fit the definition. Second, commenters questioned the

justification for the specific quantity values chosen and even whether

any specific value could be justified.

DOE's intention with respect to both issues is better expressed by

the concept of ``approximately'' rather than ``generally,'' and the

classes of actions in the final rule have been changed accordingly. By

using ``approximately,'' DOE is indicating that the numerical values

used in defining classes of actions are to be interpreted flexibly

rather than with unwarranted precision. For example, DOE proposed to

categorically exclude construction of small accelerators and decided

that it could express the class of actions as including accelerators

less than 100 MeV in energy. DOE acknowledges that judgment is involved

and that it could

[[Page 36227]]

have chosen numbers somewhat greater than 100 MeV to limit the

categorical exclusion. DOE believes, however, that the phrase ``less

than approximately 100 MeV in energy'' provides appropriate flexibility

and represents the best overall resolution of the matter.

One commenter expressed concern that DOE had not taken the

opportunity to decrease the level of prescription and detail in the DOE

NEPA regulations. The commenter expressed particular concern that DOE

had proposed 17 new classes of actions, many of which the commenter

believed would add little or no value to DOE's NEPA process. Similarly,

another commenter stated that DOE should make existing categorical

exclusions more comprehensive whenever possible, rather than simply

expand the list of categorical exclusions.

In proposing amendments to the DOE NEPA rule, DOE considered making

the list of categorical exclusions shorter by combining certain actions

and making the list more comprehensive by broadening the categories.

DOE declined to pursue such a course of action generally in this

rulemaking, although it proposed to combine two classes of actions.

DOE's extensive list of categorical exclusions results primarily from

the fact that DOE is engaged in many different types of activities.

One commenter requested that DOE define the phrase ``already

developed area'' that is used in several proposed new or amended

categorical exclusions (e.g., B1.15, B1.22, B3.6, B3.10, B3.12, and

B6.4). The commenter expressed concern that DOE may consider portions

of wildlife management areas surrounding DOE facilities to be

``developed'' merely because of DOE ownership or because of the

existence of abandoned DOE facilities. In the existing and proposed

regulations, DOE used the parenthetical phrase ``where site utilities

and roads are available'' to help define ``an already developed area''

in the classes of actions in the final rule. For further clarity, DOE

has modified the parenthetical phrase to read ``where active utilities

and currently used roads are readily accessible.'' DOE does not intend

to include wildlife areas and abandoned facilities in its definition of

``an already developed area.''

Finally, several commenters noted that DOE defined categorical

exclusions as classes of actions that ``normally'' do not require

environmental assessments or environmental impact statements. One of

these commenters suggested that ``normally'' should mean 99 percent of

the time, and this commenter and others stated that there should be

provisions for extraordinary circumstances under which a proposed

action listed in appendices A or B should not be categorically

excluded.

DOE's use of the term ``normally'' in the context of categorical

exclusions is consistent with the use of this term in the CEQ

regulations, which state that an agency's NEPA implementing procedures

for categorical exclusions ``shall provide for extraordinary

circumstances in which a normally excluded action may have a

significant environmental effect'' (40 CFR 1508.4). See also 40 CFR

1507.3(b)(2)(ii), in which CEQ directs agencies to identify classes of

actions ``which normally do not require either an environmental impact

statement or an environmental assessment.'' DOE believes that its

categorical exclusions comply with CEQ's regulations, i.e., to be

eligible for categorical exclusion, a class of actions must not have

significant effects on the human environment except in extraordinary

circumstances that may affect the significance of the environmental

effects of a specific proposed action. DOE's existing regulations (10

CFR 1021.410(b)(2)) describe the nature of extraordinary circumstances

under which a categorical exclusion should not be applied, and

explicitly require (Sec. 1021.400(d)) an environmental assessment or

environmental impact statement for a proposed action that presents such

circumstances. Therefore, DOE does not believe any changes are needed

to address the use or interpretation of the word ``normally'' in DOE's

description of categorical exclusions or the manner in which DOE

provides for extraordinary circumstances.

F. Comments on Appendices of Subpart D--Typical Classes of Actions

Several commenters objected to many categorical exclusions on the

grounds of cumulative effects, connected actions, or extraordinary

circumstances, but without explanation as to their specific objection.

A categorical exclusion is a class of actions that, individually or

cumulatively, do not have significant environmental impacts. If there

are extraordinary circumstances associated with a proposed action, or

if the proposal is connected to other actions with potentially

significant impacts or related to other proposed actions with

cumulatively significant impacts, then a categorical exclusion would

not apply under Sec. 1021.410(b).

Another commenter noted that several of the proposed categorical

exclusions referred to ``siting, construction, operation, and

decommissioning'' of various DOE activities and questioned whether such

activities would also need state permits. DOE notes that while new

construction could require state or local permits, one of the integral

elements for all appendix B categorical exclusions is that the proposed

action ``does not threaten a violation of applicable statutory,

regulatory, or permit requirements for environment, safety, and

health.'' Any DOE action would be required to comply with applicable

state and local requirements, independent of the level of NEPA review

appropriate under DOE's NEPA regulations.

In general, the following responses to comments regarding specific

categorical exclusions should be read in the full context of the DOE

regulations for categorical exclusions. Under the current regulations,

before a proposed action may be categorically excluded, DOE must

determine in accordance with Sec. 1021.410(b) that (1) the proposed

action fits within a class of actions listed in appendix A or B to

subpart D, (2) there are no extraordinary circumstances related to the

proposal that may affect the significance of the environmental effects

of the action, and (3) there are no connected or related actions with

cumulatively significant impacts and, where appropriate, the proposed

action is a permissible interim action. In addition, to fit within a

class of actions that is normally categorically excluded under appendix

B, a proposed action must include certain integral elements (appendix

B, paragraphs B (1) through (4)). These conditions ensure that an

excluded action will not threaten a violation of applicable

requirements, require siting and construction of waste management

facilities, disturb hazardous substances such that there would be

uncontrolled or unpermitted releases, or adversely affect

environmentally sensitive resources.

The headings below are those used in the table of contents of the

appendices in the proposed amendments. The conversion table below shows

which classes of actions have been included in the final amendments to

the rule. There were a few numbering changes between the proposed and

final amendments because some classes of actions were added or removed.

Specifically, the proposed B1.32 was removed, and the proposed B1.33

was renumbered as B1.32; existing B6.4, which had been proposed for

revision, was retained without change, and a new B6.10 was added to

incorporate some of the changes proposed for B6.4; and the proposed

modification to C9 was withdrawn. These changes are explained more

fully in the following discussion.

[[Page 36228]]

Conversion Table

------------------------------------------------------------------------

------------------------------------------------------------------------

Existing rule

(1)Final amendments

------------------------------------------------------------------------

A.7............................. A.7................ Clarified.

B(1)............................ B(1)............... Modified.

B(2)............................ B(2)............... Do.

B1.3............................ B1.3............... Clarified.

B1.8............................ B1.8............... Modified.

B1.13........................... B1.13.............. Do.

B1.15........................... B1.15.............. Do.

B1.18........................... B1.18.............. Do.

B1.21........................... B1.21.............. Do.

B1.22........................... B1.22 & B1.23...... Clarified.

B1.24--B1.32....... Added.

B2.6............... Do.

B3.1............................ B3.1............... Clarified.

B3.3............................ B3.3............... Do.

B3.6............................ B3.6............... Modified.

B3.10........................... B3.6............... Do.

B3.10.............. Added.

B3.12-B3.13........ Do.

B5.3............................ B5.3............... Modified.

B5.5............................ B5.5............... Do.

B5.9-B5.11...................... B5.9-B5.11......... Clarified.

B5.12-B5.16..................... Removed............

B5.12.............. Added.

B6.1............................ B6.1............... Modified.

B6.5............................ B6.5............... Clarified.

B6.9-B6.10......... Added.

C1.............................. C1................. Reserved.

C10............................. C10................ Do.

C11............................. C11................ Modified.

C14............................. C14................ Do.

C16............................. C16................ Do.

D1.............................. D1................. Do.

D10............................. D10................ Do.

------------------------------------------------------------------------

Finally, after considering all public comments on the proposed

amendments, DOE has determined that the final amendments to appendices

A and B constitute classes of actions that do not individually or

cumulatively have a significant effect on the human environment, and

are covered by a finding to that effect in Sec. 1021.410(a). In making

this finding, DOE has considered, among other things, its own

experience with these classes of actions, other agencies' experience as

reflected in their NEPA procedures, DOE's technical judgment, and the

comments received on the proposed amendments.

Proposed Clarification A7 Transfer of property, use

unchanged.

One commenter stated that DOE cannot assume that transfer of

property will not result in short- and long-term changes in impacts.

DOE proposed to amend paragraph A7 only to clarify the meaning of

property by explicitly including both personal property (e.g.,

equipment and material) and real property (e.g., permanent structures

and land). DOE did not propose to amend the requirement regarding

property use remaining unchanged. The categorical exclusion may only be

applied when the impacts would remain essentially the same after the

transfer as before. See also the discussion of B1.24 and B1.25.

Classes of Actions Listed in Appendix B

Proposed Modification to Integral Element B(2).

DOE proposed to modify integral element B(2)--which sets the

condition that a categorically excluded action may not require siting,

construction, or major expansion of waste storage, disposal, recovery,

or treatment facilities--to provide an exception for such actions that

are themselves categorically excluded. DOE proposed this change to

conform to simultaneously proposed changes (B1.26, B1.29, B6.4, and

B6.9) that would categorically exclude certain water treatment and

waste storage facilities.

Two commenters objected to the change, apparently as an extension

of their objections to the proposed categorical exclusion amendments

that prompted DOE's proposal to modify B(2). Another commenter

expressed concern that the proposed B(2) would imply that ``major''

expansion of waste facilities might be categorically excluded. This

interpretation was unintended and the language has been modified. In

other respects, however, DOE has retained the B(2) amendment as

necessary to conform to certain final categorical exclusions (B1.26,

B1.29, B6.9, and B6.10). As finally revised, B(2) reads as follows:

``To fit within the classes of actions (in appendix B), a proposal must

be one that would not . . . require siting and construction or major

expansion of waste storage, disposal, recovery, or treatment facilities

(including incinerators), but the proposal may include categorically

excluded waste storage, disposal, recovery, or treatment actions.''

Proposed Modification to Integral Element B(4)(iii).

DOE intended to modify this integral element to allow the

categorical exclusion of actions listed in appendix B despite their

having an adverse impact on small, low quality wetlands. DOE

anticipated that activities in such areas would not have a significant

environmental impact, either individually or cumulatively. While

several commenters supported the proposed change, others expressed

concern about the potential cumulative impacts, the institution of a

threshold size, the meaning of ``covered'' by a general permit, and the

difference between a ``general'' permit and a ``Nationwide'' permit.

In consideration of the comments and after consultation with staff

of the U.S. Army Corps of Engineers (Corps), DOE has revised B(4)(iii)

to allow the categorical exclusion of actions in wetland areas not

considered waters of the United States and thus not regulated under the

Clean Water Act. This includes certain drainage and irrigation ditches,

artificial lakes and ponds, and borrow pits, as discussed below.

The Corps generally does not consider the following areas to be

waters of the United States: (a) Non-tidal drainage and irrigation

ditches excavated on dry land; (b) artificially irrigated areas which

would revert to upland if the irrigation ceased (for DOE this would

include areas ``irrigated'' by leaking pipes, tanks, or ditches); (c)

artificial lakes or ponds created by excavating and/or diking dry land

to collect and retain water and which are used exclusively for such

purposes as stock watering, irrigation, settling basins, or rice

growing; (d) artificial reflecting or swimming pools or other small

ornamental bodies of water created by excavating and/or diking dry land

to retain water for primarily aesthetic reasons; (e) waterfilled

depressions created in dry land incidental to construction activity and

pits excavated in dry land for the purpose of obtaining fill, sand, or

gravel unless and until the construction or excavation operation is

abandoned and the resulting body of water meets the definition of

waters of the United States under 33 CFR 328.3(a). See 51 FR 41206,

41217 (November 13, 1986). The Corps reserves the right, however, on a

case-by-case basis to determine that a particular water body within

these categories fits within the definition of waters of the United

States. The U.S. Environmental Protection Agency (EPA) also has the

right to determine on a case-by-case basis if any of these areas are

waters of the United States. Note that some of these areas could become

waters of the United States and subject to regulation. This may occur

if the area no longer meets the above criteria, e.g., the area is no

longer used for the purpose for which it was constructed or is

abandoned. In such cases, a categorical exclusion could not be applied.

The wording of B(4)(iii) has been modified from the proposed rule

as follows: ``Wetlands regulated under the Clean Water Act (33 USC

1344) and floodplains.''

Proposed Clarification B1.3 Routine maintenance/custodial

services for buildings, structures, infrastructures, equipment.

One commenter asked for clarification of ``in kind replacement.''

The commenter stated that, with regard to older facilities, certain

equipment used in the facilities is no longer made or its installation

at this time would be

[[Page 36229]]

contrary to code or good management practices. The commenter asked if

replacing equipment in older facilities with modern components is

considered ``in kind replacement.''

DOE recognizes that the equipment used in many of its facilities

cannot be replaced literally ``in kind'' for the reasons the commenter

states. DOE believes, however, that the description of ``in kind

replacement'' presented in the proposed clarification for B1.3 (i.e.,

in kind replacement includes installation of new components to replace

outmoded components if the replacement does not result in a significant

change in the expected useful life, design capacity, or function of the

facility) adequately addresses the commenter's request.

B1.3(n). One commenter suggested that instead of adding additional

examples of testing and calibration of facility components to B1.3,

that the word ``maintenance'' be added to B3.1. DOE has chosen to

address routine maintenance under a separate categorical exclusion

rather than adding it to other categorical exclusions where it might

apply.

B1.3(o). One commenter thought that the term ``routine

decontamination'' needed additional clarification. DOE uses ``routine''

to mean a recurring action that is done easily and is well understood,

such as wiping with rags, using strippable latex, and minor vacuuming.

B1.3(o) is intended to categorically exclude contamination-cleanup

activities of a routine nature.

Proposed Modification B1.13 Construction/acquisition/

relocation of onsite pathways, spur or access roads/railroads.

DOE proposed to expand existing B1.13 (Acquisition or minor

relocation of existing access roads serving existing facilities if the

traffic they are to carry will not change substantially) by adding

construction and spur roads, pathways and railroads, and by deleting

the phrase ``serving existing facilities if the traffic they will carry

will not change substantially.'' One commenter questioned the

definition of ``spur'' and ``access'' roads. Another commenter

suggested more restrictive language for B1.13 so that it would be

applied only in instances to improve safety, and only if the total

traffic volume would not substantially change. A third commenter

expressed concern that applying the categorical exclusion could

eliminate valuable input from natural resource agencies and cause

potential significant impacts to wildlife, including loss of habitat,

habitat fragmentation, and degradation of adjacent habitat. Another

commenter stated that the actions proposed to be categorically excluded

should be subject to public review.

In response to the concerns raised by these commenters, DOE has

made two changes to the proposed modification to B1.13. First, DOE has

deleted the reference to ``spur roads'' because the term ``access

roads'' adequately encompasses the intended purpose. Second, DOE has

revised the categorical exclusion to apply only to the construction of

``short'' access roads and access railroads. DOE acknowledges that the

construction of onsite access roads could result in adverse

environmental impacts. DOE believes, however, that the general

restrictions on the application of categorical exclusions, particularly

at Sec. 1021.410 and the integral elements at appendix B, B(1)-B(4),

will provide adequate safeguards to ensure that this class of actions

is not applied to activities that could result in significant effects.

Also, it is DOE's intention that the inclusion of the term ``short''

will further clarify the length of access roads and railroads that DOE

intended to be constructed under this categorical exclusion (i.e., no

more than a few miles in length). The categorical exclusion B1.13 now

reads: ``Construction, acquisition, and relocation of onsite pathways

and short onsite access roads and railroads.'' DOE does not believe

that actions qualifying under this categorical exclusion warrant public

review. See Section III.B, above.

Proposed Modification B1.15 Siting/construction/operation

of support buildings/support structures.

One commenter suggested that the categorical exclusion be expanded

to include deactivation and demolition of the same structures. Such

expansion is not necessary because these activities are included under

proposed categorical exclusion B1.23.

Two commenters suggested that the phrase ``but not limited to'' be

inserted between ``including'' and ``prefabricated buildings and

trailers.'' DOE has incorporated the suggestion, as well as reversing

the order of ``prefabricated buildings'' and ``trailers,'' to be

consistent with B1.22.

One commenter stated that actions covered by this categorical

exclusion should be subject to public review. For the reasons stated in

Section III.B, DOE believes that public review is not appropriate.

One commenter asked for a definition of an ``already developed

area,'' a phrase used in the existing regulations. The phrase in the

proposed B1.15, ``where site utilities and roads are available,'' was

intended to define the term. For clarification, DOE has modified this

phrase to read ``where active utilities and currently used roads are

readily accessible.'' See the discussion of ``already developed area''

in Section III.E.

Proposed Clarification B1.23 Demolition/disposal of

buildings.

DOE proposed to divide the existing categorical exclusion B1.22

into two categorical exclusions to clarify that the two actions

included in the existing class of actions--relocation of buildings

(proposed B1.22) and demolition and subsequent disposal of buildings,

equipment, and support structures (proposed B1.23)--are not connected

actions (i.e., actions that are closely related and therefore needed to

be considered in the same NEPA review).

DOE received three comments on B1.23, none of which directly

related to the proposed clarification. One commenter suggested that the

categorical exclusion should be applicable to contaminated buildings

that, after demolition, could be entombed in place. Another commenter

questioned whether DOE was mandating disposal of construction debris in

landfills. Apparently, this commenter's concern is based on DOE's

intended clarification that building relocation actions are separate

from building demolition and disposal. In any event, DOE is not

mandating the disposal of construction debris in landfills. The third

commenter objected to the categorical exclusion on the grounds of

cumulative effects, connected actions, or extraordinary circumstances.

DOE has responded to this objection, which was also expressed by other

commenters in regard to other categorical exclusions, in Section III.F.

DOE does not intend for proposed categorical exclusion B1.23 to

apply to in-place entombment of demolished structures. However, this

categorical exclusion could be applied to the demolition and disposal

of contaminated structures if releases are controlled or permitted and

other conditions for application of the categorical exclusion are met.

Proposed B1.24 Transfer of property/residential,

commercial, industrial use; and

Proposed B1.25 Transfer of property/habitat preservation,

wildlife management.

DOE received several comments on these two proposed categorical

exclusions. One commenter, noting that proposed B1.24 and B1.25 were

similar, suggested combining them. Based on this comment and other

comments that expressed concern about the broad scope of the

categorical exclusions as proposed, DOE has retained both

[[Page 36230]]

categorical exclusions, but changed their wording to clarify DOE's

intentions for their scopes and the differences between them.

Categorical exclusion B1.24 as now revised refers to transfer, lease,

disposition, or acquisition of interests in structures and equipment,

and only land that is necessary for use of the transferred structures

and equipment. Proposed B1.25 as revised refers to transfer of

interests in land for purposes of habitat preservation or wildlife

management, and only buildings that support those purposes.

One commenter questioned the meaning of ``uncontaminated.'' DOE has

added a definition to each of these two proposed categorical exclusions

that states that ``uncontaminated means 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.'' This

definition is based on the definition of contaminant in CERCLA

Sec. 101(33). DOE already has defined ``contaminant'' in Sec. 1021.104

of its existing NEPA regulations as ``a substance identified within the

definition of contaminant in Section 101(33) of CERCLA (42 USC

9601.101(33)).''

Several commenters questioned the feasibility of making a

determination about potential releases and impacts that could occur

after the transfer, as required by the categorical exclusions, without

some formal environmental analysis (e.g., an environmental assessment).

With regard to proposed B1.24, one of the commenters questioned how DOE

would know if contaminant releases increase after transfer, stating

that private operators, unlike DOE, are under no obligation to provide

records of types, volumes, and pathways of contaminants released into

the environment. In applying these two categorical exclusions (as in

applying any other categorical exclusion), DOE will consider reasonably

foreseeable circumstances, but will not attempt to speculate on all

possible circumstances that the future could present. DOE believes that

it will be able to determine whether a proposed post-transfer use is

similar enough to the existing use to meet the conditions of the

categorical exclusion, i.e., no decrease in environmental quality, no

increased discharges, and generally similar environmental impacts. If

DOE cannot make these judgments without environmental analysis, DOE

will prepare at least an environmental assessment.

One commenter stated that the proposed categorical exclusion B1.24

was a positive step, but thought DOE had unduly limited its

application. Another commenter stated that proposed categorical

exclusion B1.24 was an improvement in that property transfers that

could be categorically excluded would not be limited to those where use

remains the same. This commenter wanted to expand the proposed

categorical exclusion B1.24 to include transfers to other Federal

agencies without restrictions on environmental parameters, because

other Federal agencies must conduct their own NEPA review for future

uses of the property. DOE believes that it must conduct the proper

level of NEPA review for its actions, and that a NEPA review for the

transfer, lease, disposition, or acquisition of property must consider

reasonably foreseeable uses and conditions of those uses, regardless of

whether the transfer would be to another Federal agency.

Two commenters expressed concern about eliminating community

involvement in DOE's decisions about future land use. One commenter

stated that the transfer of potentially contaminated land without

environmental analysis would be inconsistent with DOE's openness

policy. DOE does not intend to categorically exclude the transfer of

contaminated property. However, DOE recognizes that in listing these

classes of actions as categorical exclusions, the sharing of public

information will be diminished in some instances, as discussed in

Section III.B.

One commenter questioned whether categorical exclusion B1.24 would

apply to a facility that had been idle (and thus not discharging any

pollutants into the environment), allowing the facility to resume

operations and resulting in pollutant discharges. If the facility to be

transferred has not been in operation and transfer of the facility

would result in the resumption of operation, then greater environmental

discharges would result, making this proposed activity ineligible for

this categorical exclusion.

With regard to proposed B1.25, one commenter suggested that the

preamble was unclear because the categorical exclusion deals with the

transfer, lease, and disposition of habitat lands and not a change to

the habitat. The commenter also stated that a habitat improvement that

supported the existing species of plants and animals, although a

change, would not have the potential for significant impact and

therefore could be categorically excluded.

There are three categorical exclusions related to the transfer of

property: A7, where the use will remain the same; B1.24, where the use

may change but the environmental impacts are similar; and B1.25, where

the use will be habitat preservation or wildlife management. Small-

scale improvements to fish and wildlife habitat are included under

existing categorical exclusion B1.20. A large-scale habitat improvement

project may have significant environmental effects, albeit beneficial,

and would not be categorically excluded.

A commenter suggested that DOE should not assume that significant

environmental and socioeconomic impacts will not result from the

transfer of uncontaminated lands for habitat preservation and wildlife

management, because DOE cannot reasonably predict the types of uses

that private interests, conservation groups, or local and state

agencies might allow for these lands. DOE agrees that it cannot project

with certainty all future activities that might be allowed on any land

that it transfers, leases, or disposes. However, categorical exclusion

B1.25 is intended for application in those cases where the

circumstances of the property transaction create a reasonable

expectation that the property will be used for habitat preservation and

wildlife management for the reasonably foreseeable future.

Proposed B1.26 Siting/construction/operation/

decommissioning of small water treatment facilities, generally less

than 250,000 gallons per day capacity.

Several commenters recommended that DOE not categorically exclude

water treatment facilities that would involve highly toxic substances,

regardless of the limited rate at which water could be processed. Some

commenters stated that the 250,000 gallon criterion was not necessarily

the relevant factor regarding environmental impacts. The commenters

also expressed concern that cumulatively significant effects would

occur from repeated applications of this proposed categorical

exclusion. DOE believes that the adverse environmental effects of

concern to many of the commenters are highly unlikely. DOE chose to

categorically exclude treatment facilities with less than about 250,000

gallons capacity because such small plants have little potential for

significant impacts, especially in light of the safeguards afforded by

the integral elements. For example, a DOE categorical exclusion may not

be applied where the proposed action could adversely affect an

environmentally sensitive resource (10 CFR part 1021, subpart D,

appendix B, B(4)). Regarding cumulative effects, appendix B listings

are not applicable to a proposed action that is connected to other

actions with potentially significant impacts or related to other

[[Page 36231]]

proposed actions with cumulatively significant impacts (10 CFR

1021.410(b)(3)). Nevertheless, DOE has modified the proposal as one

commenter suggested, so that, in addition to small potable water and

sewer facilities, only those small wastewater and surface water

treatment facilities whose liquid discharges are subject to external

regulation would be categorically excluded. See also the discussion

regarding the use of the word ``generally'' and numerical values in

Section III.B.

Proposed B1.27 Facility deactivation.

One commenter expressed concern that the categorical exclusion

would apply to any facility and that deactivation is not clearly

defined. The commenter suggested that if DOE intended the categorical

exclusion to apply only to the disconnection of utilities, then it

should be rewritten as: ``The disconnection of utilities such as water,

steam, telecommunications, and electrical power after it has been

determined that the continued operation of these systems is not needed

for safety.'' DOE agrees and has rewritten the categorical exclusion as

suggested. The term deactivation is no longer included in the

categorical exclusion.

Another commenter suggested that the categorical exclusion be

clarified to include provisions for partial disconnections and utility

modifications where equipment may be required to remain operational at

a reduced level. DOE believes that this categorical exclusion

encompasses such disconnections and modifications.

One commenter stated that the risk posed by surplus facilities

varies greatly and that DOE should be cautious in presuming NEPA

documentation is not required. DOE agrees that the risks posed by

particular facilities can vary, but believes that merely disconnecting

the utilities of such facilities will not cause significant

environmental impacts.

Another commenter questioned whether DOE intended to deactivate

nuclear electrical utility facilities under this categorical exclusion,

and suggested that such activities would require consultation and

cooperation with other state and federal agencies and full public

notice and participation. The proposed categorical exclusion would

apply only to DOE facilities and not to the commercial nuclear power

industry or other commercial powerplants.

Proposed B1.28 Minor activities to place a facility in an

environmentally safe condition, no proposed uses.

Several commenters questioned the scope of the categorical

exclusion and generally expressed concern with the use of the word

``minor.'' Several commenters suggested that DOE more narrowly define

what it intended to cover in this categorical exclusion (e.g., the

meaning of ``adequate treatment, storage, or disposal facilities'' and

``no proposed use''). Other commenters stated that such activities

could be carried out on a large scale at a particular site and that

there could be cumulative impacts associated with waste management

activities.

As discussed in Section III.E, DOE believes that the word ``minor''

is useful in describing the types of activities contemplated by the

categorical exclusion, particularly when combined with examples and

exclusions. DOE intends this categorical exclusion to apply to

activities needed to place a surplus facility (one that will no longer

be used by DOE for any purpose, including storage) in an

environmentally safe condition, where there are existing treatment,

storage, or disposal facilities with existing capacity to manage the

resulting waste (including low-level radioactive waste). These

activities include the final defueling of a reactor, as stated in the

example in the proposed rule. DOE emphasizes that this categorical

exclusion, like all other categorical exclusions, may not be applied in

situations involving extraordinary circumstances (such as uncertain

effects or effects involving unique or unknown risks) or where the

proposal is connected to other actions with potentially significant

impacts (see Sec. 1021.410(b) (2) and (3)). Thus, if a proposal

involved a mode of decontamination with potentially significant

environmental effects or if it posed serious potential risks to

workers, the public, or the environment, then the proposed activity

would not be eligible for a categorical exclusion. DOE believes that

the language of the proposed categorical exclusion, together with the

general restrictions on the application of categorical exclusions,

particularly at Sec. 1021.410 and the integral elements at appendix B,

B(1)-B(4), provide adequate safeguards to ensure that this categorical

exclusion is not applied to activities that could result in significant

environmental effects.

One commenter asked that the relationship of this categorical

exclusion to CERCLA and the Resource Conservation and Recovery Act

(RCRA) procedures be clarified. DOE's CERCLA/NEPA policy is discussed

in Section III.B. Although DOE's RCRA procedures are outside the scope

of this rulemaking, DOE notes that its application of this categorical

exclusion would have no effect on its compliance with RCRA.

Another commenter recommended that the categorical exclusion be

broadened to include removal of contaminated equipment, material, and

waste and include activities such as size reduction and placement of

wastes in storage containers if done in the same building. DOE intends

the categorical exclusion, as proposed, to include these activities.

Proposed B1.29 Siting/construction/operation/

decommissioning of onsite disposal facility for construction and

demolition waste.

Several commenters objected to this categorical exclusion. One

commenter expressed concern that new disposal facilities for

construction and demolition waste could be sited and constructed in

environmentally sensitive areas, such as priority shrub steppe habitat,

with adverse impacts on wildlife. This commenter also expressed concern

about cumulative impacts from multiple facilities. DOE believes that

integral element B(4), which states that an action proposed for

categorical exclusion must not adversely affect environmentally

sensitive areas, would preclude use of the proposed categorical

exclusion for construction of disposal facilities in priority shrub

steppe habitat. Also, under Sec. 1021.410(b)(3) of its NEPA

implementing regulations, DOE may not categorically exclude a proposed

action that may be connected to other actions with potentially

significant impacts, or related to other proposed actions with

cumulatively significant impacts.

Another commenter expressed concern that a 10-acre disposal

facility could pose major health and safety risks to workers and

members of the public in adjacent communities, noting in particular the

potential for adverse impacts on air quality. By limiting this

categorical exclusion to disposal of uncontaminated materials, DOE

believes there would be no harmful releases of contaminants and no

increased health impact to workers or the nearby public. DOE has

revised the language in this categorical exclusion in the final

amendments by inserting the phrase ``which would not release substances

at a level, or in a form, that would pose a threat to public health or

the environment'' to explain the term ``uncontaminated.'' This new

language corresponds to the definition of ``contaminant'' in DOE's NEPA

regulations, which in turn is based on CERCLA Sec. 101(33). In

addition, DOE employs standard industrial practices, such as water

spraying to control dust, in operating any of its facilities, and DOE

believes that any particulate

[[Page 36232]]

emissions would be adequately controlled to protect workers and the

public. To correspond to other changes in the final amendments, DOE has

changed the phrase ``generally less than 10 acres in area,'' to ``less

than approximately 10 acres.'' See also the discussion in Section

III.E.

Another commenter stated that the scope of the categorical

exclusion was so broad that the host community, state and local

officials, and interested citizens could be excluded from participating

in decisions that may have significant environmental and socioeconomic

impacts. DOE believes that this class of actions normally does not have

potential for significant impacts and has decided to list it as a

categorical exclusion in the final amendments. See also the discussion

of public involvement and information sharing opportunities in Section

III.B.

One commenter requested that the proposed categorical exclusion be

expanded to include on-site disposal facilities for all uncontaminated

waste, including office and cafeteria waste. This comment is outside

the scope of this rulemaking, but DOE may consider the suggestion in a

future rulemaking.

Proposed B1.30 Transfer actions.

Several commenters objected to this proposed categorical exclusion

as too broad and open ended, some noting potential for adverse impacts.

Some commenters requested that it be deleted; others requested that

limits be provided on the quantity and types of materials and wastes

that could be transported. Other commenters sought additional

clarification.

In contrast, two commenters stated that the proposed categorical

exclusion was too limited in scope and suggested broadening the

categorical exclusion to include routine transportation of materials,

equipment, and wastes that are managed in accordance with regulatory

requirements. One of these commenters noted DOE's statement in the

preamble to the proposed rulemaking that ``transportation activities

under DOE's standard practices pose no potential for significant

impacts.''

All DOE proposed actions must comply with applicable regulatory

requirements, although some actions nevertheless may have significant

impacts. DOE will continue to include analysis of transportation

impacts in environmental assessments and environmental impact

statements where the scope of the proposed actions presents potential

for significant impact.

DOE has revised the language of the categorical exclusion to

characterize the amount of materials, equipment, or waste to be

transferred as ``small'' in addition to being incidental to the amount

at the receiving site. This revision addresses the concerns expressed

by several commenters that DOE had proposed to limit the amount of

material or waste that could be transported, not by the impacts that

might occur by transport of the material or waste, but by the amount of

material or waste at the receiving site.

One of these commenters stated that the proposed categorical

exclusion could be applied to the transport of thousands of containers

of materials or waste to a site that had yet larger amounts. Another

commenter stated that the baseline for determining the amount of waste

or material that could be received at a site, under the proposed

categorical exclusion, would continually increase as waste or materials

were transferred to the site. The revision reinforces DOE's intention

that use of the categorical exclusion should not add significantly to

what may already be significant amounts of waste or materials at a

site.

Several commenters stated that transportation of radioactive

materials and waste is likely to be a key or controversial issue to

local communities. One commenter stated that unscheduled transportation

of waste would generate considerable community interest, and another

expressed concern that the host community, state and local officials,

and interested citizens could be excluded from participating in

decisions that may result in significant environmental and

socioeconomic impacts. DOE believes that this class of actions normally

does not have potential for significant impacts and has decided to list

it, as revised, as a categorical exclusion in the final amendment. See

also the discussion of public involvement opportunities in Section

III.B.

One commenter suggested that the proposed categorical exclusion

would be more appropriately placed as a clarifying statement elsewhere

in the regulations, to note that transportation may be an implicit part

of any action that is eligible for a categorical exclusion or to

require, as an integral element of any categorical exclusion, that

transportation be conducted in accordance with applicable regulatory

requirements. Other commenters stated that transportation is a

connected activity and should not be considered independently.

DOE's NEPA regulations currently state that a categorically

excluded class of actions includes activities foreseeably necessary to

proposals encompassed within the class of actions and provides

``associated transportation activities'' as one of two examples

(Sec. 1021.410(d)). Categorical exclusion B1.30, however, applies to

transfer actions where the predominant activity is transportation.

DOE's existing NEPA regulations (appendix B(1)) also contain an

integral element for categorical exclusions requiring that, in order to

be categorically excluded, an action not threaten a violation of

applicable statutory, regulatory, or permit requirements for

environment, safety, and health, including requirements of DOE orders.

One commenter asked DOE to clarify whether this categorical

exclusion could be applied to the transfer of waste from a DOE site to

an offsite, non-DOE facility that treats that type of waste. DOE

believes that B1.30 does cover these types of transfer actions, as long

as all the conditions of the categorical exclusion, including the

integral elements, are satisfied and there are no extraordinary

circumstances.

Proposed B1.32 Restoration, creation, or enhancement of

small wetlands.

One commenter supported DOE's strategy, stated in the preamble to

the proposed rule, to coordinate activities in wetlands with state and

federal agencies to assure compliance with other land use plans. The

commenter suggested that wetland creation should address the impacts of

attracting migratory wildlife, especially types of wildlife that are

likely to be hunted for human consumption. Other commenters questioned

how the terms ``small'' and ``large'' were defined and how size would

be used to determine whether wetland restoration, creation, or

enhancement would have significant impacts. Other commenters stated

that this categorical exclusion should include compliance with all

appropriate Federal environmental laws and regulations and that DOE

should consider limiting the number of such projects to reduce the

potential for cumulative adverse impacts.

DOE has reconsidered its proposal to categorically exclude

restoration, creation, or enhancement of a small wetland. Actions

typically taken by DOE to restore, enhance, or create a wetland

normally would be performed as mitigation to compensate for loss or

degradation of other wetlands as a result of a DOE proposed action. As

such, wetland mitigation is not a separate or distinct action and

should be considered as an integral part of the proposed action.

Further, in those rare situations where DOE would undertake specific

actions to restore, enhance, or create wetlands (e.g., development of

[[Page 36233]]

wetlands as part of wetland banking), the existing class of actions C9,

which normally requires preparation of an environmental assessment,

provides opportunity for other agency and public review and input into

decisions regarding how the action should be undertaken. Accordingly,

DOE is withdrawing its proposal to categorically exclude restoration,

creation, or enhancement of a small wetland, as well as its proposal to

make a conforming language change in C9.

Proposed B1.33 (Final B1.32). Traffic flow adjustments,

existing roads.

One commenter questioned whether DOE would extend the categorical

exclusion to include road adjustments. This categorical exclusion is

limited to DOE sites and applies only to adjustments of traffic flow,

such as installation of traffic signs, signal lights, and turning

lanes. It does not apply to general road adjustments, such as road

widening and realignment. In order to clarify this point, DOE has

modified this categorical exclusion to include turning lanes as an

example of a categorically excluded action, and to specifically exclude

general road adjustments.

The commenter also stated that increased traffic flow could result

in increased risk of exposure to the public. DOE believes traffic flow

adjustments could not, by their nature, alter traffic patterns in such

a manner as to produce significantly increased public exposures. In

response to a comment that commercial trucking terminals should be

excluded, DOE notes that it does not operate commercial trucking

terminals.

One commenter suggested adding this activity to B1.3 on routine

maintenance. DOE does not consider traffic flow adjustments to

constitute routine maintenance.

Proposed B2.6 Packaging/transportation/storage of

radioactive sources upon request by the Nuclear Regulatory Commission

or other cognizant agency.

In response to several comments, DOE has clarified that ``other

cognizant agency'' would include a state that regulates radioactive

materials under an agreement with the Nuclear Regulatory Commission

(Commission). In addition, DOE intends to include other agencies that

may, under perhaps unusual circumstances, have responsibilities

regarding the materials that are included in the categorical exclusion.

One commenter expressed concern that this categorical exclusion

could apply to a wide variety of actions that private parties might

conduct. DOE's NEPA implementing procedures, however, apply only to

actions that DOE would conduct.

Another commenter expressed concern about cumulative effects from

applying this categorical exclusion repeatedly. Because DOE is

requested to perform the actions covered under B2.6 only occasionally--

e.g., when a Commission licensee cannot or will not safely manage the

material--DOE does not expect these activities to have significant

cumulative effects. This commenter also stated that the justification

for one of the examples cited in the proposed categorical exclusion--

``packaged radioactive waste not exceeding 50 curies''--was not

apparent and undefined as to impact. DOE possesses all the skills and

equipment required to handle, transport, and store such materials

safely, and would be involved in such activities only occasionally.

Moreover, the Commission has found that its licensees normally possess

and manage such materials without significant impacts. For these

reasons, DOE believes it is appropriate to categorically exclude its

activities regarding all of the materials the Commission has listed in

10 CFR 51.22(14).

Finally, a commenter suggested that DOE should apply the

categorical exclusion to packaging, transportation, and storage of

DOE's own radioactive materials that are the same kind as listed in the

Commission's categorical exclusion. DOE is taking this suggestion under

advisement and may consider it in a future rulemaking.

Proposed Modification B3.6 Siting/construction/operation/

decommissioning of facilities for bench-scale research, conventional

laboratory operations, small-scale research and development and pilot

projects.

DOE proposed to modify B3.6 (indoor bench-scale research projects)

by combining it with B3.10 (small-scale research and development

projects and small-scale pilot projects) and to include the siting,

construction, operation, and decommissioning of facilities to house

such projects. DOE also proposed to delete the descriptive phrase ``for

generally less than two years'' in reference to the length of time a

categorically excluded pilot project typically could be conducted.

One commenter stated that this categorical exclusion as proposed

may be susceptible to abuse, e.g., by permitting a pilot project to

evolve into a full-scale operation without public environmental review.

DOE believes that this example would be a misapplication of the

categorical exclusion. To clarify the meaning of ``pilot project,'' DOE

is inserting the descriptive phrase ``generally less than two years.''

Thus, as revised, the only modification DOE is making to the existing

categorical exclusions is combining B3.6 and B3.10, and expanding the

combined categorical exclusion to include the siting, construction,

operation, and decommissioning of facilities that would house the

indoor bench-scale research, conventional laboratory operations, small-

scale research and development, and small-scale pilot projects. DOE

received no comments on these aspects of the proposed modification.

Several commenters questioned the definition of ``small-scale'' and

``pilot projects.'' One commenter questioned whether ``bench-scale''

includes the use of large pieces of equipment. The meaning of these

terms is not changing from the existing regulations. DOE notes,

however, that scale refers to the magnitude of the activity, e.g., the

amount of materials consumed, waste produced, air emissions, and

effluents. Further, the size of the equipment would be relevant in this

context only if it affected the input of material and output of waste,

so as to produce potentially significant physical impacts. See also the

discussion of ``small-scale'' in Section III.E.

Another commenter expressed concern that the nature of research

activities could involve new and untried processes. If a proposed

research action had the potential to involve unique or unknown risks,

then it would trigger the ``extraordinary circumstances'' provision in

Sec. 1021.410(b)(2), and thus would not be eligible for a categorical

exclusion.

One commenter stated that there is an apparent conflict between

B3.6 and C12. DOE notes that B3.6 specifically covers ``small-scale

pilot projects (generally less than two years),'' constructed in an

already developed area. C12, however, refers to larger scale, longer

term projects that are not restricted to an already developed area. DOE

is adding a specific reference to C12 in B3.6 to call attention to the

differences between them.

Proposed B3.10 Siting/construction/operation/

decommissioning of particle accelerators, including electron beam

accelerators, primary beam energy generally less than 100 MeV.

Two commenters recommended that DOE remove the word ``generally''

from the phrase ``generally less than 100 MeV,'' stating that the

proposed language would permit categorically excluding much higher

energy machines than 100 MeV (million electron-volts).

[[Page 36234]]

DOE has restated the condition to read ``less than approximately 100

MeV,'' which better reflects DOE's intention and addresses the

commenters' concerns. See also the discussion in Section III.E.

Another commenter welcomed the proposed amendment and recommended

adding to this proposed categorical exclusion ``maintenance and

remedial actions [involving particle and electron beam accelerators]

which have the incidental effect of improving machine performance

within design criteria.'' DOE intends that the language of B3.10, as

proposed, covers such actions as long as there is no increase in

primary beam energy or current.

Finally, a commenter requested that the proposed categorical

exclusion be restated in terms that relate to impacts such as land

requirements and radioactive emissions rather than beam energy (i.e.,

100 MeV) as proposed, stating that the proposed formulation would not

be very meaningful to the public. Accelerators fitting this class of

actions typically are room-size and often are installed in existing

buildings at hospitals and universities. On the basis of its

experience, the language of this proposed amendment, and the general

restrictions on the application for categorical exclusions,

particularly at Sec. 1021.410 and the integral elements at appendix B,

B(1)-B(4), DOE believes that the covered actions will not present any

significant land use or radiation effects issues.

Proposed B3.12 Siting/construction/operation/

decommissioning of microbiological and biomedical facilities.

Several commenters expressed concern about the potential

environmental, health, and socioeconomic impacts of microbiological and

biomedical facilities and the lack of opportunity for public

involvement. One commenter sought clarification regarding DOE's

statement in the preamble to the proposed rulemaking that these

facilities generally do not handle ``extremely dangerous materials.''

Another commenter urged DOE not to categorically exclude laboratories

that are rated Biosafety Level 1 through 4.

All microbiological laboratories are rated Biosafety Level 1

through 4. Level 1 handles the least dangerous agents. To clarify what

is intended by Biosafety Levels 1 and 2, the following definitions were

extracted from Biosafety in Microbiological and Biomedical

Laboratories, 3rd Edition, May 1993, U.S. Department of Health and

Human Services Public Health Service, Centers for Disease Control and

Prevention, and the National Institutes of Health: Publication No.

(CDC) 93-8395. Biosafety Level 1 is assigned to facilities in which

work is done with defined and characterized strains of viable

microorganisms not known to cause disease in healthy adult humans

(e.g., Bacillus subtilis, Naeleria gruberi, and infectious canine

hepatitis). This designation represents a basic level of containment

that relies on standard microbiological practices with no special

primary or secondary barriers recommended, other than a sink for

handwashing. Biosafety Level 2 is assigned to facilities in which work

is done with the broad spectrum of indigenous moderate-risk agents

present in the community and associated with human disease of varying

severity (e.g., Hepatitis B virus, salmonellae and Toxoplasma spp.).

This designation requires the use of splash shields, face protection,

gowns and gloves, as appropriate, and the availability of secondary

barriers such as handwashing facilities and laboratory waste

decontamination facilities. Given these controls, DOE believes that it

is appropriate to categorically exclude Biosafety Level 1 and 2

laboratories from further NEPA review, provided that all of the

integral elements of a categorical exclusion (appendix B, B(1)-B(4))

are met.

Another commenter asked for a clarification of ``an already

developed area.'' In particular, this commenter asked if it referred to

a metropolitan area, residential area, commercially developed area, or

existing biomedical facility. As discussed previously, ``an already

developed area'' refers to an area ``where active utilities and

currently used roads are readily accessible.'' DOE has clarified the

categorical exclusion accordingly. Facilities that would be eligible

for this categorical exclusion could be sited in a metropolitan,

residential, or commercially developed area or in an existing

biomedical facility, as long as the area is already developed.

Proposed B3.13 Magnetic fusion experiments, no tritium

fuel use.

A commenter asked whether DOE intends to conduct new magnetic

fusion experiments at existing facilities under this proposed

categorical exclusion, and indicated that an environmental assessment

or environmental impact statement is required to protect the public and

worker health and safety in light of impacts from exposure to

electromagnetic fields. DOE intends to categorically exclude such

experiments at existing facilities. Based on its experience with such

activities, DOE believes that magnetic fusion experiments do not pose

an electromagnetic field or other hazard to the public. DOE routinely

provides workers with adequate training and controlled conditions to

conduct such work safely.

Proposed Modification B5.3 Modification (not expansion)/

abandonment of oil storage access/brine injection/gas/geothermal wells,

not part of site closure.

DOE proposed to add gas wells to this categorical exclusion, and

one commenter stated that DOE should consider possible risks to public

health and safety before doing so. This categorical exclusion applies

only to the modification (e.g., installation of different chokes and

other wellhead equipment) or abandonment of existing wells and does not

include workover (see proposed B5.12) or expansion. Therefore, the

inclusion of gas will not result in any significant impacts.

Proposed Modification B5.5 Construction/operation of

short crude oil/gas/steam/geothermal pipeline segments.

DOE proposed to add natural gas and steam pipelines and to remove

references to the specific existing facilities to which the pipelines

would be connected. One commenter expressed concern about the end point

facilities of the pipeline segments and how such facilities would

affect the impacts. The commenter stated that connecting pipeline

segments without regard to the impacts of the end point facilities is

comparable to approval of a sewer pipe without knowledge of the

discharge point. DOE notes that this categorical exclusion applies to

the construction and operation of short segments of pipelines between

existing DOE facilities and existing transportation, storage, or

refining facilities within a single industrial complex and within

existing rights-of-way. Because both end points must be existing

facilities, DOE believes that the potential impacts of constructing and

operating short pipeline segments between such facilities do not depend

on the type of facility and will not cause significant environmental

impacts. There would be no discharges to the environment from these

pipelines.

Proposed Clarification B5.9. Temporary exemption for any

electric powerplant;

Proposed Clarification B5.10 Certain permanent exemptions

for any existing electric powerplant;

Proposed Clarification B5.11 Permanent exemption for

mixed natural gas and petroleum;

[[Page 36235]]

Proposed Modification (Removal) B5.12 Permanent exemption

for new peakload powerplant;

Proposed Modification (Removal) B5.13 Permanent exemption

for emergency operations;

Proposed Modification (Removal) B5.14 Permanent exemption

for meeting scheduled equipment outages;

Proposed Modification (Removal) B5.15 Permanent exemption

due to lack of alternative fuel supply; and

Proposed Modification (Removal) B5.16 Permanent exemption

for new cogeneration powerplant.

DOE proposed to clarify or modify (i.e., remove) these categorical

exclusions because they involve the grant or denial by DOE of certain

exemptions under the Power Plant and Industrial Fuel Use Act of 1978

(PIFUA), which was amended by Congress and now applies only to base

load power plants. It no longer applies to other types of power plants

or to major fuel-burning installations. Some commenters opposed the

retention of B5.9, B5.10, and B5.11 in their modified state on the

basis that they appear to exempt multiple actions from an environmental

assessment or environmental impact statement under the guise of energy

conservation or expressed concerns about cumulative impacts, connected

actions, or extraordinary circumstances. DOE believes that the original

rationale for these categorical exclusions, based on experience with

actual cases, remains valid and thus believes that they should be

retained for situations where the law provides for exemptions (i.e.,

base load power plants). Another commenter expressed concern regarding

the proposed removal of existing B5.12 through B5.16. While DOE

acknowledges this concern, it is nonetheless appropriate for DOE to

conform its NEPA regulations to changes in the law. These categorical

exclusions are being clarified or removed from appendix B because under

PIFUA, as amended, DOE no longer has authority to grant or deny PIFUA

exemptions except in cases involving base load power plants.

Proposed B5.12 Workover of existing oil/gas/geothermal

well.

DOE proposed a new categorical exclusion covering the workover of

existing oil, gas, or geothermal wells on existing wellpads where the

work ``would not disturb adjacent habitat.'' One commenter requested

that the word ``endanger'' be included in the proposed categorical

exclusion. DOE believes that the words ``disturb'' and ``endanger'' are

both subject to various interpretations. DOE is therefore modifying the

categorical exclusion to use instead ``adversely affect,'' which

reflects DOE's original intent and is consistent with language

elsewhere in the DOE NEPA rule.

Proposed Modification B6.1 Small-scale, short-term

cleanup actions under RCRA, Atomic Energy Act, or other authorities.

DOE proposed to change the way in which it defines the scope of the

categorical exclusion from ``removal actions under CERCLA * * * and

removal-type actions similar in scope'' to ``small-scale, short-term

cleanup actions under RCRA, the Atomic Energy Act, or other

authorities'' without naming CERCLA. This proposal reflects DOE's

policy (see Section III.B) of relying on the CERCLA process for review

of actions to be taken under CERCLA. DOE believes that the reference in

the current regulations to CERCLA removal actions is confusing in the

context of this policy. DOE also proposed to expand the limits of the

categorical exclusion to actions generally costing up to $5 million

over as many as 5 years.

One commenter supported the modification to clarify application to

RCRA cleanup actions and to increase the cost and time limitations.

Another commenter stated that DOE should integrate the CERCLA and NEPA

processes. As discussed in Section III.B, DOE's CERCLA/NEPA policy

allows for case-by-case integration of the CERCLA and NEPA processes.

Therefore, although CERCLA is not referenced in the new categorical

exclusion, DOE may apply categorical exclusion B6.1 to certain CERCLA

actions. DOE has not changed its proposed modification to the

categorical exclusion based on this comment.

This commenter also requested that DOE retain the time and cost

limits in the existing categorical exclusion (i.e., the CERCLA

regulatory cost and time limits of $2 million and 12 months), but

requested that if DOE does expand the limits to $5 million and 5 years

as proposed, the language of the categorical exclusion should read

``expand the limits to'' and that the categorical exclusion's limits be

stated as maximum cut off points. As discussed in Section III.E, DOE's

use of numerical quantities are intended to provide a reasonable degree

of flexibility and should not be applied as absolute limits. DOE has

retained the proposed cost and time factors in the final categorical

exclusion.

Another commenter stated that the applicability of a categorical

exclusion to an action should be based on the site-specific conditions

of the action, not on its cost or duration. The cost and time

descriptions in the proposed categorical exclusion are simply

indicators of the size and type of actions DOE intends to categorically

exclude, not definitions of the actions themselves. Categorical

exclusions listed in appendix B include integral elements that are site

specific, and categorical exclusions will be applied based on site-

specific factors, such as the existence of any extraordinary

circumstances, rather than on the cost or duration of the action.

One commenter expressed concern that the use of terms ``small-

scale,'' ``short-term,'' and ``generally'' are too subjective. The use

of such descriptive terms is discussed in Section III.E.

One commenter requested that DOE state in example B6.1(b) that it

would use the definition of hazardous waste from whichever regulatory

agency (e.g., EPA or a state agency) provided the more protective

definition for purposes of protecting public health and safety, or had

greater authority to regulate hazardous waste. DOE proposed to revise

the example to reflect the fact that hazardous waste is defined under

one of two possible regulatory authorities, either 40 CFR Part 261 or

applicable state requirements, depending on whether EPA or a state

exercises primary regulatory authority. DOE does not have a choice as

to which definition it must abide by. DOE is retaining the proposed

language in the final categorical exclusion.

This commenter also stated that DOE did not specifically exempt

high-level radioactive waste, transuranic waste, spent nuclear fuel,

waste from reprocessing spent nuclear fuel, and uranium mill tailings

in its language pertaining to waste cleanup and storage and requested

clarification on the scope of the categorical exclusions in this

regard. DOE agrees that it should clarify the scope of the categorical

exclusion and has added the phrase ``other than high-level radioactive

waste and spent nuclear fuel'' to the categorical exclusion. DOE

believes that it can appropriately apply the categorical exclusion to

cleanup activities involving transuranic waste and uranium mill

tailings.

This commenter also expressed concern that this categorical

exclusion allowed more discretionary authority to DOE for its waste

management actions with less public notification, involvement, and

accountability. DOE's response to comments relating to the reduction of

public involvement opportunities is in Section III.B.

See also the discussion of categorical exclusion B6.9 for a

modification of example B6.1(g).

[[Page 36236]]

Proposed Modification (Removal) B6.4 Siting/construction/

operation/ decommissioning of facility for storing packaged hazardous

waste for 90 days or less.

DOE proposed to replace the existing B6.4, which covers a very

narrow class of waste storage actions, with a new and broader B6.4 that

would have encompassed the activities to which the existing B6.4

applies. In response to comments on the proposed new B6.4, however, DOE

has decided to narrow its scope in such a manner that retaining the

existing B6.4 is necessary. Therefore, DOE is retaining the existing

B6.4, and will list a new class of actions covering waste storage

facilities (i.e., a ``reduced-scope'' version of the proposed B6.4) as

B6.10. See the further discussion below.

Proposed B6.4 (FinalB6.10) Siting/construction/operation/

decommissioning of small waste storage facilities (not high-level

radioactive waste, spent nuclear fuel).

Several commenters expressed concern that this proposed categorical

exclusion could apply to actions that individually may have significant

impacts and especially would have significant cumulative impacts if a

number of such facilities were built. Commenters also expressed concern

regarding the location of the facility, type of waste, and the nature

of the surrounding environment. On the other hand, a commenter who

supported the proposal suggested that DOE clarify that an unlimited

number of 50,000 square-foot facilities could be built under the

categorical exclusion.

DOE generally agrees with the commenters who stated that the

proposal was too broad. However, DOE notes that significant new waste-

producing activities and significant transfers of waste among sites are

subject to NEPA analysis and would not be categorically excluded.

Provisions for storing such waste would be within the scope of such

analyses (or reviewed under CERCLA, if the waste would result from

CERCLA environmental restoration activities), and storage impacts and

alternatives would be appropriately assessed.

In light of the comments, DOE has decided to limit the

applicability of proposed categorical exclusion B6.4 (final B6.10) to

upgrades or replacement of storage facilities for waste that is already

present at a DOE site at the time the storage capacity is to be

provided. Providing new or upgraded storage facilities for existing

wastes under this categorical exclusion would only improve upon

previous storage conditions. Further, because the storage changes would

not be associated with changes in waste type or waste quantity,

providing new storage facilities or upgrades would not likely have

cumulatively significant impacts. Storage facilities for newly

generated waste from ongoing operations would not be categorically

excluded, and any associated cumulative impacts would be considered in

an appropriate NEPA analysis.

Several commenters questioned the basis for DOE's proposal to

categorically exclude a particular size of storage facility, namely

approximately 50,000 square feet or less. In recent years DOE has

evaluated and constructed a variety of new waste storage facilities.

These are typically uncomplicated light-weight buildings on a concrete

pad floor that provide open floor storage space for waste packages.

They are designed, and waste is emplaced, with safety as a priority.

DOE chose 50,000 square feet as a representative size of such

facilities, intending not to categorically exclude facilities that

might be unusually large.

In response to commenters' objections regarding the word

``generally'' in the proposed phrase ``generally not to exceed an area

of 50,000 square feet,'' DOE has changed the phrase to read ``less than

approximately 50,000 square feet in area,'' which more accurately

conveys DOE's original intent. See also the discussion in Section

III.E.

As proposed, the categorical exclusion would not apply to storage

of high-level radioactive waste or spent nuclear fuel. Several

commenters questioned whether the categorical exclusion would apply to

other types of waste. One commenter suggested that DOE not apply this

categorical exclusion to transuranic wastes, fissile materials, and all

other materials for which DOE is largely self-regulating. The commenter

did not explain why self-regulation would be important to the

determination at issue, and DOE believes that it is not. DOE has

concluded, however, that storage facilities for wastes that require

special precautions to prevent nuclear criticality should not be

categorically excluded, and DOE is modifying the proposed categorical

exclusion accordingly. For example, certain transuranic wastes that

contain fissile materials may pose such concerns.

Finally, DOE has clarified its original intent to include under

this categorical exclusion only storage facilities located at DOE

sites, and also has deleted reference to ``activities connected to site

operations,'' as commenters requested.

Proposed Clarification B6.5 Siting/construction/

operation/decommissioning of facility for characterizing/sorting

packaged waste, overpacking waste (not high-level radioactive waste,

spent nuclear fuel).

DOE proposed to clarify the existing B6.5 merely by adding cross-

references to B6.4 and B6.6, not to change it substantively. A

commenter, however, suggested that B6.5 should be expanded to include

activities in which waste would be unpacked for purposes of

characterization. DOE considers the comment to be outside the scope of

this rulemaking, but may consider the suggestion in an appropriate

future rulemaking.

Proposed B6.9 Small-scale temporary measures to reduce

migration of contaminated groundwater.

Several commenters expressed concern that, in effect, this

categorical exclusion would reduce opportunities for review by other

agencies and the public, and that it might be applied to actions that

could have adverse effects on public health and the environment. One

commenter stated that contamination of groundwater is a potentially

significant risk to public health and that DOE should not exclude such

contamination issues from public participation opportunities and NEPA

documentation requirements. One commenter expressed concern that

application of this categorical exclusion would eliminate valuable

input from natural resource agencies regarding effects from actions of

this type on state-designated priority habitats. A related comment

expressed concern that actions categorically excluded under B6.9 could

be detrimental to valuable habitat or cultural resources.

As noted in the preamble to the proposed rulemaking, DOE has found

that these actions normally have very local and environmentally

beneficial effects and pose no potential for significant environmental

impacts. With regard to potential impacts to sensitive environmental

resources (such as priority habitat and cultural resources), DOE

believes that integral condition B(4) in appendix B, which states that

an action proposed for categorical exclusion must not adversely affect

environmentally sensitive areas, would preclude use of this categorical

exclusion when priority habitat and cultural resources may be adversely

affected. Public involvement opportunities are discussed in Section

III.B.

One commenter stated that it was unclear why the proposed

categorical exclusion was not within the scope of B6.1, an existing

categorical exclusion for small-scale cleanup actions (see modification

of B6.1 above). DOE believes that certain groundwater

[[Page 36237]]

cleanup actions could indeed be categorically excluded under B6.1, if

the proposed actions met the conditions of that categorical exclusion,

i.e., there were existing facilities to treat the water and the

proposed activities were to be completed in about 5 years or less. DOE

believes it is also appropriate, however, to categorically exclude the

siting, construction, and longer term operation of groundwater

treatment and containment facilities and therefore proposed a separate

categorical exclusion (i.e., B6.9) to define and cover those

activities. DOE intends that the categorical exclusion would include

mobile pumping and treatment facilities or pumping and treatment

facilities that might be built and then removed when the action was

stopped, and DOE used the phrase ``small-scale temporary measure'' to

characterize these possibilities. DOE has added these facility

descriptions to the examples in the final categorical exclusion. DOE

agrees that the example of ``installing underground barriers'' in the

proposed categorical exclusion is more appropriately considered as an

action under B6.1. For this reason, DOE is adding ``underground

barriers'' to the existing example B6.1(g) and is deleting it from

proposed B6.9.

Another commenter stated that the meaning of ``small-scale

temporary measure'' was vague. DOE's use of terms such as ``small-

scale'' is discussed in Section III.E.

Classes of Actions Listed in Appendix C

Proposed Modification (Removal) C1 Major projects.

One commenter expressed concern that DOE's proposal to remove

``Major Projects, as designated by DOE Order 4240.1'' from appendix C

would result in the categorical exclusion of proposed actions currently

requiring an environmental assessment or environmental impact

statement.

The term ``Major Project'' was defined in DOE Order 4240.1, based

primarily on cost characteristics. DOE no longer uses the term ``Major

Project,'' and thus the existing C1 is no longer meaningful.

Accordingly, DOE is removing C1. DOE will continue to prepare

environmental impact statements, however, for ``major Federal actions

significantly affecting the quality of the human environment'' as

required under NEPA Sec. 102(2)(C). Also, although DOE has eliminated

the designation of ``Major Projects'' from the proposed actions for

which an environmental assessment would normally be prepared, DOE will

continue to prepare environmental assessments for the types of proposed

actions formerly included within the definition of ``Major Projects.''

Proposed Modification C9 Restoration, creation, or

enhancement of large wetlands.

DOE originally proposed to amend this category to conform to

proposed B1.32, i.e., to distinguish NEPA review for large versus small

wetlands. As noted in the discussion on B1.32, DOE is withdrawing its

proposal to categorically exclude restoration, creation, or enhancement

of a small wetland. Similarly, DOE is also withdrawing its proposal to

make a conforming language change in C9.

Proposed Modification (Removal) C10 Siting/construction/

operation/ decommissioning of synchrotron radiation accelerator

facility; and

Proposed Modification C11 Siting/construction/operation/

decommissioning of low- or medium-energy particle acceleration facility

with primary beam energy generally greater than 100 MeV.

DOE proposed to consolidate the existing C10 and C11 into C11

(reserving C10), and make the resulting C11 applicable for low to

medium energy particle accelerators, consistent with the proposed

categorical exclusion B3.10 for accelerators with energy less than

approximately 100 MeV. One commenter stated that the existing

regulations would have required an environmental impact statement under

existing C1, which covers ``Major Projects,'' and DOE proposed to

eliminate C1. The commenter is mistaken because ``Major Projects''

would normally have required an environmental assessment under C1, not

an environmental impact statement. As noted above, DOE is removing C1.

See previous discussion under C1.

Proposed Modification C14 Siting/construction/operation

of water treatment facilities generally greater than 250,000 gallons

per day capacity.

DOE proposed to modify C14 to conform to proposed B1.26. A

commenter objected to use of the word ``generally'' in both listings.

DOE has replaced the phrase ``generally exceeding'' with ``greater than

approximately,'' which reduces the agency's discretion, as the

commenter requested, conforms with changes to proposed B1.26 discussed

above, and better expresses DOE's original intent. DOE also revised C14

to include small wastewater and surface water treatment facilities,

whose liquid discharges are not subject to external regulation, to

conform with changes to proposed B1.26 made in response to comments.

See also the discussion in Section III.E.

Proposed Modification C16 Siting/construction/operation/

decommissioning of large waste storage facilities (not high-level

radioactive waste, spent nuclear fuel).

DOE's proposed amendments were intended to clarify the meaning of

``onsite'' in the existing C16, and to make C16 consistent with

proposed B6.4 (now final B6.10), under which a subset of small-scale

actions included in existing C16 would be categorically excluded. DOE

does not agree with a commenter's statements to the effect that this

proposal would eliminate public participation for the siting of

centralized and regional treatment and storage facilities and protect

its contractors and itself at the expense of the public. DOE provides

for appropriate public involvement in its environmental assessment

process. In accordance with another commenter's suggestion, DOE is

providing clearer direction by replacing the phrase ``generally greater

than'' with ``greater than approximately,'' which also better expresses

DOE's original intent. See also the discussion in Section III.E.

Classes of Actions Listed in Appendix D

Proposed Modification D10 Siting/construction/operation/

decommissioning of major treatment, storage, and disposal facilities

for high-level waste and spent nuclear fuel.

DOE proposed to amend D10 so that there would be no presumption

that an EIS would be prepared for siting, constructing, operating, and

decommissioning of onsite replacement storage facilities or upgrading

storage facilities for spent nuclear fuel. DOE proposals for these

types of facilities have varied too widely to support a general

conclusion that such proposed actions normally require the preparation

of an environmental impact statement. Thus, under DOE's proposal,

onsite replacement or upgrade of storage facilities for spent nuclear

fuel would no longer require the preparation of an environmental impact

statement; rather, DOE would decide on a case-by-case basis (i.e.,

based on the particular project, site, and circumstances) whether to

prepare an environmental assessment or an environmental impact

statement. Contrary to one commenter's presumption, DOE's decision not

to assign a particular level of NEPA documentation to onsite

replacement or upgrading of storage facilities for spent nuclear fuel

would never result in such activities being categorically excluded.

While one commenter supported the proposed modification, several

others opposed it. Some commenters stated

[[Page 36238]]

that the use of the term ``major'' in D10 already provided DOE with the

flexibility to prepare an environmental assessment in certain

circumstances. In response, DOE notes that the term ``major'' refers to

the size and/or cost of a particular project, not to whether its

impacts will be significant. Thus, it is possible to have a large,

costly DOE project that, because of its location or technical

characteristics, is not likely to have significant environmental

effects. In that case (such as replacement or upgrade of a spent

nuclear fuel storage facility), DOE believes it is more appropriate to

prepare an environmental assessment. Two commenters expressed concern

that replacement or upgrade of spent nuclear fuel storage facilities

could result in expanded spent nuclear fuel storage capacity and that

existing storage sites may become long-term storage sites in the

absence of a permanent repository. DOE did not intend to permit

expanded storage under this exclusion and has modified its proposal to

add ``where such replacement or upgrade will not result in increased

storage capacity.'' Whether the storage of spent nuclear fuel may in

fact become long-term storage is outside the scope of this rulemaking.

Another commenter stated that D10 must not be replaced by any less

stringent process for public input and involvement. DOE will prepare

either an environmental assessment or an environmental impact statement

for replacement or upgrades of spent nuclear fuel storage facilities,

depending on the circumstances. DOE provides for public involvement in

both its environmental assessment and environmental impact statement

processes.

Other commenters contended that DOE had proposed that an

environmental assessment would be applicable for handling high-level

waste. DOE's proposed modification deals with replacement and upgrades

of storage facilities for spent nuclear fuel, not high-level waste.

Under the original D10 and as amended, DOE would normally prepare an

environmental impact statement for the siting, construction, operation,

and decommissioning of major treatment, storage, and disposal

facilities for high-level waste.

One commenter questioned why replacement or upgrades of high-level

waste storage facilities are not treated the same as similar facilities

for spent nuclear fuel, and whether DOE's proposed modification was

designed to justify the preparation of an environmental assessment for

a particular spent nuclear fuel facility at the Idaho National

Engineering Laboratory, rather than an environmental impact statement.

DOE's approach to formulating typical classes of actions for listing in

subpart D is described in Section III.E, above. DOE does not formulate

such classes of actions, or proposed additions and modifications, with

the intention of securing coverage for a specific future or past action

under a particular class of actions.

IV. Procedural Review Requirements

A. Environmental Review Under the National Environmental Policy Act

These amendments to the DOE NEPA rule establish, modify, and

clarify procedures for considering the environmental effects of DOE

actions within the Department's decision making process. Implementation

of this rule will not affect the substantive requirements imposed on

DOE or on applicants for DOE licenses, permits, and financial

assistance, and this rule will not result in environmental impacts.

Therefore, DOE has determined that this rule is covered by the

categorical exclusion found at paragraph A6 of appendix A to subpart D,

10 CFR part 1021, which applies to procedural rulemaking. Accordingly,

neither an environmental impact statement nor an environmental

assessment is required.

B. Review Under the Regulatory Flexibility Act

The Regulatory Flexibility Act (5 USC 601 et seq.) requires that an

agency prepare an initial regulatory flexibility analysis to be

published at the time the proposed rule is published. This requirement

does not apply if the agency ``certifies that the rule will not, if

promulgated, have a significant economic impact on a substantial number

of small entities'' (5 USC 603). The rule modifies existing policies

and procedural requirements for DOE compliance with NEPA. The rule

makes no substantive changes to requirements imposed on applicants for

DOE licenses, permits, financial assistance, and similar actions as

related to NEPA compliance. Therefore, DOE certifies that the rule will

not have a ``significant economic impact on a substantial number of

small entities.''

C. Review Under the Paperwork Reduction Act

No new information collection or recordkeeping requirements are

imposed by these amendments. Accordingly, no Office of Management and

Budget clearance is required under the Paperwork Reduction Act of 1980

(44 USC 3501 et seq.).

D. Review Under Executive Order 12612

Executive Order 12612, ``Federalism,'' 52 FR 41685 (October 30,

1987) requires that regulations be reviewed for Federalism effects on

the institutional interest of states and local governments, and, if the

effects are sufficiently substantial, preparation of a Federalism

assessment is required to assist senior policymakers. These amendments

will affect Federal NEPA compliance procedures, which are not subject

to state regulation. The amendments will not have any substantial

direct effects on states and local governments within the meaning of

the Executive Order. Therefore, no Federalism assessment is required.

E. Review Under Executive Order 12988

With respect to the review of existing regulations and the

promulgation of new regulations, Section 3(a) of Executive Order 12988,

``Civil Justice Reform'' 61 FR 4729 (February 7, 1996), imposes on

Executive agencies the general duty to adhere to the following

requirements: (1) Eliminate drafting errors and ambiguity, (2) write

regulations to minimize litigation, and (3) provide a clear legal

standard for affected conduct rather than a general standard and

promote simplification and burden reduction. With regard to the review

required by Section 3(a), Section 3(b) of Executive Order 12988

specifically requires that Executive agencies make every reasonable

effort to ensure that the regulation: (1) Clearly specifies the

preemptive effect, if any; (2) clearly specifies any effect on existing

Federal law or regulation; (3) provides a clear legal standard for

affected conduct while promoting simplification and burden reduction;

(4) specifies the retroactive effect, if any; (5) adequately defines

key terms; and (6) addresses other important issues affecting clarity

and general draftsmanship under any guidelines issued by the Attorney

General. Section 3(c) of Executive Order 12988 requires Executive

agencies to review regulations in light of applicable standards in

Section 3(a) and Section 3(b) to determine whether they are met or it

is unreasonable to meet one or more of them. DOE has completed the

required review and determined that, to the extent permitted by law,

the final rule meets the relevant standards of Executive Order 12988.

F. Review Under Executive Order 12866

The final amendments were reviewed in accordance with Executive

Order

[[Page 36239]]

12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4,

1993), which requires a Federal agency to prepare a regulatory

assessment, including the potential costs and benefits, of any

``significant regulatory action.'' The order defines ``significant

regulatory action'' as any regulatory action that may have an annual

effect on the economy of $100 million or more and may adversely affect

the economy, productivity, competition, jobs, the environment, public

health or safety, or state, local, or tribal governments in a material

way; create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency; materially alter the

budgetary impact of entitlements, grants, user fees, or loan programs;

or raise novel legal or policy issues arising out of legal mandates

(section 3(f)).

These amendments will modify already existing policies and

procedures for compliance with NEPA. The amendments contain no

substantive changes in the requirements imposed on applicants for a DOE

license, financial assistance, permit, or similar actions. Therefore,

DOE has determined that the incremental effect of these amendments to

the DOE NEPA regulations will not have the magnitude of effects on the

economy, or any other adverse effects, to bring this proposal within

the definition of a ``significant regulatory action.''

G. Review Under the Unfunded Mandates Reform Act

Under section 205 of the Unfunded Mandates Reform Act of 1995 (2

USC 1533), Federal agencies are required to prepare a budgetary impact

statement to accompany any proposed or final rule that includes a

Federal mandate that may result in the expenditure by state, local and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any one year. Because the DOE NEPA regulations

affect only DOE and do not create obligations on the part of any other

person or government agency, neither state, local or tribal governments

nor the private sector will be affected by amendments to these

regulations. Therefore, DOE has determined that further review under

the Unfunded Mandates Reform Act is not required.

H. Congressional Notification

The final regulations published today are subject to the

Congressional notification requirements of Small Business Regulatory

Enforcement Fairness Act of 1996 (Act) (5 USC 801). The Office of

Management and Budget has determined that the final regulations do not

constitute a ``major rule'' under the Act (5 USC 804). DOE will report

to Congress on the promulgation of the final regulations prior to the

effective date set forth at the beginning of this notice.

List of Subjects in 10 CFR Part 1021

Environmental impact statement.

Issued in Washington, DC, June 28, 1996.

Tara O'Toole,

Assistant Secretary, Environment, Safety and Health.

For reasons set out in the preamble, 10 CFR part 1021 is amended as

follows:

PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING

PROCEDURES

1. The authority citation for part 1021 continues to read as

follows:

Authority: 42 U.S.C. 7254; 42 U.S.C. 4321 et seq.

Sec. 1021.104 [Amended]

2. In Sec. 1021.104(b), the definition for EIS Implementation Plan

is removed.

3. Section 1021.105 is revised to read as follows:

Sec. 1021.105 Oversight of Agency NEPA activities.

The Assistant Secretary for Environment, Safety and Health, or his/

her designee, is responsible for overall review of DOE NEPA compliance.

Further information on DOE's NEPA process and the status of individual

NEPA reviews may be obtained upon request from the Office of NEPA

Policy and Assistance, U.S. Department of Energy, 1000 Independence

Avenue, SW, Washington, DC 20585-0119.

4. Section 1021.310 is revised to read as follows:

Sec. 1021.310 Environmental impact statements.

DOE shall prepare and circulate EISs and related RODs in accordance

with the requirements of the CEQ Regulations, as supplemented by this

subpart. DOE shall include in draft and final EISs a disclosure

statement executed by any contractor (or subcontractor) under contract

with DOE to prepare the EIS document, in accordance with 40 CFR

1506.5(c).

Sec. 1021.311 [Amended]

5. Section 1021.311 is amended by removing paragraph (f) and

redesignating paragraph (g) as paragraph (f).

* * * * *

Sec. 1021.312 [Removed and reserved]

6. Section 1021.312 is removed and reserved.

7. In Sec. 1021.315 paragraphs (b) and (d) are revised and (e) is

added to read as follows:

Sec. 1021.315 Records of decision.

* * * * *

(b) If DOE decides to take action on a proposal covered by an EIS,

a ROD shall be prepared as provided at 40 CFR 1505.2 (except as

provided at 40 CFR 1506.1 and Sec. 1021.211 of this part).

* * * * *

(d) No action shall be taken until the decision has been made

public. DOE may implement the decision before the ROD is published in

the Federal Register if the ROD has been signed and the decision and

the availability of the ROD have been made public by other means (e.g.,

press release, announcement in local media).

(e) DOE may revise a ROD at any time, so long as the revised

decision is adequately supported by an existing EIS. A revised ROD is

subject to the provisions of paragraphs (b), (c), and (d) of this

section.

Sec. 1021.322 [Amended]

8. Section 1021.322 is amended by removing paragraph (b)(1), and

redesignating paragraphs (b)(2) through (b)(5) as paragraphs (b)(1)

through (b)(4).

9. Appendix A to Subpart D, paragraph A7, is revised to read as

follows:

Appendix A to Subpart D to Part 1021--Categorical Exclusions Applicable

to General Agency Actions

* * * * *

A7 Transfer, lease, disposition, or acquisition of interests in

personal property (e.g., equipment and materials) or real property

(e.g., permanent structures and land), if property use is to remain

unchanged; i.e., the type and magnitude of impacts would remain

essentially the same.

* * * * *

10. Appendix B to Subpart D, is amended to revise the Table of

Contents entries for B1.8, B1.13, B1.22, B3.6, B3.10, B5.3, B5.5, B5.9,

B5.10, B5.12, B6.1, and B6.5; add B1.23 through B1.32, B2.6, B3.12,

B3.13, B6.9, and B6.10; and remove B5.13 through B5.16, to read as

follows:

[[Page 36240]]

Appendix B to Subpart D to Part 1021-Categorical Exclusions Applicable

to Specific Agency Actions

Table of Contents

* * * * *

B1.8 Modifications to screened water intake/outflow structures

* * * * *

B1.13 Construction/acquisition/relocation of onsite pathways, short

onsite access roads/railroads

* * * * *

B1.22 Relocation of buildings

B1.23 Demolition/disposal of buildings

B1.24 Transfer of structures/residential, commercial, industrial

use

B1.25 Transfer of land/habitat preservation, wildlife management

B1.26 Siting/construction/operation/decommissioning of small water

treatment facilities, less than approximately 250,000 gallons per

day capacity

B1.27 Disconnection of utilities

B1.28 Minor activities to place a facility in an environmentally

safe condition, no proposed uses

B1.29 Siting/construction/operation/decommissioning of small onsite

disposal facility for construction and demolition waste

B1.30 Transfer actions

B1.31 Relocation/operation of machinery and equipment

B1.32 Traffic flow adjustments, existing roads

* * * * *

B2.6 Packaging/transportation/storage of radioactive sources upon

request by the Nuclear Regulatory Commission or other cognizant

agency

* * * * *

B3.6 Siting/construction/operation/decommissioning of facilities

for bench-scale research, conventional laboratory operations, small-

scale research and development and pilot projects

* * * * *

B3.10 Siting/construction/operation/decommissioning of particle

accelerators, including electron beam accelerators, primary beam

energy less than approximately 100 MeV

* * * * *

B3.12 Siting/construction/operation/decommissioning of

microbiological and biomedical facilities

B3.13 Magnetic fusion experiments, no tritium fuel use

* * * * *

B5.3 Modification (not expansion)/abandonment of oil storage

access/brine injection/gas/geothermal wells, not part of site

closure

* * * * *

B5.5 Construction/operation of short crude oil/gas/steam/geothermal

pipeline segments

* * * * *

B5.9 Temporary exemption for any electric powerplant

B5.10 Certain permanent exemptions for any existing electric

powerplant

* * * * *

B5.12 Workover of existing oil/gas/geothermal well

* * * * *

B6.1 Small-scale, short-term cleanup actions under RCRA, Atomic

Energy Act, or other authorities

* * * * *

B6.5 Siting/construction/operation/decommissioning of facility for

characterizing/sorting packaged waste, overpacking waste

* * * * *

B6.9 Small-scale temporary measures to reduce migration of

contaminated groundwater

B6.10 Siting/construction/operation/decommissioning of small

upgraded or replacement waste storage facilities

* * * * *

11. Appendix B to Subpart D, section B is amended by revising

paragraphs B(1), B(2), and B(4)(iii) to read as follows:

B. Conditions That are Integral Elements of the Classes of Actions

in Appendix B

* * * * *

(1) Threaten a violation of applicable statutory, regulatory, or

permit requirements for environment, safety, and health, including

requirements of DOE and/or Executive Orders.

(2) Require siting and construction or major expansion of waste

storage, disposal, recovery, or treatment facilities (including

incinerators), but the proposal may include categorically excluded

waste storage, disposal, recovery, or treatment actions.

* * * * *

(4) * * *

(iii) Wetlands regulated under the Clean Water Act (33 U.S.C.

1344) and floodplains;

* * * * *

12. Appendix B to Subpart D, section B1, is amended by revising the

introductory text to paragraph B1.3, paragraphs B1.3(n) and (o), B1.8,

B1.13, B1.15, B1.18, B1.21, and B1.22, and adding paragraphs B1.23

through B1.32, to read as follows:

B1. Categorical Exclusions Applicable to Facility Operation

* * * * *

B1.3 Routine maintenance activities and custodial services for

buildings, structures, rights-of-way, infrastructures (e.g.,

pathways, roads, and railroads), vehicles and equipment, and

localized vegetation and pest control, during which operations may

be suspended and resumed. Custodial services are activities to

preserve facility appearance, working conditions, and sanitation,

such as cleaning, window washing, lawn mowing, trash collection,

painting, and snow removal. Routine maintenance activities,

corrective (that is, repair), preventive, and predictive, are

required to maintain and preserve buildings, structures,

infrastructures, and equipment in a condition suitable for a

facility to be used for its designated purpose. Routine maintenance

may result in replacement to the extent that replacement is in kind

and is not a substantial upgrade or improvement. In kind replacement

includes installation of new components to replace outmoded

components if the replacement does not result in a significant

change in the expected useful life, design capacity, or function of

the facility. Routine maintenance does not include replacement of a

major component that significantly extends the originally intended

useful life of a facility (for example, it does not include the

replacement of a reactor vessel near the end of its useful life).

Routine maintenance activities include, but are not limited to:

* * * * *

(n) Routine testing and calibration of facility components,

subsystems, or portable equipment (including but not limited to,

control valves, in-core monitoring devices, transformers,

capacitors, monitoring wells, lysimeters, weather stations, and

flumes); and

(o) Routine decontamination of the surfaces of equipment, rooms,

hot cells, or other interior surfaces of buildings (by such

activities as wiping with rags, using strippable latex, and minor

vacuuming), including removal of contaminated intact equipment and

other materials (other than spent nuclear fuel or special nuclear

material in nuclear reactors).

* * * * *

B1.8 Modifications to screened water intake and outflow

structures such that intake velocities and volumes and water

effluent quality and volumes are consistent with existing permit

limits.

* * * * *

B1.13 Construction, acquisition, and relocation of onsite

pathways and short onsite access roads and railroads.

* * * * *

B1.15 Siting, construction (or modification), and operation of

support buildings and support structures (including, but not limited

to, trailers and prefabricated buildings) within or contiguous to an

already developed area (where active utilities and currently used

roads are readily accessible). Covered support buildings and

structures include those for office purposes; parking; cafeteria

services; education and training; visitor reception; computer and

data processing services; employee health services or recreation

activities; routine maintenance activities; storage of supplies and

equipment for administrative services and routine maintenance

activities; security (including security posts); fire protection;

and similar support purposes, but excluding facilities for waste

storage activities, except as provided in other parts of this

appendix.

* * * * *

B1.18 Siting, construction, and operation of additional water

supply wells (or replacement wells) within an existing well field,

or modification of an existing water supply well to restore

production, if there would be no drawdown other than in the

immediate vicinity of the pumping well, no

[[Page 36241]]

resulting long-term decline of the water table, and no degradation

of the aquifer from the new or replacement well.

* * * * *

B1.21 Noise abatement measures, such as construction of noise

barriers and installation of noise control materials.

B1.22 Relocation of buildings (including, but not limited to,

trailers and prefabricated buildings) to an already developed area

(where active utilities and currently used roads are readily

accessible).

B1.23 Demolition and subsequent disposal of buildings,

equipment, and support structures (including, but not limited to,

smoke stacks and parking lot surfaces).

B1.24 Transfer, lease, disposition or acquisition of interests

in uncontaminated permanent or temporary structures, equipment

therein, and only land that is necessary for use of the transferred

structures and equipment, for residential, commercial, or industrial

uses (including, but not limited to, office space, warehouses,

equipment storage facilities) where, under reasonably foreseeable

uses, there would not be any lessening in quality, or increases in

volumes, concentrations, or discharge rates, of wastes, air

emissions, or water effluents, and environmental impacts would

generally be similar to those before the transfer, lease,

disposition, or acquisition of interests. Uncontaminated means 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.

B1.25 Transfer, lease, disposition or acquisition of interests

in uncontaminated land for habitat preservation or wildlife

management, and only associated buildings that support these

purposes. Uncontaminated means 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.

B1.26 Siting, construction (or expansion, modification, or

replacement), operation, and decommissioning of small (total

capacity less than approximately 250,000 gallons per day) wastewater

and surface water treatment facilities whose liquid discharges are

externally regulated, and small potable water and sewage treatment

facilities.

B1.27 Activities that are required for the disconnection of

utility services such as water, steam, telecommunications, and

electrical power after it has been determined that the continued

operation of these systems is not needed for safety.

B1.28 Minor activities that are required to place a facility in

an environmentally safe condition where there is no proposed use for

the facility. These activities would include, but are not limited

to, reducing surface contamination, and removing materials,

equipment or waste, such as final defueling of a reactor, where

there are adequate existing facilities for the treatment, storage,

or disposal of the materials, equipment or waste. These activities

would not include conditioning, treatment, or processing of spent

nuclear fuel, high-level waste, or special nuclear materials.

B1.29 Siting, construction, operation, and decommissioning of a

small (less than approximately 10 acres) onsite disposal facility

for construction and demolition waste which would not release

substances at a level, or in a form, that would pose a threat to

public health or the environment. These wastes, as defined in the

Environmental Protection Agency's regulations under the Resource

Conservation and Recovery Act, specifically 40 CFR 243.101, include

building materials, packaging, and rubble.

B1.30 Transfer actions, in which the predominant activity is

transportation, and in which the amount and type of materials,

equipment or waste to be moved is small and incidental to the amount

of such materials, equipment, or waste that is already a part of

ongoing operations at the receiving site. Such transfers are not

regularly scheduled as part of ongoing routine operations.

B1.31 Relocation of machinery and equipment, such as analytical

laboratory apparatus, electronic hardware, maintenance equipment,

and health and safety equipment, including minor construction

necessary for removal and installation, where uses of the relocated

items will be similar to their former uses and consistent with the

general missions of the receiving structure.

B1.32 Traffic flow adjustments to existing roads at DOE sites

(including, but not limited to, stop sign or traffic light

installation, adjusting direction of traffic flow, and adding

turning lanes). Road adjustments such as widening or realignment are

not included.

13. Appendix B to Subpart D, section B2, is amended by adding B2.6,

to read as follows:

B2. Categorical Exclusions Applicable to Safety and Health

* * * * *

B2.6 Packaging, transportation, and storage of radioactive

materials from the public domain, in accordance with the Atomic

Energy Act upon a request by the Nuclear Regulatory Commission or

other cognizant agency, which would include a State that regulates

radioactive materials under an agreement with the Nuclear Regulatory

Commission or other agencies that may, under unusual circumstances,

have responsibilities regarding the materials that are included in

the categorical exclusion. Covered materials are those for which

possession and use by Nuclear Regulatory Commission licensees has

been categorically excluded under 10 CFR 51.22(14) or its

successors. Examples of these radioactive materials (which may

contain source, byproduct or special nuclear materials) are density

gauges, therapeutic medical devices, generators, reagent kits,

irradiators, analytical instruments, well monitoring equipment,

uranium shielding material, depleted uranium military munitions, and

packaged radioactive waste not exceeding 50 curies.

14. Appendix B to Subpart D, section B3, is amended by revising the

introductory text to paragraph B3.1, B3.3, B3.6, and B3.10, and adding

new paragraphs B3.12 and B3.13, to read as follows:

B3. Categorical Exclusions Applicable to Site Characterization,

Monitoring, and General Research

B3.1 Onsite and offsite site characterization and environmental

monitoring, including siting, construction (or modification),

operation, and dismantlement or closing (abandonment) of

characterization and monitoring devices and siting, construction,

and associated operation of a small-scale laboratory building or

renovation of a room in an existing building for sample analysis.

Activities covered include, but are not limited to, site

characterization and environmental monitoring under CERCLA and RCRA.

Specific activities include, but are not limited to:

* * * * *

B3.3 Field and laboratory research, inventory, and information

collection activities that are directly related to the conservation

of fish or wildlife resources and that involve only negligible

habitat destruction or population reduction.

* * * * *

B3.6 Siting, construction (or modification), operation, and

decommissioning of facilities for indoor bench-scale research

projects and conventional laboratory operations (for example,

preparation of chemical standards and sample analysis); small-scale

research and development projects; and small-scale pilot projects

(generally less than two years) conducted to verify a concept before

demonstration actions. Construction (or modification) will be within

or contiguous to an already developed area (where active utilities

and currently used roads are readily accessible). See also C12.

* * * * *

B3.10 Siting, construction, operation, and decommissioning of a

particle accelerator, including electron beam accelerator with

primary beam energy less than approximately 100 MeV, and associated

beamlines, storage rings, colliders, and detectors for research and

medical purposes, within or contiguous to an already developed area

(where active utilities and currently used roads are readily

accessible), or internal modification of any accelerator facility

regardless of energy that does not increase primary beam energy or

current.

* * * * *

B3.12 Siting, construction (or modification), operation, and

decommissioning of microbiological and biomedical diagnostic,

treatment and research facilities (excluding Biosafety Level-3 and

Biosafety Level-4; reference: Biosafety in Microbiological and

Biomedical Laboratories, 3rd Edition, May 1993, U.S. Department of

Health and Human Services Public Health Service, Centers of Disease

Control and Prevention, and the National Institutes of Health (HHS

Publication No. (CDC) 93-8395)) including, but not limited to,

laboratories, treatment areas, offices, and storage areas, within or

contiguous to an already developed area (where active utilities and

currently used roads are readily accessible). Operation may include

the purchase, installation, and operation of biomedical equipment,

such as commercially

[[Page 36242]]

available cyclotrons that are used to generate radioisotopes and

radiopharmaceuticals, and commercially available biomedical imaging

and spectroscopy instrumentation.

B3.13 Performing magnetic fusion experiments that do not use

tritium as fuel, with existing facilities (including necessary

modifications).

15. Appendix B to Subpart D, section B5, is amended by revising

paragraphs B5.3, B5.5 and B5.9 through B5.12 and removing B5.13 through

B5.16, to read as follows:

B5. Categorical Exclusions Applicable to Conservation, Fossil, and

Renewable Energy Activities

* * * * *

B5.3 Modification (but not expansion) or abandonment (including

plugging), which is not part of site closure, of crude oil storage

access wells, brine injection wells, geothermal wells, and gas

wells.

* * * * *

B5.5 Construction and subsequent operation of short crude oil,

steam, geothermal, or natural gas pipeline segments between DOE

facilities and existing transportation, storage, or refining

facilities within a single industrial complex, if the pipeline

segments are within existing rights-of-way.

* * * * *

B5.9 The grant or denial of any temporary exemption under the

Powerplant and Industrial Fuel Use Act of 1978 for any electric

powerplant.

B5.10 The grant or denial of any permanent exemption under the

Powerplant and Industrial Fuel Use Act of 1978 of any existing

electric powerplant other than an exemption under (1) section 312(c)

relating to cogeneration, (2) section 312(l) relating to scheduled

equipment outages, (3) section 312(b) relating to certain state or

local requirements, and (4) section 312(g) relating to certain

intermediate load powerplants.

B5.11 The grant or denial of a permanent exemption from the

prohibitions of Title II of the Powerplant and Industrial Fuel Use

Act of 1978 for any new electric powerplant to permit the use of

certain fuel mixtures containing natural gas or petroleum.

B5.12 Workover (operations to restore production, such as

deepening, plugging back, pulling and resetting lines, and squeeze

cementing) of an existing oil, gas, or geothermal well to restore

production when workover operations will be restricted to the

existing wellpad and not involve any new site preparation or earth

work that would adversely affect adjacent habitat.

16. Appendix B to Subpart D, section B6, is amended by revising the

introductory text to paragraph B6.1, paragraph B6.1 (b), (g), and (j),

B6.5, and adding paragraphs B6.9 and B6.10, to read as follows:

B6. Categorical Exclusions Applicable to Environmental Restoration

and Waste Management Activities

B6.1 Small-scale, short-term cleanup actions, under RCRA,

Atomic Energy Act, or other authorities, less than approximately 5

million dollars in cost and 5 years duration, to reduce risk to

human health or the environment from the release or threat of

release of a hazardous substance other than high-level radioactive

waste and spent nuclear fuel, including treatment (e.g.,

incineration), recovery, storage, or disposal of wastes at existing

facilities currently handling the type of waste involved in the

action. These actions include, but are not limited to:

* * * * *

(b) Removal of bulk containers (for example, drums, barrels)

that contain or may contain hazardous substances, pollutants,

contaminants, CERCLA-excluded petroleum or natural gas products, or

hazardous wastes (designated in 40 CFR part 261 or applicable state

requirements), if such actions would reduce the likelihood of

spillage, leakage, fire, explosion, or exposure to humans, animals,

or the food chain;

* * * * *

(g) Confinement or perimeter protection using dikes, trenches,

ditches, diversions, or installing underground barriers, if needed

to reduce the spread of, or direct contact with, the contamination;

* * * * *

(j) Segregation of wastes that may react with one another or

form a mixture that could result in adverse environmental impacts;

* * * * *

B6.5 Siting, construction (or modification or expansion),

operation, and decommissioning of an onsite facility for

characterizing and sorting previously packaged waste or for

overpacking waste, other than high-level radioactive waste, if

operations do not involve unpacking waste. These actions do not

include waste storage (covered under B6.4, B6.6, B6.10, and C16) or

the handling of spent nuclear fuel.

* * * * *

B6.9 Small-scale temporary measures to reduce migration of

contaminated groundwater, including the siting, construction,

operation, and decommissioning of necessary facilities. These

measures include, but are not limited to, pumping, treating,

storing, and reinjecting water, by mobile units or facilities that

are built and then removed at the end of the action.

B6.10 Siting, construction (or modification), operation, and

decommissioning of a small upgraded or replacement facility (less

than approximately 50,000 square feet in area) at a DOE site within

or contiguous to an already developed area (where active utilities

and currently used roads are readily accessible) for storage of

waste that is already at the site at the time the storage capacity

is to be provided. These actions do not include the storage of high-

level radioactive waste, spent nuclear fuel or any waste that

requires special precautions to prevent nuclear criticality. See

also B6.4, B6.5, B6.6, and C16.

17. Appendix C to Subpart D is amended in the Table of Contents by

removing and reserving the entries for C1 and C10 and by revising the

entries for C11, C14 and C16 to read as follows:

Appendix C to Subpart D to Part 1021--Classes of Actions That Normally

Require EAs But Not Necessarily EISs

Table of Contents

C1 [Removed and Reserved]

* * * * *

C10 [Removed and Reserved]

C11 Siting/construction/operation/decommissioning of low- or

medium-energy particle acceleration facility with primary beam

energy greater than approximately 100 MeV

* * * * *

C14 Siting/construction/operation of water treatment facilities

greater than approximately 250,000 gallons per day capacity

* * * * *

C16 Siting/construction/operation/decommissioning of large waste

storage facilities

18. Appendix C to Subpart D to Part 1021 is amended by removing and

reserving paragraphs C1 and C10 and by revising C11, C14 and C16, to

read as follows:

C1 [Removed and reserved].

* * * * *

C10 [Removed and reserved].

C11 Siting, construction (or modification), operation, and

decommissioning of a low- or medium-energy (but greater than

approximately 100 MeV primary beam energy) particle acceleration

facility, including electron beam acceleration facilities, and

associated beamlines, storage rings, colliders, and detectors for

research and medical purposes, within or contiguous to an already

developed area (where active utilities and currently used roads are

readily accessible).

* * * * *

C14 Siting, construction (or expansion), operation, and

decommissioning of wastewater, surface water, potable water, and

sewage treatment facilities with a total capacity greater than

approximately 250,000 gallons per day, and of lower capacity

wastewater and surface water treatment facilities whose liquid

discharges are not subject to external regulation.

* * * * *

C16 Siting, construction (or modification to increase

capacity), operation, and decommissioning of packaging and unpacking

facilities (that may include characterization operations) and large

storage facilities (greater than approximately 50,000 square feet in

area) for waste, except high-level radioactive waste, generated

onsite or resulting from activities connected to site operations.

These actions do not include storage, packaging, or unpacking of

spent nuclear fuel. See also B6.4, B6.5, B6.6, and B6.10.

19. Appendix D to Subpart D is amended to revise the Table of

Contents

[[Page 36243]]

entries for D1 and D10 to read as follows:

Appendix D to Subpart D to Part 1021--Classes of Actions That Normally

Require EISs

Table of Contents

D1 Strategic Systems

* * * * *

D10 Siting/construction/operation/decommissioning of major

treatment, storage, and disposal facilities for high-level waste and

spent nuclear fuel

* * * * *

20. Appendix D to subpart D to part 1021 is amended by revising

paragraphs D1 and D10, to read as follows:

D1 Strategic Systems, as defined in DOE Order 430.1, ``Life-

Cycle Asset Management,'' and designated by the Secretary.

* * * * *

D10 Siting, construction, operation, and decommissioning of

major treatment, storage, and disposal facilities for high-level

waste and spent nuclear fuel, including geologic repositories, but

not including onsite replacement or upgrades of storage facilities

for spent nuclear fuel at DOE sites where such replacement or

upgrade will not result in increased storage capacity.

* * * * *

[FR Doc. 96-17285 Filed 7-8-96; 8:45 am]

BILLING CODE 6450-01-P