# 76 FR 214: National Environmental Policy Act Implementing Procedures

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2010-32316

## Section

- **Citation:** 76 FR 214
- **Heading:** National Environmental Policy Act Implementing Procedures
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 76 / 76 FR 214

## Text

DEPARTMENT OF ENERGY [Docket ID: DOE-HQ-2010-0002] 10 CFR Part 1021 RIN 1990-AA34 National Environmental Policy Act Implementing Procedures AGENCY:
Office of the General Counsel, U.S. Department of Energy.

ACTION:
Notice of proposed rulemaking and public hearing.

SUMMARY:
The U.S. Department of Energy (DOE or the Department) proposes to amend its existing regulations governing compliance with the National Environmental Policy Act (NEPA). The majority of the changes are proposed for the categorical exclusions provisions contained in its NEPA Implementing Procedures, with a small number of related changes proposed for other provisions. These proposed changes are intended to better align the Department's regulations, particularly its categorical exclusions, with DOE's current activities and recent experiences, and to update the provisions with respect to current technologies and regulatory requirements. DOE proposes to establish 20 new categorical exclusions, and to remove two categorical exclusion categories, one environmental assessment (EA) category, and two environmental impact statement (EIS) categories. Other proposed changes modify and clarify DOE's existing provisions.

DATES:
Comments should be received by (or, if mailed, postmarked by) February 17, 2011 to ensure consideration. Late comments may be considered to the extent practicable. DOE will hold a public hearing on February 4, 2011, from 1 p.m. to 4 p.m. in Washington, DC. Persons who wish to speak at the public hearing should register before 3 p.m. on February 1, 2011, as described in FOR FURTHER INFORMATION CONTACT .

ADDRESSES:
Documents relevant to this rulemaking are posted at http://www.regulations.gov (Docket ID: DOE-HQ-2010-0002)
dered to the extent practicable. DOE will hold a public hearing on February 4, 2011, from 1 p.m. to 4 p.m. in Washington, DC. Persons who wish to speak at the public hearing should register before 3 p.m. on February 1, 2011, as described in FOR FURTHER INFORMATION CONTACT .

ADDRESSES:
Documents relevant to this rulemaking are posted at http://www.regulations.gov (Docket ID: DOE-HQ-2010-0002). Documents posted to this docket include: This notice of proposed rulemaking, DOE's “Technical Support Document” that provides additional information regarding certain proposed changes, and a “redline/strikeout” (markup) file of affected sections of the DOE NEPA regulations indicating the changes proposed in this proposed rule.
Submit comments, labeled “DOE NEPA Implementing Procedures, RIN 1990-AA34,” by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments electronically. This rulemaking is assigned Docket ID: DOE-HQ-2010-0002. Comments may be entered directly on the Web site. Electronic files may be submitted to this Web site.
2. Mail: Mail comments to NEPA Rulemaking Comments, Office of NEPA Policy and Compliance (GC-54), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585. Because security screening may delay mail sent through the U.S. Postal Service, DOE encourages electronic submittal of comments.
3. Public Hearing: A public hearing will be held at the U.S. Department of Energy, Forrestal Building, Room 1E-245, 1000 Independence Avenue, SW., Washington, DC 20585. Oral and written comments will be accepted at the public hearing. See DATES, above, and Section III, Invitation to Comment, below, for procedures.
FOR FURTHER INFORMATION CONTACT:
For general information about DOE's NEPA procedures, contact Ms. Carol Borgstrom, Director, Office of NEPA Policy and Compliance, at 202-586-4600 or leave a message at 800-472-2756
Avenue, SW., Washington, DC 20585. Oral and written comments will be accepted at the public hearing. See DATES, above, and Section III, Invitation to Comment, below, for procedures.
FOR FURTHER INFORMATION CONTACT:
For general information about DOE's NEPA procedures, contact Ms. Carol Borgstrom, Director, Office of NEPA Policy and Compliance, at 202-586-4600 or leave a message at 800-472-2756. To register to speak at the public hearing and for questions concerning how to comment on this proposed rule, contact Ms. Yardena Mansoor, Office of NEPA Policy and Compliance, at askNEPA@hq.doe.gov or 202-586-9326. For detailed information on submitting comments and the public hearing, see Section III, Invitation to Comment, below.

SUPPLEMENTARY INFORMATION:
I. Introduction and Background
What is NEPA?
The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) requires Federal agencies to consider the potential environmental impacts of their “proposed actions” before taking action. (Please note the terms “effects” and “impacts” as used in this proposed rule are synonymous. See 40 CFR 1508.8.) Proposed actions include actions directly undertaken by a Federal agency, as well as certain actions undertaken by a State, local, or private entity with Federal involvement, e.g., certain projects that may receive Federal funding, permits, or other support.
What is environmental review under NEPA?
The Council on Environmental Quality's (CEQ's) NEPA implementing regulations (40 CFR parts 1500-1508) establish three levels of review for proposed actions—EIS, EA, and categorical exclusion determinations—each involving different levels of information and analysis. An EIS is a detailed analysis of the potential environmental impacts of a proposed action (and alternatives) that may have a significant impact on the environment. See NEPA Section 102(2)(C), 42 U.S.C. 4332(2)(C); 40 CFR 1508.11
-1508) establish three levels of review for proposed actions—EIS, EA, and categorical exclusion determinations—each involving different levels of information and analysis. An EIS is a detailed analysis of the potential environmental impacts of a proposed action (and alternatives) that may have a significant impact on the environment. See NEPA Section 102(2)(C), 42 U.S.C. 4332(2)(C); 40 CFR 1508.11. An EA is a briefer analysis conducted to determine whether a proposed action may have a significant impact on the environment and thus whether an EIS is required. See 40 CFR 1508.9. A categorical exclusion is a class of actions that a Federal agency has determined do not, absent extraordinary circumstances, individually or cumulatively have a significant impact on the human environment and for which, therefore, neither an EA nor an EIS is required. See 40 CFR 1508.4. A categorical exclusion determination is made when an agency finds that a proposed action fits within a categorical exclusion and meets other applicable requirements, such as the absence of extraordinary circumstances.
How does DOE establish categorical exclusions?
DOE establishes categorical exclusions pursuant to a rulemaking, such as this one, for defined classes of actions that the Department determines are supported by a record showing that they normally will not have significant environmental impacts, individually or cumulatively. DOE establishes categorical exclusions based on its experience, the experience of other agencies, and information provided by the public.
A complete list of DOE's current categorical exclusions can be found at 10 CFR part 1021, subpart D, appendices A and B. Appendix A lists categorical exclusions applicable to general agency actions (for example, routine administrative, financial, and personnel actions). Appendix B lists categorical exclusions that are applicable to specific agency actions
and information provided by the public.
A complete list of DOE's current categorical exclusions can be found at 10 CFR part 1021, subpart D, appendices A and B. Appendix A lists categorical exclusions applicable to general agency actions (for example, routine administrative, financial, and personnel actions). Appendix B lists categorical exclusions that are applicable to specific agency actions.
How does DOE make a categorical exclusion determination?
Under the regulations, before a proposed action may be categorically excluded, DOE must determine in accordance with 10 CFR 1021.410(b) that: (1) The proposed action fits within
In addition, to fit within a class of actions in appendix B, a proposed action must satisfy certain conditions known as “integral elements” (appendix B, paragraphs (1) through (4)). Briefly, these conditions ensure that an excluded action would not have the potential to cause significant environmental impacts due to, for example, a threatened violation of applicable environmental, safety, and health requirements, or by disturbing hazardous substances such that there would be uncontrolled or unpermitted releases.
What does DOE propose to change in its NEPA regulations?
With this proposed rule, DOE proposes to update its NEPA regulations (10 CFR part 1021), primarily with changes to subpart D and with a few changes to subpart C. Most changes are to categorical exclusions (subpart D, appendices A and B, discussed in Sections IV.D and IV.E below, respectively), including establishing new categorical exclusions and modifying existing categorical exclusions. DOE also proposes to make changes to its classes of actions that normally require an EA (appendix C, discussed in Section IV.F) or EIS (appendix D, discussed in Section IV.G). In addition, DOE proposes to change several procedural provisions of the Department's regulations (Section IV.C) and modify wording for consistency and clarity (Section IV.B).
II
modifying existing categorical exclusions. DOE also proposes to make changes to its classes of actions that normally require an EA (appendix C, discussed in Section IV.F) or EIS (appendix D, discussed in Section IV.G). In addition, DOE proposes to change several procedural provisions of the Department's regulations (Section IV.C) and modify wording for consistency and clarity (Section IV.B).
II. Purpose and Development of the Proposed Changes
Why does DOE propose to amend its NEPA implementing procedures?
The Department last updated its categorical exclusions in 1996. Since that time, the range of activities in which DOE is involved has changed and expanded. For example, in recent years, DOE has received more applications for financial support from private applicants for actions that promote energy efficiency and energy independence. DOE has received thousands of applications under grant and loan programs established by the Energy Policy Act of 2005, the Energy Independence and Security Act of 2007, and the American Recovery and Reinvestment Act of 2009. Another change since 1996 is the growth and development of new technologies in the private and public sectors, including energy efficient and renewable energy technologies, and DOE's experience with those technologies. Through this proposed rulemaking, DOE proposes to update its categorical exclusions to address the Department's current activities and its experience and bring the provisions up-to-date with current technology and regulatory requirements.
How did DOE seek input on the proposed changes?
DOE has sought input from a number of different sources. First, DOE issued an internal memorandum on December 7, 2009, soliciting suggestions for new categorical exclusions or revisions from DOE Program and Field Offices, including DOE's network of NEPA Compliance Officers
provisions up-to-date with current technology and regulatory requirements.
How did DOE seek input on the proposed changes?
DOE has sought input from a number of different sources. First, DOE issued an internal memorandum on December 7, 2009, soliciting suggestions for new categorical exclusions or revisions from DOE Program and Field Offices, including DOE's network of NEPA Compliance Officers. Second, DOE Office of NEPA Policy and Compliance staff identified additional candidates for new or expanded categorical exclusions by reviewing the archive of DOE EAs that led to findings of no significant impact (FONSIs), researched the existing categorical exclusions established by approximately 50 Federal agencies, and reviewed existing DOE categorical exclusions to identify potential new categorical exclusions or revisions. Third, on December 29, 2009, DOE published a Request for Information in the Federal Register (74 FR 68720) seeking suggestions from interested parties. Eleven entities responded to the Request for Information: Endicott Biofuels, LLC; Golder Associates, Inc.; INFORM (Information Network for Responsible Mining); Johnson Controls, Inc.; Nuclear Watch New Mexico; Presco Energy, LLC; Sierra Geothermal Power Corp.; Solar Energy Industries Association; State of Oregon's Department of Energy; U.S. Chamber of Commerce; and a contractor for DOE's Golden Field Office. The Request for Information and these comments are available at http://www.regulations.gov.
The comments included proposals for new categorical exclusions and suggested revisions to limit or expand existing categorical exclusions or other related provisions. DOE addresses these comments in its discussion of specific classes of actions in Section IV. Comments of a more general nature that were not associated with a particular provision are addressed below in Section V
w.regulations.gov.
The comments included proposals for new categorical exclusions and suggested revisions to limit or expand existing categorical exclusions or other related provisions. DOE addresses these comments in its discussion of specific classes of actions in Section IV. Comments of a more general nature that were not associated with a particular provision are addressed below in Section V.
How did DOE develop the proposed changes?
As described above, DOE reviewed and evaluated each of the proposed revisions, reviewed past DOE NEPA analyses and other agencies' NEPA analyses and categorical exclusions, and drafted proposed categorical exclusions and revisions. DOE created a Technical Support Document that presents proposed changes and information that supplements the Preamble discussion of the supporting basis for the changes. ( See http://www.regulations.gov, Docket ID: DOE-HQ-2010-0002.) The proposed changes were developed in consultation with CEQ ( see 40 CFR 1507.3), and are now, through this notice of proposed rulemaking, published for public review and comment. Instructions for how to provide comments are provided in Section III. DOE is also scheduling a public hearing to accept comments on the proposed rule. Details regarding the public hearing are provided in the DATES and ADDRESSES section and in Section III.B below. DOE will review the comments received during the public comment period, including those presented at the public hearing, and revise its proposal as appropriate. The final rule with DOE responses to comments would then be published in the Federal Register.
What kinds of changes does DOE propose?
DOE proposes to amend 10 CFR part 1021, subparts C and D. The majority of changes are proposed for the categorical exclusion provisions at 10 CFR part 1021, subpart D, appendices A and B, with a small number of related changes proposed for other provisions within subparts C and D.
DOE proposes to add 20 new categorical exclusions
the Federal Register.
What kinds of changes does DOE propose?
DOE proposes to amend 10 CFR part 1021, subparts C and D. The majority of changes are proposed for the categorical exclusion provisions at 10 CFR part 1021, subpart D, appendices A and B, with a small number of related changes proposed for other provisions within subparts C and D.
DOE proposes to add 20 new categorical exclusions. These categorical exclusions (in the order in which they appear in appendix B) address: Stormwater runoff control; lead-based paint removal; recycling stations; determinations of excess real property; small-scale educational facilities; small-scale indoor research and development projects using nanoscale materials; research activities in salt water and freshwater environments; experimental wells for injection of small quantities of carbon dioxide; combined heat and power or cogeneration systems; small-scale renewable energy research and development and pilot projects; solar photovoltaic systems; solar thermal systems; wind turbines; ground source heat pumps; biomass power plants; methane gas recovery and utilization systems; alternative fuel vehicle fueling stations; electric vehicle charging
DOE also proposes to modify many of the existing categorical exclusions. These revisions include substantive changes, as well as changes to reflect current regulatory or statutory references and requirements, and punctuation and grammatical changes to improve readability, clarity, and internal consistency. (By “substantive” changes DOE means a change that is more than a clarifying or consistency change; this term includes changes that alter the scope or meaning of a provision or that result in the addition or deletion of a provision.)
What would result from DOE's proposed changes?
The proposed changes would better align DOE's categorical exclusions with its current activities and its experience and bring the provisions up-to-date with current technology and regulatory requirements
ncy change; this term includes changes that alter the scope or meaning of a provision or that result in the addition or deletion of a provision.)
What would result from DOE's proposed changes?
The proposed changes would better align DOE's categorical exclusions with its current activities and its experience and bring the provisions up-to-date with current technology and regulatory requirements. The changes would also facilitate compliance with NEPA by providing for more efficient review of actions (helping the Department meet the goals set forth by Congress, for example, in the Energy Policy Act of 2005), and allowing the Department to focus its resources on proposed actions that have the potential for significant environmental impacts.
III. Invitation To Comment
DOE invites interested persons to participate in this rulemaking by submitting comments on the proposed rule and on the supporting information for proposed changes set forth in the Preamble and the Technical Support Document. Comments would be particularly useful to DOE if those comments: (1) Provide information to support or oppose a proposed change (for example, describing experience with similar actions that did or did not have significant environmental impacts or providing references to such experience); (2) justify increased or lessened limitations on the application of a categorical exclusion; or (3) explain recommended changes in addition to those that DOE proposes and provide the rationale for such additional changes. As appropriate, comments should refer to the specific section of the proposed rule to which the comment applies, identify a comment as a general comment, or identify a comment as a new proposal.
DOE will consider all timely comments received in response to this notice of proposed rulemaking, whether presented orally at the public hearing or written and submitted electronically or by mail.
A. Written Comments
Comments may be submitted by one of the methods in the ADDRESSES section of this proposed rule
identify a comment as a general comment, or identify a comment as a new proposal.
DOE will consider all timely comments received in response to this notice of proposed rulemaking, whether presented orally at the public hearing or written and submitted electronically or by mail.
A. Written Comments
Comments may be submitted by one of the methods in the ADDRESSES section of this proposed rule. Comments received will be included in the administrative record and will be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information specifically identified as Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider to be CBI or otherwise protected should be submitted by mail, not through http://www.regulations.gov. If you submit information that you believe to be exempt by law from public disclosure, you should mail one complete copy, as well as one copy from which the information claimed to be exempt by law from public disclosure has been redacted. Please include written justification as to why the redacted information is exempt from disclosure. DOE is responsible for the final determination with regard to disclosure or nondisclosure of the information and for treating it accordingly under the DOE Freedom of Information Act regulations at 10 CFR 1004.11.
The http://www.regulations.gov Web site is an “anonymous access” system, which means DOE will not know your contact information unless you provide it. If you choose not to provide contact information and DOE cannot read your comment due to technical difficulties, DOE may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption, and be free of any defects or viruses.
B. Public Hearing
Attendance
The time, date, and location of the public hearing are listed in the DATES and ADDRESSES sections at the beginning of this proposed rule
cannot read your comment due to technical difficulties, DOE may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption, and be free of any defects or viruses.
B. Public Hearing
Attendance
The time, date, and location of the public hearing are listed in the DATES and ADDRESSES sections at the beginning of this proposed rule. Persons wishing to attend the public hearing must present government-issued identification and pass through security screening upon entering the building. Foreign nationals are subject to advance security screening procedures. Any foreign national wishing to participate or attend the public hearing should advise DOE promptly in order to initiate the necessary procedures as soon as possible; see FOR FURTHER INFORMATION CONTACT, above.
Registering To Speak
Any person who has an interest in the topics addressed in this proposed rule may speak at the public hearing, either as an individual or as a representative of a group or organization of interested persons. Persons wishing to speak should register in advance, as described in FOR FURTHER INFORMATION CONTACT . After registered speakers have made their presentations, other persons may speak to the extent that time allows.
Conduct of Public Hearing
DOE will designate an official or facilitator to preside at the public hearing. The public hearing will be informal and not a judicial or evidentiary-type hearing. DOE reserves the right to schedule the order of speakers and to establish the procedures governing the conduct of the hearing. To ensure that all persons wishing to make a presentation can be heard, DOE may limit each presentation to 10 minutes or less. The presiding official or facilitator will announce any further procedural rules needed for the proper conduct of the public hearing. After the public hearing, interested persons may submit further comments until the end of the comment period
ng the conduct of the hearing. To ensure that all persons wishing to make a presentation can be heard, DOE may limit each presentation to 10 minutes or less. The presiding official or facilitator will announce any further procedural rules needed for the proper conduct of the public hearing. After the public hearing, interested persons may submit further comments until the end of the comment period.
A transcript of the hearing will be made and posted at http://www.regulations.gov.
C. Issues on Which DOE Seeks Comment
DOE is particularly interested in receiving comments and views of interested parties on several topics. As discussed in more detail in Section IV.B below, DOE seeks comments on its use of the phrases “including, but not limited to,” and “such as” to introduce lists of examples. Unless otherwise specified, DOE's lists of examples are not intended to be exhaustive of all possible actions that fit within a categorical exclusion. DOE also seeks comments on its use of the phrase “would not have the potential to cause significant impacts” (or a similar construct) in lieu of the use of terms such as “adverse” or “substantial” as modifiers for potential impacts. DOE believes that the proposed phrase more accurately reflects NEPA and the CEQ NEPA regulations.
DOE is particularly interested in receiving comments and views of interested parties on the proposals relating to the following classes of actions:
B3.7 New Terrestrial Infill Exploratory and Experimental Wells B3.15 Small-Scale Indoor Research and Development Projects Using Nanoscale Materials B3.16 Research Activities in Salt Water and Freshwater Environments B4.1 Contracts, Policies, and Marketing and Allocation Plans for Electric Power B4.11 Electric Power Substations and Interconnection Facilities B4.12 Construction of Transmission Lines B4.13 Upgrading and Rebuilding Existing Transmission Lines B5.1(b) Actions To Conserve Energy or Water B5.13 Experimental Wells for Injection of Small Quantities of Carbon Dioxide B5.15 Small-Scale Renewabl
ronments B4.1 Contracts, Policies, and Marketing and Allocation Plans for Electric Power B4.11 Electric Power Substations and Interconnection Facilities B4.12 Construction of Transmission Lines B4.13 Upgrading and Rebuilding Existing Transmission Lines B5.1(b) Actions To Conserve Energy or Water B5.13 Experimental Wells for Injection of Small Quantities of Carbon Dioxide B5.15 Small-Scale Renewable Energy Research and Development and Pilot Projects B5.16 Solar Photovoltaic Systems B5.17 Solar Thermal Systems B5.18 Wind Turbines B5.19 Ground Source Heat Pumps B5.20 Biomass Power Plants B5.24 Drop-in Hydroelectric Systems B5.25 Small-Scale Renewable Energy Research and Development and Pilot Projects in Salt Water and Freshwater Environments B6.1 Cleanup Actions C7 Contracts, Policies, and Marketing and Allocation Plans for Electric Power D5 [Removed and Reserved: Main Transmission System Additions] D6 [Removed and Reserved: Integrating Transmission Facilities] D7 Contracts, Policies, and Marketing and Allocation Plans for Electric Power DOE also welcomes comments on those categorical exclusions for classes of actions for which DOE has not proposed any revisions at this time.
IV. Description of Proposed Changes
A. Overview
This section describes and explains the proposed amendments to the existing DOE NEPA regulations at 10 CFR part 1021, subparts C and D.
In subpart C, Implementing Procedures, the proposed amendments are minor technical changes. Specifically, to correct internal references, DOE proposes changes to three sections in subpart C: (1) 10 CFR 1021.311—Notice of intent and scoping; (2) 10 CFR 1021.322—Findings of no significant impact; and (3) 10 CFR 1021.331—Mitigation action plans. These proposed minor technical changes to subpart C are not discussed further below.
In subpart D, DOE proposes extensive substantive and clarifying changes. Recurring proposals for subpart D are described in Section IV.B and then unique proposed changes to subpart D are described in Sections IV.C through IV.G
22—Findings of no significant impact; and (3) 10 CFR 1021.331—Mitigation action plans. These proposed minor technical changes to subpart C are not discussed further below.
In subpart D, DOE proposes extensive substantive and clarifying changes. Recurring proposals for subpart D are described in Section IV.B and then unique proposed changes to subpart D are described in Sections IV.C through IV.G. Support for the proposed revisions is summarized below, and more information regarding the supporting basis for certain provisions is provided in the Technical Support Document.
What is subpart D of the DOE NEPA regulations?
DOE's NEPA regulations at 10 CFR part 1021 include subpart D, which lists classes of actions and the typical level of NEPA review required for those classes of actions. Subpart D appendices A and B describe DOE's categorical exclusions. Appendix C describes classes of actions that normally require preparation of an EA, but not necessarily an EIS, and appendix D describes classes of actions that normally require preparation of an EIS.
Listing a class of actions in these appendices does not constitute a conclusive determination regarding the appropriate level of NEPA review for a proposed action. Rather, the listing creates an initial assumption that the defined level of review is appropriate for the listed actions. As indicated in the existing 10 CFR 1021.400(c) and (d), this assumption does not apply when there are extraordinary circumstances related to the proposed action that may affect the significance of the environmental effects of the action.
What types of changes does DOE propose to subpart D?
DOE proposes to make several types of changes to its subpart D regulations: these revisions include substantive changes, as well as changes to reflect current regulatory or statutory references and requirements, and punctuation and grammatical changes to improve readability, clarity, and internal consistency
ironmental effects of the action.
What types of changes does DOE propose to subpart D?
DOE proposes to make several types of changes to its subpart D regulations: these revisions include substantive changes, as well as changes to reflect current regulatory or statutory references and requirements, and punctuation and grammatical changes to improve readability, clarity, and internal consistency. A proposed change does not imply that any previous application of these regulations was inappropriate. See 10 CFR 1021.400(b).
DOE also proposes to delete the tables of contents for the classes of actions in subpart D, and instead to precede each section or paragraph with a short title. These short titles are included merely to guide the reader and do not have any regulatory effect.
Some of the proposed changes apply multiple times throughout the provisions; others are made in the context of a specific provision. Section IV.B of this proposed rule contains an explanation of proposals that recur, that is, that affect more than one class of actions, instead of duplicating the explanation for multiple individual classes of actions. Descriptions of specific individual proposed changes and support for such changes begin with Section IV.C. With respect to certain proposed changes, a more detailed explanation of the supporting basis is provided in the Technical Support Document. (The Technical Support Document and the “redline/strikeout” markup of DOE's existing regulations that show the proposed changes are available at http://www.regulations.gov .)
B. Recurring Proposals, Technology Updates, and Minor Changes
DOE proposes certain changes to its regulations that recur throughout subpart D. Seven recurring proposals are described below and are followed by a listing of the existing provisions where the recurring proposals occur. Discussion of these recurring proposals is not repeated in the discussion of classes of actions in Section IV below
B. Recurring Proposals, Technology Updates, and Minor Changes
DOE proposes certain changes to its regulations that recur throughout subpart D. Seven recurring proposals are described below and are followed by a listing of the existing provisions where the recurring proposals occur. Discussion of these recurring proposals is not repeated in the discussion of classes of actions in Section IV below.
DOE also proposes to modify certain technology-specific vocabulary to reflect current usage, updates to references, and minor changes to punctuation and grammar to improve internal consistency. For example, to update technology-specific vocabulary, DOE proposes to change “electric powerlines” to “electric transmission lines” in several categorical exclusions. DOE also proposes to update references, as in categorical exclusion B3.12, which would reference the latest edition of a Centers for Disease Control manual. DOE is proposing to correct typographical errors (for example, changing “with” to “within” in categorical exclusion B1.13). Also, for certain classes of actions, DOE is proposing the addition of cross-references to related classes of actions. For example, DOE is proposing to add a cross-reference to the proposed new categorical exclusion B1.33 into the existing categorical exclusion B1.6.
B.1. Adjacent/Contiguous/Nearby
To clarify use of terms reflecting proximity, and to promote consistency in its categorical exclusions, DOE is proposing to delete the word “adjacent” from its categorical exclusions and use “contiguous” and “nearby,” as appropriate
is proposing to add a cross-reference to the proposed new categorical exclusion B1.33 into the existing categorical exclusion B1.6.
B.1. Adjacent/Contiguous/Nearby
To clarify use of terms reflecting proximity, and to promote consistency in its categorical exclusions, DOE is proposing to delete the word “adjacent” from its categorical exclusions and use “contiguous” and “nearby,” as appropriate. DOE proposes to use the word “contiguous,” where the intended application is “touching along a boundary or at a point” or “being in actual contact.” In contrast, DOE is proposing to use the word “nearby,” where the intended application is “not distant” or “in proximity, but not necessarily touching.” In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.31, B2.1, B4.7, B5.8, B5.12.
B.2. Including, But Not Limited to/Including/Such as
DOE proposes to use the phrases “including, but not limited to,” “including,” and “such as” to introduce lists of examples. DOE considers the phrases to be synonymous. Unless otherwise specified, DOE's lists of examples are not intended to be exhaustive of all possible actions that fit within a class of actions. DOE proposes generally to use “including, but not limited to,” the first time that examples are introduced in a provision and “such as” for any needed clarification of the examples. In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: 1021.410(b)(2), A1, A6, A9, A12, B(4), B1.3, B1.5, B1.9, B1.10, B1.11, B1.12, B1.13, B1.15, B1.16, B1.17, B1.20, B1.21, B1.24, B1.27, B1.29, B1.31, B1.32, B2.4, B2.5, B3.1, B3.4, B3.6, B3.7, B3.8, B3.9, B3.10, B3.11, B3.12, B3.13, B4.4, B4.6, B4.7, B4.9, B4.10, B4.11, B5.1, B5.2, B5.3, B5.4, B5.5, B5.6, B5.12, B6.1, B6.2, B6.3, B6.4, B7.2, C8, C16.
B.3
oposes changes to the following provisions: 1021.410(b)(2), A1, A6, A9, A12, B(4), B1.3, B1.5, B1.9, B1.10, B1.11, B1.12, B1.13, B1.15, B1.16, B1.17, B1.20, B1.21, B1.24, B1.27, B1.29, B1.31, B1.32, B2.4, B2.5, B3.1, B3.4, B3.6, B3.7, B3.8, B3.9, B3.10, B3.11, B3.12, B3.13, B4.4, B4.6, B4.7, B4.9, B4.10, B4.11, B5.1, B5.2, B5.3, B5.4, B5.5, B5.6, B5.12, B6.1, B6.2, B6.3, B6.4, B7.2, C8, C16.
B.3. In Accordance With Applicable Requirements
DOE proposes to use the phrase “in accordance with applicable requirements” in several of its categorical exclusions for emphasis. DOE recognizes that all actions must be conducted in accordance with all applicable requirements. However, with certain categorical exclusions, DOE finds it appropriate to refer specifically to this requirement, and, further, in some cases also to provide one or more examples of applicable requirements. By referring to a specific requirement, DOE does not imply that the requirement is relevant to all actions to which the categorical exclusion may apply, or that the referenced requirement is the only one that applies to a proposed action. DOE's proposed wording is intended to allow for the evolution of the requirements over time. In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.2, B1.3, B1.9, B1.16, B1.17, B1.29, B2.5, B3.8, B3.12, B5.4, B5.6, B6.1, B7.2.
B.4. Would Not Have the Potential To Cause Significant Impacts
Appendices A and B contain a number of provisions that contain the word “adverse,” or the use of “any” or “no” as descriptors of, or surrogates for, impacts. Through this proposed rulemaking, DOE proposes to replace these terms with “would not have the potential to cause significant impacts” or a similar construct (for example, describing a physical change that serves as a surrogate for impacts, such as in categorical exclusions B1.18, B3.4, B3.9, and B5.2)
n the word “adverse,” or the use of “any” or “no” as descriptors of, or surrogates for, impacts. Through this proposed rulemaking, DOE proposes to replace these terms with “would not have the potential to cause significant impacts” or a similar construct (for example, describing a physical change that serves as a surrogate for impacts, such as in categorical exclusions B1.18, B3.4, B3.9, and B5.2). By the proposed changes, DOE's implementing regulations are now clearly aligned with the regulatory standard in NEPA. See 40 CFR 1508.4. Additionally, by this proposed change, DOE seeks to clarify the affected provisions and to facilitate consistent application. See also 40 CFR 1508.27 (addressing the meaning of “significantly” as used in NEPA).
DOE's review of the existing provisions demonstrated the need for clarification and consistency. For example, the existing categorical exclusion B3.8 requires that the action “would not result in any permanent change to the ecosystem.” A literal reading of this categorical exclusion would bar its use if there were any permanent change to the ecosystem, even a change that would not have the potential to cause significant impacts. DOE acknowledges that this is not what NEPA requires and thus DOE proposes to rephrase the categorical exclusion to incorporate the appropriate NEPA standard, phrased as “would not have the potential to cause significant impacts on the ecosystem.” In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B(4), B1.5, B1.11, B1.18, B1.24, B1.31, B2.3, B3.1, B3.3, B3.8, B3.9, B4.6, B5.1, B5.2, B5.12, C8.
B.5
gorical exclusion to incorporate the appropriate NEPA standard, phrased as “would not have the potential to cause significant impacts on the ecosystem.” In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B(4), B1.5, B1.11, B1.18, B1.24, B1.31, B2.3, B3.1, B3.3, B3.8, B3.9, B4.6, B5.1, B5.2, B5.12, C8.
B.5. On DOE Sites/Onsite/Employee
In recent years, DOE's proposed actions have included more applicant proposals, including those for DOE loan guarantees, grants, cooperative agreements, and other forms of financial assistance, particularly for programs created under the Energy Policy Act of 2005, the Energy Independence and Security Act of 2007, and the American Recovery and Reinvestment Act of 2009. In an applicant situation, DOE's proposed action normally would not be located on a DOE site, but rather on private property or land administered by other agencies ( e.g., Bureau of Land Management). In recognition of DOE's recently expanded activities, DOE is proposing, where appropriate, to delete references to “DOE site,” “onsite,” or “employee” from its classes of actions. For example, DOE is proposing to amend existing categorical exclusion B1.13, Pathways, short access roads, and rail lines, by deleting “onsite” and instead inserting the condition that the construction, acquisition, and relocation of these linear features be “consistent with applicable right-of-way conditions and approved land use or transportation improvement plans.” The significance of environmental impacts resulting from a class of actions does not depend on whether they occur at DOE sites.
In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.13, B1.15, B1.29, B1.32, B3.1, B6.10, C7, D7.
B.6
y conditions and approved land use or transportation improvement plans.” The significance of environmental impacts resulting from a class of actions does not depend on whether they occur at DOE sites.
In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.13, B1.15, B1.29, B1.32, B3.1, B6.10, C7, D7.
B.6. Previously Disturbed or Developed Area
In DOE's experience, the potential for certain types of actions to have significant impacts on the human environment is generally avoided when that action takes place within a previously disturbed or developed area, i.e., land that has been changed such that the former state of the area and its functioning ecological processes have been altered. Thus, DOE includes a requirement in several of its proposed provisions that actions be located within previously disturbed or developed areas. In other instances, the existing provision contains a similar requirement, and DOE proposes to replace the existing language with the phrase “previously disturbed or developed area” for purposes of internal consistency. In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.31, B2.1, B3.6, B3.10, B3.12, B4.6, B4.7, B4.8, B4.12, B5.1, B5.5, B5.8, B6.10, C4, C11.
B.7. Small/Small-Scale/Minor/Negligible/Short/Short-Term
DOE uses adjectives (such as “small,” “small-scale,” “minor,” “negligible,” “short,” and “short-term”) as limitations in a variety of its existing and proposed provisions and recognizes that these descriptors are subjective. In general, DOE did not and does not propose to define these terms, and DOE would apply a reasonable interpretation to such terms within the context of individual proposals. The CEQ regulations state that “significantly,” as used in NEPA, requires consideration of context and intensity. See 40 CFR 1508.27
of its existing and proposed provisions and recognizes that these descriptors are subjective. In general, DOE did not and does not propose to define these terms, and DOE would apply a reasonable interpretation to such terms within the context of individual proposals. The CEQ regulations state that “significantly,” as used in NEPA, requires consideration of context and intensity. See 40 CFR 1508.27. Likewise, consideration of context and intensity is useful when interpreting descriptors such as small, small-scale, minor, short, and short-term, in making categorical exclusion determinations for proposals. (DOE proposes to discontinue the use of the word “negligible.”)
For example, in considering whether the use of 5-10 acres of land is “small”
In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.2, B1.13, B1.15, B3.6, B3.8, B4.13, B5.1, B5.4, B5.7, C8.
C. Proposed Changes to Subpart D (Other Than Appendices)
10 CFR 1021.410 Application of Categorical Exclusions (Classes of Actions That Normally Do Not Require EAs or EISs)
DOE proposes to clarify four requirements in 10 CFR 1021.410. First, DOE proposes to remove the reference to Section 102(2)(E) of NEPA to clarify that DOE's consideration of unresolved conflicts concerning alternative uses of available resources is independent of the need to evaluate alternatives in an EA as indicated in Section 102(2)(E) of NEPA.
Second, in 10 CFR 1021.410(b)(3), DOE proposes to refer explicitly to the requirement that a categorically excludable project has not been segmented. DOE also proposes to change its references to the CEQ regulations to clarify consideration of potential cumulative impacts (40 CFR 1508.27(b)(7)), and to clarify that its references to 40 CFR 1506.1 and 10 CFR 1021.211 concern limitations on actions during EIS preparation
.410(b)(3), DOE proposes to refer explicitly to the requirement that a categorically excludable project has not been segmented. DOE also proposes to change its references to the CEQ regulations to clarify consideration of potential cumulative impacts (40 CFR 1508.27(b)(7)), and to clarify that its references to 40 CFR 1506.1 and 10 CFR 1021.211 concern limitations on actions during EIS preparation.
Third, DOE proposes to add site preparation and purchase and installation of equipment to 10 CFR 1021.410(d) as examples of activities foreseeably necessary to implement proposals that are encompassed within the class of actions.
Fourth, DOE proposes to codify its policy to document and post online appendix B categorical exclusion determinations at 10 CFR 1021.410(e), consistent with the policy established by the Deputy Secretary of Energy's Memorandum to Departmental Elements on NEPA Process Transparency and Openness , October 2, 2009.
D. Proposed Changes to Appendix A—General Agency Actions
For an explanation of recurring proposals applicable to the appendix A categorical exclusions, please see Section IV.B, Recurring Proposals, above, where these proposed revisions are discussed and where the particular provisions affected are listed. The short titles listed below for particular categorical exclusions reflect DOE's proposed titles.
A1 Routine DOE Business Actions
DOE proposes to replace “agency” with “DOE” to clarify that this categorical exclusion applies only to DOE business actions. DOE also proposes to limit such actions to administrative, financial, and personnel actions.
A7 [Removed and Reserved: Transfer of Property, Use Unchanged]
To increase transparency of DOE's NEPA processes, DOE proposes to delete this categorical exclusion and to incorporate its key components within B1.24, which also addresses property transfers, so that any categorically excluded property transfers are documented and made available to the public
ive, financial, and personnel actions.
A7 [Removed and Reserved: Transfer of Property, Use Unchanged]
To increase transparency of DOE's NEPA processes, DOE proposes to delete this categorical exclusion and to incorporate its key components within B1.24, which also addresses property transfers, so that any categorically excluded property transfers are documented and made available to the public. ( See proposed changes to 10 CFR 1021.410(e) concerning documentation and public availability of DOE's appendix B categorical exclusion determinations.)
In response to DOE's December 2009 Request for Information, a commentor expressed concern that DOE, in making land transfer decisions under existing categorical exclusion A7, would be “circumventing local authority” and “normal land use planning and zoning processes.” See the discussion of categorical exclusion B1.24 for DOE's response.
A9 Information Gathering, Analysis, and Dissemination
DOE proposes to clarify this categorical exclusion by providing site visits as an additional example of an action included within the category.
A13 Procedural Documents
DOE proposes to clarify this categorical exclusion by providing additional examples of actions included within the class of actions ( e.g., Policies and Manuals within the DOE Directives System).
E. Proposed Changes to Appendix B
For an explanation of recurring proposals applicable to the appendix B categorical exclusions, please see Section IV.B, Recurring Proposals, above, where these proposed revisions are discussed and the particular categorical exclusions affected are listed. The short titles listed below for particular categorical exclusions reflect DOE's proposed titles
System).
E. Proposed Changes to Appendix B
For an explanation of recurring proposals applicable to the appendix B categorical exclusions, please see Section IV.B, Recurring Proposals, above, where these proposed revisions are discussed and the particular categorical exclusions affected are listed. The short titles listed below for particular categorical exclusions reflect DOE's proposed titles.
Integral Elements of the Classes of Actions in Appendix B
In appendix B(4), DOE proposes to clarify its use of “environmentally sensitive resource,” defining it as “typically a resource that has been identified as needing protection through Executive Order, statute, or regulation by Federal, State, or local government, or a Federally recognized Indian Tribe.” This definition is not intended to, and does not, grant, expand, create, or diminish any legally enforceable rights, benefits, or responsibilities, substantive or procedural, not otherwise granted or created under existing law. Nor shall this language be construed to alter, amend, repeal, interpret, or modify Tribal sovereignty, any treaty rights of any Indian Tribes, or to preempt, modify, or limit the exercise of any such rights.
In appendix B(4)(i), DOE proposes to add “Federally recognized Indian Tribe” to its list of entities that designate property as historically, archeologically, or architecturally significant. DOE also proposes to redefine other environmentally sensitive properties as “determined to be eligible” for listing on the National Register of Historic Places (rather than the phrase “eligible for listing,” which is used in the existing provision, but is not the proper characterization of an official listing). In appendix B(4)(iii), DOE proposes to apply the same definition of floodplains and wetlands in its NEPA regulations as that used in DOE's floodplain and wetland environmental review regulations (10 CFR part 1022.4)
nal Register of Historic Places (rather than the phrase “eligible for listing,” which is used in the existing provision, but is not the proper characterization of an official listing). In appendix B(4)(iii), DOE proposes to apply the same definition of floodplains and wetlands in its NEPA regulations as that used in DOE's floodplain and wetland environmental review regulations (10 CFR part 1022.4). In appendix B(4)(iv), DOE proposes to supplement the list of areas having special designation with additional examples (national monuments and scenic areas). In appendix B(4)(v), DOE proposes changes to the prime agricultural lands listing to conform to the terminology of the applicable regulation (7 CFR 658.2(a), “Farmland Protection Policy Act: Definitions”).
In response to the Department's December 2009 Request for Information, one commentor addressed DOE's list of “environmentally sensitive resources” in appendix B(4). First, the commentor indicated that DOE must recognize State and Tribal protected or candidate species and habitat as equal to Federally designated or considered species and
Second, the commentor stated that “groundwater and aquifers are State, not Federal resources” and indicated that DOE's regulations must protect and preserve all aquifers, and not just sole-source aquifers. The commentor further stated that adverse impacts to rivers, lakes, and bays, among other bodies of water, should not be allowed “unless they are specifically covered by a State and/or Tribal discharge permit under appropriate authority.” DOE is not proposing a change to the existing appendix B(4)(vi), which lists “special sources of water (such as sole source aquifers, wellhead protection areas, and other water sources that are vital in a region)” in its list of environmentally sensitive resources, because those resources are listed as examples and are not the only water sources to be considered in applying a categorical exclusion
DOE is not proposing a change to the existing appendix B(4)(vi), which lists “special sources of water (such as sole source aquifers, wellhead protection areas, and other water sources that are vital in a region)” in its list of environmentally sensitive resources, because those resources are listed as examples and are not the only water sources to be considered in applying a categorical exclusion. Further, the existing appendix B(4) includes States and Federally recognized Tribes as entities with jurisdiction to identify water sources needing protection.
Categorical Exclusions Applicable to Facility Operation (B1)
B1.1 Changing Rates and Prices
DOE proposes to change this categorical exclusion to encompass the setting of “prices” as well as “rates” (prices apply to products, and rates apply to services) and to consider price and rate changes instead of only increases. DOE proposes to change the measure of inflation specified in this categorical exclusion from the Gross National Product fixed weight price index, which the Department of Commerce no longer publishes, to the implicit price deflator for Gross Domestic Product. ( See the Technical Support Document.)
B1.2 Training Exercises and Simulations
DOE proposes to provide additional examples of training actions (namely, small-scale and short-duration force-on-force exercises, and decontamination and spill cleanup training), and has added the condition that all training exercises and simulations be conducted under appropriately controlled conditions and in accordance with applicable requirements. The term “force-on-force” as used in this categorical exclusion refers to activities such as assault and defensive team exercises conducted by security forces or military units, often on parcels of DOE property not in use. Exercises that test the ability of security forces to defend a facility are one common example of this type of training
onditions and in accordance with applicable requirements. The term “force-on-force” as used in this categorical exclusion refers to activities such as assault and defensive team exercises conducted by security forces or military units, often on parcels of DOE property not in use. Exercises that test the ability of security forces to defend a facility are one common example of this type of training. DOE's experience with these types of security force and military training actions and emergency response training at its sites indicates that they fit within the class of actions. ( See the Technical Support Document.)
B1.3 Routine Maintenance
DOE proposes to clarify that routine maintenance actions may occur as a result of nonroutine events ( e.g., severe weather, such as hurricanes, floods, and tornadoes, and wildfires) by adding a sentence to that effect in its description of routine maintenance. Normally, maintenance following a nonroutine event would qualify as routine maintenance; however, for a nonroutine event, the potential for extraordinary circumstances is higher ( e.g., increased exposure to pesticides due to extreme runoff).
DOE proposes to clarify the scope of the categorical exclusion by providing additional examples of activities. Specifically, DOE is proposing to clarify that replacement is included in the categorical exclusion's scope under items (a), (c), and (e), as well as the existing example of repair; to add “lighting” to those items that can be repaired or replaced (item (e)); to add “scraping and grading of unpaved surfaces” to the example of road and parking area resurfacing (item (j)); and to add the additional example of “removal of debris” under item (p). DOE's experience with these activities has demonstrated that they properly fit within this class of actions
existing example of repair; to add “lighting” to those items that can be repaired or replaced (item (e)); to add “scraping and grading of unpaved surfaces” to the example of road and parking area resurfacing (item (j)); and to add the additional example of “removal of debris” under item (p). DOE's experience with these activities has demonstrated that they properly fit within this class of actions.
In response to the Department's December 2009 Request for Information, one commentor stated that use of pesticides for outdoor or aquatic use should not be the subject of a categorical exclusion; instead an EA should be prepared. The commentor expressed a specific concern about the possibility for environmental impacts beyond the intended application. In existing categorical exclusion B1.3, DOE has described routine maintenance activities including localized vegetation and pest control. DOE now proposes to clarify that any routine maintenance activities would be conducted in a manner in accordance with applicable requirements. In the case of pesticides and other chemicals, for example, the proposed change would provide that the application would be in accordance with the registered and approved uses established by appropriate authorities to minimize the possibility of environmental impacts beyond the product's intended application.
B1.5 Existing Steam Plants and Cooling Water Systems
DOE proposes to delete the words “within an existing building or structure,” so as to include modifications to ponds, which may be outdoor components of cooling water systems. This proposed expansion of the scope of this categorical exclusion would address the need for improvements to an entire cooling water system, rather than only those parts of a system associated with structures. Based on DOE experience, minor improvements would not have the potential to cause significant impacts, provided the three limitations placed on the scale and type of improvements listed in the categorical exclusion are met
ope of this categorical exclusion would address the need for improvements to an entire cooling water system, rather than only those parts of a system associated with structures. Based on DOE experience, minor improvements would not have the potential to cause significant impacts, provided the three limitations placed on the scale and type of improvements listed in the categorical exclusion are met.
DOE also proposes to add minor improvements of existing steam plants in the scope of the categorical exclusion. DOE's experience is that these actions, when subject to the three limitations placed on the scale and type of such improvements, fit appropriately within this class of actions and would not have the potential to cause significant impacts.
B1.7 Electronic Equipment
DOE proposes to update the existing categorical exclusion by adding examples of current technology and equipment that improve operational efficiency and stability of the nation's power grid, commonly referred to as “smart grid” technologies. Based on DOE's experience, such technology and equipment ( i.e., electricity transmission control and monitoring devices for grid demand and response) fit within the scope of this categorical exclusion.
B1.9 Airway Safety Markings and Painting
DOE proposes to include repair and in-kind replacement of lighting within the scope of this categorical exclusion. Within the context of this categorical exclusion, in-kind replacement is defined as replacement that does not result in a significant change in the expected useful life, design capacity (for example, energy output in lumens), function, or shielding of existing
B1.11 Fencing
DOE proposes to clarify that the limitation in this categorical exclusion applies to fencing that would have the potential to cause significant impacts to surface water flow or wildlife populations or migration, as opposed to individual animal movements
t change in the expected useful life, design capacity (for example, energy output in lumens), function, or shielding of existing
B1.11 Fencing
DOE proposes to clarify that the limitation in this categorical exclusion applies to fencing that would have the potential to cause significant impacts to surface water flow or wildlife populations or migration, as opposed to individual animal movements. Fencing can and probably often does affect individual movements, but such impacts on individual animals would not be considered significant unless the context and intensity of the impacts would have the potential to cause significant impacts to wildlife populations or migration.
B1.12 Detonation or Burning of Explosives or Propellants After Testing
DOE proposes to delete the restriction that explosives or propellants must have failed in outdoor tests and thus to expand the categorical exclusion to include explosives or propellants that failed in indoor tests. Whether the explosives or propellants were tested indoors or outdoors, the outdoor detonation or burning of those explosives or propellants would not have the potential to cause significant impacts. The phrase “otherwise not consumed in testing” refers to excess or residual explosive or propellant materials that remain after a test is completed. DOE also proposes to specify one type of permit under the Resource Conservation and Recovery Act that could be applicable.
In response to DOE's December 2009 Request for Information, one commentor requested that DOE specify the amount, types, and methods allowed for the activities included in this categorical exclusion. DOE has determined that the limits contained in this categorical exclusion do not require quantification and is not proposing any changes to the categorical exclusion in response to this comment
ble.
In response to DOE's December 2009 Request for Information, one commentor requested that DOE specify the amount, types, and methods allowed for the activities included in this categorical exclusion. DOE has determined that the limits contained in this categorical exclusion do not require quantification and is not proposing any changes to the categorical exclusion in response to this comment.
B1.13 Pathways, Short Access Roads, and Rail Lines
DOE proposes to expand the scope of the categorical exclusion to include more projects related to transportation, recreation, and fitness ( e.g., pedestrian walkways and trails, bicycle paths, and small outdoor fitness areas). Other Federal agencies that have categorical exclusions for comparable projects are the Bureau of Indian Affairs, the Federal Highway Administration, and the Department of Homeland Security, and the experience of these agencies supports DOE's proposed expansion of this categorical exclusion.
DOE also proposes to include a condition in the categorical exclusion that the actions be consistent with existing rights-of-way and approved land use or transportation improvement plans. In addition, DOE proposes to replace “railroads” with the term “rail lines,” adding branch or spur lines as examples. DOE's experience is that the construction of rail access to or within an existing site has generally occurred at a scale that is better characterized by these small-scale activities—branch line (a secondary rail line which may branch off a main line) and spur (a rail track on which cars are left for loading, unloading, or rail car storage).
In response to the DOE's December 2009 Request for Information, a commentor stated that road construction or expansion should not be the subject of a categorical exclusion
cale that is better characterized by these small-scale activities—branch line (a secondary rail line which may branch off a main line) and spur (a rail track on which cars are left for loading, unloading, or rail car storage).
In response to the DOE's December 2009 Request for Information, a commentor stated that road construction or expansion should not be the subject of a categorical exclusion. Further, the commentor expressed a concern about the potential for damage to “high quality, high priority habitat” as a result of constructing and operating roads and that use of such a categorical exclusion would limit or circumvent consideration of appropriate mitigation for habitat disturbance or loss. As outlined above, DOE's proposed amendments to categorical exclusion B1.13 require the construction, acquisition, and relocation of short access roads and rail lines to be consistent with applicable right-of-way conditions and approved land use or transportation improvement plans. Furthermore, consideration of the integral elements in applying this categorical exclusion addresses the possibility of damage to “high quality, high priority habitat” because, among other things, one of the “environmentally sensitive resources” to consider in those integral elements is habitat for Federally or State-listed species. ( See the Technical Support Document.)
B1.15 Support Buildings
DOE proposes to expand the list of examples of support buildings and support structures to include those for “small-scale fabrication (such as machine shop activities and modular buildings), assembly, and testing of non-nuclear equipment or components.” Such structures are comparable to, or smaller in scale than, other structures given as examples in the categorical exclusion, and DOE's experience at DOE sites is that siting, construction, and operation of these activities normally fit within the class of actions
ale fabrication (such as machine shop activities and modular buildings), assembly, and testing of non-nuclear equipment or components.” Such structures are comparable to, or smaller in scale than, other structures given as examples in the categorical exclusion, and DOE's experience at DOE sites is that siting, construction, and operation of these activities normally fit within the class of actions. Also, DOE proposes to further clarify the scope of the categorical exclusion by specifying that it excludes facilities for nuclear weapon activities.
B1.19 Microwave, Meteorological, and Radio Towers
DOE proposes to add “modification,” “abandonment,” and “removal” to the list of activities included in this class of actions in order to describe the complete life cycle of categorically excluded towers. In DOE's experience, modification, abandonment, and removal of these towers and associated facilities, when subject to the restrictions in this categorical exclusion, would have fewer impacts than construction and would not have the potential to cause significant impacts.
DOE proposes to include meteorological towers as an additional example of applicable facilities within this categorical exclusion because DOE has determined that the environmental impacts resulting from siting, construction, modification, operation, abandonment, and removal of meteorological towers would be similar to the impacts from these activities relating to microwave and radio towers already contained in the scope of the existing categorical exclusion.
DOE proposes to clarify the restriction in the existing categorical exclusion, by replacing “great visual value” with a more objective criteria of “governmentally designated scenic area” and cross-referencing to the relevant integral element (appendix B(4)(iv))
pacts from these activities relating to microwave and radio towers already contained in the scope of the existing categorical exclusion.
DOE proposes to clarify the restriction in the existing categorical exclusion, by replacing “great visual value” with a more objective criteria of “governmentally designated scenic area” and cross-referencing to the relevant integral element (appendix B(4)(iv)).
B1.20 Protection of Cultural Resources, Fish and Wildlife Habitat
DOE proposes to add to the scope of this categorical exclusion by referencing activities taken to protect cultural resources and by including examples of those activities (fencing, labeling, or flagging). DOE's Power Marketing Administrations often engage in such activities for cultural and wildlife protection purposes, and these activities would not have the potential to cause significant impacts. DOE also proposes to include a condition in the categorical exclusion that the activities would be conducted in accordance with an existing natural or cultural resource plan, if any.
B1.23 Demolition and Disposal of Buildings
In response to DOE's December 2009 Request for Information, one commentor questioned whether there should be a
The application of this categorical exclusion is intended to be based on existing data and knowledge about historical uses of the area, including chemical and other processes employed. DOE has extensive experience (former Rocky Flats Site, Hanford Site, Idaho National Laboratory, and other sites) in determining the potential for release of harmful substances from activities through modeling and safety basis authorization documentation. Potential hazards are considered before taking action (for example, demolition actions), and monitoring is conducted, as appropriate, to verify that there are no harmful releases of radiological or hazardous materials. Potential for releases can reliably be determined through site inventories, the use of well-established release models, and established best practices
s authorization documentation. Potential hazards are considered before taking action (for example, demolition actions), and monitoring is conducted, as appropriate, to verify that there are no harmful releases of radiological or hazardous materials. Potential for releases can reliably be determined through site inventories, the use of well-established release models, and established best practices.
B1.24 Property Transfers
As discussed under categorical exclusion A7 (above), DOE proposes to delete A7 and incorporate its key components, including transfers of personal property (equipment and materials), within B1.24. By doing this, DOE makes categorical exclusion determinations for property transfers subject to documentation and online posting. DOE proposes to remove the reference to “uncontaminated” as unnecessary given the incorporation of the substance of this limitation in the revised categorical exclusion.
DOE proposes to delete the phrases “there would not be any lessening in quality or increases in volumes, concentrations, or discharge rates, of wastes, air emissions, or water effluents” and “environmental impacts would generally be similar to those before the transfer” as potentially inconsistent. DOE proposes to replace these phrases with “there would be no potential for release of substances at a level, or in a form, that could pose a threat to public health or the environment” and “would not have the potential to cause a significant change in impacts from the transfer.” Such terminology will, in DOE's experience, ensure that any property transfers under this categorical exclusion would not have the potential to cause significant impacts
would be no potential for release of substances at a level, or in a form, that could pose a threat to public health or the environment” and “would not have the potential to cause a significant change in impacts from the transfer.” Such terminology will, in DOE's experience, ensure that any property transfers under this categorical exclusion would not have the potential to cause significant impacts.
In response to DOE's December 2009 Request for Information, a commentor expressed concern that DOE, in making land transfer decisions under existing categorical exclusion A7, would be “circumventing local authority” and “normal land use planning and zoning processes.” The potential applicability of such authority and processes to a potential land transfer would be addressed on a case-by-case basis.
B1.25 Property Transfers for Cultural Resources Protection, Habitat Preservation, and Wildlife Management
DOE proposes to include in B1.25 actions undertaken to protect cultural resources. DOE's Power Marketing Administrations often engage in property transfers for cultural protection purposes. Based on this experience, DOE finds property transfers intended for protecting cultural resources normally would not have the potential to cause significant impacts. Further, DOE proposes to remove the limitation that only associated buildings supporting certain purposes are to be transferred with property under this categorical exclusion, because the existing purpose of structures present on a property to be transferred for wildlife or cultural resource purposes is unrelated to environmental impacts associated with such transfer.
Also, for the reasons discussed for categorical exclusion B1.24, above, DOE proposes to eliminate the references to “uncontaminated,” but include a limitation on actions subject to categorical exclusion B1.25, that there would be no potential for release of a substance at a level or in a form, that could pose a threat to public health or the environment
tal impacts associated with such transfer.
Also, for the reasons discussed for categorical exclusion B1.24, above, DOE proposes to eliminate the references to “uncontaminated,” but include a limitation on actions subject to categorical exclusion B1.25, that there would be no potential for release of a substance at a level or in a form, that could pose a threat to public health or the environment.
B1.29 Disposal Facilities for Construction and Demolition Waste
DOE proposes to add “expansion” and “modification” to the list of activities included in this categorical exclusion in order to include all aspects of the life cycle of the disposal facilities. In DOE's experience, expansion and modification actions, when subject to the limitations expressed in this categorical exclusion, would have fewer impacts than construction, and would not have the potential to cause significant impacts.
B1.30 Transfer Actions
DOE proposes to modify this categorical exclusion (based on its experience transferring materials and equipment) to remove the condition that the amounts of materials, equipment, or waste being transferred must be “small and incidental” to the amount of such material at the receiving site. Instead, DOE proposes to add a condition that the receiving site has existing storage capacity and management capability for the material.
In addition, DOE proposes to limit use of the categorical exclusion to, as appropriate, facilities and operations that are already permitted, licensed, and approved. That is, this proposed categorical exclusion would not apply to circumstances where the receiving site requires a permit or license amendment or variance from its existing approvals in order to receive or manage the materials, and it also would not apply to circumstances where the receiving facilities are not yet completed and operational
rations that are already permitted, licensed, and approved. That is, this proposed categorical exclusion would not apply to circumstances where the receiving site requires a permit or license amendment or variance from its existing approvals in order to receive or manage the materials, and it also would not apply to circumstances where the receiving facilities are not yet completed and operational.
DOE has decades of experience transporting materials, including various types of radioactive materials and waste, and has completed NEPA reviews of such transportation under many different scenarios. DOE NEPA reviews of such transfers consistently show that these actions would not have the potential to cause significant impacts. Nevertheless, DOE will continue to analyze transportation impacts in EAs and EISs where the scope of the proposed action presents the potential for significant impacts or where the proposed action fails to meet the conditions contained in this categorical exclusion. ( See the Technical Support Document.)
B1.31 Installation or Relocation of Machinery and Equipment
DOE proposes several changes to this categorical exclusion. DOE proposes to add “installation” to the list of actions, which is now limited to the “relocation” of machinery and equipment; explicitly include “operation” of installed or relocated machinery and equipment; add “manufacturing machinery” in the list of examples of machinery and equipment; and clarify that the scope of the categorical exclusion includes modifications to an existing building, within or contiguous to a previously disturbed or developed area, provided that the modifications do not appreciably increase the footprint or height of the existing building or have the potential to cause significant changes to the type and magnitude of environmental impacts
nery and equipment; and clarify that the scope of the categorical exclusion includes modifications to an existing building, within or contiguous to a previously disturbed or developed area, provided that the modifications do not appreciably increase the footprint or height of the existing building or have the potential to cause significant changes to the type and magnitude of environmental impacts. DOE also proposes to delete the restriction that uses of the installed or relocated equipment be similar to their former uses, because it is duplicative of the limitation that the actions be consistent with the general missions of the receiving structure. DOE has determined
In response to DOE's December 2009 Request for Information, one commentor suggested that DOE categorically exclude projects ( e.g., residential, commercial, and industrial) that involve retrofitting or retooling of existing structures, provided that the projects do not include new construction, disturb previously undisturbed areas, or require new or significantly modified environmental permits. Further, the commentor explained that such a categorical exclusion would help facilitate alternative energy manufacturing projects ( e.g., batteries, solar equipment, and wind turbines) that are proposed to be located in existing manufacturing/industrial facilities and complexes. As described above, DOE has proposed several changes to this categorical exclusion that address these comments.
B1.32 Traffic Flow Adjustments
Because DOE proposes to broaden the scope of this categorical exclusion to include actions off DOE sites ( see Recurring Proposals, Section IV.B), DOE proposes to require that the activities in this categorical exclusion occur within an existing right-of-way and be consistent with approved land use or transportation improvement plans. A “traffic flow adjustment” is a change to the flow of traffic on an existing street or road. Statewide and Metropolitan Transportation Planning processes are regulated by the U.S
ring Proposals, Section IV.B), DOE proposes to require that the activities in this categorical exclusion occur within an existing right-of-way and be consistent with approved land use or transportation improvement plans. A “traffic flow adjustment” is a change to the flow of traffic on an existing street or road. Statewide and Metropolitan Transportation Planning processes are regulated by the U.S. Department of Transportation (23 CFR part 450, subparts B and C, respectively) and result in approved, legally-binding, multiyear plans that stipulate transportation actions that may be carried out in a given area and over a given length of time.
B1.33 Stormwater Runoff Control
DOE proposes a new categorical exclusion for stormwater runoff control practices that reduce stormwater runoff and maintain natural hydrology. The actions included in the proposed categorical exclusion are found in Environmental Protection Agency's Guidance No. EPA 841-B-09-001, Technical Guidance on Implementing the Stormwater Runoff Requirements for Federal Projects under Section 438 of the Energy Independence and Security Act (December 2009). Based on the experience of Federal agencies, the opinions of subject matter experts, and private sector experience developing and deploying stormwater runoff control and low impact development practices, the types of actions included in this categorical exclusion are, in most cases, mitigation or best management practices commonly employed to protect surface water quality and to reduce erosion associated with runoff. DOE has concluded that such activities would not have the potential to cause significant environmental impacts. ( See the Technical Support Document.)
B1.34 Lead-Based Paint
DOE proposes a new categorical exclusion for the containment, removal, and disposal of lead-based paint. This proposed categorical exclusion is based on laws and regulations governing such activities for buildings and other structures
luded that such activities would not have the potential to cause significant environmental impacts. ( See the Technical Support Document.)
B1.34 Lead-Based Paint
DOE proposes a new categorical exclusion for the containment, removal, and disposal of lead-based paint. This proposed categorical exclusion is based on laws and regulations governing such activities for buildings and other structures. Use of the proposed categorical exclusion would require adherence to applicable laws and regulations. Further, the creation of this categorical exclusion is supported by existing lead paint removal categorical exclusions from the Environmental Protection Agency and the Department of the Army. DOE has determined that such paint removal actions would not have the potential to cause significant impacts. ( See the Technical Support Document.)
B1.35 Drop-Off, Collection and Transfer Facilities for Recyclable Materials
DOE proposes a new categorical exclusion for the siting, construction, modification, and operation of a recycling or compostable material drop-off, collection, and transfer station on or contiguous to developed or previously disturbed land and in an area where such a facility would be consistent with existing zoning requirements. The Department of Homeland Security and the Department of Agriculture's Rural Utilities Service have existing categorical exclusions for similar facilities. Specifically, Homeland Security has a categorical exclusion for the recycling of non-hazardous materials from routine/operational activities, and the Rural Utilities Service has a categorical exclusion for the construction of facilities for the transfer of waste that will be recycled or stored. DOE has determined that the limitations placed on recycling stations proposed in this new categorical exclusion would ensure that such actions would not have the potential to cause significant impacts
aterials from routine/operational activities, and the Rural Utilities Service has a categorical exclusion for the construction of facilities for the transfer of waste that will be recycled or stored. DOE has determined that the limitations placed on recycling stations proposed in this new categorical exclusion would ensure that such actions would not have the potential to cause significant impacts. ( See the Technical Support Document.)
B1.36 Determinations of Excess Real Property
DOE proposes a new categorical exclusion for determinations that real property is excess to the needs of the Department. This proposed categorical exclusion includes associated reporting of such determinations to the General Services Administration and the Bureau of Land Management, as appropriate. DOE would allow the categorical exclusion of reporting of excess property, but the actual disposal of real property is not included in the scope of this proposed categorical exclusion.
Other Federal agencies ( e.g., Department of Homeland Security) have existing categorical exclusions for determinations of excess real property and, based on a review of these categorical exclusions, DOE has determined that it would be conducting the same or similar activities under similar circumstances. Accordingly, DOE has concluded that its activities under this proposed categorical exclusion would not have the potential to cause significant impacts. ( See the Technical Support Document.)
Categorical Exclusions Applicable to Safety and Health (B2)
B2.1 Workplace Enhancements
DOE proposes to clarify that improvements to enhance workplace habitability may include installation of equipment necessary for the improvements by adding “installation” before its examples of improvements. DOE has determined that installation and subsequent operation of equipment necessary for improvements to workplace habitability would not have the potential for significant environmental impacts
OE proposes to clarify that improvements to enhance workplace habitability may include installation of equipment necessary for the improvements by adding “installation” before its examples of improvements. DOE has determined that installation and subsequent operation of equipment necessary for improvements to workplace habitability would not have the potential for significant environmental impacts.
B2.2 Building and Equipment Instrumentation
DOE proposes clarifying the scope of the existing categorical exclusion by providing additional examples of instrumentation (water consumption monitors and controls).
B2.4 Equipment Qualification
DOE proposes to delete the reference to DOE Order 5480.6 (“Safety of DOE owned Nuclear Reactors”) because it has been cancelled. Actions previously encompassed by the Order are still performed by DOE and other organizations to qualify equipment for use and are still appropriate for a categorical exclusion, and DOE proposes to provide examples of such actions. Calibration of sensors and diagnostic equipment, crane and lift-gear certifications, and high efficiency particulate air (“HEPA”) filter testing and certifications, to name a few, are activities that DOE proposes to list as examples in the categorical exclusion. These types of actions have been performed routinely by DOE, other
B2.6 Recovery of Radioactive Sealed Sources
DOE proposes changes to this categorical exclusion to better reflect the current scope of DOE's sealed source recovery activities. At the time the existing categorical exclusion was established, the focus of DOE's efforts was primarily the recovery of DOE-owned radioactive materials that had been loaned or leased, such as to universities for research, and a small number of sealed sources
Sources
DOE proposes changes to this categorical exclusion to better reflect the current scope of DOE's sealed source recovery activities. At the time the existing categorical exclusion was established, the focus of DOE's efforts was primarily the recovery of DOE-owned radioactive materials that had been loaned or leased, such as to universities for research, and a small number of sealed sources. DOE later established the Off-Site Source Recovery Project (OSRP) to reflect an increased emphasis on recovery of sealed sources from Nuclear Regulatory Commission (NRC) and Agreement State licensees in response to requests from the NRC and other Federal or State agencies. After 2001, DOE further expanded the scope of OSRP to focus on the recovery of sources with a wider variety of radioisotopes of concern from a public health, safety, or national security perspective. Due to their high activity and portability, many sealed sources could be used either individually or in aggregate in radiological dispersal devices commonly referred to as “dirty bombs.” DOE prioritizes the recovery of radioactive sealed sources based on threat reduction criteria developed in coordination with the NRC. DOE's experience with the recovery of more than 25,000 radioactive sealed sources since 1979 demonstrates that these activities are routinely conducted and do not have the potential to cause significant environmental impact.
DOE proposes to simplify the existing categorical exclusion to address the recovery of radioactive sealed sources and sealed source-containing devices from domestic or foreign locations provided that (1) the recovered items are transported and stored in compliant containers, and (2) the receiving site has sufficient existing storage capacity and all required licenses, permits, and approvals.
These proposed changes would reflect changes in DOE's source recovery activities since the existing categorical exclusion was formulated
ontaining devices from domestic or foreign locations provided that (1) the recovered items are transported and stored in compliant containers, and (2) the receiving site has sufficient existing storage capacity and all required licenses, permits, and approvals.
These proposed changes would reflect changes in DOE's source recovery activities since the existing categorical exclusion was formulated. First, recovery activities are no longer limited to requests from NRC or other Federal or State agencies. DOE also considers requests for source recovery from foreign governments and private parties, including private parties in foreign countries. Also, DOE provides financial and technical support to third parties (principally the Conference of Radiation Control Program Directors) for source recovery activities. Second, the scope of DOE activities is not limited to materials or licensees addressed in 10 CFR 51.22(14).
The proposed changes also would remove the reference to certain items that are not sealed sources (such as uranium shielding material and packaged radioactive waste not exceeding 50 curies). DOE has determined that the packaging, transportation, and storage of these types of materials normally would fit within categorical exclusion B1.30, Transfer actions. ( See the Technical Support Document.)
Categorical Exclusions Applicable to Site Characterization, Monitoring, and General Research (B3)
B3.1 Site Characterization and Environmental Monitoring
DOE proposes several changes to categorical exclusion B3.1. DOE proposes to limit the scope of this categorical exclusion to terrestrial characterization and monitoring, as DOE is proposing a new categorical exclusion for such actions in salt water and freshwater environments (categorical exclusion B3.16 below). DOE also proposes to limit categorically excluded activities to those that would not have the potential to cause significant impacts from ground disturbance
es to limit the scope of this categorical exclusion to terrestrial characterization and monitoring, as DOE is proposing a new categorical exclusion for such actions in salt water and freshwater environments (categorical exclusion B3.16 below). DOE also proposes to limit categorically excluded activities to those that would not have the potential to cause significant impacts from ground disturbance. Based on a project description for seismic surveying submitted by a commentor in response to DOE's December 2009 Request for Information, and after considering the potential scale of seismic surveying projects, DOE proposes to also limit the scope of the categorical exclusion so as not to include large-scale reflection or refraction testing with regard to seismic techniques.
One commentor responding to DOE's Request for Information suggested that DOE's list of categorical exclusions match all the categorical exclusions currently being used by the Bureau of Land Management and the U.S. Forest Service, particularly for geophysical surveys for exploration of geothermal resources. Another commentor suggested that DOE include a categorical exclusion for terrestrial seismic survey activities. In response to both comments, DOE notes that item (a) of the existing B3.1 categorical exclusion lists geological, geophysical, and geochemical surveying and mapping, including seismic surveying, as examples of actions in the scope of the categorical exclusion. Thus DOE determined that it was not necessary to propose new categorical exclusions in response to these comments.
DOE proposes to clarify the scope of the existing categorical exclusion, however, by providing additional examples of actions that DOE's experience has demonstrated properly fit within this class of actions. In response to the suggestion above and from another commentor concerning geothermal resources, DOE proposes to include temperature gradient surveying as an example of geophysical surveying activities encompassed within item (a)
the existing categorical exclusion, however, by providing additional examples of actions that DOE's experience has demonstrated properly fit within this class of actions. In response to the suggestion above and from another commentor concerning geothermal resources, DOE proposes to include temperature gradient surveying as an example of geophysical surveying activities encompassed within item (a). DOE also proposes to add underground reservoir response testing for item (d). The potential impacts of aquifer and reservoir response testing are well-known and normally insignificant; underground reservoir response testing could help determine, for example, whether further study of a reservoir for carbon sequestration purposes is warranted. DOE also proposes to add drilling using truck or mobile-scale equipment and modification, use, and plugging of boreholes as representative examples of small-scale drilling activities under item (f). DOE experience indicates that these changes would not have the potential to cause significant impacts. ( See the Technical Support Document.)
B3.3 Research Related to Conservation of Fish, Wildlife, and Cultural Resources
DOE proposes to modify this categorical exclusion to include actions undertaken to protect cultural resources. These types of actions (such as walking a site, visually surveying, and digging small, shallow test holes with hand tools) are similar to types of actions undertaken for wildlife protection and would not have the potential to cause significant impacts.
B3.6 Small-Scale Research and Development, Laboratory Operations, and Pilot Projects
DOE proposes changes to this categorical exclusion for clarity. First, DOE proposes to delete the phrase “indoor bench-scale research,” which DOE views as encompassed within “small-scale research and development,” which is more easily understood
on and would not have the potential to cause significant impacts.
B3.6 Small-Scale Research and Development, Laboratory Operations, and Pilot Projects
DOE proposes changes to this categorical exclusion for clarity. First, DOE proposes to delete the phrase “indoor bench-scale research,” which DOE views as encompassed within “small-scale research and development,” which is more easily understood. DOE also proposes to define “demonstration actions” in the context of this categorical exclusion and the related EA class of actions C12 as “actions that are undertaken at a scale to show whether a technology would be viable on a larger scale and suitable for commercial deployment. Demonstration actions frequently follow research and development and pilot projects that are directed at establishing proof of
B3.7 New Terrestrial Infill Exploratory and Experimental Wells
DOE proposes to modify the scope of the categorical exclusion. DOE proposes to expand the categorical exclusion by providing additional examples of resources (brine, carbon dioxide, coalbed methane, gas hydrate) for which exploratory or experimental wells may be drilled. For carbon sequestration wells, DOE proposes to list examples of possible uses, including, but not limited to, the study of saline formations, enhanced oil recovery, and enhanced coalbed methane extraction. DOE also proposes to expand the locations where the infill wells may be drilled (now only in fields with operating wells) to fields with properly abandoned wells or unminable coal seams.
DOE proposes to limit this categorical exclusion to the terrestrial environment and to require that characterization has verified a low potential for seismicity, subsidence, and contamination of freshwater aquifers.
DOE experience with new infill exploratory and experimental (test) oil, gas, and geothermal wells continues to show that they would not have the potential to cause significant impacts
OE proposes to limit this categorical exclusion to the terrestrial environment and to require that characterization has verified a low potential for seismicity, subsidence, and contamination of freshwater aquifers.
DOE experience with new infill exploratory and experimental (test) oil, gas, and geothermal wells continues to show that they would not have the potential to cause significant impacts. DOE experience also shows that the potential impacts of infill exploratory and test wells for substances such as brine, carbon dioxide, coalbed methane, and gas hydrate would be similar and would not have the potential to cause significant impacts under the limitations of this proposed categorical exclusion. Based on DOE's experience, the proposal to expand the scope of this categorical exclusion, subject to the proposed additional limitations, would not have the potential to cause significant impacts.
DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.
B3.8 Outdoor Terrestrial Ecological and Environmental Research
DOE is proposing two new categorical exclusions covering small-scale research activities in salt water and freshwater environments, and those two categorical exclusions limit the types of activities and their location specifically to protect aquatic environments. ( See B3.16 for research activities in salt water and freshwater environments and B5.25 for small-scale renewable energy research and development and pilot projects in salt water and freshwater environments.) DOE is therefore proposing to clarify that the types of covered actions included in B3.8 are solely limited to terrestrial environments.
DOE is also proposing to clarify that this categorical exclusion includes small-scale biomass and biofuels research
r environments and B5.25 for small-scale renewable energy research and development and pilot projects in salt water and freshwater environments.) DOE is therefore proposing to clarify that the types of covered actions included in B3.8 are solely limited to terrestrial environments.
DOE is also proposing to clarify that this categorical exclusion includes small-scale biomass and biofuels research. Given the current focus on the development of biomass and biofuel production and the need for proof of concept research in this area, DOE proposes to state explicitly that small test plots for energy-related biomass or biofuels research (including the use of genetically engineered plants) are within the scope of this categorical exclusion.
Research using genetically engineered plants to be grown specifically for biomass production has reached the point where field tests are being performed outdoors for proof of concept purposes. At the same time, residues from biotechnology crops such as corn and soybeans are being tested as feedstocks for biofuel production. Such plants are currently regulated by the U.S. Department of Agriculture and these existing regulatory regimes have analyzed the environmental impacts resulting from the experimental and commercial growth of these crops, so there is no need for DOE to analyze separately these impacts to show their insignificance. DOE has determined that a categorical exclusion would be appropriate for small field tests, provided that the applicant already has all the necessary authorizations from the U.S. Department of Agriculture and received all necessary permissions to proceed with the trial. ( See the Technical Support Document.)
B3.9 Projects To Reduce Emissions and Waste Generation
This categorical exclusion was initially created for demonstration actions under DOE's Clean Coal Technology Demonstration Program
d that the applicant already has all the necessary authorizations from the U.S. Department of Agriculture and received all necessary permissions to proceed with the trial. ( See the Technical Support Document.)
B3.9 Projects To Reduce Emissions and Waste Generation
This categorical exclusion was initially created for demonstration actions under DOE's Clean Coal Technology Demonstration Program. However, after many years of experience with projects that reduce emissions and waste generation at existing fossil fuel facilities and, more recently, at alternative energy facilities, DOE is proposing modifications to the categorical exclusion for these activities regardless of whether or not they are part of DOE's Clean Coal Technology Demonstration Program. Specifically, DOE is proposing to expand the scope of this categorical exclusion to include projects to reduce emissions and waste generation at alternative fuel ( e.g., biomass) facilities, in addition to fossil fuel facilities. As a result, DOE is proposing conforming revisions throughout this categorical exclusion ( e.g., replacing “coal” with “fuel”). Further, DOE proposes to define fuel to include “coal, oil, natural gas, hydrogen, syngas [synthesis gas], and biomass,” and specifically to exclude nuclear fuels.
Based on its experience with these activities, DOE has found that projects that demonstrate ways to reduce emissions and waste generation at existing fossil or alternative fuel combustion or utilization facilities would not have the potential to cause significant impacts. ( See the Technical Support Document.) DOE also proposes to remove from categorical exclusion B3.9(a) the 20 percent limitation on test treatment of the throughput product (solid, liquid, or gas) generated at existing, fully operational fuel combustion or utilization facilities
ossil or alternative fuel combustion or utilization facilities would not have the potential to cause significant impacts. ( See the Technical Support Document.) DOE also proposes to remove from categorical exclusion B3.9(a) the 20 percent limitation on test treatment of the throughput product (solid, liquid, or gas) generated at existing, fully operational fuel combustion or utilization facilities. Although test treatment on a fraction of the throughput product (sometimes referred to as “slipstream testing”) may be helpful in evaluating new treatment technologies, DOE experience shows that test treatment of the entire throughput product stream may be needed to provide an adequate demonstration of the commercial viability of technologies that could reduce emissions from existing facilities. DOE analyses and experience show that such test treatment normally would not have the potential to cause significant impacts under the limitations of this categorical exclusion.
Further, DOE proposes to remove from B3.9(c) the two-year limitation on the addition or replacement of equipment for reduction or control of sulfur dioxide, oxides of nitrogen, or other regulated substances at existing facilities. In DOE's experience, the potential for significant impacts of such projects does not depend on the duration of the demonstration. Moreover, two years may be too short a period of time for an adequate demonstration of equipment whose continued use is likely to be beneficial.
In addition to the provisions of B3.9(c), DOE proposes explicitly to include the addition or modification of equipment for capture and control of carbon dioxide or other regulated substances, provided that adequate infrastructure is in place to manage such substances. The use of such equipment offers the potential for environmental benefits by providing needed information on the costs, operability, and reliability of capture technologies that could enable their future deployment in existing conventional coal and other fuel utilization facilities
n dioxide or other regulated substances, provided that adequate infrastructure is in place to manage such substances. The use of such equipment offers the potential for environmental benefits by providing needed information on the costs, operability, and reliability of capture technologies that could enable their future deployment in existing conventional coal and other fuel utilization facilities. DOE's knowledge and experience with the physical or chemical unit processes
B3.10 Particle Accelerators
DOE proposes to modify this categorical exclusion by more clearly specifying the operating parameters for particle accelerators. This categorical exclusion currently has only one limiting parameter (primary beam energy less than approximately 100 million electron volts (MeV)). DOE's proposed modification would provide two additional limiting parameters (average beam power less than approximately 250 kilowatts (kW) and average current of 2.5 milliamperes (mA)). The voltage would be allowed to increase, as long as the resulting average current was 2.5 mA. Such result could be accomplished by lowering the power (wattage). Alternately, the wattage could increase if voltage decreased to result in an average current of 2.5 mA. DOE has determined that the use of three parameters will provide flexibility in the application of the categorical exclusion, but the actions still would not have the potential to cause significant impacts. ( See the Technical Support Document.)
B3.11 Outdoor Tests and Experiments on Materials and Equipment Components
The existing categorical exclusion precludes DOE from categorically excluding outdoor burn, impact, drop, puncture, and similar tests involving radiological sources, whether or not they were encapsulated. Because encapsulated sources can be used safely in these types of tests, DOE proposes to expand the scope of the categorical exclusion to cover their use under certain conditions
ent Components
The existing categorical exclusion precludes DOE from categorically excluding outdoor burn, impact, drop, puncture, and similar tests involving radiological sources, whether or not they were encapsulated. Because encapsulated sources can be used safely in these types of tests, DOE proposes to expand the scope of the categorical exclusion to cover their use under certain conditions. Specifically, DOE is proposing that nondestructive actions such as detector/sensor development and testing and first responder field training, using encapsulated sources that contain source, special nuclear, or byproduct materials, be included in the scope of this categorical exclusion. DOE experience demonstrates that such activities can be done safely and would not have the potential to cause significant impacts.
B3.14 Small-Scale Educational Facilities
DOE proposes a new categorical exclusion for the siting, construction or modification, operation, and decommissioning of small-scale educational facilities, including, but not limited to, conventional teaching laboratories, libraries, classroom facilities, auditoriums, museums, visitors centers, exhibits, and associated offices within or contiguous to a previously disturbed or developed area (where active utilities and currently used roads are readily accessible). Based on DOE's experience, and supported by past NEPA analyses, such activities, under the limitations provided, would not have the potential to cause significant impacts. ( See the Technical Support Document.)
B3.15 Small-Scale Indoor Research and Development Projects Using Nanoscale Materials
DOE proposes a new categorical exclusion for the siting, construction, or modification, operation, and decommissioning of facilities for indoor small-scale research and development and small-scale pilot projects using nanoscale materials, in accordance with applicable requirements necessary to ensure the containment of any biohazardous materials
rdance with DOE Policy 456.1 (DOE P 456.1, Secretarial Policy Statement on Nanoscale Safety), and best management practices and policies that ensure protection of workers and the environment, such as DOE Nanoscale Science Research Centers: Approach to Nanomaterials ES&H, (Rev3a, May 2008) (“Approach to Nanomaterial ES&H”) ( http://orise.orau.gov/ihos/Nanotechnology/nanotech_DOE_Nanoscale_SC.html ). As explained in “Approach to Nanomaterial ES&H,” “laboratory-scale” research excludes those activities whose function is to produce commercial quantities of materials, as defined in 29 CFR 1910.1450(b)(2), “Occupational Exposure to Hazardous Chemicals in Laboratories, Definitions.”
Laboratory-scale experimentation with nanoscale materials has been the subject of four DOE EAs, in which the Department has analyzed the construction and operation of nanomaterials facilities. DOE has determined that, with appropriate controls in place (as specified in the proposed categorical exclusion and described above), these activities would not have the potential to cause significant impacts. ( See the Technical Support Document.)
DOE is particularly interested in receiving comments on this proposed categorical exclusion.
B3.16 Research Activities in Salt Water and Freshwater Environments
DOE proposes a new categorical exclusion for small-scale, temporary surveying, site characterization, and research actions to be performed in salt water and freshwater environments. DOE proposes limiting the actions covered by this categorical exclusion to the acquisition of rights-of-way, easements, and temporary use permits; data collection, environmental monitoring, and nondestructive research programs; resource evaluation activities; collection of various types of data and samples; installation of monitoring and recording devices; installation of equipment for flow testing of existing wells; and ecological and environmental research in a small area
acquisition of rights-of-way, easements, and temporary use permits; data collection, environmental monitoring, and nondestructive research programs; resource evaluation activities; collection of various types of data and samples; installation of monitoring and recording devices; installation of equipment for flow testing of existing wells; and ecological and environmental research in a small area.
DOE proposes specifically to exclude the construction or installation of permanent facilities or devices and to exclude the drilling of resource exploration or extraction wells. In addition, DOE has included several limits on the type, scope, and location of covered actions to protect the aquatic environment from potential significant impacts.
DOE proposes to limit the covered actions in this categorical exclusion through the following conditions. Covered actions under this categorical exclusion would be conducted in accordance with, where applicable, an approved spill prevention, control, and response plan, and would incorporate appropriate control technologies and
DOE has determined that, subject to the proposed limitations, the activities would not have the potential to cause significant impacts. DOE is particularly interested in receiving comments on this categorical exclusion due to heightened sensitivity to activities in the salt water environment in light of recent oil-related incidents. ( See the Technical Support Document.)
Categorical Exclusions Applicable to Power Resources (B4)
DOE proposes to make a number of recurring changes to the categorical exclusion provisions applicable to power resources. In reference to adding electric power resources (such as wind farms) into an electric power system, DOE proposes to use the term “interconnection” rather than the term “integration” now used in its existing classes of actions. “Interconnection” is the current term used in the electric transmission field for such actions
changes to the categorical exclusion provisions applicable to power resources. In reference to adding electric power resources (such as wind farms) into an electric power system, DOE proposes to use the term “interconnection” rather than the term “integration” now used in its existing classes of actions. “Interconnection” is the current term used in the electric transmission field for such actions. DOE, therefore, proposes changes to the following provisions: B4.1, B4.11, B4.12, B4.13.
DOE proposes to delete references to “main transmission system” in its existing classes of actions as unnecessary because DOE actions would only apply to its own transmission system. DOE, therefore, proposes changes to the following provisions: B4.11, B4.12.
DOE proposes to add pipeline rights-of-way as locations where actions could occur that are now categorically excluded or proposed for categorical exclusion in previously developed or disturbed transmission line rights-of-way. The impacts from siting, constructing, operating, or decommissioning actions in these linear rights-of-way are essentially similar. DOE, therefore, proposes changes to the following provisions: B4.7, B4.12. (DOE also proposes a similar change to EA class of actions C4.)
B4.1 Contracts, Policies, and Marketing and Allocation Plans for Electric Power
DOE proposes to simplify the description of the scope of this categorical exclusion, without changing the scope. The categorical exclusion would still apply to electric power contracts, policies, and plans that do not involve a new generation resource and do not involve changes in the normal operating limits of existing generation resources. DOE proposes to delete the existing reference to “excess electric power” as unnecessary as it simply applies to power that is available for transmission. DOE is proposing changes to its corresponding classes of actions for EAs (C7) and EISs (D7), as discussed below in Section IV.F and IV.G, respectively
rce and do not involve changes in the normal operating limits of existing generation resources. DOE proposes to delete the existing reference to “excess electric power” as unnecessary as it simply applies to power that is available for transmission. DOE is proposing changes to its corresponding classes of actions for EAs (C7) and EISs (D7), as discussed below in Section IV.F and IV.G, respectively.
DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.
B4.4 Power Marketing Services and Activities
DOE proposes to clarify this categorical exclusion by adding “power management activities” to its existing categorical exclusion for power marketing services to indicate that the activities that are appropriately categorically excluded do not necessarily need to be taken in the context of marketing power. The existing categorical exclusion was established based on the experience of DOE's power marketing administrations, but has been appropriately applied recently by other elements of the Department, for example, in evaluating actions under the American Recovery and Reinvestment Act. The proposed change would provide transparency to DOE's application of this categorical exclusion, and DOE has determined that the covered actions would not have the potential to cause significant impacts.
B4.6 Additions and Modifications to Transmission Facilities
DOE proposes to add “load shaping projects (such as the installation and use of flywheels and battery arrays)” to the list of example actions in this categorical exclusion. With the wider deployment and accompanying improvement in load shaping technologies, DOE's experience indicates that these actions fit within the scope of this categorical exclusion.
B4.7 Fiber Optic Cable
DOE proposes that certain actions associated with adding fiber optic cable to transmission facilities (such as vaults and pulling and tensioning sites) be within the scope of this categorical exclusion with certain limitations
anying improvement in load shaping technologies, DOE's experience indicates that these actions fit within the scope of this categorical exclusion.
B4.7 Fiber Optic Cable
DOE proposes that certain actions associated with adding fiber optic cable to transmission facilities (such as vaults and pulling and tensioning sites) be within the scope of this categorical exclusion with certain limitations. DOE has found that it is often necessary to place vaults and pulling and tensioning sites outside of rights-of-way. DOE has determined that, if vaults or such sites are in nearby previously disturbed or developed areas, they would not have the potential to cause significant environmental impact.
B4.9 Multiple Use of Transmission Line Rights-of-Way
DOE proposes to add examples of crossing agreements affecting a transmission facility's rights-of-way that DOE has determined are in the scope of this categorical exclusion, namely natural gas pipelines, communications cables, and roads.
B4.10 Removal of Electric Transmission Lines and Substations
DOE proposes to add “abandonment” and “restoration” of rights-of-way to the list of activities in this categorical exclusion, because DOE has determined that these actions, which generally follow the removal of electric transmission lines and substations, would not have the potential to cause significant impacts.
B4.11 Electric Power Substations and Interconnection Facilities
DOE proposes to add interconnection facilities to its categorical exclusion for construction or modification of electric power substations because the facilities have similar equipment and function. Substations switch, step down, or regulate voltage of electricity being transmitted, and may serve as controls and transfer points on a transmission system; interconnection facilities add electric power resources to transmission systems through similar functions
ical exclusion for construction or modification of electric power substations because the facilities have similar equipment and function. Substations switch, step down, or regulate voltage of electricity being transmitted, and may serve as controls and transfer points on a transmission system; interconnection facilities add electric power resources to transmission systems through similar functions.
DOE proposes that actions under this categorical exclusion, instead of being limited to those that do not interconnect a new generation resource (under the existing categorical exclusion), be limited to interconnecting new generation resources that meet two conditions: The new generation resource (1) would be eligible for categorical exclusion under the DOE NEPA regulations (that is, under proposed categorical exclusions for combined heat and power or cogeneration systems (B5.14), solar energy (B5.16 and B5.17), wind energy (B5.18), biomass power plants (B5.20), methane gas recovery and utilization systems (B5.21) and drop-in hydroelectric systems (B5.24)), and (2) would be equal to or less than 50
DOE is also proposing to delete actions regarding construction, upgrading, or rebuilding transmission lines from this categorical exclusion because substation actions do not necessarily involve transmission line actions. Categorically excluded transmission line actions are addressed in proposed B4.12 and B4.13.
DOE is proposing to delete the restriction that facilities under this categorical exclusion be limited to no more than 230 kilovolts because DOE has determined that voltage of a substation or interconnection facility is not a determinant of the potential for significant environmental impacts
line actions. Categorically excluded transmission line actions are addressed in proposed B4.12 and B4.13.
DOE is proposing to delete the restriction that facilities under this categorical exclusion be limited to no more than 230 kilovolts because DOE has determined that voltage of a substation or interconnection facility is not a determinant of the potential for significant environmental impacts.
In response to the Department's December 2009 Request for Information, one commentor suggested that DOE categorically exclude modifications and upgrades to existing substations to accommodate electricity generated from renewable energy sources, to the extent that an upgrade does not increase the overall capacity of the substation or the disturbed areas associated with the substation, noting that additional capacity is needed at substations throughout the electric grid. DOE notes that it is proposing to delete the restriction that facilities under this categorical exclusion be limited to no more than 230 kilovolts.
DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.
B4.12 Construction of Transmission Lines
DOE proposes to incorporate within the scope of categorical exclusion B4.12 an action currently addressed in the existing categorical exclusion B4.11, that is “relocation of existing electric transmission lines approximately 20 miles in length or less.” By doing so, transmission line construction and rebuilding activities will be consolidated in categorical exclusions B4.12 and B4.13, rather than also included in categorical exclusion B4.11, which predominantly relates to substations and interconnection facilities
ng categorical exclusion B4.11, that is “relocation of existing electric transmission lines approximat

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2010-32316. Check the current official text before relying on it. Not legal advice.