[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 36222-36243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17285]
[[Page 36221]]
_______________________________________________________________________
Part IV
Department of Energy
_______________________________________________________________________
10 CFR Part 1021
National Environmental Policy Act Implementing Procedures; Final Rule
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules
and Regulations
[[Page 36222]]
DEPARTMENT OF ENERGY
10 CFR Part 1021
RIN 1901-AA67
National Environmental Policy Act Implementing Procedures
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) is amending its existing
regulations governing compliance with the National Environmental Policy
Act (NEPA). The amendments incorporate changes that improve DOE's
efficiency in implementing NEPA requirements by reducing costs and
preparation time while maintaining quality, consistent with the DOE
Secretarial Policy Statement on NEPA issued in June 1994. These
amendments also incorporate changes necessary to conform to recent
changes in DOE's missions, programs, and policies that have evolved in
response to changing national priorities since the current regulations
were issued in 1992.
EFFECTIVE DATE: These amendments to the rule will become effective
August 8, 1996.
FOR FURTHER INFORMATION CONTACT: Carol Borgstrom, Director, Office of
NEPA Policy and Assistance, EH-42, U.S. Department of Energy, 1000
Independence Avenue, SW., Washington, DC 20585-0119, (202) 586-4600 or
leave a message at (800) 472-2756.
SUPPLEMENTARY INFORMATION:
I. Background
The National Environmental Policy Act of 1969 (42 USC 4321 et seq.)
requires that Federal agencies prepare environmental impact statements
for major Federal actions that may ``significantly affect the quality
of the human environment.'' NEPA also created the President's Council
on Environmental Quality (CEQ), which issued regulations in 1978
implementing the procedural provisions of NEPA. Among other
requirements, the CEQ NEPA regulations (40 CFR parts 1500-1508) require
Federal agencies to adopt their own implementing procedures to
supplement the Council's regulations. DOE's current NEPA implementing
regulations were promulgated in 1992 (57 FR 15122, April 24, 1992) and
are codified at 10 CFR part 1021.
On February 20, 1996, DOE published a proposed rulemaking that
would revise its existing NEPA implementing regulations (61 FR 6414).
Publication of the Notice of Proposed Rulemaking began a 45-day public
comment period that originally ended on April 5, 1996. In response to
requests, the comment period was subsequently reopened on April 19,
1996 (61 FR 17257), and extended until May 10, 1996. As part of the
notice and comment process and also in response to requests, DOE held a
public hearing on the proposed amendments on May 6, 1996. Comments were
received from approximately 39 sources, including Federal and state
agencies, public interest groups, other organizations, and individuals.
Seven commenters also spoke at the public hearing. Copies of all
written comments and the transcript of the public hearing have been
provided to CEQ and are available for public inspection at the DOE
Freedom of Information Reading Room, Room 1E-190, Forrestal Building,
1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-6020.
The amendments revise subparts A, C and D of the existing
regulations. Among the changes are various revisions to the lists of
``typical classes of actions'' (appendices A, B, C, and D to subpart
D), including the addition of new categorical exclusions, modifications
that expand or remove existing categorical exclusions, and
clarifications. Other changes pertain to the DOE requirement for an
implementation plan for each environmental impact statement and DOE's
required content for findings of no significant impact. DOE is also
clarifying its public notification requirements for records of
decisions.
DOE is continuing to consider its proposed amendments to subpart D
that relate to the Federal power marketing administrations.
Accordingly, as described in a separate Notice published elsewhere in
this issue, DOE will reopen the public comment period on the proposed
amendments to subpart D that apply primarily to power marketing
activities (B4.1, B4.2, B4.3, B4.6, B4.10, B4.11, B4.12, B4.13, C4, C7,
and D7). This final rule addresses the remainder of the proposed
amendments.
This Notice adopts the amendments proposed in the Notice of
Proposed Rulemaking (except for the power marketing classes of actions
listed above), with certain changes discussed below, and amends the
existing regulations at 10 CFR Part 1021. Copies of the final
amendments to the rule are available upon request from the information
contact listed above.
In accordance with the CEQ NEPA regulations, 40 CFR 1507.3, DOE has
consulted with CEQ regarding these final amendments to the DOE NEPA
rule. CEQ has found that the amendments conform with NEPA and the CEQ
regulations and has no objection to their promulgation.
II. Statement of Purpose
The amendments to the DOE NEPA regulations are intended to improve
the efficiency of DOE's implementation of NEPA by clarifying and
streamlining certain DOE requirements, thereby reducing implementation
costs and time. This goal is consistent with the DOE Secretarial Policy
Statement on NEPA (June 1994), which encourages actions to streamline
the NEPA process without sacrificing quality and to make the process
more useful to decision makers and the public. Full compliance with the
letter and spirit of NEPA is an essential priority for DOE. In
addition, DOE's missions, programs, and policies have evolved in
response to changing national priorities since the current DOE NEPA
regulations were issued in 1992, and DOE needs to make conforming
changes in its NEPA regulations, e.g., to provide efficient NEPA
procedures for waste management and property transfer actions, which
are occurring with increasing frequency.
III. Comments Received and DOE's Responses
DOE has considered and evaluated the comments received during the
public comment period. Many revisions suggested in these comments have
been incorporated into the final amendments to the rule. The following
discussion describes the comments received, provides DOE's responses to
the comments, and describes any resulting changes to the proposed
amendments. As a result of changes made in response to comments,
several number designations of classes of actions have been changed in
the final rule; section references, unless otherwise indicated, are to
those in the proposed amendments.
Several commenters expressed overall support for DOE's efforts to
increase efficiency and reduce NEPA compliance costs. One Federal
agency (the Food and Drug Administration) and one state agency (the
Virginia Department of Environmental Quality) stated that they had no
objections to DOE's proposed amendments. No comments or only positive
comments were received on the following proposed amendments to subpart
D of the rule: Integral element B(1), B1.8, B1.18, B1.21, B1.31, B3.3,
and D1. These proposed amendments, therefore, remain unchanged in the
final rulemaking, and are not discussed further.
[[Page 36223]]
A. Procedural Comments
A few commenters addressed procedural aspects of this rulemaking.
Specifically, one commenter stated that public Notice of Proposed
Rulemaking was inadequate. DOE notes that the Notice of Proposed
Rulemaking was published in the Federal Register on February 20, 1996.
In addition, the Notice was mailed to more than 400 stakeholders and
was made available for review and comment through the World Wide Web at
DOE's NEPA Web Site. DOE believes that its effort to notify the public
of its proposed rulemaking was sufficient.
In addition, two commenters requested that DOE hold public hearings
on the proposed rulemaking at locations in close proximity to various
DOE facilities and a reopening of the comment period until 90 days
after publication of the schedule for public hearings. Other commenters
also asked that the comment period be reopened.
In response, DOE reopened the comment period from April 19, 1996,
through May 10, 1996. Further, as described in a separate Notice
published elsewhere in this issue, DOE will again reopen the comment
period, but only on the proposals to modify the typical classes of
actions pertaining primarily to power marketing activities. DOE also
held a public hearing in Washington, DC., on May 6, 1996, with
accommodations for commenters who wished to present their views by
conference telephone call from DOE regional offices throughout the
United States.
DOE has fully considered all oral and written comments received
through May 10, 1996. DOE believes that it has provided sufficient and
appropriate public participation opportunities in its proposed
rulemaking, and does not believe that additional hearings or an
additional 90-day comment period on the entire proposed rulemaking is
necessary.
Two commenters questioned the procedures DOE followed in
determining that the proposed new and modified categorical exclusions
would result in no significant impact, and indicated the need for
documentation of this finding for each categorical exclusion in
addition to the statement that appears in the preamble to the proposed
rulemaking. In accordance with the CEQ regulations (40 CFR 1508.4), DOE
initiated this rulemaking, in part, to define those classes of actions
that DOE has found to have no significant effect on the human
environment, either individually or cumulatively. DOE is not required
by the CEQ regulations to set forth in the preamble a detailed,
individualized explanation for its finding of no significant impact for
each of the classes of actions in appendices A and B, but provides an
overall finding in Section III.F, below.
One commenter requested that DOE prepare an environmental impact
statement addressing the cumulative impacts of the proposed amendments.
Two other commenters stated that an environmental assessment was
necessary to determine whether the proposed amendments constituted a
major Federal action.
DOE believes that its proposal to amend its NEPA implementing
regulations falls within the categorical exclusion for procedural
rulemaking (10 CFR part 1021, appendix A to subpart D, categorical
exclusion A6). DOE's NEPA regulations prescribe the process under which
the Department examines the environmental impacts of its proposed
actions. The regulations do not set out substantive criteria for
reaching a decision on a particular action, and thus are procedural
only. For this reason, these amendments to the DOE NEPA regulations are
properly excluded from NEPA documentation requirements. See also
Section IV.A.
One commenter requested that DOE impose a moratorium on
privatization pending completion of public hearings and an
environmental impact statement on the proposed amendments. This request
is outside the scope of this rulemaking, and DOE does not believe that
the scope, which is restricted to DOE's proposed changes to 10 CFR part
1021, should be expanded. Any moratorium on privatization activities
should be determined on the basis of the particular facts and
circumstances and not in this rulemaking.
A commenter disagreed with DOE's statement in the preamble to the
proposed rule that a review under the Unfunded Mandates Reform Act was
not required because the DOE NEPA regulations affect only DOE. The
commenter stated that many DOE facilities and actions have profound
effects on other government agencies and the private sector. While DOE
recognizes that its activities do affect other government agencies and
the private sector, its regulations to implement the procedural
provisions of NEPA impose obligations only on DOE, not on any state,
local, or tribal government or on the private sector. Thus, further
review by DOE under the Unfunded Mandates Reform Act is not required,
and DOE is reiterating in this final rule its previous finding in the
proposed rule. See Section IV.G.
B. General Comments on Proposed Amendments
Comments on Public Involvement Opportunities
Many commenters stated that the proposals regarding implementation
plans, records of decision, and additions and modifications to the list
of categorical exclusions would have the effect of reducing the
public's knowledge of, and opportunities to participate in, DOE's
decision making process. One commenter expressed concern that new and
modified categorical exclusions would reduce the range of DOE actions
subject to meaningful environmental review.
In proposing certain streamlining amendments to subpart C, DOE
carefully weighed the benefits of improved efficiency against the
acknowledged reduction in public information. DOE has reconsidered each
such proposal in light of public comments and made some adjustments, as
described below in Section III.D.
However, with regard to categorical exclusions, while the CEQ
regulations encourage public participation in the NEPA process, they
also direct agencies to use categorical exclusions (which, by
definition, have no significant impact on the environment, either
individually or cumulatively) to reduce paperwork (40 CFR 1500.4(p))
and delays (40 CFR 1500.5(k)). Consistent with this streamlining
approach, the CEQ regulations do not provide for public participation
in an agency's determination that a particular proposed action is
categorically excluded.
DOE is amending its list of categorical exclusions by adding
certain DOE classes of actions and modifying or clarifying other
classes of actions currently on its list of categorical exclusions. In
doing so, DOE has determined that these classes of actions do not have
significant impacts on the environment, either individually or
cumulatively. See Section III.F below. Thus, for these particular
classes of actions, the environmental review that the commenter
requested would not be meaningful in terms of evaluating significant
impacts to the environment. DOE believes that it will serve
environmental concerns and the public's interest best by focusing its
efforts on the careful analysis of those actions that actually have the
potential for significant impact.
DOE has considered comments on the merits of each proposed
categorical exclusion amendment as discussed in Section III.F, but has
decided generally to proceed with listing and modifying categorical
exclusions, with the
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knowledge that in some respects doing so would diminish opportunities
for public involvement or information sharing.
Comments Outside the Scope of Proposed Rulemaking
DOE proposed changes to specific sections of its NEPA implementing
procedures. DOE considers any comments received regarding the proposed
changes to be within the scope of this rulemaking and has addressed
such comments in this final rulemaking.
DOE received several comments that it considers to be outside the
scope of this rulemaking. These include suggested modifications to
provisions of the existing DOE NEPA regulations other than those DOE is
proposing to modify or expand, suggestions for additional categorical
exclusions, suggestions for broad changes to the DOE NEPA process, and
comments on particular DOE proposed actions and DOE policies or
procedures not related to DOE's NEPA regulations. Such comments are
briefly discussed below.
Suggested Changes to Other Provisions of Existing DOE NEPA Regulations
Some commenters suggested changes to provisions of existing DOE
NEPA regulations in addition to provisions that DOE proposed to modify
or expand. These commenters sought changes to Secs. 1021.216
(Procurement, financial assistance, and joint ventures), 1021.301
(Agency review and public participation), 1021.410 (Application of
categorical exclusions (classes of actions that normally do not require
EAs or EISs)), and B3.11 (Outdoor tests and experiments on materials
and equipment components). While DOE is not considering such changes to
its NEPA regulations at this time, DOE is taking these suggestions
under advisement and may address them in a future rulemaking.
Suggestions for Additional Categorical Exclusions
A few commenters offered suggestions for additional categorical
exclusions to cover facility deactivation activities; onsite
transportation of packaged spent nuclear fuel or transuranic waste;
onsite transportation of hazardous, mixed, and radioactive waste;
relocation or reconfiguration of existing facilities, buildings, and
operations within and between DOE sites; replacement of existing
facilities in kind and in place; and treatment or disposal of hazardous
waste at an existing offsite permitted facility. To the extent that
these suggestions were not addressed in DOE's proposed additions and
modifications to its list of typical classes of action, DOE considers
them to be outside the scope of this rulemaking. DOE is taking these
suggestions under advisement and may address them in a future
rulemaking.
Suggested Changes to DOE's NEPA Process
Other commenters offered general suggestions for what they
considered to be improvements to the DOE NEPA process; topics included
the codification of DOE's enhanced public involvement procedures,
improvement of DOE's notification procedures, the timing of NEPA
actions, page limits for DOE environmental impact statements,
coordination with state historic preservation officers, actions taken
under consent orders, defining when the choice of reasonable
alternatives becomes limited, use of ``worst case'' scenarios in NEPA
documents, and delegation of decision making authority. One commenter
requested that DOE ensure that its implementing rules and related
policies, orders, and procedures are not applied unnecessarily to
actions that are not ``major Federal actions.'' Although these comments
are outside the scope of DOE's proposed rulemaking, DOE may consider
these suggestions in a future rulemaking.
Comments Not Related to NEPA Regulations
A few commenters offered comments that are related to particular
DOE proposed actions or other DOE policies and procedures. These
include comments regarding whistleblower protection, privatization of
DOE facilities, hearings on the Multi-Purpose Canister Environmental
Impact Statement, management of spent nuclear fuel, cleanup of
contaminated sites, Federal Acquisition Regulations, the Waste
Management Programmatic Environmental Impact Statement, and contractor
oversight. Because these comments relate to specific DOE actions and
not to DOE's procedures for NEPA compliance, DOE finds these comments
to be outside the scope of this rulemaking. Accordingly, they were not
considered in developing the final rule.
Other Comments
One commenter stated that DOE should provide language in the rule
that requires all DOE NEPA documents to substantiate compliance with
all applicable environmental laws, Executive Orders, and other similar
requirements. DOE notes that it must comply with all applicable
environmental laws, Executive Orders, and similar requirements. With
respect to the application of the categorical exclusions in appendix B
to subpart D, DOE's NEPA regulations currently require that a proposed
action must be one that would not ``[t]hreaten a violation of
applicable statutory, regulatory, or permit requirements for
environment, safety, and health'' in order to fit within a categorical
exclusion (appendix B to subpart D, integral element B(1)).
One commenter objected to documenting the application of
categorical exclusions to each and every activity that DOE undertakes;
on the other hand, several commenters suggested the need for
documentation to ensure that the integral elements (appendix B, B (1)
through B(4) to subpart D of DOE's NEPA regulations) were properly
considered and cumulative impacts would not result. DOE notes that
neither the CEQ nor DOE NEPA regulations, nor DOE's internal NEPA
procedures, require documenting the application of categorical
exclusions (DOE Order 451.1, Section 5(d)(2)). The appropriate NEPA
Compliance Officer is responsible for the proper application of
categorical exclusions.
Another commenter stated that DOE should regularly prepare a list
of the actions to which categorical exclusions were applied and make
that list available to the public. DOE recognizes the value in
informing the interested and affected public around DOE sites of its
activities at those sites. However, a requirement for the periodic
publication of a list of activities that have been categorically
excluded would tend to undermine CEQ's strategy of using categorical
exclusions to streamline the NEPA process.
One commenter stated that DOE's environmental review processes for
compliance with NEPA and the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) should be integrated. Another
commenter expressed concern that the proposed amendments did not
adequately address DOE's current policy on compliance with NEPA for
CERCLA actions, as set forth in the Secretarial Policy Statement on
NEPA (June 1994).
Under the current policy, DOE will rely on the CERCLA process for
review of actions to be taken under CERCLA and will address NEPA values
and public involvement procedures in its CERCLA processes to the extent
practicable. DOE may choose, however, after consultation with
stakeholders and as a matter of policy, to integrate the NEPA and
CERCLA processes for specific proposed actions. The CERCLA/NEPA policy
is applied on a case-by-
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case basis, and DOE is satisfied that the new approach is clear and
working adequately as a matter of policy that does not warrant
codification in the regulations.
One commenter asked whether DOE should consider NEPA to be
sufficiently specific and detailed to warrant the commitment to the
``letter'' of NEPA that DOE stated in its preamble to the proposed
amendments. The commenter stated that such a commitment can create
unnecessary concerns about the degree to which the responsibility for
decision making can be delegated and justify unnecessarily restrictive
and arbitrary decisions. While DOE agrees that the statute itself
imposes few specific requirements, DOE believes that it is important to
stress its commitment to complying with the express requirements, as
well as with the intent of the statute to preserve, protect, and
enhance the environment.
C. Comments on Amendments to Subpart A--General
Section 1021.105 Oversight of Agency NEPA Activities
One commenter expressed concern that the Office of NEPA Policy and
Assistance was being eliminated and that the amendment proposed that
oversight of DOE NEPA activities would be assumed by the Assistant
Secretary for Environment, Safety and Health.
The oversight of DOE's NEPA activities has been and continues to be
conducted by the Assistant Secretary for Environment, Safety and
Health. On December 18, 1994, the office under the Assistant Secretary
with specific responsibility for NEPA activities was renamed the Office
of NEPA Policy and Assistance (formerly the Office of NEPA Oversight).
The only modification to this section is a conforming change to
incorporate the new name for the office.
D. Comments on Amendments to Subpart C--Implementing Procedures
Section 1021.312 EIS Implementation Plan
DOE received several comments supporting and several comments
opposing the proposal to eliminate the requirement to prepare an
implementation plan for every environmental impact statement.
Several commenters expressed concern that the public's opportunity
for involvement would be reduced if an implementation plan were not
prepared for every environmental impact statement. They stated that
implementation plans provide an opportunity for the public to see how
scoping comments will be addressed in the environmental impact
statement, to formulate options and comments, to review contractor
disclosure statements, and to keep the environmental impact statement
on track. One commenter stated that the public has valuable insight to
provide. Another commenter suggested that implementation plans are
useful educational tools and an excellent introduction to the DOE NEPA
process.
As discussed above in Section III.B, DOE weighed the benefits of
improved efficiency from eliminating the implementation plan
requirement against the acknowledged reduction in publicly available
information. After considering all the comments received, DOE
determined that because the public has the opportunity to provide
comments on the scope of an environmental impact statement and can see
how scoping comments were addressed and considered in the draft
environmental impact statement, the value to the public and DOE of
continuing the requirement for an implementation plan does not justify
the cost, time, and resources required in preparing an implementation
plan for every environmental impact statement.
With respect to contractor disclosure statements, DOE stated in the
preamble to the proposed amendments that it would continue to prepare
and require the execution of such statements by contractors, as
required by 40 CFR 1506.5(c) of the CEQ regulations. In response to
comments, however, DOE will include the contractor disclosure
statements in draft and final environmental impact statements, and has
modified 10 CFR 1021.310 accordingly.
One commenter stated that eliminating the implementation plan
requirement will preclude requests from interested parties for
environmental assessments and environmental impact statements before
the agency proceeds with actions. Because an implementation plan is
prepared after a decision has been made to prepare an environmental
impact statement, and is not prepared at all for environmental
assessments, DOE believes that eliminating the implementation plan
requirement will not have any effect on the public's ability to request
an environmental impact statement or an environmental assessment.
While some commenters supported eliminating the implementation plan
requirement, they requested that notes from public scoping meetings be
made available in public reading rooms or that DOE prepare a detailed
administrative record of the disposition of public scoping comments and
make it available to the public upon request. Another commenter,
although supportive of the proposed amendment, suggested that DOE
include a response to public scoping comments in the draft
environmental impact statement.
DOE believes that the purpose in eliminating the implementation
plan requirement (i.e., to achieve cost and time savings without
meaningfully reducing public involvement in the DOE environmental
impact statement process) would not be served by adopting the
alternative suggestions (preparing a detailed administrative record or
including a response to public scoping comments in a draft
environmental impact statement) in place of the implementation plan
requirement. The public scoping process under DOE's amended rule fully
complies with the CEQ NEPA regulations, which require only that draft
environmental impact statements be prepared in accordance with the
scope decided upon in the scoping process (40 CFR 1502.9(a)).
One commenter stated that the environmental impact statement
implementation plan should be optional. DOE agrees and intends for the
elimination of the implementation plan requirement to have the effect
of making such plans optional.
Finally, in its proposal to eliminate the requirement to prepare an
implementation plan for an environmental impact statement, DOE
inadvertently omitted making a corresponding change to
Sec. 1021.311(f), which included a reference to the EIS implementation
plan. Section 1021.311(f) has now been removed from the final rule;
paragraph (g) has been redesignated accordingly.
Section 1021.315 Records of Decision
Section 1021.315(c). Commenters opposed two aspects of this
proposed amendment. First, some commenters expressed concern that DOE's
proposal to allow publication in the Federal Register of a brief
summary and notice of availability of a record of decision, rather than
the full text, would shift to the public the cost of obtaining copies
of a record of decision, and would not assure timely availability of
the record of decision. Another commenter suggested that any savings
achieved from not publishing the full text of a record of decision in
the Federal Register would not be sufficient to justify the public's
increased burden in seeking a record of decision. DOE has reconsidered
the proposal in light of the commenters' concerns, and has decided that
the cost-savings do not justify the burden associated with the proposed
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change. Therefore, DOE will continue to publish the full text of
records of decision in the Federal Register.
Second, commenters also expressed concern about the proposed
clarification to Sec. 1021.315(c) that, if a decision has been
publicized by other means (e.g., press release or announcement in local
media), DOE need not defer taking action until its record of decision
has been published in the Federal Register. The commenters suggested
that these other means of communication were not as reliable, accurate,
easily available, or effective as the Federal Register.
This amendment is a clarification, not a substantive change, to
DOE's regulations. Section 1021.315(b) currently states that ``No
action shall be taken until the decision has been made public.'' One
way to make a decision public is to publish the record of decision in
the Federal Register, but decisions can be made public in other ways,
such as through press releases or announcements in local media. DOE's
proposed amendment merely clarifies the practice that DOE has followed
previously under which DOE may proceed with an action after its
decision has been made public but before that decision is published in
the Federal Register. DOE needs to retain the ability to implement an
action after making the record of decision public, but before
publication of that decision in the Federal Register, in those
instances when timing is critical.
One commenter questioned whether DOE was proposing to implement an
action before the decision is articulated in writing and signed. DOE is
not making such a proposal. To clarify this point, DOE has modified the
final language in a new Sec. 1021.315(d) by indicating that DOE may
implement a decision if the record of decision has been signed and the
decision and the availability of the record of decision have been made
public.
Another commenter indicated confusion over DOE's proposal to modify
Sec. 1021.315(c) rather than Sec. 1021.315(b). In response, and to
provide further clarification, DOE has moved the second sentence from
current Sec. 1021.315(b) to begin a new Sec. 1021.315(d), and added to
the new subsection (d) the language previously proposed for
Sec. 1021.315(c), as modified above. Section 1021.315(c) remains as in
the current regulation, and current Sec. 1021.315(d) is now
Sec. 1021.315(e). Pertinent sections of Sec. 1021.315 are now changed
as follows:
(a) (no change)
(b) If DOE decides to take action on a proposal covered by an EIS,
a ROD shall be prepared as provided at 40 CFR 1505.2 (except as
provided at 40 CFR 1506.1 and Sec. 1021.211 of this part).
(c) (no change)
(d) No action shall be taken until the decision has been made
public. DOE may implement the decision before the ROD is published in
the Federal Register if the ROD has been signed and the decision and
the availability of the ROD have been made public by other means (e.g.,
press release, announcement in local media).
(e) DOE may revise a ROD at any time, so long as the revised
decision is adequately supported by an existing EIS. A revised ROD is
subject to the provisions of paragraphs (b), (c), and (d) of this
section.
Section 1021.322 Findings of No Significant Impact
Section 1021.322(b)(1). Under the proposed amendment, and in
accordance with 40 CFR 1508.13, DOE would either incorporate the
environmental assessment by reference in a finding of no significant
impact and attach the environmental assessment, or summarize the
environmental assessment in the finding. A few commenters supported the
proposal to remove the requirement to summarize the environmental
assessment in the finding of no significant impact in all cases. Others
expressed concern that DOE was proposing to eliminate information that
is currently being provided to the public.
This proposal is intended to eliminate redundancy by requiring
either the attachment of an environmental assessment to the related
finding of no significant impact or the inclusion of a summary of an
environmental assessment in the related finding of no significant
impact, but not both. This would change DOE's current practice of
summarizing the environmental assessment in each finding of no
significant impact and also attaching the environmental assessment to
the finding of no significant impact. For a finding of no significant
impact published in the Federal Register, it would be necessary to
summarize the environmental assessment in the finding of no significant
impact, because the environmental assessment would not be published in
the Federal Register.
E. General Comments on Subpart D--Typical Classes of Actions
Many of the commenters suggested, both generally and with regard to
specific proposed amendments to classes of actions in subpart D, that
DOE's terminology was too vague or subjective to adequately define
classes of actions. For example, commenters objected to DOE's use of
such terms as ``small-scale,'' ``short-term,'' ``minor,'' and
``generally,'' among others, as being too imprecise. On the other hand,
where DOE had proposed using specific quantities to aid in defining a
class of actions (e.g., 50,000 square feet of area and 100 MeV (million
electron-volts) of energy), commenters asked why DOE had picked the
proposed value rather than any other, and how DOE could justify such
apparent precision.
DOE has considered all such comments in the context of the
individual proposed amendments to subpart D classes of actions
presented in Section III.F, below. To provide additional information
and to simplify the more specific discussions, DOE is providing the
following general response.
DOE formulates subpart D classes of actions based on DOE's
experience, other agencies' experience as reflected in their NEPA
procedures, technical judgments regarding impacts from actions, and
public comments on a proposed rule. To minimize subjectivity in
interpretation, DOE uses both numerical values of quantities (which
have clear meaning) and descriptive words such as ``minor'' and
``small-scale,'' which suggest the smaller actions in a class, not the
larger. DOE also uses examples, both to clarify that the class of
actions includes the specific examples cited, and to suggest the nature
of actions that may be included.
With regard to DOE's use of specific quantities in several of the
proposed classes of actions, commenters had two general objections.
First, they noted correctly that using ``generally'' in defining a
class of actions (e.g., proposed B1.26 and B3.10) could allow the class
to be applied to proposed actions that would otherwise not even
approximately fit the definition. Second, commenters questioned the
justification for the specific quantity values chosen and even whether
any specific value could be justified.
DOE's intention with respect to both issues is better expressed by
the concept of ``approximately'' rather than ``generally,'' and the
classes of actions in the final rule have been changed accordingly. By
using ``approximately,'' DOE is indicating that the numerical values
used in defining classes of actions are to be interpreted flexibly
rather than with unwarranted precision. For example, DOE proposed to
categorically exclude construction of small accelerators and decided
that it could express the class of actions as including accelerators
less than 100 MeV in energy. DOE acknowledges that judgment is involved
and that it could
[[Page 36227]]
have chosen numbers somewhat greater than 100 MeV to limit the
categorical exclusion. DOE believes, however, that the phrase ``less
than approximately 100 MeV in energy'' provides appropriate flexibility
and represents the best overall resolution of the matter.
One commenter expressed concern that DOE had not taken the
opportunity to decrease the level of prescription and detail in the DOE
NEPA regulations. The commenter expressed particular concern that DOE
had proposed 17 new classes of actions, many of which the commenter
believed would add little or no value to DOE's NEPA process. Similarly,
another commenter stated that DOE should make existing categorical
exclusions more comprehensive whenever possible, rather than simply
expand the list of categorical exclusions.
In proposing amendments to the DOE NEPA rule, DOE considered making
the list of categorical exclusions shorter by combining certain actions
and making the list more comprehensive by broadening the categories.
DOE declined to pursue such a course of action generally in this
rulemaking, although it proposed to combine two classes of actions.
DOE's extensive list of categorical exclusions results primarily from
the fact that DOE is engaged in many different types of activities.
One commenter requested that DOE define the phrase ``already
developed area'' that is used in several proposed new or amended
categorical exclusions (e.g., B1.15, B1.22, B3.6, B3.10, B3.12, and
B6.4). The commenter expressed concern that DOE may consider portions
of wildlife management areas surrounding DOE facilities to be
``developed'' merely because of DOE ownership or because of the
existence of abandoned DOE facilities. In the existing and proposed
regulations, DOE used the parenthetical phrase ``where site utilities
and roads are available'' to help define ``an already developed area''
in the classes of actions in the final rule. For further clarity, DOE
has modified the parenthetical phrase to read ``where active utilities
and currently used roads are readily accessible.'' DOE does not intend
to include wildlife areas and abandoned facilities in its definition of
``an already developed area.''
Finally, several commenters noted that DOE defined categorical
exclusions as classes of actions that ``normally'' do not require
environmental assessments or environmental impact statements. One of
these commenters suggested that ``normally'' should mean 99 percent of
the time, and this commenter and others stated that there should be
provisions for extraordinary circumstances under which a proposed
action listed in appendices A or B should not be categorically
excluded.
DOE's use of the term ``normally'' in the context of categorical
exclusions is consistent with the use of this term in the CEQ
regulations, which state that an agency's NEPA implementing procedures
for categorical exclusions ``shall provide for extraordinary
circumstances in which a normally excluded action may have a
significant environmental effect'' (40 CFR 1508.4). See also 40 CFR
1507.3(b)(2)(ii), in which CEQ directs agencies to identify classes of
actions ``which normally do not require either an environmental impact
statement or an environmental assessment.'' DOE believes that its
categorical exclusions comply with CEQ's regulations, i.e., to be
eligible for categorical exclusion, a class of actions must not have
significant effects on the human environment except in extraordinary
circumstances that may affect the significance of the environmental
effects of a specific proposed action. DOE's existing regulations (10
CFR 1021.410(b)(2)) describe the nature of extraordinary circumstances
under which a categorical exclusion should not be applied, and
explicitly require (Sec. 1021.400(d)) an environmental assessment or
environmental impact statement for a proposed action that presents such
circumstances. Therefore, DOE does not believe any changes are needed
to address the use or interpretation of the word ``normally'' in DOE's
description of categorical exclusions or the manner in which DOE
provides for extraordinary circumstances.
F. Comments on Appendices of Subpart D--Typical Classes of Actions
Several commenters objected to many categorical exclusions on the
grounds of cumulative effects, connected actions, or extraordinary
circumstances, but without explanation as to their specific objection.
A categorical exclusion is a class of actions that, individually or
cumulatively, do not have significant environmental impacts. If there
are extraordinary circumstances associated with a proposed action, or
if the proposal is connected to other actions with potentially
significant impacts or related to other proposed actions with
cumulatively significant impacts, then a categorical exclusion would
not apply under Sec. 1021.410(b).
Another commenter noted that several of the proposed categorical
exclusions referred to ``siting, construction, operation, and
decommissioning'' of various DOE activities and questioned whether such
activities would also need state permits. DOE notes that while new
construction could require state or local permits, one of the integral
elements for all appendix B categorical exclusions is that the proposed
action ``does not threaten a violation of applicable statutory,
regulatory, or permit requirements for environment, safety, and
health.'' Any DOE action would be required to comply with applicable
state and local requirements, independent of the level of NEPA review
appropriate under DOE's NEPA regulations.
In general, the following responses to comments regarding specific
categorical exclusions should be read in the full context of the DOE
regulations for categorical exclusions. Under the current regulations,
before a proposed action may be categorically excluded, DOE must
determine in accordance with Sec. 1021.410(b) that (1) the proposed
action fits within a class of actions listed in appendix A or B to
subpart D, (2) there are no extraordinary circumstances related to the
proposal that may affect the significance of the environmental effects
of the action, and (3) there are no connected or related actions with
cumulatively significant impacts and, where appropriate, the proposed
action is a permissible interim action. In addition, to fit within a
class of actions that is normally categorically excluded under appendix
B, a proposed action must include certain integral elements (appendix
B, paragraphs B (1) through (4)). These conditions ensure that an
excluded action will not threaten a violation of applicable
requirements, require siting and construction of waste management
facilities, disturb hazardous substances such that there would be
uncontrolled or unpermitted releases, or adversely affect
environmentally sensitive resources.
The headings below are those used in the table of contents of the
appendices in the proposed amendments. The conversion table below shows
which classes of actions have been included in the final amendments to
the rule. There were a few numbering changes between the proposed and
final amendments because some classes of actions were added or removed.
Specifically, the proposed B1.32 was removed, and the proposed B1.33
was renumbered as B1.32; existing B6.4, which had been proposed for
revision, was retained without change, and a new B6.10 was added to
incorporate some of the changes proposed for B6.4; and the proposed
modification to C9 was withdrawn. These changes are explained more
fully in the following discussion.
[[Page 36228]]
Conversion Table
------------------------------------------------------------------------
------------------------------------------------------------------------
Existing rule
(1)Final amendments
------------------------------------------------------------------------
A.7............................. A.7................ Clarified.
B(1)............................ B(1)............... Modified.
B(2)............................ B(2)............... Do.
B1.3............................ B1.3............... Clarified.
B1.8............................ B1.8............... Modified.
B1.13........................... B1.13.............. Do.
B1.15........................... B1.15.............. Do.
B1.18........................... B1.18.............. Do.
B1.21........................... B1.21.............. Do.
B1.22........................... B1.22 & B1.23...... Clarified.
B1.24--B1.32....... Added.
B2.6............... Do.
B3.1............................ B3.1............... Clarified.
B3.3............................ B3.3............... Do.
B3.6............................ B3.6............... Modified.
B3.10........................... B3.6............... Do.
B3.10.............. Added.
B3.12-B3.13........ Do.
B5.3............................ B5.3............... Modified.
B5.5............................ B5.5............... Do.
B5.9-B5.11...................... B5.9-B5.11......... Clarified.
B5.12-B5.16..................... Removed............
B5.12.............. Added.
B6.1............................ B6.1............... Modified.
B6.5............................ B6.5............... Clarified.
B6.9-B6.10......... Added.
C1.............................. C1................. Reserved.
C10............................. C10................ Do.
C11............................. C11................ Modified.
C14............................. C14................ Do.
C16............................. C16................ Do.
D1.............................. D1................. Do.
D10............................. D10................ Do.
------------------------------------------------------------------------
Finally, after considering all public comments on the proposed
amendments, DOE has determined that the final amendments to appendices
A and B constitute classes of actions that do not individually or
cumulatively have a significant effect on the human environment, and
are covered by a finding to that effect in Sec. 1021.410(a). In making
this finding, DOE has considered, among other things, its own
experience with these classes of actions, other agencies' experience as
reflected in their NEPA procedures, DOE's technical judgment, and the
comments received on the proposed amendments.
Proposed Clarification A7 Transfer of property, use
unchanged.
One commenter stated that DOE cannot assume that transfer of
property will not result in short- and long-term changes in impacts.
DOE proposed to amend paragraph A7 only to clarify the meaning of
property by explicitly including both personal property (e.g.,
equipment and material) and real property (e.g., permanent structures
and land). DOE did not propose to amend the requirement regarding
property use remaining unchanged. The categorical exclusion may only be
applied when the impacts would remain essentially the same after the
transfer as before. See also the discussion of B1.24 and B1.25.
Classes of Actions Listed in Appendix B
Proposed Modification to Integral Element B(2).
DOE proposed to modify integral element B(2)--which sets the
condition that a categorically excluded action may not require siting,
construction, or major expansion of waste storage, disposal, recovery,
or treatment facilities--to provide an exception for such actions that
are themselves categorically excluded. DOE proposed this change to
conform to simultaneously proposed changes (B1.26, B1.29, B6.4, and
B6.9) that would categorically exclude certain water treatment and
waste storage facilities.
Two commenters objected to the change, apparently as an extension
of their objections to the proposed categorical exclusion amendments
that prompted DOE's proposal to modify B(2). Another commenter
expressed concern that the proposed B(2) would imply that ``major''
expansion of waste facilities might be categorically excluded. This
interpretation was unintended and the language has been modified. In
other respects, however, DOE has retained the B(2) amendment as
necessary to conform to certain final categorical exclusions (B1.26,
B1.29, B6.9, and B6.10). As finally revised, B(2) reads as follows:
``To fit within the classes of actions (in appendix B), a proposal must
be one that would not . . . require siting and construction or major
expansion of waste storage, disposal, recovery, or treatment facilities
(including incinerators), but the proposal may include categorically
excluded waste storage, disposal, recovery, or treatment actions.''
Proposed Modification to Integral Element B(4)(iii).
DOE intended to modify this integral element to allow the
categorical exclusion of actions listed in appendix B despite their
having an adverse impact on small, low quality wetlands. DOE
anticipated that activities in such areas would not have a significant
environmental impact, either individually or cumulatively. While
several commenters supported the proposed change, others expressed
concern about the potential cumulative impacts, the institution of a
threshold size, the meaning of ``covered'' by a general permit, and the
difference between a ``general'' permit and a ``Nationwide'' permit.
In consideration of the comments and after consultation with staff
of the U.S. Army Corps of Engineers (Corps), DOE has revised B(4)(iii)
to allow the categorical exclusion of actions in wetland areas not
considered waters of the United States and thus not regulated under the
Clean Water Act. This includes certain drainage and irrigation ditches,
artificial lakes and ponds, and borrow pits, as discussed below.
The Corps generally does not consider the following areas to be
waters of the United States: (a) Non-tidal drainage and irrigation
ditches excavated on dry land; (b) artificially irrigated areas which
would revert to upland if the irrigation ceased (for DOE this would
include areas ``irrigated'' by leaking pipes, tanks, or ditches); (c)
artificial lakes or ponds created by excavating and/or diking dry land
to collect and retain water and which are used exclusively for such
purposes as stock watering, irrigation, settling basins, or rice
growing; (d) artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating and/or diking dry land
to retain water for primarily aesthetic reasons; (e) waterfilled
depressions created in dry land incidental to construction activity and
pits excavated in dry land for the purpose of obtaining fill, sand, or
gravel unless and until the construction or excavation operation is
abandoned and the resulting body of water meets the definition of
waters of the United States under 33 CFR 328.3(a). See 51 FR 41206,
41217 (November 13, 1986). The Corps reserves the right, however, on a
case-by-case basis to determine that a particular water body within
these categories fits within the definition of waters of the United
States. The U.S. Environmental Protection Agency (EPA) also has the
right to determine on a case-by-case basis if any of these areas are
waters of the United States. Note that some of these areas could become
waters of the United States and subject to regulation. This may occur
if the area no longer meets the above criteria, e.g., the area is no
longer used for the purpose for which it was constructed or is
abandoned. In such cases, a categorical exclusion could not be applied.
The wording of B(4)(iii) has been modified from the proposed rule
as follows: ``Wetlands regulated under the Clean Water Act (33 USC
1344) and floodplains.''
Proposed Clarification B1.3 Routine maintenance/custodial
services for buildings, structures, infrastructures, equipment.
One commenter asked for clarification of ``in kind replacement.''
The commenter stated that, with regard to older facilities, certain
equipment used in the facilities is no longer made or its installation
at this time would be
[[Page 36229]]
contrary to code or good management practices. The commenter asked if
replacing equipment in older facilities with modern components is
considered ``in kind replacement.''
DOE recognizes that the equipment used in many of its facilities
cannot be replaced literally ``in kind'' for the reasons the commenter
states. DOE believes, however, that the description of ``in kind
replacement'' presented in the proposed clarification for B1.3 (i.e.,
in kind replacement includes installation of new components to replace
outmoded components if the replacement does not result in a significant
change in the expected useful life, design capacity, or function of the
facility) adequately addresses the commenter's request.
B1.3(n). One commenter suggested that instead of adding additional
examples of testing and calibration of facility components to B1.3,
that the word ``maintenance'' be added to B3.1. DOE has chosen to
address routine maintenance under a separate categorical exclusion
rather than adding it to other categorical exclusions where it might
apply.
B1.3(o). One commenter thought that the term ``routine
decontamination'' needed additional clarification. DOE uses ``routine''
to mean a recurring action that is done easily and is well understood,
such as wiping with rags, using strippable latex, and minor vacuuming.
B1.3(o) is intended to categorically exclude contamination-cleanup
activities of a routine nature.
Proposed Modification B1.13 Construction/acquisition/
relocation of onsite pathways, spur or access roads/railroads.
DOE proposed to expand existing B1.13 (Acquisition or minor
relocation of existing access roads serving existing facilities if the
traffic they are to carry will not change substantially) by adding
construction and spur roads, pathways and railroads, and by deleting
the phrase ``serving existing facilities if the traffic they will carry
will not change substantially.'' One commenter questioned the
definition of ``spur'' and ``access'' roads. Another commenter
suggested more restrictive language for B1.13 so that it would be
applied only in instances to improve safety, and only if the total
traffic volume would not substantially change. A third commenter
expressed concern that applying the categorical exclusion could
eliminate valuable input from natural resource agencies and cause
potential significant impacts to wildlife, including loss of habitat,
habitat fragmentation, and degradation of adjacent habitat. Another
commenter stated that the actions proposed to be categorically excluded
should be subject to public review.
In response to the concerns raised by these commenters, DOE has
made two changes to the proposed modification to B1.13. First, DOE has
deleted the reference to ``spur roads'' because the term ``access
roads'' adequately encompasses the intended purpose. Second, DOE has
revised the categorical exclusion to apply only to the construction of
``short'' access roads and access railroads. DOE acknowledges that the
construction of onsite access roads could result in adverse
environmental impacts. DOE believes, however, that the general
restrictions on the application of categorical exclusions, particularly
at Sec. 1021.410 and the integral elements at appendix B, B(1)-B(4),
will provide adequate safeguards to ensure that this class of actions
is not applied to activities that could result in significant effects.
Also, it is DOE's intention that the inclusion of the term ``short''
will further clarify the length of access roads and railroads that DOE
intended to be constructed under this categorical exclusion (i.e., no
more than a few miles in length). The categorical exclusion B1.13 now
reads: ``Construction, acquisition, and relocation of onsite pathways
and short onsite access roads and railroads.'' DOE does not believe
that actions qualifying under this categorical exclusion warrant public
review. See Section III.B, above.
Proposed Modification B1.15 Siting/construction/operation
of support buildings/support structures.
One commenter suggested that the categorical exclusion be expanded
to include deactivation and demolition of the same structures. Such
expansion is not necessary because these activities are included under
proposed categorical exclusion B1.23.
Two commenters suggested that the phrase ``but not limited to'' be
inserted between ``including'' and ``prefabricated buildings and
trailers.'' DOE has incorporated the suggestion, as well as reversing
the order of ``prefabricated buildings'' and ``trailers,'' to be
consistent with B1.22.
One commenter stated that actions covered by this categorical
exclusion should be subject to public review. For the reasons stated in
Section III.B, DOE believes that public review is not appropriate.
One commenter asked for a definition of an ``already developed
area,'' a phrase used in the existing regulations. The phrase in the
proposed B1.15, ``where site utilities and roads are available,'' was
intended to define the term. For clarification, DOE has modified this
phrase to read ``where active utilities and currently used roads are
readily accessible.'' See the discussion of ``already developed area''
in Section III.E.
Proposed Clarification B1.23 Demolition/disposal of
buildings.
DOE proposed to divide the existing categorical exclusion B1.22
into two categorical exclusions to clarify that the two actions
included in the existing class of actions--relocation of buildings
(proposed B1.22) and demolition and subsequent disposal of buildings,
equipment, and support structures (proposed B1.23)--are not connected
actions (i.e., actions that are closely related and therefore needed to
be considered in the same NEPA review).
DOE received three comments on B1.23, none of which directly
related to the proposed clarification. One commenter suggested that the
categorical exclusion should be applicable to contaminated buildings
that, after demolition, could be entombed in place. Another commenter
questioned whether DOE was mandating disposal of construction debris in
landfills. Apparently, this commenter's concern is based on DOE's
intended clarification that building relocation actions are separate
from building demolition and disposal. In any event, DOE is not
mandating the disposal of construction debris in landfills. The third
commenter objected to the categorical exclusion on the grounds of
cumulative effects, connected actions, or extraordinary circumstances.
DOE has responded to this objection, which was also expressed by other
commenters in regard to other categorical exclusions, in Section III.F.
DOE does not intend for proposed categorical exclusion B1.23 to
apply to in-place entombment of demolished structures. However, this
categorical exclusion could be applied to the demolition and disposal
of contaminated structures if releases are controlled or permitted and
other conditions for application of the categorical exclusion are met.
Proposed B1.24 Transfer of property/residential,
commercial, industrial use; and
Proposed B1.25 Transfer of property/habitat preservation,
wildlife management.
DOE received several comments on these two proposed categorical
exclusions. One commenter, noting that proposed B1.24 and B1.25 were
similar, suggested combining them. Based on this comment and other
comments that expressed concern about the broad scope of the
categorical exclusions as proposed, DOE has retained both
[[Page 36230]]
categorical exclusions, but changed their wording to clarify DOE's
intentions for their scopes and the differences between them.
Categorical exclusion B1.24 as now revised refers to transfer, lease,
disposition, or acquisition of interests in structures and equipment,
and only land that is necessary for use of the transferred structures
and equipment. Proposed B1.25 as revised refers to transfer of
interests in land for purposes of habitat preservation or wildlife
management, and only buildings that support those purposes.
One commenter questioned the meaning of ``uncontaminated.'' DOE has
added a definition to each of these two proposed categorical exclusions
that states that ``uncontaminated means that there would be no
potential for release of substances at a level, or in a form, that
would pose a threat to public health or the environment.'' This
definition is based on the definition of contaminant in CERCLA
Sec. 101(33). DOE already has defined ``contaminant'' in Sec. 1021.104
of its existing NEPA regulations as ``a substance identified within the
definition of contaminant in Section 101(33) of CERCLA (42 USC
9601.101(33)).''
Several commenters questioned the feasibility of making a
determination about potential releases and impacts that could occur
after the transfer, as required by the categorical exclusions, without
some formal environmental analysis (e.g., an environmental assessment).
With regard to proposed B1.24, one of the commenters questioned how DOE
would know if contaminant releases increase after transfer, stating
that private operators, unlike DOE, are under no obligation to provide
records of types, volumes, and pathways of contaminants released into
the environment. In applying these two categorical exclusions (as in
applying any other categorical exclusion), DOE will consider reasonably
foreseeable circumstances, but will not attempt to speculate on all
possible circumstances that the future could present. DOE believes that
it will be able to determine whether a proposed post-transfer use is
similar enough to the existing use to meet the conditions of the
categorical exclusion, i.e., no decrease in environmental quality, no
increased discharges, and generally similar environmental impacts. If
DOE cannot make these judgments without environmental analysis, DOE
will prepare at least an environmental assessment.
One commenter stated that the proposed categorical exclusion B1.24
was a positive step, but thought DOE had unduly limited its
application. Another commenter stated that proposed categorical
exclusion B1.24 was an improvement in that property transfers that
could be categorically excluded would not be limited to those where use
remains the same. This commenter wanted to expand the proposed
categorical exclusion B1.24 to include transfers to other Federal
agencies without restrictions on environmental parameters, because
other Federal agencies must conduct their own NEPA review for future
uses of the property. DOE believes that it must conduct the proper
level of NEPA review for its actions, and that a NEPA review for the
transfer, lease, disposition, or acquisition of property must consider
reasonably foreseeable uses and conditions of those uses, regardless of
whether the transfer would be to another Federal agency.
Two commenters expressed concern about eliminating community
involvement in DOE's decisions about future land use. One commenter
stated that the transfer of potentially contaminated land without
environmental analysis would be inconsistent with DOE's openness
policy. DOE does not intend to categorically exclude the transfer of
contaminated property. However, DOE recognizes that in listing these
classes of actions as categorical exclusions, the sharing of public
information will be diminished in some instances, as discussed in
Section III.B.
One commenter questioned whether categorical exclusion B1.24 would
apply to a facility that had been idle (and thus not discharging any
pollutants into the environment), allowing the facility to resume
operations and resulting in pollutant discharges. If the facility to be
transferred has not been in operation and transfer of the facility
would result in the resumption of operation, then greater environmental
discharges would result, making this proposed activity ineligible for
this categorical exclusion.
With regard to proposed B1.25, one commenter suggested that the
preamble was unclear because the categorical exclusion deals with the
transfer, lease, and disposition of habitat lands and not a change to
the habitat. The commenter also stated that a habitat improvement that
supported the existing species of plants and animals, although a
change, would not have the potential for significant impact and
therefore could be categorically excluded.
There are three categorical exclusions related to the transfer of
property: A7, where the use will remain the same; B1.24, where the use
may change but the environmental impacts are similar; and B1.25, where
the use will be habitat preservation or wildlife management. Small-
scale improvements to fish and wildlife habitat are included under
existing categorical exclusion B1.20. A large-scale habitat improvement
project may have significant environmental effects, albeit beneficial,
and would not be categorically excluded.
A commenter suggested that DOE should not assume that significant
environmental and socioeconomic impacts will not result from the
transfer of uncontaminated lands for habitat preservation and wildlife
management, because DOE cannot reasonably predict the types of uses
that private interests, conservation groups, or local and state
agencies might allow for these lands. DOE agrees that it cannot project
with certainty all future activities that might be allowed on any land
that it transfers, leases, or disposes. However, categorical exclusion
B1.25 is intended for application in those cases where the
circumstances of the property transaction create a reasonable
expectation that the property will be used for habitat preservation and
wildlife management for the reasonably foreseeable future.
Proposed B1.26 Siting/construction/operation/
decommissioning of small water treatment facilities, generally less
than 250,000 gallons per day capacity.
Several commenters recommended that DOE not categorically exclude
water treatment facilities that would involve highly toxic substances,
regardless of the limited rate at which water could be processed. Some
commenters stated that the 250,000 gallon criterion was not necessarily
the relevant factor regarding environmental impacts. The commenters
also expressed concern that cumulatively significant effects would
occur from repeated applications of this proposed categorical
exclusion. DOE believes that the adverse environmental effects of
concern to many of the commenters are highly unlikely. DOE chose to
categorically exclude treatment facilities with less than about 250,000
gallons capacity because such small plants have little potential for
significant impacts, especially in light of the safeguards afforded by
the integral elements. For example, a DOE categorical exclusion may not
be applied where the proposed action could adversely affect an
environmentally sensitive resource (10 CFR part 1021, subpart D,
appendix B, B(4)). Regarding cumulative effects, appendix B listings
are not applicable to a proposed action that is connected to other
actions with potentially significant impacts or related to other
[[Page 36231]]
proposed actions with cumulatively significant impacts (10 CFR
1021.410(b)(3)). Nevertheless, DOE has modified the proposal as one
commenter suggested, so that, in addition to small potable water and
sewer facilities, only those small wastewater and surface water
treatment facilities whose liquid discharges are subject to external
regulation would be categorically excluded. See also the discussion
regarding the use of the word ``generally'' and numerical values in
Section III.B.
Proposed B1.27 Facility deactivation.
One commenter expressed concern that the categorical exclusion
would apply to any facility and that deactivation is not clearly
defined. The commenter suggested that if DOE intended the categorical
exclusion to apply only to the disconnection of utilities, then it
should be rewritten as: ``The disconnection of utilities such as water,
steam, telecommunications, and electrical power after it has been
determined that the continued operation of these systems is not needed
for safety.'' DOE agrees and has rewritten the categorical exclusion as
suggested. The term deactivation is no longer included in the
categorical exclusion.
Another commenter suggested that the categorical exclusion be
clarified to include provisions for partial disconnections and utility
modifications where equipment may be required to remain operational at
a reduced level. DOE believes that this categorical exclusion
encompasses such disconnections and modifications.
One commenter stated that the risk posed by surplus facilities
varies greatly and that DOE should be cautious in presuming NEPA
documentation is not required. DOE agrees that the risks posed by
particular facilities can vary, but believes that merely disconnecting
the utilities of such facilities will not cause significant
environmental impacts.
Another commenter questioned whether DOE intended to deactivate
nuclear electrical utility facilities under this categorical exclusion,
and suggested that such activities would require consultation and
cooperation with other state and federal agencies and full public
notice and participation. The proposed categorical exclusion would
apply only to DOE facilities and not to the commercial nuclear power
industry or other commercial powerplants.
Proposed B1.28 Minor activities to place a facility in an
environmentally safe condition, no proposed uses.
Several commenters questioned the scope of the categorical
exclusion and generally expressed concern with the use of the word
``minor.'' Several commenters suggested that DOE more narrowly define
what it intended to cover in this categorical exclusion (e.g., the
meaning of ``adequate treatment, storage, or disposal facilities'' and
``no proposed use''). Other commenters stated that such activities
could be carried out on a large scale at a particular site and that
there could be cumulative impacts associated with waste management
activities.
As discussed in Section III.E, DOE believes that the word ``minor''
is useful in describing the types of activities contemplated by the
categorical exclusion, particularly when combined with examples and
exclusions. DOE intends this categorical exclusion to apply to
activities needed to place a surplus facility (one that will no longer
be used by DOE for any purpose, including storage) in an
environmentally safe condition, where there are existing treatment,
storage, or disposal facilities with existing capacity to manage the
resulting waste (including low-level radioactive waste). These
activities include the final defueling of a reactor, as stated in the
example in the proposed rule. DOE emphasizes that this categorical
exclusion, like all other categorical exclusions, may not be applied in
situations involving extraordinary circumstances (such as uncertain
effects or effects involving unique or unknown risks) or where the
proposal is connected to other actions with potentially significant
impacts (see Sec. 1021.410(b) (2) and (3)). Thus, if a proposal
involved a mode of decontamination with potentially significant
environmental effects or if it posed serious potential risks to
workers, the public, or the environment, then the proposed activity
would not be eligible for a categorical exclusion. DOE believes that
the language of the proposed categorical exclusion, together with the
general restrictions on the application of categorical exclusions,
particularly at Sec. 1021.410 and the integral elements at appendix B,
B(1)-B(4), provide adequate safeguards to ensure that this categorical
exclusion is not applied to activities that could result in significant
environmental effects.
One commenter asked that the relationship of this categorical
exclusion to CERCLA and the Resource Conservation and Recovery Act
(RCRA) procedures be clarified. DOE's CERCLA/NEPA policy is discussed
in Section III.B. Although DOE's RCRA procedures are outside the scope
of this rulemaking, DOE notes that its application of this categorical
exclusion would have no effect on its compliance with RCRA.
Another commenter recommended that the categorical exclusion be
broadened to include removal of contaminated equipment, material, and
waste and include activities such as size reduction and placement of
wastes in storage containers if done in the same building. DOE intends
the categorical exclusion, as proposed, to include these activities.
Proposed B1.29 Siting/construction/operation/
decommissioning of onsite disposal facility for construction and
demolition waste.
Several commenters objected to this categorical exclusion. One
commenter expressed concern that new disposal facilities for
construction and demolition waste could be sited and constructed in
environmentally sensitive areas, such as priority shrub steppe habitat,
with adverse impacts on wildlife. This commenter also expressed concern
about cumulative impacts from multiple facilities. DOE believes that
integral element B(4), which states that an action proposed for
categorical exclusion must not adversely affect environmentally
sensitive areas, would preclude use of the proposed categorical
exclusion for construction of disposal facilities in priority shrub
steppe habitat. Also, under Sec. 1021.410(b)(3) of its NEPA
implementing regulations, DOE may not categorically exclude a proposed
action that may be connected to other actions with potentially
significant impacts, or related to other proposed actions with
cumulatively significant impacts.
Another commenter expressed concern that a 10-acre disposal
facility could pose major health and safety risks to workers and
members of the public in adjacent communities, noting in particular the
potential for adverse impacts on air quality. By limiting this
categorical exclusion to disposal of uncontaminated materials, DOE
believes there would be no harmful releases of contaminants and no
increased health impact to workers or the nearby public. DOE has
revised the language in this categorical exclusion in the final
amendments by inserting the phrase ``which would not release substances
at a level, or in a form, that would pose a threat to public health or
the environment'' to explain the term ``uncontaminated.'' This new
language corresponds to the definition of ``contaminant'' in DOE's NEPA
regulations, which in turn is based on CERCLA Sec. 101(33). In
addition, DOE employs standard industrial practices, such as water
spraying to control dust, in operating any of its facilities, and DOE
believes that any particulate
[[Page 36232]]
emissions would be adequately controlled to protect workers and the
public. To correspond to other changes in the final amendments, DOE has
changed the phrase ``generally less than 10 acres in area,'' to ``less
than approximately 10 acres.'' See also the discussion in Section
III.E.
Another commenter stated that the scope of the categorical
exclusion was so broad that the host community, state and local
officials, and interested citizens could be excluded from participating
in decisions that may have significant environmental and socioeconomic
impacts. DOE believes that this class of actions normally does not have
potential for significant impacts and has decided to list it as a
categorical exclusion in the final amendments. See also the discussion
of public involvement and information sharing opportunities in Section
III.B.
One commenter requested that the proposed categorical exclusion be
expanded to include on-site disposal facilities for all uncontaminated
waste, including office and cafeteria waste. This comment is outside
the scope of this rulemaking, but DOE may consider the suggestion in a
future rulemaking.
Proposed B1.30 Transfer actions.
Several commenters objected to this proposed categorical exclusion
as too broad and open ended, some noting potential for adverse impacts.
Some commenters requested that it be deleted; others requested that
limits be provided on the quantity and types of materials and wastes
that could be transported. Other commenters sought additional
clarification.
In contrast, two commenters stated that the proposed categorical
exclusion was too limited in scope and suggested broadening the
categorical exclusion to include routine transportation of materials,
equipment, and wastes that are managed in accordance with regulatory
requirements. One of these commenters noted DOE's statement in the
preamble to the proposed rulemaking that ``transportation activities
under DOE's standard practices pose no potential for significant
impacts.''
All DOE proposed actions must comply with applicable regulatory
requirements, although some actions nevertheless may have significant
impacts. DOE will continue to include analysis of transportation
impacts in environmental assessments and environmental impact
statements where the scope of the proposed actions presents potential
for significant impact.
DOE has revised the language of the categorical exclusion to
characterize the amount of materials, equipment, or waste to be
transferred as ``small'' in addition to being incidental to the amount
at the receiving site. This revision addresses the concerns expressed
by several commenters that DOE had proposed to limit the amount of
material or waste that could be transported, not by the impacts that
might occur by transport of the material or waste, but by the amount of
material or waste at the receiving site.
One of these commenters stated that the proposed categorical
exclusion could be applied to the transport of thousands of containers
of materials or waste to a site that had yet larger amounts. Another
commenter stated that the baseline for determining the amount of waste
or material that could be received at a site, under the proposed
categorical exclusion, would continually increase as waste or materials
were transferred to the site. The revision reinforces DOE's intention
that use of the categorical exclusion should not add significantly to
what may already be significant amounts of waste or materials at a
site.
Several commenters stated that transportation of radioactive
materials and waste is likely to be a key or controversial issue to
local communities. One commenter stated that unscheduled transportation
of waste would generate considerable community interest, and another
expressed concern that the host community, state and local officials,
and interested citizens could be excluded from participating in
decisions that may result in significant environmental and
socioeconomic impacts. DOE believes that this class of actions normally
does not have potential for significant impacts and has decided to list
it, as revised, as a categorical exclusion in the final amendment. See
also the discussion of public involvement opportunities in Section
III.B.
One commenter suggested that the proposed categorical exclusion
would be more appropriately placed as a clarifying statement elsewhere
in the regulations, to note that transportation may be an implicit part
of any action that is eligible for a categorical exclusion or to
require, as an integral element of any categorical exclusion, that
transportation be conducted in accordance with applicable regulatory
requirements. Other commenters stated that transportation is a
connected activity and should not be considered independently.
DOE's NEPA regulations currently state that a categorically
excluded class of actions includes activities foreseeably necessary to
proposals encompassed within the class of actions and provides
``associated transportation activities'' as one of two examples
(Sec. 1021.410(d)). Categorical exclusion B1.30, however, applies to
transfer actions where the predominant activity is transportation.
DOE's existing NEPA regulations (appendix B(1)) also contain an
integral element for categorical exclusions requiring that, in order to
be categorically excluded, an action not threaten a violation of
applicable statutory, regulatory, or permit requirements for
environment, safety, and health, including requirements of DOE orders.
One commenter asked DOE to clarify whether this categorical
exclusion could be applied to the transfer of waste from a DOE site to
an offsite, non-DOE facility that treats that type of waste. DOE
believes that B1.30 does cover these types of transfer actions, as long
as all the conditions of the categorical exclusion, including the
integral elements, are satisfied and there are no extraordinary
circumstances.
Proposed B1.32 Restoration, creation, or enhancement of
small wetlands.
One commenter supported DOE's strategy, stated in the preamble to
the proposed rule, to coordinate activities in wetlands with state and
federal agencies to assure compliance with other land use plans. The
commenter suggested that wetland creation should address the impacts of
attracting migratory wildlife, especially types of wildlife that are
likely to be hunted for human consumption. Other commenters questioned
how the terms ``small'' and ``large'' were defined and how size would
be used to determine whether wetland restoration, creation, or
enhancement would have significant impacts. Other commenters stated
that this categorical exclusion should include compliance with all
appropriate Federal environmental laws and regulations and that DOE
should consider limiting the number of such projects to reduce the
potential for cumulative adverse impacts.
DOE has reconsidered its proposal to categorically exclude
restoration, creation, or enhancement of a small wetland. Actions
typically taken by DOE to restore, enhance, or create a wetland
normally would be performed as mitigation to compensate for loss or
degradation of other wetlands as a result of a DOE proposed action. As
such, wetland mitigation is not a separate or distinct action and
should be considered as an integral part of the proposed action.
Further, in those rare situations where DOE would undertake specific
actions to restore, enhance, or create wetlands (e.g., development of
[[Page 36233]]
wetlands as part of wetland banking), the existing class of actions C9,
which normally requires preparation of an environmental assessment,
provides opportunity for other agency and public review and input into
decisions regarding how the action should be undertaken. Accordingly,
DOE is withdrawing its proposal to categorically exclude restoration,
creation, or enhancement of a small wetland, as well as its proposal to
make a conforming language change in C9.
Proposed B1.33 (Final B1.32). Traffic flow adjustments,
existing roads.
One commenter questioned whether DOE would extend the categorical
exclusion to include road adjustments. This categorical exclusion is
limited to DOE sites and applies only to adjustments of traffic flow,
such as installation of traffic signs, signal lights, and turning
lanes. It does not apply to general road adjustments, such as road
widening and realignment. In order to clarify this point, DOE has
modified this categorical exclusion to include turning lanes as an
example of a categorically excluded action, and to specifically exclude
general road adjustments.
The commenter also stated that increased traffic flow could result
in increased risk of exposure to the public. DOE believes traffic flow
adjustments could not, by their nature, alter traffic patterns in such
a manner as to produce significantly increased public exposures. In
response to a comment that commercial trucking terminals should be
excluded, DOE notes that it does not operate commercial trucking
terminals.
One commenter suggested adding this activity to B1.3 on routine
maintenance. DOE does not consider traffic flow adjustments to
constitute routine maintenance.
Proposed B2.6 Packaging/transportation/storage of
radioactive sources upon request by the Nuclear Regulatory Commission
or other cognizant agency.
In response to several comments, DOE has clarified that ``other
cognizant agency'' would include a state that regulates radioactive
materials under an agreement with the Nuclear Regulatory Commission
(Commission). In addition, DOE intends to include other agencies that
may, under perhaps unusual circumstances, have responsibilities
regarding the materials that are included in the categorical exclusion.
One commenter expressed concern that this categorical exclusion
could apply to a wide variety of actions that private parties might
conduct. DOE's NEPA implementing procedures, however, apply only to
actions that DOE would conduct.
Another commenter expressed concern about cumulative effects from
applying this categorical exclusion repeatedly. Because DOE is
requested to perform the actions covered under B2.6 only occasionally--
e.g., when a Commission licensee cannot or will not safely manage the
material--DOE does not expect these activities to have significant
cumulative effects. This commenter also stated that the justification
for one of the examples cited in the proposed categorical exclusion--
``packaged radioactive waste not exceeding 50 curies''--was not
apparent and undefined as to impact. DOE possesses all the skills and
equipment required to handle, transport, and store such materials
safely, and would be involved in such activities only occasionally.
Moreover, the Commission has found that its licensees normally possess
and manage such materials without significant impacts. For these
reasons, DOE believes it is appropriate to categorically exclude its
activities regarding all of the materials the Commission has listed in
10 CFR 51.22(14).
Finally, a commenter suggested that DOE should apply the
categorical exclusion to packaging, transportation, and storage of
DOE's own radioactive materials that are the same kind as listed in the
Commission's categorical exclusion. DOE is taking this suggestion under
advisement and may consider it in a future rulemaking.
Proposed Modification B3.6 Siting/construction/operation/
decommissioning of facilities for bench-scale research, conventional
laboratory operations, small-scale research and development and pilot
projects.
DOE proposed to modify B3.6 (indoor bench-scale research projects)
by combining it with B3.10 (small-scale research and development
projects and small-scale pilot projects) and to include the siting,
construction, operation, and decommissioning of facilities to house
such projects. DOE also proposed to delete the descriptive phrase ``for
generally less than two years'' in reference to the length of time a
categorically excluded pilot project typically could be conducted.
One commenter stated that this categorical exclusion as proposed
may be susceptible to abuse, e.g., by permitting a pilot project to
evolve into a full-scale operation without public environmental review.
DOE believes that this example would be a misapplication of the
categorical exclusion. To clarify the meaning of ``pilot project,'' DOE
is inserting the descriptive phrase ``generally less than two years.''
Thus, as revised, the only modification DOE is making to the existing
categorical exclusions is combining B3.6 and B3.10, and expanding the
combined categorical exclusion to include the siting, construction,
operation, and decommissioning of facilities that would house the
indoor bench-scale research, conventional laboratory operations, small-
scale research and development, and small-scale pilot projects. DOE
received no comments on these aspects of the proposed modification.
Several commenters questioned the definition of ``small-scale'' and
``pilot projects.'' One commenter questioned whether ``bench-scale''
includes the use of large pieces of equipment. The meaning of these
terms is not changing from the existing regulations. DOE notes,
however, that scale refers to the magnitude of the activity, e.g., the
amount of materials consumed, waste produced, air emissions, and
effluents. Further, the size of the equipment would be relevant in this
context only if it affected the input of material and output of waste,
so as to produce potentially significant physical impacts. See also the
discussion of ``small-scale'' in Section III.E.
Another commenter expressed concern that the nature of research
activities could involve new and untried processes. If a proposed
research action had the potential to involve unique or unknown risks,
then it would trigger the ``extraordinary circumstances'' provision in
Sec. 1021.410(b)(2), and thus would not be eligible for a categorical
exclusion.
One commenter stated that there is an apparent conflict between
B3.6 and C12. DOE notes that B3.6 specifically covers ``small-scale
pilot projects (generally less than two years),'' constructed in an
already developed area. C12, however, refers to larger scale, longer
term projects that are not restricted to an already developed area. DOE
is adding a specific reference to C12 in B3.6 to call attention to the
differences between them.
Proposed B3.10 Siting/construction/operation/
decommissioning of particle accelerators, including electron beam
accelerators, primary beam energy generally less than 100 MeV.
Two commenters recommended that DOE remove the word ``generally''
from the phrase ``generally less than 100 MeV,'' stating that the
proposed language would permit categorically excluding much higher
energy machines than 100 MeV (million electron-volts).
[[Page 36234]]
DOE has restated the condition to read ``less than approximately 100
MeV,'' which better reflects DOE's intention and addresses the
commenters' concerns. See also the discussion in Section III.E.
Another commenter welcomed the proposed amendment and recommended
adding to this proposed categorical exclusion ``maintenance and
remedial actions [involving particle and electron beam accelerators]
which have the incidental effect of improving machine performance
within design criteria.'' DOE intends that the language of B3.10, as
proposed, covers such actions as long as there is no increase in
primary beam energy or current.
Finally, a commenter requested that the proposed categorical
exclusion be restated in terms that relate to impacts such as land
requirements and radioactive emissions rather than beam energy (i.e.,
100 MeV) as proposed, stating that the proposed formulation would not
be very meaningful to the public. Accelerators fitting this class of
actions typically are room-size and often are installed in existing
buildings at hospitals and universities. On the basis of its
experience, the language of this proposed amendment, and the general
restrictions on the application for categorical exclusions,
particularly at Sec. 1021.410 and the integral elements at appendix B,
B(1)-B(4), DOE believes that the covered actions will not present any
significant land use or radiation effects issues.
Proposed B3.12 Siting/construction/operation/
decommissioning of microbiological and biomedical facilities.
Several commenters expressed concern about the potential
environmental, health, and socioeconomic impacts of microbiological and
biomedical facilities and the lack of opportunity for public
involvement. One commenter sought clarification regarding DOE's
statement in the preamble to the proposed rulemaking that these
facilities generally do not handle ``extremely dangerous materials.''
Another commenter urged DOE not to categorically exclude laboratories
that are rated Biosafety Level 1 through 4.
All microbiological laboratories are rated Biosafety Level 1
through 4. Level 1 handles the least dangerous agents. To clarify what
is intended by Biosafety Levels 1 and 2, the following definitions were
extracted from Biosafety in Microbiological and Biomedical
Laboratories, 3rd Edition, May 1993, U.S. Department of Health and
Human Services Public Health Service, Centers for Disease Control and
Prevention, and the National Institutes of Health: Publication No.
(CDC) 93-8395. Biosafety Level 1 is assigned to facilities in which
work is done with defined and characterized strains of viable
microorganisms not known to cause disease in healthy adult humans
(e.g., Bacillus subtilis, Naeleria gruberi, and infectious canine
hepatitis). This designation represents a basic level of containment
that relies on standard microbiological practices with no special
primary or secondary barriers recommended, other than a sink for
handwashing. Biosafety Level 2 is assigned to facilities in which work
is done with the broad spectrum of indigenous moderate-risk agents
present in the community and associated with human disease of varying
severity (e.g., Hepatitis B virus, salmonellae and Toxoplasma spp.).
This designation requires the use of splash shields, face protection,
gowns and gloves, as appropriate, and the availability of secondary
barriers such as handwashing facilities and laboratory waste
decontamination facilities. Given these controls, DOE believes that it
is appropriate to categorically exclude Biosafety Level 1 and 2
laboratories from further NEPA review, provided that all of the
integral elements of a categorical exclusion (appendix B, B(1)-B(4))
are met.
Another commenter asked for a clarification of ``an already
developed area.'' In particular, this commenter asked if it referred to
a metropolitan area, residential area, commercially developed area, or
existing biomedical facility. As discussed previously, ``an already
developed area'' refers to an area ``where active utilities and
currently used roads are readily accessible.'' DOE has clarified the
categorical exclusion accordingly. Facilities that would be eligible
for this categorical exclusion could be sited in a metropolitan,
residential, or commercially developed area or in an existing
biomedical facility, as long as the area is already developed.
Proposed B3.13 Magnetic fusion experiments, no tritium
fuel use.
A commenter asked whether DOE intends to conduct new magnetic
fusion experiments at existing facilities under this proposed
categorical exclusion, and indicated that an environmental assessment
or environmental impact statement is required to protect the public and
worker health and safety in light of impacts from exposure to
electromagnetic fields. DOE intends to categorically exclude such
experiments at existing facilities. Based on its experience with such
activities, DOE believes that magnetic fusion experiments do not pose
an electromagnetic field or other hazard to the public. DOE routinely
provides workers with adequate training and controlled conditions to
conduct such work safely.
Proposed Modification B5.3 Modification (not expansion)/
abandonment of oil storage access/brine injection/gas/geothermal wells,
not part of site closure.
DOE proposed to add gas wells to this categorical exclusion, and
one commenter stated that DOE should consider possible risks to public
health and safety before doing so. This categorical exclusion applies
only to the modification (e.g., installation of different chokes and
other wellhead equipment) or abandonment of existing wells and does not
include workover (see proposed B5.12) or expansion. Therefore, the
inclusion of gas will not result in any significant impacts.
Proposed Modification B5.5 Construction/operation of
short crude oil/gas/steam/geothermal pipeline segments.
DOE proposed to add natural gas and steam pipelines and to remove
references to the specific existing facilities to which the pipelines
would be connected. One commenter expressed concern about the end point
facilities of the pipeline segments and how such facilities would
affect the impacts. The commenter stated that connecting pipeline
segments without regard to the impacts of the end point facilities is
comparable to approval of a sewer pipe without knowledge of the
discharge point. DOE notes that this categorical exclusion applies to
the construction and operation of short segments of pipelines between
existing DOE facilities and existing transportation, storage, or
refining facilities within a single industrial complex and within
existing rights-of-way. Because both end points must be existing
facilities, DOE believes that the potential impacts of constructing and
operating short pipeline segments between such facilities do not depend
on the type of facility and will not cause significant environmental
impacts. There would be no discharges to the environment from these
pipelines.
Proposed Clarification B5.9. Temporary exemption for any
electric powerplant;
Proposed Clarification B5.10 Certain permanent exemptions
for any existing electric powerplant;
Proposed Clarification B5.11 Permanent exemption for
mixed natural gas and petroleum;
[[Page 36235]]
Proposed Modification (Removal) B5.12 Permanent exemption
for new peakload powerplant;
Proposed Modification (Removal) B5.13 Permanent exemption
for emergency operations;
Proposed Modification (Removal) B5.14 Permanent exemption
for meeting scheduled equipment outages;
Proposed Modification (Removal) B5.15 Permanent exemption
due to lack of alternative fuel supply; and
Proposed Modification (Removal) B5.16 Permanent exemption
for new cogeneration powerplant.
DOE proposed to clarify or modify (i.e., remove) these categorical
exclusions because they involve the grant or denial by DOE of certain
exemptions under the Power Plant and Industrial Fuel Use Act of 1978
(PIFUA), which was amended by Congress and now applies only to base
load power plants. It no longer applies to other types of power plants
or to major fuel-burning installations. Some commenters opposed the
retention of B5.9, B5.10, and B5.11 in their modified state on the
basis that they appear to exempt multiple actions from an environmental
assessment or environmental impact statement under the guise of energy
conservation or expressed concerns about cumulative impacts, connected
actions, or extraordinary circumstances. DOE believes that the original
rationale for these categorical exclusions, based on experience with
actual cases, remains valid and thus believes that they should be
retained for situations where the law provides for exemptions (i.e.,
base load power plants). Another commenter expressed concern regarding
the proposed removal of existing B5.12 through B5.16. While DOE
acknowledges this concern, it is nonetheless appropriate for DOE to
conform its NEPA regulations to changes in the law. These categorical
exclusions are being clarified or removed from appendix B because under
PIFUA, as amended, DOE no longer has authority to grant or deny PIFUA
exemptions except in cases involving base load power plants.
Proposed B5.12 Workover of existing oil/gas/geothermal
well.
DOE proposed a new categorical exclusion covering the workover of
existing oil, gas, or geothermal wells on existing wellpads where the
work ``would not disturb adjacent habitat.'' One commenter requested
that the word ``endanger'' be included in the proposed categorical
exclusion. DOE believes that the words ``disturb'' and ``endanger'' are
both subject to various interpretations. DOE is therefore modifying the
categorical exclusion to use instead ``adversely affect,'' which
reflects DOE's original intent and is consistent with language
elsewhere in the DOE NEPA rule.
Proposed Modification B6.1 Small-scale, short-term
cleanup actions under RCRA, Atomic Energy Act, or other authorities.
DOE proposed to change the way in which it defines the scope of the
categorical exclusion from ``removal actions under CERCLA * * * and
removal-type actions similar in scope'' to ``small-scale, short-term
cleanup actions under RCRA, the Atomic Energy Act, or other
authorities'' without naming CERCLA. This proposal reflects DOE's
policy (see Section III.B) of relying on the CERCLA process for review
of actions to be taken under CERCLA. DOE believes that the reference in
the current regulations to CERCLA removal actions is confusing in the
context of this policy. DOE also proposed to expand the limits of the
categorical exclusion to actions generally costing up to $5 million
over as many as 5 years.
One commenter supported the modification to clarify application to
RCRA cleanup actions and to increase the cost and time limitations.
Another commenter stated that DOE should integrate the CERCLA and NEPA
processes. As discussed in Section III.B, DOE's CERCLA/NEPA policy
allows for case-by-case integration of the CERCLA and NEPA processes.
Therefore, although CERCLA is not referenced in the new categorical
exclusion, DOE may apply categorical exclusion B6.1 to certain CERCLA
actions. DOE has not changed its proposed modification to the
categorical exclusion based on this comment.
This commenter also requested that DOE retain the time and cost
limits in the existing categorical exclusion (i.e., the CERCLA
regulatory cost and time limits of $2 million and 12 months), but
requested that if DOE does expand the limits to $5 million and 5 years
as proposed, the language of the categorical exclusion should read
``expand the limits to'' and that the categorical exclusion's limits be
stated as maximum cut off points. As discussed in Section III.E, DOE's
use of numerical quantities are intended to provide a reasonable degree
of flexibility and should not be applied as absolute limits. DOE has
retained the proposed cost and time factors in the final categorical
exclusion.
Another commenter stated that the applicability of a categorical
exclusion to an action should be based on the site-specific conditions
of the action, not on its cost or duration. The cost and time
descriptions in the proposed categorical exclusion are simply
indicators of the size and type of actions DOE intends to categorically
exclude, not definitions of the actions themselves. Categorical
exclusions listed in appendix B include integral elements that are site
specific, and categorical exclusions will be applied based on site-
specific factors, such as the existence of any extraordinary
circumstances, rather than on the cost or duration of the action.
One commenter expressed concern that the use of terms ``small-
scale,'' ``short-term,'' and ``generally'' are too subjective. The use
of such descriptive terms is discussed in Section III.E.
One commenter requested that DOE state in example B6.1(b) that it
would use the definition of hazardous waste from whichever regulatory
agency (e.g., EPA or a state agency) provided the more protective
definition for purposes of protecting public health and safety, or had
greater authority to regulate hazardous waste. DOE proposed to revise
the example to reflect the fact that hazardous waste is defined under
one of two possible regulatory authorities, either 40 CFR Part 261 or
applicable state requirements, depending on whether EPA or a state
exercises primary regulatory authority. DOE does not have a choice as
to which definition it must abide by. DOE is retaining the proposed
language in the final categorical exclusion.
This commenter also stated that DOE did not specifically exempt
high-level radioactive waste, transuranic waste, spent nuclear fuel,
waste from reprocessing spent nuclear fuel, and uranium mill tailings
in its language pertaining to waste cleanup and storage and requested
clarification on the scope of the categorical exclusions in this
regard. DOE agrees that it should clarify the scope of the categorical
exclusion and has added the phrase ``other than high-level radioactive
waste and spent nuclear fuel'' to the categorical exclusion. DOE
believes that it can appropriately apply the categorical exclusion to
cleanup activities involving transuranic waste and uranium mill
tailings.
This commenter also expressed concern that this categorical
exclusion allowed more discretionary authority to DOE for its waste
management actions with less public notification, involvement, and
accountability. DOE's response to comments relating to the reduction of
public involvement opportunities is in Section III.B.
See also the discussion of categorical exclusion B6.9 for a
modification of example B6.1(g).
[[Page 36236]]
Proposed Modification (Removal) B6.4 Siting/construction/
operation/ decommissioning of facility for storing packaged hazardous
waste for 90 days or less.
DOE proposed to replace the existing B6.4, which covers a very
narrow class of waste storage actions, with a new and broader B6.4 that
would have encompassed the activities to which the existing B6.4
applies. In response to comments on the proposed new B6.4, however, DOE
has decided to narrow its scope in such a manner that retaining the
existing B6.4 is necessary. Therefore, DOE is retaining the existing
B6.4, and will list a new class of actions covering waste storage
facilities (i.e., a ``reduced-scope'' version of the proposed B6.4) as
B6.10. See the further discussion below.
Proposed B6.4 (FinalB6.10) Siting/construction/operation/
decommissioning of small waste storage facilities (not high-level
radioactive waste, spent nuclear fuel).
Several commenters expressed concern that this proposed categorical
exclusion could apply to actions that individually may have significant
impacts and especially would have significant cumulative impacts if a
number of such facilities were built. Commenters also expressed concern
regarding the location of the facility, type of waste, and the nature
of the surrounding environment. On the other hand, a commenter who
supported the proposal suggested that DOE clarify that an unlimited
number of 50,000 square-foot facilities could be built under the
categorical exclusion.
DOE generally agrees with the commenters who stated that the
proposal was too broad. However, DOE notes that significant new waste-
producing activities and significant transfers of waste among sites are
subject to NEPA analysis and would not be categorically excluded.
Provisions for storing such waste would be within the scope of such
analyses (or reviewed under CERCLA, if the waste would result from
CERCLA environmental restoration activities), and storage impacts and
alternatives would be appropriately assessed.
In light of the comments, DOE has decided to limit the
applicability of proposed categorical exclusion B6.4 (final B6.10) to
upgrades or replacement of storage facilities for waste that is already
present at a DOE site at the time the storage capacity is to be
provided. Providing new or upgraded storage facilities for existing
wastes under this categorical exclusion would only improve upon
previous storage conditions. Further, because the storage changes would
not be associated with changes in waste type or waste quantity,
providing new storage facilities or upgrades would not likely have
cumulatively significant impacts. Storage facilities for newly
generated waste from ongoing operations would not be categorically
excluded, and any associated cumulative impacts would be considered in
an appropriate NEPA analysis.
Several commenters questioned the basis for DOE's proposal to
categorically exclude a particular size of storage facility, namely
approximately 50,000 square feet or less. In recent years DOE has
evaluated and constructed a variety of new waste storage facilities.
These are typically uncomplicated light-weight buildings on a concrete
pad floor that provide open floor storage space for waste packages.
They are designed, and waste is emplaced, with safety as a priority.
DOE chose 50,000 square feet as a representative size of such
facilities, intending not to categorically exclude facilities that
might be unusually large.
In response to commenters' objections regarding the word
``generally'' in the proposed phrase ``generally not to exceed an area
of 50,000 square feet,'' DOE has changed the phrase to read ``less than
approximately 50,000 square feet in area,'' which more accurately
conveys DOE's original intent. See also the discussion in Section
III.E.
As proposed, the categorical exclusion would not apply to storage
of high-level radioactive waste or spent nuclear fuel. Several
commenters questioned whether the categorical exclusion would apply to
other types of waste. One commenter suggested that DOE not apply this
categorical exclusion to transuranic wastes, fissile materials, and all
other materials for which DOE is largely self-regulating. The commenter
did not explain why self-regulation would be important to the
determination at issue, and DOE believes that it is not. DOE has
concluded, however, that storage facilities for wastes that require
special precautions to prevent nuclear criticality should not be
categorically excluded, and DOE is modifying the proposed categorical
exclusion accordingly. For example, certain transuranic wastes that
contain fissile materials may pose such concerns.
Finally, DOE has clarified its original intent to include under
this categorical exclusion only storage facilities located at DOE
sites, and also has deleted reference to ``activities connected to site
operations,'' as commenters requested.
Proposed Clarification B6.5 Siting/construction/
operation/decommissioning of facility for characterizing/sorting
packaged waste, overpacking waste (not high-level radioactive waste,
spent nuclear fuel).
DOE proposed to clarify the existing B6.5 merely by adding cross-
references to B6.4 and B6.6, not to change it substantively. A
commenter, however, suggested that B6.5 should be expanded to include
activities in which waste would be unpacked for purposes of
characterization. DOE considers the comment to be outside the scope of
this rulemaking, but may consider the suggestion in an appropriate
future rulemaking.
Proposed B6.9 Small-scale temporary measures to reduce
migration of contaminated groundwater.
Several commenters expressed concern that, in effect, this
categorical exclusion would reduce opportunities for review by other
agencies and the public, and that it might be applied to actions that
could have adverse effects on public health and the environment. One
commenter stated that contamination of groundwater is a potentially
significant risk to public health and that DOE should not exclude such
contamination issues from public participation opportunities and NEPA
documentation requirements. One commenter expressed concern that
application of this categorical exclusion would eliminate valuable
input from natural resource agencies regarding effects from actions of
this type on state-designated priority habitats. A related comment
expressed concern that actions categorically excluded under B6.9 could
be detrimental to valuable habitat or cultural resources.
As noted in the preamble to the proposed rulemaking, DOE has found
that these actions normally have very local and environmentally
beneficial effects and pose no potential for significant environmental
impacts. With regard to potential impacts to sensitive environmental
resources (such as priority habitat and cultural resources), DOE
believes that integral condition B(4) in appendix B, which states that
an action proposed for categorical exclusion must not adversely affect
environmentally sensitive areas, would preclude use of this categorical
exclusion when priority habitat and cultural resources may be adversely
affected. Public involvement opportunities are discussed in Section
III.B.
One commenter stated that it was unclear why the proposed
categorical exclusion was not within the scope of B6.1, an existing
categorical exclusion for small-scale cleanup actions (see modification
of B6.1 above). DOE believes that certain groundwater
[[Page 36237]]
cleanup actions could indeed be categorically excluded under B6.1, if
the proposed actions met the conditions of that categorical exclusion,
i.e., there were existing facilities to treat the water and the
proposed activities were to be completed in about 5 years or less. DOE
believes it is also appropriate, however, to categorically exclude the
siting, construction, and longer term operation of groundwater
treatment and containment facilities and therefore proposed a separate
categorical exclusion (i.e., B6.9) to define and cover those
activities. DOE intends that the categorical exclusion would include
mobile pumping and treatment facilities or pumping and treatment
facilities that might be built and then removed when the action was
stopped, and DOE used the phrase ``small-scale temporary measure'' to
characterize these possibilities. DOE has added these facility
descriptions to the examples in the final categorical exclusion. DOE
agrees that the example of ``installing underground barriers'' in the
proposed categorical exclusion is more appropriately considered as an
action under B6.1. For this reason, DOE is adding ``underground
barriers'' to the existing example B6.1(g) and is deleting it from
proposed B6.9.
Another commenter stated that the meaning of ``small-scale
temporary measure'' was vague. DOE's use of terms such as ``small-
scale'' is discussed in Section III.E.
Classes of Actions Listed in Appendix C
Proposed Modification (Removal) C1 Major projects.
One commenter expressed concern that DOE's proposal to remove
``Major Projects, as designated by DOE Order 4240.1'' from appendix C
would result in the categorical exclusion of proposed actions currently
requiring an environmental assessment or environmental impact
statement.
The term ``Major Project'' was defined in DOE Order 4240.1, based
primarily on cost characteristics. DOE no longer uses the term ``Major
Project,'' and thus the existing C1 is no longer meaningful.
Accordingly, DOE is removing C1. DOE will continue to prepare
environmental impact statements, however, for ``major Federal actions
significantly affecting the quality of the human environment'' as
required under NEPA Sec. 102(2)(C). Also, although DOE has eliminated
the designation of ``Major Projects'' from the proposed actions for
which an environmental assessment would normally be prepared, DOE will
continue to prepare environmental assessments for the types of proposed
actions formerly included within the definition of ``Major Projects.''
Proposed Modification C9 Restoration, creation, or
enhancement of large wetlands.
DOE originally proposed to amend this category to conform to
proposed B1.32, i.e., to distinguish NEPA review for large versus small
wetlands. As noted in the discussion on B1.32, DOE is withdrawing its
proposal to categorically exclude restoration, creation, or enhancement
of a small wetland. Similarly, DOE is also withdrawing its proposal to
make a conforming language change in C9.
Proposed Modification (Removal) C10 Siting/construction/
operation/ decommissioning of synchrotron radiation accelerator
facility; and
Proposed Modification C11 Siting/construction/operation/
decommissioning of low- or medium-energy particle acceleration facility
with primary beam energy generally greater than 100 MeV.
DOE proposed to consolidate the existing C10 and C11 into C11
(reserving C10), and make the resulting C11 applicable for low to
medium energy particle accelerators, consistent with the proposed
categorical exclusion B3.10 for accelerators with energy less than
approximately 100 MeV. One commenter stated that the existing
regulations would have required an environmental impact statement under
existing C1, which covers ``Major Projects,'' and DOE proposed to
eliminate C1. The commenter is mistaken because ``Major Projects''
would normally have required an environmental assessment under C1, not
an environmental impact statement. As noted above, DOE is removing C1.
See previous discussion under C1.
Proposed Modification C14 Siting/construction/operation
of water treatment facilities generally greater than 250,000 gallons
per day capacity.
DOE proposed to modify C14 to conform to proposed B1.26. A
commenter objected to use of the word ``generally'' in both listings.
DOE has replaced the phrase ``generally exceeding'' with ``greater than
approximately,'' which reduces the agency's discretion, as the
commenter requested, conforms with changes to proposed B1.26 discussed
above, and better expresses DOE's original intent. DOE also revised C14
to include small wastewater and surface water treatment facilities,
whose liquid discharges are not subject to external regulation, to
conform with changes to proposed B1.26 made in response to comments.
See also the discussion in Section III.E.
Proposed Modification C16 Siting/construction/operation/
decommissioning of large waste storage facilities (not high-level
radioactive waste, spent nuclear fuel).
DOE's proposed amendments were intended to clarify the meaning of
``onsite'' in the existing C16, and to make C16 consistent with
proposed B6.4 (now final B6.10), under which a subset of small-scale
actions included in existing C16 would be categorically excluded. DOE
does not agree with a commenter's statements to the effect that this
proposal would eliminate public participation for the siting of
centralized and regional treatment and storage facilities and protect
its contractors and itself at the expense of the public. DOE provides
for appropriate public involvement in its environmental assessment
process. In accordance with another commenter's suggestion, DOE is
providing clearer direction by replacing the phrase ``generally greater
than'' with ``greater than approximately,'' which also better expresses
DOE's original intent. See also the discussion in Section III.E.
Classes of Actions Listed in Appendix D
Proposed Modification D10 Siting/construction/operation/
decommissioning of major treatment, storage, and disposal facilities
for high-level waste and spent nuclear fuel.
DOE proposed to amend D10 so that there would be no presumption
that an EIS would be prepared for siting, constructing, operating, and
decommissioning of onsite replacement storage facilities or upgrading
storage facilities for spent nuclear fuel. DOE proposals for these
types of facilities have varied too widely to support a general
conclusion that such proposed actions normally require the preparation
of an environmental impact statement. Thus, under DOE's proposal,
onsite replacement or upgrade of storage facilities for spent nuclear
fuel would no longer require the preparation of an environmental impact
statement; rather, DOE would decide on a case-by-case basis (i.e.,
based on the particular project, site, and circumstances) whether to
prepare an environmental assessment or an environmental impact
statement. Contrary to one commenter's presumption, DOE's decision not
to assign a particular level of NEPA documentation to onsite
replacement or upgrading of storage facilities for spent nuclear fuel
would never result in such activities being categorically excluded.
While one commenter supported the proposed modification, several
others opposed it. Some commenters stated
[[Page 36238]]
that the use of the term ``major'' in D10 already provided DOE with the
flexibility to prepare an environmental assessment in certain
circumstances. In response, DOE notes that the term ``major'' refers to
the size and/or cost of a particular project, not to whether its
impacts will be significant. Thus, it is possible to have a large,
costly DOE project that, because of its location or technical
characteristics, is not likely to have significant environmental
effects. In that case (such as replacement or upgrade of a spent
nuclear fuel storage facility), DOE believes it is more appropriate to
prepare an environmental assessment. Two commenters expressed concern
that replacement or upgrade of spent nuclear fuel storage facilities
could result in expanded spent nuclear fuel storage capacity and that
existing storage sites may become long-term storage sites in the
absence of a permanent repository. DOE did not intend to permit
expanded storage under this exclusion and has modified its proposal to
add ``where such replacement or upgrade will not result in increased
storage capacity.'' Whether the storage of spent nuclear fuel may in
fact become long-term storage is outside the scope of this rulemaking.
Another commenter stated that D10 must not be replaced by any less
stringent process for public input and involvement. DOE will prepare
either an environmental assessment or an environmental impact statement
for replacement or upgrades of spent nuclear fuel storage facilities,
depending on the circumstances. DOE provides for public involvement in
both its environmental assessment and environmental impact statement
processes.
Other commenters contended that DOE had proposed that an
environmental assessment would be applicable for handling high-level
waste. DOE's proposed modification deals with replacement and upgrades
of storage facilities for spent nuclear fuel, not high-level waste.
Under the original D10 and as amended, DOE would normally prepare an
environmental impact statement for the siting, construction, operation,
and decommissioning of major treatment, storage, and disposal
facilities for high-level waste.
One commenter questioned why replacement or upgrades of high-level
waste storage facilities are not treated the same as similar facilities
for spent nuclear fuel, and whether DOE's proposed modification was
designed to justify the preparation of an environmental assessment for
a particular spent nuclear fuel facility at the Idaho National
Engineering Laboratory, rather than an environmental impact statement.
DOE's approach to formulating typical classes of actions for listing in
subpart D is described in Section III.E, above. DOE does not formulate
such classes of actions, or proposed additions and modifications, with
the intention of securing coverage for a specific future or past action
under a particular class of actions.
IV. Procedural Review Requirements
A. Environmental Review Under the National Environmental Policy Act
These amendments to the DOE NEPA rule establish, modify, and
clarify procedures for considering the environmental effects of DOE
actions within the Department's decision making process. Implementation
of this rule will not affect the substantive requirements imposed on
DOE or on applicants for DOE licenses, permits, and financial
assistance, and this rule will not result in environmental impacts.
Therefore, DOE has determined that this rule is covered by the
categorical exclusion found at paragraph A6 of appendix A to subpart D,
10 CFR part 1021, which applies to procedural rulemaking. Accordingly,
neither an environmental impact statement nor an environmental
assessment is required.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 USC 601 et seq.) requires that an
agency prepare an initial regulatory flexibility analysis to be
published at the time the proposed rule is published. This requirement
does not apply if the agency ``certifies that the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities'' (5 USC 603). The rule modifies existing policies
and procedural requirements for DOE compliance with NEPA. The rule
makes no substantive changes to requirements imposed on applicants for
DOE licenses, permits, financial assistance, and similar actions as
related to NEPA compliance. Therefore, DOE certifies that the rule will
not have a ``significant economic impact on a substantial number of
small entities.''
C. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by these amendments. Accordingly, no Office of Management and
Budget clearance is required under the Paperwork Reduction Act of 1980
(44 USC 3501 et seq.).
D. Review Under Executive Order 12612
Executive Order 12612, ``Federalism,'' 52 FR 41685 (October 30,
1987) requires that regulations be reviewed for Federalism effects on
the institutional interest of states and local governments, and, if the
effects are sufficiently substantial, preparation of a Federalism
assessment is required to assist senior policymakers. These amendments
will affect Federal NEPA compliance procedures, which are not subject
to state regulation. The amendments will not have any substantial
direct effects on states and local governments within the meaning of
the Executive Order. Therefore, no Federalism assessment is required.
E. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, Section 3(a) of Executive Order 12988,
``Civil Justice Reform'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity, (2) write
regulations to minimize litigation, and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by Section 3(a), Section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
Section 3(a) and Section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the final rule meets the relevant standards of Executive Order 12988.
F. Review Under Executive Order 12866
The final amendments were reviewed in accordance with Executive
Order
[[Page 36239]]
12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4,
1993), which requires a Federal agency to prepare a regulatory
assessment, including the potential costs and benefits, of any
``significant regulatory action.'' The order defines ``significant
regulatory action'' as any regulatory action that may have an annual
effect on the economy of $100 million or more and may adversely affect
the economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments in a material
way; create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency; materially alter the
budgetary impact of entitlements, grants, user fees, or loan programs;
or raise novel legal or policy issues arising out of legal mandates
(section 3(f)).
These amendments will modify already existing policies and
procedures for compliance with NEPA. The amendments contain no
substantive changes in the requirements imposed on applicants for a DOE
license, financial assistance, permit, or similar actions. Therefore,
DOE has determined that the incremental effect of these amendments to
the DOE NEPA regulations will not have the magnitude of effects on the
economy, or any other adverse effects, to bring this proposal within
the definition of a ``significant regulatory action.''
G. Review Under the Unfunded Mandates Reform Act
Under section 205 of the Unfunded Mandates Reform Act of 1995 (2
USC 1533), Federal agencies are required to prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in the expenditure by state, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year. Because the DOE NEPA regulations
affect only DOE and do not create obligations on the part of any other
person or government agency, neither state, local or tribal governments
nor the private sector will be affected by amendments to these
regulations. Therefore, DOE has determined that further review under
the Unfunded Mandates Reform Act is not required.
H. Congressional Notification
The final regulations published today are subject to the
Congressional notification requirements of Small Business Regulatory
Enforcement Fairness Act of 1996 (Act) (5 USC 801). The Office of
Management and Budget has determined that the final regulations do not
constitute a ``major rule'' under the Act (5 USC 804). DOE will report
to Congress on the promulgation of the final regulations prior to the
effective date set forth at the beginning of this notice.
List of Subjects in 10 CFR Part 1021
Environmental impact statement.
Issued in Washington, DC, June 28, 1996.
Tara O'Toole,
Assistant Secretary, Environment, Safety and Health.
For reasons set out in the preamble, 10 CFR part 1021 is amended as
follows:
PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING
PROCEDURES
1. The authority citation for part 1021 continues to read as
follows:
Authority: 42 U.S.C. 7254; 42 U.S.C. 4321 et seq.
Sec. 1021.104 [Amended]
2. In Sec. 1021.104(b), the definition for EIS Implementation Plan
is removed.
3. Section 1021.105 is revised to read as follows:
Sec. 1021.105 Oversight of Agency NEPA activities.
The Assistant Secretary for Environment, Safety and Health, or his/
her designee, is responsible for overall review of DOE NEPA compliance.
Further information on DOE's NEPA process and the status of individual
NEPA reviews may be obtained upon request from the Office of NEPA
Policy and Assistance, U.S. Department of Energy, 1000 Independence
Avenue, SW, Washington, DC 20585-0119.
4. Section 1021.310 is revised to read as follows:
Sec. 1021.310 Environmental impact statements.
DOE shall prepare and circulate EISs and related RODs in accordance
with the requirements of the CEQ Regulations, as supplemented by this
subpart. DOE shall include in draft and final EISs a disclosure
statement executed by any contractor (or subcontractor) under contract
with DOE to prepare the EIS document, in accordance with 40 CFR
1506.5(c).
Sec. 1021.311 [Amended]
5. Section 1021.311 is amended by removing paragraph (f) and
redesignating paragraph (g) as paragraph (f).
* * * * *
Sec. 1021.312 [Removed and reserved]
6. Section 1021.312 is removed and reserved.
7. In Sec. 1021.315 paragraphs (b) and (d) are revised and (e) is
added to read as follows:
Sec. 1021.315 Records of decision.
* * * * *
(b) If DOE decides to take action on a proposal covered by an EIS,
a ROD shall be prepared as provided at 40 CFR 1505.2 (except as
provided at 40 CFR 1506.1 and Sec. 1021.211 of this part).
* * * * *
(d) No action shall be taken until the decision has been made
public. DOE may implement the decision before the ROD is published in
the Federal Register if the ROD has been signed and the decision and
the availability of the ROD have been made public by other means (e.g.,
press release, announcement in local media).
(e) DOE may revise a ROD at any time, so long as the revised
decision is adequately supported by an existing EIS. A revised ROD is
subject to the provisions of paragraphs (b), (c), and (d) of this
section.
Sec. 1021.322 [Amended]
8. Section 1021.322 is amended by removing paragraph (b)(1), and
redesignating paragraphs (b)(2) through (b)(5) as paragraphs (b)(1)
through (b)(4).
9. Appendix A to Subpart D, paragraph A7, is revised to read as
follows:
Appendix A to Subpart D to Part 1021--Categorical Exclusions Applicable
to General Agency Actions
* * * * *
A7 Transfer, lease, disposition, or acquisition of interests in
personal property (e.g., equipment and materials) or real property
(e.g., permanent structures and land), if property use is to remain
unchanged; i.e., the type and magnitude of impacts would remain
essentially the same.
* * * * *
10. Appendix B to Subpart D, is amended to revise the Table of
Contents entries for B1.8, B1.13, B1.22, B3.6, B3.10, B5.3, B5.5, B5.9,
B5.10, B5.12, B6.1, and B6.5; add B1.23 through B1.32, B2.6, B3.12,
B3.13, B6.9, and B6.10; and remove B5.13 through B5.16, to read as
follows:
[[Page 36240]]
Appendix B to Subpart D to Part 1021-Categorical Exclusions Applicable
to Specific Agency Actions
Table of Contents
* * * * *
B1.8 Modifications to screened water intake/outflow structures
* * * * *
B1.13 Construction/acquisition/relocation of onsite pathways, short
onsite access roads/railroads
* * * * *
B1.22 Relocation of buildings
B1.23 Demolition/disposal of buildings
B1.24 Transfer of structures/residential, commercial, industrial
use
B1.25 Transfer of land/habitat preservation, wildlife management
B1.26 Siting/construction/operation/decommissioning of small water
treatment facilities, less than approximately 250,000 gallons per
day capacity
B1.27 Disconnection of utilities
B1.28 Minor activities to place a facility in an environmentally
safe condition, no proposed uses
B1.29 Siting/construction/operation/decommissioning of small onsite
disposal facility for construction and demolition waste
B1.30 Transfer actions
B1.31 Relocation/operation of machinery and equipment
B1.32 Traffic flow adjustments, existing roads
* * * * *
B2.6 Packaging/transportation/storage of radioactive sources upon
request by the Nuclear Regulatory Commission or other cognizant
agency
* * * * *
B3.6 Siting/construction/operation/decommissioning of facilities
for bench-scale research, conventional laboratory operations, small-
scale research and development and pilot projects
* * * * *
B3.10 Siting/construction/operation/decommissioning of particle
accelerators, including electron beam accelerators, primary beam
energy less than approximately 100 MeV
* * * * *
B3.12 Siting/construction/operation/decommissioning of
microbiological and biomedical facilities
B3.13 Magnetic fusion experiments, no tritium fuel use
* * * * *
B5.3 Modification (not expansion)/abandonment of oil storage
access/brine injection/gas/geothermal wells, not part of site
closure
* * * * *
B5.5 Construction/operation of short crude oil/gas/steam/geothermal
pipeline segments
* * * * *
B5.9 Temporary exemption for any electric powerplant
B5.10 Certain permanent exemptions for any existing electric
powerplant
* * * * *
B5.12 Workover of existing oil/gas/geothermal well
* * * * *
B6.1 Small-scale, short-term cleanup actions under RCRA, Atomic
Energy Act, or other authorities
* * * * *
B6.5 Siting/construction/operation/decommissioning of facility for
characterizing/sorting packaged waste, overpacking waste
* * * * *
B6.9 Small-scale temporary measures to reduce migration of
contaminated groundwater
B6.10 Siting/construction/operation/decommissioning of small
upgraded or replacement waste storage facilities
* * * * *
11. Appendix B to Subpart D, section B is amended by revising
paragraphs B(1), B(2), and B(4)(iii) to read as follows:
B. Conditions That are Integral Elements of the Classes of Actions
in Appendix B
* * * * *
(1) Threaten a violation of applicable statutory, regulatory, or
permit requirements for environment, safety, and health, including
requirements of DOE and/or Executive Orders.
(2) Require siting and construction or major expansion of waste
storage, disposal, recovery, or treatment facilities (including
incinerators), but the proposal may include categorically excluded
waste storage, disposal, recovery, or treatment actions.
* * * * *
(4) * * *
(iii) Wetlands regulated under the Clean Water Act (33 U.S.C.
1344) and floodplains;
* * * * *
12. Appendix B to Subpart D, section B1, is amended by revising the
introductory text to paragraph B1.3, paragraphs B1.3(n) and (o), B1.8,
B1.13, B1.15, B1.18, B1.21, and B1.22, and adding paragraphs B1.23
through B1.32, to read as follows:
B1. Categorical Exclusions Applicable to Facility Operation
* * * * *
B1.3 Routine maintenance activities and custodial services for
buildings, structures, rights-of-way, infrastructures (e.g.,
pathways, roads, and railroads), vehicles and equipment, and
localized vegetation and pest control, during which operations may
be suspended and resumed. Custodial services are activities to
preserve facility appearance, working conditions, and sanitation,
such as cleaning, window washing, lawn mowing, trash collection,
painting, and snow removal. Routine maintenance activities,
corrective (that is, repair), preventive, and predictive, are
required to maintain and preserve buildings, structures,
infrastructures, and equipment in a condition suitable for a
facility to be used for its designated purpose. Routine maintenance
may result in replacement to the extent that replacement is in kind
and is not a substantial upgrade or improvement. In kind replacement
includes installation of new components to replace outmoded
components if the replacement does not result in a significant
change in the expected useful life, design capacity, or function of
the facility. Routine maintenance does not include replacement of a
major component that significantly extends the originally intended
useful life of a facility (for example, it does not include the
replacement of a reactor vessel near the end of its useful life).
Routine maintenance activities include, but are not limited to:
* * * * *
(n) Routine testing and calibration of facility components,
subsystems, or portable equipment (including but not limited to,
control valves, in-core monitoring devices, transformers,
capacitors, monitoring wells, lysimeters, weather stations, and
flumes); and
(o) Routine decontamination of the surfaces of equipment, rooms,
hot cells, or other interior surfaces of buildings (by such
activities as wiping with rags, using strippable latex, and minor
vacuuming), including removal of contaminated intact equipment and
other materials (other than spent nuclear fuel or special nuclear
material in nuclear reactors).
* * * * *
B1.8 Modifications to screened water intake and outflow
structures such that intake velocities and volumes and water
effluent quality and volumes are consistent with existing permit
limits.
* * * * *
B1.13 Construction, acquisition, and relocation of onsite
pathways and short onsite access roads and railroads.
* * * * *
B1.15 Siting, construction (or modification), and operation of
support buildings and support structures (including, but not limited
to, trailers and prefabricated buildings) within or contiguous to an
already developed area (where active utilities and currently used
roads are readily accessible). Covered support buildings and
structures include those for office purposes; parking; cafeteria
services; education and training; visitor reception; computer and
data processing services; employee health services or recreation
activities; routine maintenance activities; storage of supplies and
equipment for administrative services and routine maintenance
activities; security (including security posts); fire protection;
and similar support purposes, but excluding facilities for waste
storage activities, except as provided in other parts of this
appendix.
* * * * *
B1.18 Siting, construction, and operation of additional water
supply wells (or replacement wells) within an existing well field,
or modification of an existing water supply well to restore
production, if there would be no drawdown other than in the
immediate vicinity of the pumping well, no
[[Page 36241]]
resulting long-term decline of the water table, and no degradation
of the aquifer from the new or replacement well.
* * * * *
B1.21 Noise abatement measures, such as construction of noise
barriers and installation of noise control materials.
B1.22 Relocation of buildings (including, but not limited to,
trailers and prefabricated buildings) to an already developed area
(where active utilities and currently used roads are readily
accessible).
B1.23 Demolition and subsequent disposal of buildings,
equipment, and support structures (including, but not limited to,
smoke stacks and parking lot surfaces).
B1.24 Transfer, lease, disposition or acquisition of interests
in uncontaminated permanent or temporary structures, equipment
therein, and only land that is necessary for use of the transferred
structures and equipment, for residential, commercial, or industrial
uses (including, but not limited to, office space, warehouses,
equipment storage facilities) where, under reasonably foreseeable
uses, there would not be any lessening in quality, or increases in
volumes, concentrations, or discharge rates, of wastes, air
emissions, or water effluents, and environmental impacts would
generally be similar to those before the transfer, lease,
disposition, or acquisition of interests. Uncontaminated means that
there would be no potential for release of substances at a level, or
in a form, that would pose a threat to public health or the
environment.
B1.25 Transfer, lease, disposition or acquisition of interests
in uncontaminated land for habitat preservation or wildlife
management, and only associated buildings that support these
purposes. Uncontaminated means that there would be no potential for
release of substances at a level, or in a form, that would pose a
threat to public health or the environment.
B1.26 Siting, construction (or expansion, modification, or
replacement), operation, and decommissioning of small (total
capacity less than approximately 250,000 gallons per day) wastewater
and surface water treatment facilities whose liquid discharges are
externally regulated, and small potable water and sewage treatment
facilities.
B1.27 Activities that are required for the disconnection of
utility services such as water, steam, telecommunications, and
electrical power after it has been determined that the continued
operation of these systems is not needed for safety.
B1.28 Minor activities that are required to place a facility in
an environmentally safe condition where there is no proposed use for
the facility. These activities would include, but are not limited
to, reducing surface contamination, and removing materials,
equipment or waste, such as final defueling of a reactor, where
there are adequate existing facilities for the treatment, storage,
or disposal of the materials, equipment or waste. These activities
would not include conditioning, treatment, or processing of spent
nuclear fuel, high-level waste, or special nuclear materials.
B1.29 Siting, construction, operation, and decommissioning of a
small (less than approximately 10 acres) onsite disposal facility
for construction and demolition waste which would not release
substances at a level, or in a form, that would pose a threat to
public health or the environment. These wastes, as defined in the
Environmental Protection Agency's regulations under the Resource
Conservation and Recovery Act, specifically 40 CFR 243.101, include
building materials, packaging, and rubble.
B1.30 Transfer actions, in which the predominant activity is
transportation, and in which the amount and type of materials,
equipment or waste to be moved is small and incidental to the amount
of such materials, equipment, or waste that is already a part of
ongoing operations at the receiving site. Such transfers are not
regularly scheduled as part of ongoing routine operations.
B1.31 Relocation of machinery and equipment, such as analytical
laboratory apparatus, electronic hardware, maintenance equipment,
and health and safety equipment, including minor construction
necessary for removal and installation, where uses of the relocated
items will be similar to their former uses and consistent with the
general missions of the receiving structure.
B1.32 Traffic flow adjustments to existing roads at DOE sites
(including, but not limited to, stop sign or traffic light
installation, adjusting direction of traffic flow, and adding
turning lanes). Road adjustments such as widening or realignment are
not included.
13. Appendix B to Subpart D, section B2, is amended by adding B2.6,
to read as follows:
B2. Categorical Exclusions Applicable to Safety and Health
* * * * *
B2.6 Packaging, transportation, and storage of radioactive
materials from the public domain, in accordance with the Atomic
Energy Act upon a request by the Nuclear Regulatory Commission or
other cognizant agency, which would include a State that regulates
radioactive materials under an agreement with the Nuclear Regulatory
Commission or other agencies that may, under unusual circumstances,
have responsibilities regarding the materials that are included in
the categorical exclusion. Covered materials are those for which
possession and use by Nuclear Regulatory Commission licensees has
been categorically excluded under 10 CFR 51.22(14) or its
successors. Examples of these radioactive materials (which may
contain source, byproduct or special nuclear materials) are density
gauges, therapeutic medical devices, generators, reagent kits,
irradiators, analytical instruments, well monitoring equipment,
uranium shielding material, depleted uranium military munitions, and
packaged radioactive waste not exceeding 50 curies.
14. Appendix B to Subpart D, section B3, is amended by revising the
introductory text to paragraph B3.1, B3.3, B3.6, and B3.10, and adding
new paragraphs B3.12 and B3.13, to read as follows:
B3. Categorical Exclusions Applicable to Site Characterization,
Monitoring, and General Research
B3.1 Onsite and offsite site characterization and environmental
monitoring, including siting, construction (or modification),
operation, and dismantlement or closing (abandonment) of
characterization and monitoring devices and siting, construction,
and associated operation of a small-scale laboratory building or
renovation of a room in an existing building for sample analysis.
Activities covered include, but are not limited to, site
characterization and environmental monitoring under CERCLA and RCRA.
Specific activities include, but are not limited to:
* * * * *
B3.3 Field and laboratory research, inventory, and information
collection activities that are directly related to the conservation
of fish or wildlife resources and that involve only negligible
habitat destruction or population reduction.
* * * * *
B3.6 Siting, construction (or modification), operation, and
decommissioning of facilities for indoor bench-scale research
projects and conventional laboratory operations (for example,
preparation of chemical standards and sample analysis); small-scale
research and development projects; and small-scale pilot projects
(generally less than two years) conducted to verify a concept before
demonstration actions. Construction (or modification) will be within
or contiguous to an already developed area (where active utilities
and currently used roads are readily accessible). See also C12.
* * * * *
B3.10 Siting, construction, operation, and decommissioning of a
particle accelerator, including electron beam accelerator with
primary beam energy less than approximately 100 MeV, and associated
beamlines, storage rings, colliders, and detectors for research and
medical purposes, within or contiguous to an already developed area
(where active utilities and currently used roads are readily
accessible), or internal modification of any accelerator facility
regardless of energy that does not increase primary beam energy or
current.
* * * * *
B3.12 Siting, construction (or modification), operation, and
decommissioning of microbiological and biomedical diagnostic,
treatment and research facilities (excluding Biosafety Level-3 and
Biosafety Level-4; reference: Biosafety in Microbiological and
Biomedical Laboratories, 3rd Edition, May 1993, U.S. Department of
Health and Human Services Public Health Service, Centers of Disease
Control and Prevention, and the National Institutes of Health (HHS
Publication No. (CDC) 93-8395)) including, but not limited to,
laboratories, treatment areas, offices, and storage areas, within or
contiguous to an already developed area (where active utilities and
currently used roads are readily accessible). Operation may include
the purchase, installation, and operation of biomedical equipment,
such as commercially
[[Page 36242]]
available cyclotrons that are used to generate radioisotopes and
radiopharmaceuticals, and commercially available biomedical imaging
and spectroscopy instrumentation.
B3.13 Performing magnetic fusion experiments that do not use
tritium as fuel, with existing facilities (including necessary
modifications).
15. Appendix B to Subpart D, section B5, is amended by revising
paragraphs B5.3, B5.5 and B5.9 through B5.12 and removing B5.13 through
B5.16, to read as follows:
B5. Categorical Exclusions Applicable to Conservation, Fossil, and
Renewable Energy Activities
* * * * *
B5.3 Modification (but not expansion) or abandonment (including
plugging), which is not part of site closure, of crude oil storage
access wells, brine injection wells, geothermal wells, and gas
wells.
* * * * *
B5.5 Construction and subsequent operation of short crude oil,
steam, geothermal, or natural gas pipeline segments between DOE
facilities and existing transportation, storage, or refining
facilities within a single industrial complex, if the pipeline
segments are within existing rights-of-way.
* * * * *
B5.9 The grant or denial of any temporary exemption under the
Powerplant and Industrial Fuel Use Act of 1978 for any electric
powerplant.
B5.10 The grant or denial of any permanent exemption under the
Powerplant and Industrial Fuel Use Act of 1978 of any existing
electric powerplant other than an exemption under (1) section 312(c)
relating to cogeneration, (2) section 312(l) relating to scheduled
equipment outages, (3) section 312(b) relating to certain state or
local requirements, and (4) section 312(g) relating to certain
intermediate load powerplants.
B5.11 The grant or denial of a permanent exemption from the
prohibitions of Title II of the Powerplant and Industrial Fuel Use
Act of 1978 for any new electric powerplant to permit the use of
certain fuel mixtures containing natural gas or petroleum.
B5.12 Workover (operations to restore production, such as
deepening, plugging back, pulling and resetting lines, and squeeze
cementing) of an existing oil, gas, or geothermal well to restore
production when workover operations will be restricted to the
existing wellpad and not involve any new site preparation or earth
work that would adversely affect adjacent habitat.
16. Appendix B to Subpart D, section B6, is amended by revising the
introductory text to paragraph B6.1, paragraph B6.1 (b), (g), and (j),
B6.5, and adding paragraphs B6.9 and B6.10, to read as follows:
B6. Categorical Exclusions Applicable to Environmental Restoration
and Waste Management Activities
B6.1 Small-scale, short-term cleanup actions, under RCRA,
Atomic Energy Act, or other authorities, less than approximately 5
million dollars in cost and 5 years duration, to reduce risk to
human health or the environment from the release or threat of
release of a hazardous substance other than high-level radioactive
waste and spent nuclear fuel, including treatment (e.g.,
incineration), recovery, storage, or disposal of wastes at existing
facilities currently handling the type of waste involved in the
action. These actions include, but are not limited to:
* * * * *
(b) Removal of bulk containers (for example, drums, barrels)
that contain or may contain hazardous substances, pollutants,
contaminants, CERCLA-excluded petroleum or natural gas products, or
hazardous wastes (designated in 40 CFR part 261 or applicable state
requirements), if such actions would reduce the likelihood of
spillage, leakage, fire, explosion, or exposure to humans, animals,
or the food chain;
* * * * *
(g) Confinement or perimeter protection using dikes, trenches,
ditches, diversions, or installing underground barriers, if needed
to reduce the spread of, or direct contact with, the contamination;
* * * * *
(j) Segregation of wastes that may react with one another or
form a mixture that could result in adverse environmental impacts;
* * * * *
B6.5 Siting, construction (or modification or expansion),
operation, and decommissioning of an onsite facility for
characterizing and sorting previously packaged waste or for
overpacking waste, other than high-level radioactive waste, if
operations do not involve unpacking waste. These actions do not
include waste storage (covered under B6.4, B6.6, B6.10, and C16) or
the handling of spent nuclear fuel.
* * * * *
B6.9 Small-scale temporary measures to reduce migration of
contaminated groundwater, including the siting, construction,
operation, and decommissioning of necessary facilities. These
measures include, but are not limited to, pumping, treating,
storing, and reinjecting water, by mobile units or facilities that
are built and then removed at the end of the action.
B6.10 Siting, construction (or modification), operation, and
decommissioning of a small upgraded or replacement facility (less
than approximately 50,000 square feet in area) at a DOE site within
or contiguous to an already developed area (where active utilities
and currently used roads are readily accessible) for storage of
waste that is already at the site at the time the storage capacity
is to be provided. These actions do not include the storage of high-
level radioactive waste, spent nuclear fuel or any waste that
requires special precautions to prevent nuclear criticality. See
also B6.4, B6.5, B6.6, and C16.
17. Appendix C to Subpart D is amended in the Table of Contents by
removing and reserving the entries for C1 and C10 and by revising the
entries for C11, C14 and C16 to read as follows:
Appendix C to Subpart D to Part 1021--Classes of Actions That Normally
Require EAs But Not Necessarily EISs
Table of Contents
C1 [Removed and Reserved]
* * * * *
C10 [Removed and Reserved]
C11 Siting/construction/operation/decommissioning of low- or
medium-energy particle acceleration facility with primary beam
energy greater than approximately 100 MeV
* * * * *
C14 Siting/construction/operation of water treatment facilities
greater than approximately 250,000 gallons per day capacity
* * * * *
C16 Siting/construction/operation/decommissioning of large waste
storage facilities
18. Appendix C to Subpart D to Part 1021 is amended by removing and
reserving paragraphs C1 and C10 and by revising C11, C14 and C16, to
read as follows:
C1 [Removed and reserved].
* * * * *
C10 [Removed and reserved].
C11 Siting, construction (or modification), operation, and
decommissioning of a low- or medium-energy (but greater than
approximately 100 MeV primary beam energy) particle acceleration
facility, including electron beam acceleration facilities, and
associated beamlines, storage rings, colliders, and detectors for
research and medical purposes, within or contiguous to an already
developed area (where active utilities and currently used roads are
readily accessible).
* * * * *
C14 Siting, construction (or expansion), operation, and
decommissioning of wastewater, surface water, potable water, and
sewage treatment facilities with a total capacity greater than
approximately 250,000 gallons per day, and of lower capacity
wastewater and surface water treatment facilities whose liquid
discharges are not subject to external regulation.
* * * * *
C16 Siting, construction (or modification to increase
capacity), operation, and decommissioning of packaging and unpacking
facilities (that may include characterization operations) and large
storage facilities (greater than approximately 50,000 square feet in
area) for waste, except high-level radioactive waste, generated
onsite or resulting from activities connected to site operations.
These actions do not include storage, packaging, or unpacking of
spent nuclear fuel. See also B6.4, B6.5, B6.6, and B6.10.
19. Appendix D to Subpart D is amended to revise the Table of
Contents
[[Page 36243]]
entries for D1 and D10 to read as follows:
Appendix D to Subpart D to Part 1021--Classes of Actions That Normally
Require EISs
Table of Contents
D1 Strategic Systems
* * * * *
D10 Siting/construction/operation/decommissioning of major
treatment, storage, and disposal facilities for high-level waste and
spent nuclear fuel
* * * * *
20. Appendix D to subpart D to part 1021 is amended by revising
paragraphs D1 and D10, to read as follows:
D1 Strategic Systems, as defined in DOE Order 430.1, ``Life-
Cycle Asset Management,'' and designated by the Secretary.
* * * * *
D10 Siting, construction, operation, and decommissioning of
major treatment, storage, and disposal facilities for high-level
waste and spent nuclear fuel, including geologic repositories, but
not including onsite replacement or upgrades of storage facilities
for spent nuclear fuel at DOE sites where such replacement or
upgrade will not result in increased storage capacity.
* * * * *
[FR Doc. 96-17285 Filed 7-8-96; 8:45 am]
BILLING CODE 6450-01-P