[Federal Register Volume 89, Number 35 (Wednesday, February 21, 2024)]
[Notices]
[Pages 13077-13079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03502]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL OP-OFA-110]


Notice of Adoption of Department of Energy Categorical Exclusion 
Under the National Environmental Policy Act

AGENCY: Environmental Protection Agency.

ACTION: Notice of adoption of categorical exclusion.

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SUMMARY: The Environmental Protection Agency (EPA) is adopting the 
Department of Energy's (DOE) Categorical Exclusion (CE) for Methane Gas 
Recovery and Utilization Systems under the National Environmental 
Policy Act (NEPA) to use in EPA's program and funding opportunities 
administered by EPA. This notice describes the categories of proposed 
actions for which EPA intends to use DOE's CE and describes the 
consultation between the agencies.

DATES: This action is effective upon publication.

FOR FURTHER INFORMATION CONTACT: Melissa Winters, Manager, Pollution 
Prevention and Communities Branch, Land, Chemicals, and Redevelopment 
Division, EPA Region 10, by phone at 206-553-5180, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

NEPA and CEs

    The National Environmental Policy Act, as amended at, 42 U.S.C. 
4321-4347 (NEPA), requires all Federal agencies to assess the 
environmental impact of their actions. Congress enacted NEPA in order 
to encourage productive and enjoyable harmony between humans and the 
environment, recognizing the profound impact of human activity and the 
critical importance of restoring and maintaining environmental quality 
to the overall welfare of humankind. 42 U.S.C. 4321, 4331. NEPA's twin 
aims are to ensure agencies consider the environmental effects of their 
proposed actions in their decision-making processes and inform and 
involve the public in that process. 42 U.S.C. 4331. NEPA created the 
Council on Environmental Quality (CEQ), which promulgated NEPA 
implementing regulations, 40 CFR parts 1500 through 1508 (CEQ 
regulations).
    To comply with NEPA, agencies determine the appropriate level of 
review--an environmental impact statement (EIS), environmental 
assessment (EA), or CE. 42 U.S.C. 4336. If a proposed action is likely 
to have significant environmental effects, the agency must prepare an 
EIS and document its decision in a record of decision. 42 U.S.C. 4336. 
If the proposed action is not likely to have significant environmental 
effects or the effects are unknown, the agency may instead prepare an 
EA, which involves a more concise analysis and process than an EIS. 42 
U.S.C. 4336. Following the EA, the agency may conclude the process with 
a finding of no significant impact if the analysis shows that the 
action will have no significant effects. If the analysis in the EA 
finds that the action is likely to have significant effects, however, 
then an EIS is required.
    Under NEPA and the CEQ regulations, a Federal agency also can 
establish CEs--categories of actions that the agency has determined 
normally do not significantly affect the quality of the human 
environment--in their agency NEPA procedures. 42 U.S.C. 4336(e)(1); 40 
CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency determines that a 
CE covers a proposed action, it then evaluates the proposed action for 
extraordinary circumstances in which a normally excluded action may 
have a significant effect. 40 CFR 1501.4(b). If no extraordinary 
circumstances are present or if further analysis determines that the 
extraordinary circumstances do not involve the potential for 
significant environmental effects, the agency may apply the CE to the 
proposed action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2), 
40 CFR 1501.4. If the extraordinary circumstances have the potential to 
result in significant effects, the agency is required to prepare an EA 
or EIS.
    Section 109 of NEPA, enacted as part of the Fiscal Responsibility 
Act of 2023, allows a Federal agency to ``adopt'' and use another 
agency's CEs for a category of proposed agency actions. 42 U.S.C.

[[Page 13078]]

4336(c). To use another agency's CEs under section 109, the adopting 
agency must identify the relevant CEs listed in another agency's 
(``establishing agency'') NEPA procedures that cover the adopting 
agency's category of proposed actions or related actions; consult with 
the establishing agency to ensure that the proposed adoption of the CE 
to a category of actions is appropriate; identify to the public the CE 
that the adopting agency plans to use for its proposed actions; and 
document adoption of the CE. Id.
    This notice documents EPA's adoption of DOE's CE for Methane Gas 
Recovery and Utilization Systems under section 109 of NEPA to use in 
EPA's program and funding opportunities, including those administered 
for Congressionally directed spending for projects identified in EPA's 
Appropriations Acts. Types of projects funded under EPA's 
Appropriations Acts include activities that reduce greenhouse gas 
emissions and pollution in communities, including capturing methane 
from wastewater treatment plants and landfills.

II. Identification of the Categorical Exclusion

    EPA is adopting DOE's CE for Methane Gas Recovery and Utilization 
Systems. DOE's CE is codified in DOE's NEPA procedures as CE B5.21 of 
10 CFR part 1021, subpart D, appendix B, as follows:

B5.21 Methane Gas Recovery and Utilization Systems

    The installation, modification, operation, and removal of 
commercially available methane gas recovery and utilization systems 
installed within a previously disturbed or developed area on or 
contiguous to an existing landfill or wastewater treatment plant that 
would not have the potential to cause a significant increase in the 
quantity or rate of air emissions. Covered actions would be in 
accordance with applicable requirements (such as local land use and 
zoning requirements) in the proposed project area and would incorporate 
appropriate control technologies and best management practices.
    ``Previously disturbed or developed'' refers to land that has been 
changed such that its functioning ecological processes have been and 
remain altered by human activity. The phrase encompasses areas that 
have been transformed from natural cover to nonnative species or a 
managed state, including, but not limited to, utility and electric 
power transmission corridors and rights-of-way, and other areas where 
active utilities and currently used roads are readily available. 10 CFR 
1021.410(g)(1).
    The DOE CE also includes additional conditions referred to as 
integral elements (10 CFR part 1021, subpart D, appendix B). In order 
to apply this CE, the proposal must be one that would not:
    (1) Threaten a violation of applicable statutory, regulatory, or 
permit requirements for environment, safety, and health, or similar 
requirements of EPA \1\ or Executive Orders;
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    \1\ Modified from 10 CFR part 1021 subpart D, app. B to reflect 
EPA as the adopting agency.
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    (2) Require siting and construction or major expansion of waste 
storage, disposal, recovery, or treatment facilities (including 
incinerators), but the proposal may include categorically excluded 
waste storage, disposal, recovery, or treatment actions or facilities;
    (3) Disturb hazardous substances, pollutants, contaminants, or 
CERCLA excluded petroleum and natural gas products that preexist in the 
environment such that there would be uncontrolled or unpermitted 
releases;
    (4) Have the potential to cause significant impacts on 
environmentally sensitive resources. An environmentally sensitive 
resource is typically a resource that has been identified as needing 
protection through Executive Order, statute, or regulation by Federal, 
state, or local government, or a federally recognized Indian tribe. An 
action may be categorically excluded if, although sensitive resources 
are present, the action would not have the potential to cause 
significant impacts on those resources (such as construction of a 
building with its foundation well above a sole-source aquifer or upland 
surface soil removal on a site that has wetlands). Environmentally 
sensitive resources include, but are not limited to:
    (i) Property (such as sites, buildings, structures, and objects) of 
historic, archeological, or architectural significance designated by a 
Federal, State, or local government, federally recognized Indian tribe, 
or Native Hawaiian organization, or property determined to be eligible 
for listing on the National Register of Historic Places;
    (ii) Federally listed threatened or endangered species or their 
habitat (including critical habitat) or Federally proposed or candidate 
species or their habitat (Endangered Species Act); state listed or 
state-proposed endangered or threatened species or their habitat; 
Federally-protected marine mammals and Essential Fish Habitat (Marine 
Mammal Protection Act; Magnuson-Stevens Fishery Conservation and 
Management Act); and otherwise Federally-protected species (such as the 
Bald and Golden Eagle Protection Act or the Migratory Bird Treaty Act);
    (iii) Floodplains and wetlands;
    (iv) Areas having a special designation such as Federally- and 
state designated wilderness areas, national parks, national monuments, 
national natural landmarks, wild and scenic rivers, state and Federal 
wildlife refuges, scenic areas (such as National Scenic and Historic 
Trails or National Scenic Areas), and marine sanctuaries;
    (v) Prime or unique farmland, or other farmland of statewide or 
local importance, as defined at 7 CFR 658.2(a), ``Farmland Protection 
Policy Act: Definitions,'' or its successor;
    (vi) Special sources of water (such as sole-source aquifers, 
wellhead protection areas, and other water sources that are vital in a 
region); and
    (vii) Tundra, coral reefs, or rain forests; or
    (5) Involve genetically engineered organisms, synthetic biology, 
governmentally designated noxious weeds, or invasive species, unless 
the proposed activity would be contained or confined in a manner 
designed and operated to prevent unauthorized release into the 
environment and conducted in accordance with applicable requirements, 
such as those of the Department of Agriculture, EPA, and the National 
Institutes of Health.

Proposed EPA Category of Actions

    EPA intends to apply this CE to support proposals for the 
installation, modification, operation, and removal of commercially 
available methane gas recovery and utilization systems. The systems 
must be within a previously disturbed or developed area, and must be on 
or contiguous to an existing landfill or wastewater treatment plant. 
Activities covered by the CE may be undertaken directly by EPA or be 
financed in whole or in part through Federal funding opportunities, 
including those administered for Congressionally directed spending for 
projects identified in EPA's Appropriations Acts. EPA will consider 
each proposal for the installation, modification, operation, and 
removal of commercially available methane gas recovery and utilization 
projects to ensure that the proposal is within the scope of the CE.

III. Consideration of Extraordinary Circumstances

    When applying this CE, EPA will evaluate the proposed action to 
ensure consideration of the integral elements

[[Page 13079]]

listed above. In considering extraordinary circumstances, EPA will 
consider whether the proposed action has the potential to result in 
significant effects as described in DOE's extraordinary circumstances 
listed at 10 CFR 1021.410(b)(2). DOE defines extraordinary 
circumstances as unique situations presented by specific proposals, 
including, but not limited to, scientific controversy about the 
environmental effects of the proposal; uncertain effects or effects 
involving unique or unknown risks; and unresolved conflicts concerning 
alternative uses of available resources. In addition, EPA will consider 
its list of extraordinary circumstances as described at 40 CFR 
6.204(b).

IV. Consultation With DOE and Determination of Appropriateness

    EPA and DOE consulted on the appropriateness of EPA's adoption of 
the CE in November 2023. EPA and DOE's consultation included a review 
of DOE's experience developing and applying the CE, as well as the 
types of actions for which EPA plans to utilize the CE. These EPA 
actions are very similar to the type of projects for which DOE has 
applied the CE and therefore the impacts of EPA projects will be very 
similar to the impacts of DOE projects, which are not significant, 
absent extraordinary circumstances. Therefore, EPA has determined that 
its proposed use of the methane gas recovery and utilization systems CE 
as described in this notice is appropriate.

V. Notice to the Public and Documentation of Adoption

    This notice serves to identify to the public and document EPA's 
adoption of DOE's CE B5.21 for Methane Gas Recovery and Utilization 
Systems. This notice identifies the types of actions to which EPA will 
apply the CE, as well as the considerations that EPA will use in 
determining whether an action is within the scope of the CE.

    Dated: February 14, 2024.
Timothy Hamlin,
Director, Land, Chemicals, and Redevelopment Division, EPA Region 10.
[FR Doc. 2024-03502 Filed 2-20-24; 8:45 am]
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