[Federal Register Volume 89, Number 57 (Friday, March 22, 2024)]
[Notices]
[Pages 20470-20472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06051]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL OP-OFA-116]


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 exclusions.

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SUMMARY: The Environmental Protection Agency (EPA) is adopting two 
categorical exclusions (CEs) from the Department of Energy (DOE) under 
the National Environmental Policy Act (NEPA) for drop-off, collection, 
and transfer facilities for recyclable materials and for installation 
or relocation of machinery and equipment, to use in EPA's programs and 
in funding opportunities administered by EPA. This notice describes the 
categories of proposed actions for which EPA intends to use DOE's CEs 
and describes the consultation between the agencies.

DATES: This action is effective upon publication.

FOR FURTHER INFORMATION CONTACT: Dan Halpert, EPA Solid Waste 
Infrastructure for Recycling Program, by phone at 202-566-0816 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 its 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. 
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 describes EPA's adoption 
of DOE's CEs under section 109 of NEPA to use in EPA's program and in 
funding opportunities administered by EPA.

EPA's Program

    EPA intends to use DOE's recycling facilities and equipment 
installation CEs in EPA's program and in funding opportunities, 
including those administered by the EPA Solid Waste Infrastructure for 
Recycling (SWIFR) Program.
    The SWIFR Program provides funding to eligible entities to 
implement the National Recycling Strategy to improve post-consumer 
materials management and infrastructure; support improvements to local 
post-consumer materials management and recycling programs; and assist 
local waste management authorities in making improvements to local 
waste management systems. The SWIFR program funds projects for the 
siting, construction, modification, and operation of recycling or 
compostable material drop-off, collection, and transfer station 
facilities. Funding administered by the SWIFR program may also be used 
at these recycling, reuse, composting, or other waste management 
facilities for the installation or relocation and operation of 
machinery and equipment, such as crushers, shredders, sorters, and 
baling equipment. EPA also intends to use the DOE CEs adopted through 
this notice for activities administered under other EPA programs that 
meet this description of SWIFR program activities.

II. Identification of the Categorical Exclusions

    EPA is adopting two CEs from DOE for drop-off, collection, and 
transfer facilities for recyclable materials and for the installation 
or relocation of machinery and equipment.
    DOE's CE for recycling facilities is codified in DOE's NEPA 
procedures as CE B1.35 of 10 CFR part 1021, subpart D, appendix B, as 
follows:

    B1.35 Drop-Off, Collection, and Transfer Facilities for 
Recyclable Materials. The siting, construction, modification, and 
operation of recycling or compostable material drop-off, collection, 
and transfer stations on or contiguous to a previously disturbed or 
developed area and in an area where such a facility would be 
consistent with existing zoning requirements. The stations would

[[Page 20471]]

have appropriate facilities and procedures established in accordance 
with applicable requirements for the handling of recyclable or 
compostable materials and household hazardous waste (such as paint 
and pesticides). Except as specified above, the collection of 
hazardous waste for disposal and the processing of recyclable or 
compostable materials are not included in this class of actions.

    DOE's CE for equipment installation or relocation is codified in 
DOE's NEPA procedures as CE B1.31 of 10 CFR part 1021, subpart D, 
appendix B, as follows:

    B1.31 Installation or Relocation of Machinery and Equipment. 
Installation or relocation and operation of machinery and equipment 
(including, but not limited to, laboratory equipment, electronic 
hardware, manufacturing machinery, maintenance equipment, and health 
and safety equipment), provided that uses of the installed or 
relocated items are consistent with the general missions of the 
receiving structure. Covered actions include modifications to an 
existing building, within or contiguous to a previously disturbed or 
developed area, that are necessary for equipment installation and 
relocation. Such modifications would not appreciably increase the 
footprint or height of the existing building or have the potential 
to cause significant changes to the type and magnitude of 
environmental impacts.

    ``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 CEs also include additional conditions referred to as 
integral elements (10 CFR part 1021, subpart D, appendix B). In order 
to apply these CEs, 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 CE B1.35 to support proposals for the siting, 
construction, modification, and operation of recycling or compostable 
material drop-off, collection, and transfer station projects. 
Activities under this CE may be undertaken directly by EPA or be 
financed in whole or in part through Federal funding opportunities, 
including those administered by the SWIFR Program. The siting, 
construction, modification, and operation of drop-off, collection, and 
transfer stations must be on or contiguous to a previously disturbed or 
developed area, in an area where such a facility would be consistent 
with existing zoning requirements, and the stations would have 
appropriate facilities and procedures established in accordance with 
applicable requirements for the handling of recyclable or compostable 
materials and households hazardous waste (such as paint and 
pesticides). EPA will also review each proposal for the limitations in 
applying the CE to ensure that the proposal is within the scope of the 
CE and will not involve the collection of hazardous waste for disposal 
or the processing of recyclable or compostable materials.
    EPA intends to apply CE B1.31 to support proposals for the 
installation or relocation of machinery and equipment, such as 
crushers, shredders, sorters, and baling equipment, at recycling, 
reuse, composting, or other waste management facilities administered 
under the SWIFR Program and for similar activities undertaken directly 
by EPA or financed in whole or in part through Federal funding 
opportunities. EPA will consider each proposal for the installation or 
relocation and operation of machinery and equipment to ensure that uses 
of the installed or relocated machinery and equipment are consistent 
with the general mission of the receiving structure. For proposals 
requiring modifications to an existing building, within or contiguous 
to a previously disturbed or developed area,

[[Page 20472]]

that are necessary for the equipment installation and relocation, EPA 
will review each proposal to ensure that such modifications are within 
the scope of the CE and would not appreciably increase the footprint or 
height of the existing building or have the potential to cause 
significant changes to the type and magnitude of environmental impacts.

III. Consideration of Extraordinary Circumstances

    When applying these CEs, EPA will evaluate the proposed action to 
ensure consideration of the integral elements listed above. In 
addition, 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 CEs in December 2023. EPA and DOE's consultation included a review 
of DOE's experience developing and applying the CEs, as well as the 
types of actions for which EPA plans to utilize the CEs. These EPA 
actions are very similar to the type of projects for which DOE has 
applied the CEs and therefore the effects of EPA projects will be very 
similar to the effects of DOE projects, which are not significant, 
absent extraordinary circumstances. Therefore, EPA has determined that 
its proposed use of the CE for the Drop-off, Collection, and Transfer 
Facilities for Recyclable Materials and the CE for Installation or 
Relocation of Machinery and Equipment as described in this notice are 
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 CEs for B1.35 Drop-off, Collection, and Transfer 
Facilities for Recyclable Materials and for B1.31 Installation or 
Relocation of Machinery and Equipment. This notice identifies the types 
of actions to which EPA will apply the CEs, as well as the 
considerations that EPA will use in determining whether an action is 
within the scope of the CEs.

    Dated: March 18, 2024.
Elizabeth Shaw,
Director, Resource Conservation and Sustainability Division, Office of 
Resource Conservation and Recovery, Office of Land and Emergency 
Management.
[FR Doc. 2024-06051 Filed 3-21-24; 8:45 am]
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