[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34074-34094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09186]
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DEPARTMENT OF ENERGY
10 CFR Part 1021
[DOE-HQ-2023-0063]
RIN 1990-AA48
National Environmental Policy Act Implementing Procedures
AGENCY: Office of the General Counsel, Department of Energy.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Energy (DOE or the Department) is
revising its National Environmental Policy Act (NEPA) implementing
procedures (regulations) to add a categorical exclusion for certain
energy storage systems and revise categorical exclusions for upgrading
and rebuilding powerlines and for solar photovoltaic systems, as well
as to make conforming changes to related sections of DOE's NEPA
regulations. These changes will help ensure that DOE conducts an
appropriate and efficient environmental review of proposed projects
that normally do not result in significant environmental impacts.
DATES: This rule is effective May 30, 2024.
ADDRESSES: Documents relevant to this rulemaking are posted at
www.regulations.gov (Docket: DOE-HQ-2023-0063). These documents
include: the notice of proposed rulemaking, public comments, this final
rule, and DOE's Technical Support Document, which provides additional
information regarding the changes and a redline/strikeout version of
affected sections of the DOE NEPA regulations indicating the changes
made by this rule.
FOR FURTHER INFORMATION CONTACT: For information regarding DOE's NEPA
regulations, contact Ms. Carrie Abravanel, Deputy Director, Office of
NEPA Policy and Compliance, at [email protected] or 202-586-
4798.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction and Background
II. Establishment and Use of Categorical Exclusions
III. Changes Made in This Final Rule
A. Overview
B. Changes to Categorical Exclusion B4.13 for Upgrading and
Rebuilding Existing Powerlines and Related Provisions
C. New Categorical Exclusion B4.14 for Certain Energy Storage
Systems and Related Provisions
D. Changes to Categorical Exclusion B5.16 for Solar Photovoltaic
Systems and Related Provisions
IV. Comments Received and DOE's Responses
A. General Comments on Proposed Amendments
B. Comments Regarding Upgrading and Rebuilding Powerlines
C. Comments Regarding Energy Storage Systems
D. Comments Regarding Solar Photovoltaic Systems
V. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866, 13563, and 14094
B. Review Under Executive Orders 12898 and 14096
C. Review Under National Environmental Policy Act
D. Review Under Regulatory Flexibility Act
E. Review Under Paperwork Reduction Act
F. Review Under Unfunded Mandates Reform Act of 1995
G. Review Under Treasury and General Government Appropriations
Act, 1999
H. Review Under Executive Order 13132
I. Review Under Executive Order 12988
J. Review Under Treasury and General Government Appropriations
Act, 2001
K. Review Under Executive Order 13211
L. Review Under Executive Order 12630
M. Congressional Notification
VI. Approval of the Office of the Secretary
I. Introduction and Background
The National Environmental Policy Act, as amended, (42 U.S.C. 4321
et seq.) requires Federal agencies to provide a detailed statement
regarding the environmental impacts of proposals for major Federal
actions significantly affecting the quality of the human environment.
The Council on Environmental Quality (CEQ) regulations implementing
NEPA (40 CFR parts 1500-1508) require agencies to develop their own
NEPA implementing procedures to apply the CEQ regulations to their
specific programs and decision-making processes (40 CFR 1507.3). DOE
promulgated its regulations entitled ``National Environmental Policy
Act Implementing Procedures'' (10 CFR part 1021) on April 24, 1992 (57
FR 15122), revised these regulations on five subsequent occasions,\1\
and now revises these regulations again with this rule.
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\1\ July 9, 1996 (61 FR 36222), December 6, 1996 (61 FR 64603),
August 27, 2003 (68 FR 51429), October 13, 2011 (76 FR 63764), and
December 4, 2020 (85 FR 78197).
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NEPA establishes three types of environmental review for Federal
proposed actions--environmental impact statement, environmental
assessment, and categorical exclusion--each involving different levels
of information and analysis. An environmental impact statement is a
detailed analysis of reasonably foreseeable environmental effects
prepared for a major Federal action significantly affecting the quality
of the human environment (42 U.S.C. 4332(2)(C) and 40 CFR part 1502 and
section 1508.1(j)). An environmental assessment is a concise public
document prepared by a Federal agency to set forth the basis for its
finding of no significant impact or its determination that an
environmental impact statement is necessary (42 U.S.C. 4336(b)(2) and
40 CFR 1501.5, 1501.6, and 1508.1(h)). A categorical exclusion is a
category of actions that the agency has determined, as established in
its agency NEPA procedures, normally does not have a significant effect
on the human environment and therefore does not require preparation of
an environmental assessment or environmental impact statement (40 CFR
1501.4, 1507.3(e)(2)(ii), and 1508.1(d)). DOE's procedures for applying
categorical exclusions require the Department to consider several
conditions (described in section II of this document), including
whether extraordinary circumstances exist such that a normally excluded
action may have a significant environmental effect.
II. Establishment and Use of Categorical Exclusions
CEQ issued guidance in 2010 on establishing, applying, and revising
categorical exclusions under NEPA (75 FR 75628; December 6, 2010). CEQ
explained, ``Categorical exclusions are
[[Page 34075]]
not exemptions or waivers of NEPA review; they are simply one type of
NEPA review. To establish a categorical exclusion, agencies determine
whether a proposed activity is one that, on the basis of past
experience, normally does not require further environmental review.
Once established, categorical exclusions provide an efficient tool to
complete the NEPA environmental review process for proposals that
normally do not require more resource intensive [environmental
assessments or environmental impact statements]. The use of categorical
exclusions can reduce paperwork and delay, so that [environmental
assessments or environmental impact statements] are targeted toward
proposed actions that truly have the potential to cause significant
environmental effects.''
DOE establishes and revises categorical exclusions pursuant to a
rulemaking, such as this one, for defined classes of actions that the
Department determines are supported by a record showing that the
actions normally do not have significant environmental impacts,
individually or cumulatively. To establish the record in this
rulemaking, DOE evaluated environmental assessments prepared by DOE and
by other Federal agencies, categorical exclusions established by DOE
and by other Federal agencies, categorical exclusion determinations,
technical reports, applicable requirements, industry practices, and
other publicly available information. DOE summarized this information
in the preamble to the notice of proposed rulemaking and in a Technical
Support Document that was issued alongside the notice of proposed
rulemaking (88 FR 78681; November 16, 3023). DOE provided the public
with an opportunity to review and comment on DOE's proposed changes.
DOE reviewed all comments received on the notice of proposed
rulemaking, added information to the Technical Support Document,
revised the categorical exclusions addressed in this rule (section III
of this document), and prepared responses to public comments (section
IV of this document).
In addition to developing a substantiation record to support the
establishment or revision of a categorical exclusion, DOE also conducts
a project-specific environmental review when determining whether one or
more categorical exclusions applies to a proposed action. This entails
evaluation of a proposed action against several requirements included
in DOE's NEPA regulations. DOE must determine on a case-by-case basis,
in accordance with 10 CFR 1021.410(b), that: (1) the proposed action
fits within a categorical exclusion listed in appendix A or B to
subpart D of part 1021, including (in the case of categorical
exclusions listed in appendix B) the integral elements set forth in
appendix B; (2) there are no extraordinary circumstances \2\ related to
the proposal that may affect the significance of the environmental
impacts of the proposed action and require preparation of an
environmental assessment or environmental impact statement, consistent
with 40 CFR 1501.4(b)(1) and (b)(2); and (3) the proposal has not been
improperly segmented \3\ to meet the definition of a categorical
exclusion, there are no connected or related actions with cumulatively
significant impacts, and the proposed action is not precluded by 40 CFR
1506.1 or 10 CFR 1021.211 as an impermissible interim action.
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\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.'' (10 CFR 1021.410(b)(2))
\3\ Segmentation can occur when a proposal is broken down into
smaller parts in order to avoid the appearance of significance of
the total action. (10 CFR 1021.410(b)(3))
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As part of its determination of whether the proposed action fits
within a categorical exclusion, DOE evaluates whether the proposed
action satisfies conditions included within the text of the individual
categorical exclusion. These conditions are discussed generally in this
section and in more detail in section III of this document, which
describes the changes that DOE is making in this final rule. For
example, each of the categorical exclusions included in this rulemaking
contains requirements that the proposed action incorporate applicable
standards and follow best management practices. These standards and
practices can vary by technology and location. Also, they change over
time to reflect lessons learned and to address emerging technologies
and practices. The Technical Support Document provides links to and
summarizes information on some of the relevant standards and best
management practices for the categorical exclusions that are included
in this rulemaking. As another example, the changes included in this
rulemaking specify conditions regarding siting proposed actions on
previously disturbed or developed land. DOE defines previously
disturbed or developed as ``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 non-native 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)). As DOE
explained in a 2011 notice of proposed rulemaking, ``In DOE's
experience, the potential for certain types of actions to have
significant impacts on the human environment is generally avoided when
that action takes place within a previously disturbed or developed
area, i.e., land that has been changed such that the former state of
the area and its functioning ecological processes have been altered''
(76 FR 218; January 3, 2011). DOE's experience reviewing proposed
projects across the United States since 2011 supports this same
conclusion. As another example, in categorical exclusion B4.14 for
certain energy storage systems, DOE allows siting within a small area
contiguous to a previously disturbed or developed area. DOE also has
more than a decade of experience implementing categorical exclusions
that allow construction on land that is contiguous to previously
disturbed or developed areas. The area of contiguous land affected
would be small as discussed in 10 CFR 1021.410(g)(2). Any proposed use
of contiguous land is subject to review against all the conditions
relevant to the categorical exclusion, including the integral elements
that require consideration of effects on threatened and endangered
species and their habitat, historic properties, and other
environmentally sensitive resources. The Technical Support Document
includes summaries of environmental assessments for projects proposed
on previously disturbed or developed land and on contiguous land.
As previously noted, DOE's NEPA regulations also include ``integral
elements'' that apply to all categorical exclusions listed in appendix
B to subpart D of part 1021 (appendix B, paragraphs (1) through (5)).
Although the integral elements are not repeated for each categorical
exclusion, they are part of the definition of each categorical
exclusion listed in appendix B, and DOE must consider them as part of
its determination whether the proposed action fits within a categorical
exclusion (10 CFR 1021.410(b)(1)). Integral elements require that, to
fit within a categorical exclusion, the proposed action must not
threaten a violation of applicable environment, safety, and
[[Page 34076]]
health requirements; require siting and construction or major expansion
of waste storage, disposal, recovery, or treatment facilities; disturb
hazardous substances, pollutants, or contaminants that preexist in the
environment such that there would be uncontrolled or unpermitted
releases; have the potential to cause significant impacts on
environmentally sensitive resources; or involve governmentally
designated noxious weeds or invasive species, unless certain conditions
are met.\4\ DOE defines ``environmentally sensitive resource'' as a
resource that has typically been identified as needing protection
through Executive order, statute, or regulation by Federal, state, or
local government, or a federally recognized Indian tribe.
Environmentally sensitive resources include historic properties,
threatened and endangered species or their habitat, floodplains, and
wetlands, among others (10 CFR part 1021, subpart D, appendix B).
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\4\ This is a summary description of the integral elements. See
10 CFR part 1021, subpart D, appendix B for the full text.
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In determining whether a proposed action fits within a categorical
exclusion, DOE may review information provided by an applicant, in its
application and during follow-up requests; information from systems
maintained by DOE, another Federal agency, or external party (e.g.,
geographic information systems); information from site visits;
information from discussions or consultations with Federal, state,
local, or tribal governments; and information from other sources as
needed. At any point during this review, DOE can determine that
additional information is needed to make a categorical exclusion
determination or decide to prepare an environmental assessment or
environmental impact statement.
Only if DOE determines that all the applicable requirements and
conditions of the categorical exclusion (including the integral
elements, as applicable) have been met will it proceed to review the
proposed action for extraordinary circumstances, and potentially
proceed to issue a categorical exclusion determination. DOE regularly
posts its categorical exclusion determinations at www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations.
III. Changes Made in This Final Rule
A. Overview
In this final rule, DOE adds a categorical exclusion for certain
energy storage systems and revises categorical exclusions for upgrading
and rebuilding powerlines and for solar photovoltaic (PV) systems. DOE
also makes conforming changes to other categorical exclusions, to a
class of actions normally requiring an environmental assessment, and to
a class of actions normally requiring an environmental impact statement
(10 CFR part 1021, subpart D, appendices B, C, and D). DOE's process
for developing the proposed changes is described in the notice of
proposed rulemaking. The final changes, including differences from what
was included in the notice of proposed rulemaking, are discussed in
sections III.B through III.D of this final rule. These changes do not
require any changes to or otherwise affect categorical exclusion
determinations completed prior to the effective date of this final
rule.
In addition, the notice of proposed rulemaking mistakenly included
the text of paragraph (b) of categorical exclusion B5.1, Actions to
conserve energy or water, and a new paragraph at B5.1(c). DOE did not
intend to include that regulatory text in the notice of proposed
rulemaking and has removed it from this final rule. DOE is not making
changes to categorical exclusion B5.1 paragraph (b) or adding paragraph
(c) at this time but may propose such changes in a future rulemaking.
B. Changes to Categorical Exclusion B4.13 for Upgrading and Rebuilding
Existing Powerlines and Related Provisions
Powerlines are a critical component of the electric grid that move
electricity from facilities that generate electricity to our
communities, businesses, and factories. Upgrading and rebuilding \5\
powerlines extends their useful life. Upgrades and rebuilds also can
help reduce the need for new powerlines and can allow the replacement
of components with newer, more efficient and resilient technology.
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\5\ A transmission line rebuild is typically a replacement of
conductor and equipment without increasing capacity. Transmission
line design and new materials and equipment would meet current
standards and electrical clearance requirements. A transmission line
upgrade is typically a replacement of conductor and equipment, or
the addition of sensors or other advanced technology, to increase
the line's capacity, such as by increasing the operating voltage or
increasing the temperature rating.
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One example is reconductoring. Conductors are the wires that carry
electricity. Most of the existing electric grid uses conductors with a
steel core for strength surrounded by aluminum for the electrical
current. More recently, conductor designs (referred to as advanced
conductors) with composite or carbon cores, in place of steel, have
come into use. Advanced conductors provide a variety of benefits
including increased capacity. By increasing the capacity of powerlines
it is possible to integrate renewable energy and other sources of
electricity into the grid without the need to build new powerlines. Use
of advanced conductors reduces line losses (i.e., power lost during
transmission and distribution of electricity) relative to traditional
conductors, thereby improving efficiency.\6\ Improvements to capacity
and efficiency can help to ensure reliability, reduce costs to
consumers, and reduce greenhouse gas (GHG) emissions associated with
electricity generation, transmission, and distribution.
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\6\ Grid Strategies, LLC, ``Advanced Conductors on Existing
Transmission Corridors to Accelerate Low Cost Decarbonization,''
March 2022, available at: https://acore.org/wp-content/uploads/2022/03/Advanced_Conductors_to_Accelerate_Grid_Decarbonization.pdf.
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Upgrading and rebuilding powerlines also can avoid or reduce
adverse environmental impacts, such as by relocating small \7\ segments
of the existing line to avoid a sensitive environmental resource.
Upgrading and rebuilding powerlines also can enhance resilience. For
example, an upgrade or rebuild project might convert segments of
existing overhead powerlines to underground lines or replace old
powerline poles to ensure continued safe operations.
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\7\ See 10 CFR 1021.410(g)(2) for a discussion of ``small'' in
the context of determining the applicability of a DOE categorical
exclusion.
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Categorical exclusion B4.13 currently applies to upgrading or
rebuilding ``approximately 20 miles in length or less'' of existing
powerlines and allows for minor relocations of small segments of
powerlines. With this final rule, DOE removes the mileage limitation,
adds options for relocating within an existing right-of-way or within
otherwise previously disturbed or developed lands, specifies conditions
for widening a right-of-way under this categorical exclusion to comply
with applicable electrical standards, and adds new conditions.
The potential significance of environmental impacts from upgrading
or rebuilding powerlines is more related to local environmental
conditions than to the length of the powerlines. For example, the
presence of environmentally sensitive resources along the existing
right-of-way is more pertinent than the length of the existing
powerlines to be upgraded or rebuilt. DOE reviewed environmental
assessments for powerline upgrades and rebuilds of various lengths.
(See
[[Page 34077]]
Technical Support Document, p. 2.) The length of the projects is based
on the endpoints, which are commonly substations (e.g., rebuild the
powerline from substation A to substation B). Environmental assessments
and other information summarized in the Technical Support Document, as
well as DOE's experience with powerline upgrades and rebuilds, do not
indicate a particular mileage limit that would mark a threshold for
significant impacts. DOE's experience comes from operating transmission
systems for more than 50 years that currently include more than 25,000
miles of powerlines.
In this final rule, DOE clarifies options for relocating powerlines
within the scope of categorical exclusion B4.13. Relocating segments of
a powerline can improve resilience, avoid sensitive resources, or serve
other purposes. (See Technical Support Document, p. 13, DOE/EA-1967 for
an example of relocation to avoid a rock fall and landslide area,
thereby moving the powerline to a more stable area.) The prior version
of B4.13 encompassed ``minor relocations of small segments of the
powerlines.'' This final rule makes the change included in the notice
of proposed rulemaking to delete ``minor'' because it is unnecessary to
qualify ``relocations of small segments'' with ``minor.'' Also, DOE is
revising B4.13 to specify that small segments of powerlines may be
relocated ``within an existing powerline right of way or within
otherwise previously disturbed or developed lands.'' The prior version
of B4.13 did not include this limitation. In addition, DOE is making
three clarifying changes in response to public comment on the notice of
proposed rulemaking (discussed in section IV.B of this document). In
this final rule, DOE adds ``powerline'' before ``right-of-way'' such
that B4.13 now specifies that the categorical exclusion applies to
projects ``within an existing powerline right-of way.'' The final rule
also specifies that upgrading or rebuilding powerlines might include
widening of an existing right-of-way to comply with electrical
standards (e.g., increasing voltage may require a wider clearance to
either side of the powerline to avoid fires or other accidents).
Commenters sought clarification regarding whether and how B4.13
includes widening of a right-of-way. A right-of-way may need to be
widened to meet electrical standards due to a variety of factors
associated with powerline upgrades and rebuilds such as changes in
voltage, type of conductor (wires carrying the electrical current), and
span length (distance between poles or towers). This widening keeps the
area around a powerline clear of vegetation and other potential hazards
to reduce risk of fires, power outages, and other accidents. (See
Technical Support Document, p. 36.) Widening a right-of-way was part of
the scope of the version of categorical exclusion B4.13 in effect prior
to this final rule. (See, Technical Support Document, p. 18,
Categorical Exclusion Determination for the Palisades-Swan Valley
Transmission Line Rebuild for a project requiring widening in some
areas of the rebuild project.) In this final rule, DOE has added to
categorical exclusion B4.13 that, ``Upgrading or rebuilding existing
electric powerlines also may involve widening an existing powerline
right-of-way to meet current electrical standards if the widening
remains within previously disturbed or developed lands and only extends
into a small area beyond such lands as needed to comply with applicable
electrical standards.''
Finally, DOE clarifies that the ``categorical exclusion does not
apply to underwater powerlines.'' These changes in the final rule
better state DOE's intention for the changes included in the notice of
proposed rulemaking.
The revisions to categorical exclusion B4.13 included in this final
rule provide additional flexibility for powerline upgrade and rebuild
projects consistent with the requirements for a categorical exclusion.
While DOE has removed the mileage limit, DOE will continue to apply the
conditions, including integral elements, described in section II of
this document when deciding whether a particular proposed action
qualifies for categorical exclusion B4.13. This review includes
consideration of extraordinary circumstances and integral elements,
such as the potential for significant impacts on environmentally
sensitive resources, amongst other considerations. At any point during
the review of a proposed action, DOE may determine that it must prepare
an environmental assessment or environmental impact statement, rather
than apply categorical exclusion B4.13 to the proposed action. In other
words, inclusion of the revised categorical exclusion B4.13 in DOE's
regulations does not bring all powerline upgrade or rebuild projects
within the scope of the revised categorical exclusion.
DOE's review of environmental assessments and other information in
preparing this rulemaking revealed that proposals to upgrade or rebuild
powerlines normally incorporate practices that avoid or reduce
potential land disturbance, erosion, disturbance of environmentally
sensitive resources, and take other measures to protect the environment
in the project area. To account for this, DOE has added a condition
requiring that, to qualify for the categorical exclusion, the proposed
project be in accordance with applicable requirements and incorporate
appropriate design and construction standards, control technologies,
and best management practices. This condition, together with the
integral elements and consideration of extraordinary circumstances
(described in section II of this document), will help to ensure that a
proposed upgrade or rebuild of an existing powerline would be sited and
designed appropriately.
DOE also is making a conforming change to its class of action, C4,
that normally requires an environmental assessment for upgrading and
rebuilding existing powerlines more than approximately 20 miles in
length. That conforming change removes the reference to powerline
length and, instead, clarifies that an environmental assessment
normally would be prepared when the proposed action does not qualify
for categorical exclusion B4.13.
C. New Categorical Exclusion B4.14 for Certain Energy Storage Systems
and Related Provisions
For purposes of this rulemaking, an energy storage system is a
device or group of devices assembled together, capable of storing
energy in order to supply electrical energy at a later time. Energy
storage can be used to integrate renewable energy (such as wind and
solar energy) into the electric grid, help generation facilities
operate at optimal levels to meet customer demand, and reduce the use
of less efficient generating units that would otherwise run only at
peak times. An energy storage system also provides protection from
power interruptions and serves as reserve power in case of power
outages or fluctuations. The most familiar type of energy storage
system is a group of electrochemical batteries and associated equipment
referred to as a battery energy storage system. Another form uses a
flywheel, which converts excess electricity from the grid to kinetic
energy in a fast-spinning rotor. As needed, the stored energy is
converted back to electricity and returned to the grid or put to other
use.
DOE and others have been developing large-scale energy storage
systems for decades. Deployment of these systems has increased over the
past decade. Today, energy storage systems support the operation of
electric transmission facilities, microgrids, energy generation
[[Page 34078]]
facilities, and commercial and industrial facilities.\8\
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\8\ The U.S. Energy Information Administration published
information about large-scale energy storage for electricity
generation (www.eia.gov/energyexplained/electricity/energy-storage-for-electricity-generation.php) and market trends for battery
storage (www.eia.gov/analysis/studies/electricity/batterystorage/).
Also, DOE published an energy storage market report in 2020
(www.energy.gov/sites/prod/files/2020/12/f81/Energy%20Storage%20Market%20Report%202020_0.pdf).
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In this rule, DOE establishes a new categorical exclusion, B4.14,
for the construction, operation, upgrade, or decommissioning of an
electrochemical-battery or flywheel energy storage system within a
previously disturbed or developed area or within a small area
contiguous to a previously disturbed or developed area. Section II of
this document includes discussion of DOE's definition of previously
disturbed or developed area and DOE's experience referring to
contiguous areas in its categorical exclusions. The total acreage used
for an energy storage system will be defined by the needs of the
proposed project. Based on past experience, DOE anticipates that energy
storage systems typically require 15 acres or less and would be sited
close to energy, transmission, or industrial facilities. (See Technical
Support Document, p. 41.) Consistent with this expectation and because
contiguous land might be undisturbed and undeveloped, DOE proposed that
siting outside a previously disturbed or developed area be limited to a
``small'' contiguous area. DOE would determine whether a contiguous
area is small, based on the criteria discussed in 10 CFR
1021.410(g)(2), ``in the context of the particular proposal, including
its proposed location. In assessing whether a proposed action is small,
in addition to the actual magnitude of the proposal, DOE considers
factors such as industry norms, the relationship of the proposed action
to similar types of development in the vicinity of the proposed action,
and expected outputs of emissions or waste. When considering the
physical size of a proposed facility, for example, DOE would review the
surrounding land uses, the scale of the proposed facility relative to
existing development, and the capacity of existing roads and other
infrastructure to support the proposed action.'' In addition, the
notice of proposed rulemaking included conditions that the proposed
project be in accordance with applicable requirements (such as land use
\9\ and zoning requirements) and incorporate appropriate design and
construction standards, control technologies, and best management
practices. For this final rule, DOE includes those conditions and, in
response to public comment, adds a condition that the proposed project
also incorporate appropriate ``safety standards (including the current
National Fire Protection Association 855, Standard for the Installation
of Stationary Energy Storage Systems).'' (See section IV.C of this
document and Technical Support Document, p. 56.) In addition, DOE would
ensure that the proposed project satisfies the integral elements and
review the proposal for extraordinary circumstances, as described in
section II of this document. This review ensures that DOE considers the
potential environmental effects of a proposed energy storage system
prior to determining whether categorical exclusion B4.14 applies. In
proposing this categorical exclusion, DOE evaluated environmental
assessments and findings of no significant impact prepared by DOE and
other Federal agencies, categorical exclusion determinations made by
DOE, and other information. In response to public comment on the notice
of proposed rulemaking, DOE also reviewed additional information on
accidents, fires, and other safety considerations, including guidance
to improve safety and minimize the risk of fires. (See Technical
Support Document, p. 41.)
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\9\ On DOE sites and in other locations, land use planning may
be documented in a site land use plan, or be subject to siting
processes or other comparable systems. Use of land use and zoning
requirements is inclusive of these processes.
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For consistency with the new categorical exclusion B4.14, DOE made
changes to three related categorical exclusions. Based on its past
experience with energy storage systems, in 2011, DOE added ``power
storage (such as flywheels and batteries, generally less than 10 MW)''
as an example of conservation actions in categorical exclusion B5.1,
Actions to conserve energy or water. DOE also added ``load shaping
projects (such as the installation and use of flywheels and battery
arrays)'' to the list of example actions in categorical exclusion B4.6,
Additions and modifications to transmission facilities. In this final
rule, DOE has deleted ``power storage (such as flywheels and batteries,
generally less than 10 MW)'' from the examples in B5.1. DOE does not
include the 10 MW (megawatt) limit in new categorical exclusion B4.14
because capacity, whether denominated in megawatts as a measure of
instantaneous output or megawatt-hours as a measure of the total amount
of energy capable of being stored, is not a reliable indicator of
potential environmental impacts. Including a capacity limit within the
categorical exclusion could mean that technology improvements resulting
in more power storage within the same physical footprint may not
qualify for the categorical exclusion even though the potential
environmental impacts have not changed. DOE also deleted the example of
flywheels and battery arrays from B4.6 but retained the reference to
``load shaping projects'' and added ``reducing energy use during
periods of peak demand'' as a new example. DOE added a note to B4.6
that energy storage systems are addressed in B4.14. DOE also added this
note to categorical exclusion B4.4, Power marketing services and
activities, which was established in 1992 and lists storage and load
shaping as examples. These conforming changes will avoid confusion over
which categorical exclusion and associated conditions apply to energy
storage systems.
D. Changes to Categorical Exclusion B5.16 for Solar Photovoltaic
Systems and Related Provisions
Solar PV technology converts sunlight into electrical energy.
Individual PV cells, which may produce only 1 or 2 watts of
electricity, are connected together to form modules (otherwise known as
panels). The modules are combined with other components (e.g., to
convert electricity from direct current (DC) to alternating current
(AC)) to create a solar PV system. These systems can be located in a
wide variety of locations and sized for an individual home or business
up to utility-scale, generating hundreds of megawatts.\10\
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\10\ DOE's Solar Energy Technologies Office has a website that
describes solar PV technologies (www.energy.gov/eere/solar/solar-photovoltaic-technology-basics).
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Solar PV systems do not release GHGs while operating, though, as
with any industrial activity, manufacturing and installing solar PV
systems can release GHGs. The U.S. Energy Information Administration
reports that, ``Studies conducted by a number of organizations and
researchers have concluded that PV systems can produce the equivalent
amount of energy that was used to manufacture the systems within 1 to 4
years. Most PV systems have operating lives of up to 30 years or
more.'' \11\ Thus, on a life-cycle basis, solar PV systems provide many
years of electricity generation without GHG emissions.
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\11\ U.S. Energy Information Administration ``Solar explained''
available at www.eia.gov/energyexplained/solar/solar-energy-and-the-environment.php; retrieved March 21, 2024.
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DOE established categorical exclusion B5.16, Solar photovoltaic
systems, in 2011 to include the installation,
[[Page 34079]]
modification, operation, and removal of solar PV systems located on a
building or other structure or, if located on land, within a previously
disturbed or developed area generally comprising less than 10 acres. In
this final rule, DOE changes ``removal'' of a solar PV system to
``decommissioning.'' Decommissioning encompasses recycling and other
types of actions that occur when a facility is taken out of service.
DOE also removes the acreage limitation for proposed projects. Based on
DOE's experience, acreage is not a reliable indicator of potential
environmental impacts. As discussed in section II of this document, the
potential significance of environmental impacts is more related to
local environmental conditions than to acreage. DOE's review of various
environmental assessments indicate that an acreage limit would not
serve as an appropriate indicator of significant impacts. This
conclusion is illustrated, for example, by environmental assessments
for solar PV projects larger than 1,000 acres on previously disturbed
or developed land that would not result in significant environmental
impacts. (See Technical Support Document, p. 74.)
The nature and significance of environmental impacts is determined
by a proposed project's proximity to and potential effects on
environmentally sensitive resources and other conditions that are
accounted for in categorical exclusion B5.16, including in the integral
elements and in extraordinary circumstances, as described in section II
of this document. DOE will consider the integral elements and the
presence of any extraordinary circumstances when reviewing a proposed
solar PV project's eligibility for this categorical exclusion. This
review would ensure that DOE considers potential environmental impacts
of a proposed solar PV system prior to determining whether categorical
exclusion B5.16 applies. For example, in preparing the Technical
Support Document, DOE observed that some large solar PV systems have
been proposed for agricultural land. While integrating solar PV systems
with farms may provide a variety of economic and environmental benefits
to farmers,\12\ doing so also raises questions about land use and the
protection of important farmlands. One of the integral elements
requires that the project must not be one that would have the potential
to cause significant impacts on environmentally sensitive resources,
including on prime or unique farmland, or other farmland of statewide
or local importance (10 CFR part 1021, appendix B, paragraph (4)(v)).
The requirement to consider extraordinary circumstances also will help
ensure that DOE considers potential impacts on farmland and surrounding
communities when deciding whether to apply the categorical exclusion.
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\12\ U.S. Energy Information Administration ``Solar explained''
available at www.eia.gov/energyexplained/solar/solar-energy-and-the-environment.php; retrieved March 21, 2024.
---------------------------------------------------------------------------
Public comments raised concern about impacts of solar PV systems on
wildlife and habitat. (See section IV.D.2 of this document.) In
response to those concerns and to clarify DOE's intent, DOE has added a
condition that the proposed project be ``consistent with applicable
plans for the management of wildlife and habitat, including plans to
maintain habitat connectivity.'' Further, one of the integral elements
applicable to categorical exclusion B5.16 requires that the project
must not be one that would have the potential to cause significant
impacts on environmentally sensitive resources, including threatened or
endangered species or their habitat (10 CFR part 1021, appendix B,
paragraph (4)(ii)). The conditions added to B5.16 better ensure that
solar PV systems are installed and operated in a manner that is
protective of all species and their habitat.
DOE also has made conforming changes in appendix C, Classes of
Actions that Normally Require EAs but not Necessarily EISs, and in
appendix D, Classes of Actions that Normally Require EISs. These
appendices each include a class of actions, C7 and D7, that associates
the level of NEPA review for interconnection requests and power
acquisition with the power output of the electric generation resource.
In 2011, DOE proposed for C7 that an environmental assessment normally
would be required for the interconnection of, or acquisition of power
from, new generation resources that are equal to or less than 50
average megawatts ``and that would not be eligible for categorical
exclusion under 10 CFR part 1021'' (76 FR 233; January 3, 2011). DOE
did not receive public comment on the proposed addition regarding
categorical exclusion eligibility. In the 2011 final rule, DOE did not
include the condition regarding eligibility for a categorical
exclusion. DOE explained this decision by stating ``to improve clarity,
DOE is removing the previously proposed condition that the new
generation resource `would not be eligible for categorical exclusion
under this part.' DOE normally would not prepare an environmental
assessment when a categorical exclusion would apply. Therefore, the
condition is unnecessary and potentially confusing'' (76 FR 63784;
October 13, 2011). DOE's practice continues to be that it ``normally
would not prepare an environmental assessment when a categorical
exclusion would apply.'' However, in light of the change to B5.16--
which removes the acreage restriction for solar PV systems, thereby
allowing the categorical exclusion to apply to systems generating up to
hundreds of megawatts--DOE believes that including a condition in C7 is
appropriate and helpful. It will clarify DOE's practice that an
environmental assessment is normally required ``unless the generation
resource is eligible for a categorical exclusion.'' DOE did not propose
a similar condition in 2011 for D7, which applies to new generation
resources greater than 50 average megawatts. DOE has added the same
condition to both C7 and D7 for the reasons previously described. For
D7, DOE also specifies that an environmental impact statement is not
required when an environmental assessment was prepared that resulted in
a finding of no significant impact. This is standard practice, and DOE
added this text only to avoid any potential confusion.
IV. Comments Received and DOE's Responses
DOE published a Request for Information (RFI) in the Federal
Register on November 15, 2022 (87 FR 68385), to help DOE identify
activities associated with clean energy projects and clean energy
infrastructure that should be considered for new or revised categorical
exclusions. Thirty-three individuals or entities responded to the
Request for Information.\13\ DOE responded to those comments relevant
to this rulemaking in the notice of proposed rulemaking and does not
repeat those responses here.
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\13\ The Request for Information and public comments are
available at www.regulations.gov/docket/DOE-HQ-2023-0002/comments.
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The notice of proposed rulemaking (88 FR 78681; November 16, 3023)
announced a public review period ending on January 2, 2024. In response
to public requests, DOE subsequently extended the public review period
through January 16, 2024 (88 FR 88854; December 26, 2023). DOE received
approximately 115 comment submittals from individuals, industry trade
groups, environmental and community organizations, state, Tribal, and
local governments, and other entities. DOE has considered the comments
on the proposed rulemaking received during the public comment period as
well as all late comments. DOE has incorporated
[[Page 34080]]
some revisions suggested in these comments into the final rule. The
following discussion describes the comments received, provides DOE's
response to the comments, and describes changes to the rule resulting
from public comments. Section IV.A of this document includes comment
summaries and responses that address DOE's proposed revisions
collectively or address related topics such as NEPA implementation.
Sections IV.B, IV.C, and IV.D include comment summaries and DOE's
responses regarding powerline upgrades and rebuilds, energy storage
systems, and solar photovoltaic systems, respectively.
A. General Comments on Proposed Amendments
DOE received comments that expressed support for the rulemaking, as
well as comments in opposition to the proposed rulemaking. DOE
appreciates the commenters adding their perspectives to the rulemaking
process. DOE responds to those comments that included detailed feedback
on the proposed rulemaking.
1. Comments Supporting An Expansion of the Rulemaking
Some commenters requested that DOE expand this rulemaking to add
additional categorical exclusions for clean energy technologies,
electricity transmission, and related programs. These comments include
suggestions to add categorical exclusions for carbon capture,
utilization, and storage, including the installation of direct air
capture technologies; geothermal exploration, permitting, and
development; hydrogen pipelines, production, and combustion; adding
capacity and making improvements to existing water power facilities;
energy generation projects that qualify for investment or production
tax credits under the Inflation Reduction Act; small-scale, renewable
natural gas projects; small-scale nuclear power reactors (generally
less than 350 megawatts); wind power; and other clean energy projects.
Comments also suggested that DOE add categorical exclusions for
interstate and interregional transmission lines; high-voltage direct
current transmission lines; and microgrids. In addition, comments
suggested that DOE add new categorical exclusions for vegetation
management and expand the list of examples included in DOE's existing
categorical exclusion for actions to conserve energy or water (B5.1).
DOE considered each of these comments and decided not to modify
this rule to include these suggested new or revised categorical
exclusions. DOE currently lacks sufficient technical support to
determine whether the suggested activities normally do not result in
significant environmental impact. Also, DOE noted that several of the
suggestions overlap with DOE's existing categorical exclusions. For
example, DOE has applied its existing categorical exclusions to
microgrid projects and vegetation management, and DOE's existing
categorical exclusions for powerline projects apply to high-voltage
direct current lines and alternating current lines. DOE would need to
evaluate whether changes to the scope of its existing categorical
exclusions would be appropriate. DOE will retain the comments for
further consideration in any future rulemaking regarding DOE's NEPA
procedures.
2. Comments Regarding NEPA and Other Environmental Requirements
Commenters noted that implementation of DOE's proposed changes may
be affected by the pending Phase 2 revisions of the CEQ NEPA
Implementing Regulations.\14\ Some commenters recommended coordination
with CEQ on this rulemaking to ensure consistency, while other
commenters requested that this rulemaking not proceed until CEQ has
promulgated its final rule. DOE consulted with CEQ while preparing this
rule consistent with consultation requirements in the CEQ regulations
(40 CFR 1507.3(b). This consultation included consideration of whether
DOE's changes are consistent with the CEQ regulations.
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\14\ See CEQ's notice of proposed rulemaking published on July
31, 2023 (88 FR 49924).
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Other commenters stated that clear environmental regulations and
guidelines for the different technologies are still needed and
therefore this rulemaking is premature. DOE recognizes that
environmental requirements and practices will continue to change as
technology advances and awareness increases about potential impacts and
ways to avoid or lessen those impacts. DOE's categorical exclusions,
including the ones addressed in this rulemaking, require projects to
incorporate the requirements and best practices applicable at the time
that DOE is considering whether to apply the categorical exclusion to a
particular proposed action. In addition, DOE regularly reviews its
categorical exclusions to determine whether they continue to be
appropriate in light of new information and requirements.
Commenters recommended that DOE evaluate whether the proposed
rulemaking could affect coastal uses or resources in states or
territories with a Coastal Zone Management Program pursuant to the
Coastal Zone Management Act. Commenters recommended that DOE adopt
internal procedures to ensure compliance with the Coastal Zone
Management Act regardless of the level of NEPA review. DOE recognizes
that compliance with the Coastal Zone Management Act is an independent
responsibility regardless of the level of NEPA review. DOE will
continue its practice of coordinating with the relevant state agency to
ensure compliance with the Coastal Zone Management Act, when
applicable.
3. Comments Regarding Public Engagement
Some commenters expressed concern that the public comment periods
on the Request for Information and notice of proposed rulemaking
overlapped with the winter holiday season. DOE appreciates that there
are competing schedule demands and that these may fall hardest on small
organizations and community members. DOE provided an initial 45-day
comment period for the Request for Information and reopened that public
comment period for an additional 30 days, and DOE extended the 45-day
comment period for the notice of proposed rulemaking by 14 days to
provide interested individuals and organizations additional time to
provide comments. DOE received comments from a broad range of
organizations and individuals who raised many substantive issues.
Commenters emphasized the importance of public involvement in
decision-making, expressing that under NEPA, affected communities must
be able to voice their concerns about projects, especially on public
lands. Some commenters stated that creating a categorical exclusion
removes safeguards for communities and investigation of adverse
impacts, including cumulative impacts. Other commenters stated that the
applicability criteria of the proposed rule would require substantive
review by DOE to identify a project's eligibility for a categorical
exclusion followed by DOE's consideration of the individual conditions
in the categorical exclusion, which would deprive DOE of anticipated
efficiencies at the expense of public participation. Commenters
requested that DOE provide public comment opportunities for categorical
exclusion determinations. While DOE may choose to provide opportunities
for public comment at any time, DOE's normal practice is not to request
public comment before making a categorical exclusion determination.
This is
[[Page 34081]]
consistent with CEQ and DOE NEPA regulations.
Commenters asked DOE to post categorical exclusion determinations
(including sufficient information to demonstrate proper use) that rely
on the proposed categorical exclusions on the DOE website in a timely
fashion for public review. DOE's practice is to post categorical
exclusion determinations for actions listed in appendix B of its NEPA
regulations, which includes all of the categorical exclusions included
in this rulemaking, on the DOE website generally within two weeks of
the determination (10 CFR 1021.410(e) and www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations). A categorical exclusion
determination includes a description of the proposed action, the
categorical exclusion(s) applied, and confirmation that conditions
associated with the categorical exclusion(s) were satisfied.
4. Comments Regarding Tribal Resources
A federally recognized Indian Tribe expressed concern about the
potential impacts of DOE's proposed rule on its treaty reserved rights
and cultural resources and practices. As explained in section II of
this document, DOE conducts an environmental review at both the stage
of establishing or revising a categorical exclusion and at the stage of
determining whether one or more categorical exclusions applies to a
proposed action. This final rule establishes and revises categorical
exclusions in DOE's NEPA procedures; this final rule will not result in
environmental impacts and is not a proposal to apply any categorical
exclusion to particular proposed actions. When determining whether one
or more categorical exclusions applies to a proposed action, DOE
conducts a project-specific environmental review. This review includes
consideration of extraordinary circumstances and integral elements,
including the potential for significant impacts on environmentally
sensitive resources, amongst other considerations. ``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'' (10 CFR part 1021, appendix B, paragraph (4)). Environmentally
sensitive resources include ``(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'', among others (10 CFR part 1021, subpart D,
appendix B).
B. Comments Regarding Upgrading and Rebuilding Powerlines
1. Comments Requesting Clarifications Regarding Categorical Exclusion
B4.13
Commenters asked DOE to clarify that categorical exclusion B4.13
would apply to projects that receive Federal loans or grants and not
only to transmission lines that impact Federal land. Other commenters
requested clarification that categorical exclusion B4.13 covers all
types of powerlines, including powerlines that feed into a Federal
electric transmission system. DOE clarifies here that categorical
exclusion B4.13 could apply to proposals for DOE financial assistance,
including loans and grants, as well as any other DOE action subject to
NEPA, so long as the proposed action satisfies all conditions of the
categorical exclusion.
Commenters asked DOE to clarify whether the scope of categorical
exclusion B4.13 includes improvements to existing maintenance and
repair access roads that are not used for powerline upgrades or
rebuilds. Commenters noted that existing access roads may not be
suitable for the types of heavy construction equipment associated with
rebuilding powerlines and that use of large construction equipment for
rebuild projects may require improving existing access roads, such as
widening roads, clearing surrounding trees, and adding gravel for
stability to allow work under varying weather conditions. DOE responds
that categorical exclusion B4.13 could include improvements to, and
reconstruction of, access roads, laydown areas, and related work that
are part of the proposed action and would take place within the
existing right-of-way or relocation area. DOE also could consider
whether categorical exclusion B1.13, Pathways, short access roads, and
rail lines, would be appropriate for certain needed access roads.
Consistent with DOE's NEPA regulations, the full scope of the proposed
action must satisfy all conditions of DOE's categorical exclusions,
including the integral elements (10 CFR part 1021, subpart D, appendix
B) and consideration of extraordinary circumstances, segmentation, and
cumulative impacts (10 CFR 1021.410(b)). DOE also notes that where
access roads are not suitable for heavy equipment, replacement poles
and other equipment sometimes are delivered to the project site by
helicopter.
Commenters requested that categorical exclusion B4.13 include use
of existing transportation rights-of-way, including those owned by
railroads and highways managed on the public's behalf. DOE recognizes
that highway and railroad rights-of-way may be appropriate locations
for new powerlines. However, different criteria were used to establish
highway and railroad rights-of-way than would be used for new
powerlines, and DOE does not have sufficient information at this time
to support a categorical exclusion for such projects. DOE will retain
the comment for potential consideration in a future NEPA rulemaking.
Commenters also requested that DOE designate existing transportation
rights-of-way as National Interest Electric Transmission Corridors
(NIETCs) pursuant to Section 216 of the Federal Power Act. DOE
appreciates this suggestion, but designating NIETCs is beyond the scope
of this rulemaking.
Commenters asked that DOE ensure that use of categorical exclusion
B4.13 be as transparent and clear as possible. Commenters requested
that DOE clarify definitions of the applicable conditions, parameter
language, and extraordinary circumstances that would determine
applicability of the categorical exclusion. DOE responds that to
provide transparency in the use of categorical exclusions, DOE began
posting categorical exclusion determinations online in 2009. DOE will
continue to regularly post categorical exclusion determinations for
B4.13 and other categorical exclusions listed in appendix B of DOE's
NEPA regulations (10 CFR part 1021, subpart D) at www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations. DOE has added discussion
of the conditions that apply to categorical exclusions in sections II,
III, and IV of this final rule.
The proposed changes to categorical exclusion B4.13 included
relocation of small segments of powerlines within an existing right-of-
way or within otherwise previously disturbed or developed lands.
Commenters requested that DOE narrow the categorical exclusion, such as
by including only actions within the powerline's existing right-of-way,
within a minor widening of the existing right-of-way within otherwise
previously disturbed or developed lands, or within another existing
utility or electric power transmission corridor or right-of-way where
active utilities and currently used roads are readily available. DOE
appreciates these suggestions but finds that they would limit
flexibility to
[[Page 34082]]
relocate small sections of powerlines to previously disturbed or
developed lands that are outside an existing powerline right-of-way and
to widen a right-of-way as needed to meet electrical standards,
including when the widening extends to a small area beyond previously
disturbed or developed lands. Such relocation consistent with the
conditions placed on the use of categorical exclusion B4.13 normally
would not pose a potential for significant environmental impacts. (See
Technical Support Document, p. 2.) Moreover, such relocation may allow
improvements to environmental protection by moving small sections of a
powerline around a sensitive resource.
Commenters requested clarification on whether the limitation that
small segments of powerlines may be relocated within an existing right-
of-way or within previously disturbed land encompasses rights-of-way
other than that of the powerline being relocated. DOE intends this
language to encompass other powerline rights-of-way so long as safety,
reliability and other conditions are met. To help clarify this point,
DOE added ``powerline'' so that the wording in this final rule is
``within an existing powerline right-of-way.'' Commenters asked that
DOE clarify what is considered to be a right-of-way and pointed, as an
example, to the Department of Transportation's definition of existing
right-of-way for highway projects (23 CFR 771.117(c)(22)). The meaning
of right-of-way varies by context. The right-of-way for a powerline may
be defined through an agreement, such as an easement, with a private
landowner, permit from a land management agency, or other mechanism
conveying rights to construct and maintain the powerline and associated
facilities. For purposes of this rulemaking, DOE is referring to the
cleared right-of-way, i.e., the right-of-way where vegetation
management and other practices are necessary for safety reasons (e.g.,
to avoid the potential to cause fire). The width of that cleared right-
of-way is based on design criteria (e.g., line voltage). (See Technical
Support Document, p. 36.)
Commenters explained that when upgrading powerlines to a higher
voltage, current electrical standards may require wider rights-of-way
than were established when powerlines were built. Commenters
recommended that categorical exclusion B4.13 include expansion of an
existing right-of-way to meet current electrical standards and that DOE
revise the categorical exclusion to state that small segments of
powerlines may be relocated ``within or adjacent to'' an existing
right-of-way. Commenters also expressed concern about the risk of fire
being started by overhead powerlines. DOE includes in this final rule
that categorical exclusion B4.13 encompasses widening of the cleared
right-of-way to meet current electrical standards. As discussed in
section III of this document, the categorical exclusion may only apply
when such widening ``remains within previously disturbed or developed
lands and only extends into a small area beyond such lands as needed to
comply with applicable electrical standards.'' There are existing
rights-of-way that are not bounded entirely by previously disturbed or
developed lands. In such locations, it may be necessary to extend part
of the right-of-way into undisturbed land in order to meet the
applicable electrical code for the entire length of the powerline
upgrade or rebuild project. It is common for the widening to be only
about 40 feet or less (i.e., 20 feet or less on each side of the right-
of-way). Before deciding whether to apply categorical exclusion B4.13
for such widening, DOE would review the proposed action against all the
conditions applicable to categorical exclusion B4.13, including
integral elements and the consideration of extraordinary circumstances.
2. Comments Regarding Effects on Wildlife and Habitat
Some commenters stated that powerline projects may fragment or
reduce habitat or otherwise adversely affect wildlife by removing
trees, widening the right-of-way, creating greater barriers to animal
movement, and in other ways. Commenters stated that some of the
environmental assessments included in DOE's Technical Support Document
involved projects that would remove hundreds of trees. These commenters
suggested that DOE had overlooked the potential for significant
environmental impacts from these effects on habitat and that an
environmental assessment may be better able to account for these
impacts. They referred to research linking habitat loss with declines
in wildlife populations and to the deaths of birds by collision with
powerlines and from electrocution.
Commenters recommended that relocating powerlines avoid bird travel
routes and consider alternative designs and structures, visual cues,
and other methods to avoid or reduce impacts to birds and other species
and their habitats. DOE responds that these are common considerations
in planning upgrades and rebuilds of existing powerlines, including
relocating or widening rights-of way. DOE's integral elements require
that the project must not be one that would have the potential to cause
significant impacts on environmentally sensitive resources, including
threatened or endangered species or their habitat or species protected
under the Migratory Bird Treaty Act (10 CFR part 1021, appendix B,
paragraph (4)(ii)). Categorical exclusion B4.13 also requires projects
to incorporate appropriate design and construction standards, control
technologies, and best management practices, which may include measures
to reduce effects on birds. In addition, applicants must comply with
all applicable state and Federal laws, including applicable
requirements imposed by state wildlife agencies or Federal land
management agencies, including to identify potential high-risk bird
strike areas, identify shifts in bird flight patterns, and develop
marking plans and design features to reduce associated risks. These
requirements ensure that projects covered by categorical exclusion
B4.13 will not have significant effects on birds.
Other commenters stated that managed lands in forested areas,
including transmission line corridors, can provide early successional
habitat for native bees and other pollinators, substantially improving
species richness and abundance of bees relative to adjacent forest
areas. Commenters also stated that transmission corridors can benefit
some species of birds, deer, and plants. The ability of these corridors
to provide areas for food, nesting, and shelter are enhanced with
habitat management practices (such as leaving habitat trees, planting
low-growing native vegetation, and removing invasive plant species),
which typically accompany transmission development.
DOE recognizes that a combination of adverse and beneficial impacts
can accompany upgrades and rebuilds of existing electric powerlines. As
described in section II of this document, the terms of categorical
exclusion B4.13, including the integral elements, ensure that projects
would not have a significant effect on species and habitat. If a
project does not satisfy these elements, or extraordinary circumstances
exist that make significant effects likely, DOE must prepare an
environmental assessment or environmental impact statement, rather than
apply a categorical exclusion.
3. Comments Regarding Sulfur Hexafluoride
Commenters stated that transmission lines leak sulfur hexafluoride,
a greenhouse gas 26,000 more times potent than carbon dioxide. For this
final rule, DOE supplemented the
[[Page 34083]]
Technical Support Document with information regarding sulfur
hexafluoride, a potent greenhouse gas that has a high global warming
potential. Sulfur hexafluoride is used in gas-insulated switchgears,
breakers, and lines in the transmission sector. Transmission operators
follow manufacturer guidelines, state requirements, and federal
handling and reporting requirements, including the Greenhouse Gas
Reporting Program under the Clean Air Act, as applicable, for use and
handling of sulfur hexafluoride. Improved engineering and equipment
design, advances in leak detection and repair, and alternative
insulating gases with lower global warming potentials have resulted in
the reduction of sulfur hexafluoride emissions from the electric power
sector over time. Further, upgrading and rebuilding powerlines with
newer equipment that requires less or no sulfur hexafluoride or has
reduced leakage rates and improved monitoring further contribute to a
reduction in sulfur hexafluoride emissions across the electric
transmission sector. (See Technical Support Document, p. 40.)
4. Comments Regarding Endangered Species Act Section 7 Consultations
Commenters stated the DOE could encourage programmatic Endangered
Species Act Section 7 consultations for specific regions and cited the
programmatic biological assessment prepared by DOE's Western Area Power
Administration for wind energy development and interconnection requests
in the Upper Great Plains Region as a relevant example. DOE responds
that the referenced programmatic biological assessment analyzed
information and identified a list of conservation measures for 28
species of concern. Western Area Power Administration and the U.S. Fish
and Wildlife Service developed a review and approval system based on
consistency forms and checklists of conservation measures for each
species. If a wind project developer commits to implement the
applicable conservation measures, Western Area Power Administration's
consultation responsibilities under Section 7 of the Endangered Species
Act are concluded when Western Area Power Administration and the U.S.
Fish and Wildlife Service review and sign the consistency forms; no
separate Section 7 consultation is required unless the particular
project involves a listed species, critical habitat, or an effect that
was not addressed in the programmatic biological assessment. DOE
supports using programmatic consultations and similar approaches to
improve the efficiency of implementing the Endangered Species Act, the
National Historic Preservation Act, and other laws. These requirements
are separate from the requirements of NEPA, and reliance on a
categorical exclusion for NEPA compliance does not affect DOE's
obligations under other laws.
5. Comments Regarding Effects on Communities
Commenters stated that, by affecting land previously unused as
transmission line right-of-way, rerouting transmission lines may affect
local land use, affect people's relation with their environment, and
impact neighborhoods and communities. DOE recognizes that these are
considerations in developing a proposal to reroute powerlines and
relies on the terms of categorical exclusion B4.13, including the
integral elements, and the consideration of extraordinary circumstances
to ensure that projects would not have a significant effect on
communities.
6. Comments Regarding Technical Support for Revisions to Categorical
Exclusion B4.13
Commenters stated that the environmental assessments included in
the Technical Support Document for the notice of proposed rulemaking
were prepared for projects in the Bonneville Power Administration and
Western Are Power Administration systems. However, the categorical
exclusion could be applied to projects in any region of the United
States. In response to this comment, DOE reviewed seven additional
environmental assessments and findings of no significant impact
prepared by other Federal agencies for powerline upgrade or rebuild
projects in Kentucky, Minnesota, Mississippi, Missouri, North Dakota,
and Wisconsin. These NEPA documents support DOE's determination that
powerline upgrade and rebuild projects normally do not pose a potential
for significant environmental impacts. DOE added these seven
environmental assessments to the Technical Support Document for this
final rule.
Commenters also pointed to the environmental assessment for Midway
Benton No. 1 Rebuild Project as an example of where project changes
were needed to lower potential environmental impacts. DOE included a
wide and diverse range of environmental assessments in the Technical
Support Document. These environmental assessments and findings of no
significant impact demonstrate that, in the aggregate, these types of
projects normally do not pose a potential for significant environmental
impact and, thus, are appropriate for a categorical exclusion. DOE
stated in the Technical Support Document for the notice of proposed
rulemaking that, ``Inclusion of these environmental assessments does
not mean that the proposed projects would have qualified for any
categorical exclusion as proposed in this rulemaking. That
determination would be made on a case-by-case basis.'' (See Technical
Support Document, p. 1.) DOE did not intend to indicate that it had
determined that a categorical exclusion would have been appropriate for
that project. Rather, DOE found that consideration of the environmental
assessment for the Midway Benton No. 1 Rebuild Project, along with
other information in the Technical Support Document, helped DOE
understand whether the proposed revisions to categorical exclusion
B4.13 are appropriate. DOE will continue to consider each proposed
project on its own merits in deciding whether to apply a categorical
exclusion or prepare an environmental assessment or environmental
impact statement.
7. Comments Regarding Underwater Powerlines
Commenters stated that the scope of categorical exclusion B4.13
should not include upgrading and rebuilding existing offshore,
underwater powerlines. These commenters referred to potential adverse
environmental impacts resulting from the propellers on boats used
during upgrade and rebuild projects, trenching, turbidity, boulder
relocation, and electric fields. DOE did not intend that categorical
exclusion B4.13 would include underwater powerlines. DOE has added a
statement in this final rule specifying that the categorical exclusion
does not apply to underwater powerlines.
8. Comments Regarding NEPA Implementation
One commenter recommended that DOE consider NEPA efficiencies, such
as utilizing programmatic regional reviews for transmission projects.
The commenter also recommended that DOE streamline NEPA processes to
support designation of transmission corridors and financial assistance
for transmission projects. DOE supports taking steps to improve the
efficiency of NEPA and other environmental review requirements, without
undermining the purposes of these processes, to support timely and
effective decision making.
Some commenters stated that a categorical exclusion is
inappropriate for transmission line upgrade or rebuild
[[Page 34084]]
projects. DOE responds that these comments express a misunderstanding
of the purpose of categorical exclusions and how categorical exclusions
are applied to particular proposed actions. For example, some
commenters stated that a categorical exclusion determination does not
require any environmental documentation beyond that a proposed action
belongs in a specific category. As explained in section II of this
document, to qualify for the categorical exclusion, a proposed action
must satisfy all the conditions in the categorical exclusion, including
integral elements, and DOE must evaluate for any extraordinary
circumstances. Some commenters pointed to one environmental assessment
included in the Technical Support Document that considered impacts on
cultural resources and suggested that such analysis would not have been
required under a categorical exclusion. In fact, for all categorical
exclusions listed in appendix B of its NEPA regulations (10 CFR part
1021), DOE requires consideration of whether the proposed action would
violate any applicable environmental requirements and whether the
proposed action would have the potential to cause significant impacts
on environmentally sensitive resources, including ``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'' (10 CFR part 1021, subpart D,
appendix B, paragraph (4)(i)). In addition, DOE's responsibility to
comply with the National Historic Preservation Act is independent of
its NEPA responsibilities. With the revised categorical exclusion
B4.13, DOE would have considered the potential impacts on cultural
resources before making a decision and could determine that an
environmental assessment is more appropriate than applying a
categorical exclusion.
Some commenters described the purpose of a categorical exclusion in
an overly limiting way, for example, as for actions that are benign or
have no adverse effect whatsoever. CEQ, however, defines a categorial
exclusion as ``a category of actions that the agency has determined, in
its agency NEPA procedures (Sec. 1507.3 of this chapter), normally do
not have a significant effect on the human environment'' (40 CFR
1508.1(d)). The categorical exclusions included in this rulemaking are
consistent with CEQ's regulations.
Some commenters questioned whether additional NEPA review would be
necessary for powerlines that already have been reviewed under NEPA. In
general, a proposed project in which DOE is financing, undertaking, or
providing other support for the upgrade or rebuild of a powerline has
the potential to cause environmental effects. The NEPA review process
provides methods for DOE to evaluate the potential significance of
those impacts. Any documentation from past NEPA or other environmental
reviews can inform, and potentially simplify, the required
environmental review of the currently proposed project.
C. Comments Regarding Energy Storage Systems
1. Comments Regarding Accidents at Battery Energy Storage Systems
Commenters expressed concern regarding the safety of lithium-ion
battery energy storage systems, including risks associated with a
thermal runaway event. Commenters stated that DOE's Technical Support
Document did not address risks from thermal runaway.
A thermal runaway event is when lithium-ion batteries become
unstable, potentially resulting in high temperatures, battery failure,
venting of gas or particulates, smoke, or fire. As one way to help
control the impacts of such an event, a battery energy storage system
is comprised of modules that physically isolate and control thermal
runaway events from the larger battery energy storage system.
Government agencies, including DOE, and standard setting organizations
such as the National Fire Protection Association conduct research on
thermal runaway events and other accident scenarios involving lithium-
ion and other battery technologies. These organizations recommend
practices and develop standards to lessen the likelihood and
consequence of such events, and to respond to thermal runaway events
and other accidents if they occur. For example, to stay current with
best practices and knowledge, the National Fire Protection Association
updates its standards every three to five years.
Commenters stated that fires at battery energy storage systems are
challenging to extinguish and must be allowed to burn out for days.
Commenters also stated that fires can emit large volumes of toxic
gases, such as hydrogen fluoride, hydrogen cyanide, and hydrogen
chloride. Commenters stated that these releases of toxic fumes can
result in large plumes that necessitate evacuations of nearby
populations and that there is insufficient time to implement a shelter-
in-place approach because there is no mechanism to communicate quickly
enough to surrounding communities. Commenters further stated that
safety standards in the Technical Support Document for the notice of
proposed rulemaking did not consider the public health risk of toxic
gas released during a battery energy storage system fire.
DOE has supplemented the Technical Support Document in response to
these comments. DOE reviewed and added information on hazard
consequences analyses that address toxic gas plume dispersion modeling
in the event of a battery energy storage system fire or thermal runaway
event, including characterization of those toxic gases and potential
health effects. These analyses evaluated toxic gas dispersion,
including hydrogen fluoride, hydrogen cyanide, and carbon monoxide,
using site-specific factors to determine the maximum distance that may
result in a level of concern for nearby residents or first responders.
These analyses identified the endpoint distances as 30, 51, and 210
feet from the release point. The maximum airborne concentration
estimated at these distances is such that nearly all individuals could
be exposed to for up to one hour without experiencing or developing
irreversible or other serious health effects or symptoms that could
impair an individual's ability to take protective action. The analyses
indicated that assumptions were chosen that tended to overstate the
expected consequences. A hazard consequence analysis is a site-specific
analysis, and the examples provided in the Technical Support Document
indicate that a safety incident at a battery energy storage facility
would generally not result in adverse health impacts beyond the
facility's property line. (See Technical Support Document, p. 63.)
Further, DOE notes that battery energy storage facilities that qualify
for the new categorical exclusion would be required to incorporate
appropriate safety standards including the current National Fire
Protection Association 855 Standard. National Fire Protection
Association Standard 855 requires the development of emergency response
plans.
Commenters also stated that toxic chemicals could be used to put
out battery energy storage system fires. Commenters expressed concern
about runoff from fire suppression water or fire retardant, the lack of
containment systems for this runoff, the resulting risk of soil and
groundwater pollution, and
[[Page 34085]]
potential impacts to water resources. Commenters stated that fire-
extinguishing water used at the East Hampton Energy Storage Center in
East Hampton, NY, contaminated a sole-source aquifer used for drinking
water with toxic chemicals. Commenters stated that fighting battery
energy storage system fires could require up to 2 million gallons of
water over a three-day period and that there are no spill containment
systems in place at battery energy storage systems to catch fire water
suppression runoff.
DOE has supplemented the Technical Support Document to include best
management practices regarding spill control plans from individual
projects as well as requirements from National Fire Protection
Association Standard 855 to minimize spill risk during normal operation
and in the event of a fire. (See Technical Support Document, p. 41.)
Site-specific spill prevention plans are typically developed for
individual projects as a standard best practice. DOE further notes that
the emerging consensus in the firefighting community is that water
should be used sparingly in responding to battery energy storage system
fires to minimize potential risk of contamination to water resources.
Commenters stated that there is a lack of appropriate training for
emergency responders in the event of an incident at a battery energy
storage system and that available training and resources are limited.
National Fire Protection Association Standard 855 requires the
development of emergency response plans, mandates initial and annual
training, and recommends inclusion of emergency response personnel in
these trainings. The Technical Support Document also includes
recommendations from the American Clean Power Association and the New
York Battery and Energy Storage Technology Consortium and Fire and Risk
Alliance for the development of emergency response plans and pre-
incident planning and incident response.
Commenters stated that the chance of fire at a utility-scale
battery energy storage system is 1 in 30 to 1 in 50 and that the
average age of a battery that catches fire is 18 months. Several
commenters pointed to past battery energy storage system fires
including those in Surprise, AZ, Chandler, AZ, Moss Landing, CA, and in
New York State. DOE responds that a recent Pacific Northwest National
Laboratory report \15\ noted that the Electric Power Research
Institute's (EPRI's) database identifies 14 fires involving large,
grid-connected battery energy storage systems in the U.S. ``To place
that number in context, there were 491 large, utility-scale projects in
the U.S. as of April 2023, for a fire incidence rate of about 2.9
percent. No [battery energy storage system] fire in the U.S. has
resulted in loss of life, and many of the affected facilities were able
to resume operation.'' DOE acknowledges that battery energy storage
facilities present safety risks if not managed properly and have
resulted in past safety incidents. DOE reviewed the U.S. fires reported
in the EPRI database and confirmed that few if any injuries occurred,
apart from the 2019 Surprise, AZ, incident that involved multiple
severe injuries. Lessons learned from that 2019 event have since led to
improvements in safety standards and first responder training. The
battery energy storage systems that qualify for categorical exclusion
B4.14 would be built and operated using the most current safety
standards, including those identified in the National Fire Protection
Association 855 Standard.
---------------------------------------------------------------------------
\15\ Energy Storage in Local Zoning Ordinances (Pacific
Northwest National Laboratory, 2023): www.pnnl.gov/main/publications/external/technical_reports/PNNL-34462.pdf.
---------------------------------------------------------------------------
Commenters stated that DOE's Technical Support Document included
small-scale projects (less than 10 megawatts) and mobile facilities and
thus did not consider that the risk of thermal runaway increases with
the number of battery cells and facility size. DOE notes that the
Technical Support Document for the notice of proposed rulemaking also
included environmental assessments for battery energy storage systems
ranging from approximately 20 megawatts up to 225 megawatts storage
capacity. For this final rule, DOE supplemented the Technical Support
Document with information to clarify that appropriate battery energy
storage system designs can prevent fire risk from increasing with
facility size. Energy storage system failures are designed to be
contained to the unit of origin, for example, by providing sufficient
spacing between modules or enclosures to avoid a fire from spreading.
Systems also may include fire suppression, smoke detectors, sprinkler
systems, and fire barriers, as applicable to the design. Because of
these safety features, the risk of a fire incident at a battery energy
storage project does not increase with project size; the two are
decoupled in a well-designed system that prevents a fire in one unit
from spreading to neighboring units. (See Technical Support Document,
p. 56.)
Commenters stated that DOE's Technical Support Document was
inadequate because the battery energy storage systems included have not
been built, and operational safety has not yet been proven. Commenters
also asserted that design standards and best management practices cited
in the Technical Support Document, such as UL 9540A, are not sufficient
to mitigate the risk of thermal runaway. DOE notes that battery energy
storage systems have experienced rapid growth in recent years.
According to the U.S. Energy Information Administration, currently
planned and operational U.S. utility-scale battery capacity totaled
around 16 gigawatts at the end of 2023. (See Technical Support
Document, p. 41.) This growth in deployment of battery energy storage
systems provides real-world information on design and operation that
feeds into efforts to continuously improve the safety of these
facilities, such as through the ongoing development and revision of
applicable safety standards.
DOE is aware that battery energy storage facilities present a risk
of safety incidents, including the risk of a thermal runaway event that
may result in fire. To ensure that battery energy storage systems are
designed and operated using layers of protection, current best
practices, and the most up-to-date standards, categorical exclusion
B4.14 may only be used for proposed battery energy storage systems that
comply with appropriate safety standards, including the current
National Fire Protection Association Standard 855. The requirements and
depth of National Fire Protection Association Standard 855 would ensure
that battery energy storage systems are designed using current best
practices to minimize the potential for a safety incident that could
result in a thermal runaway. Also, the National Fire Protection
Association Standard 855 requires the development of a hazard
mitigation analysis, which is a method to evaluate potential failure
modes and their cause and effects, in order to develop methods to
prevent failure during system operation. Further, the National Fire
Protection Association updates its standards every 3 to 5 years,
ensuring that its standards continue to reflect current best practices.
Commenters stated that meeting the including UL 9540A standard
cited in DOE's Technical Support Document would not prevent a thermal
runaway event once started. DOE notes that in a UL 9540A test a thermal
runaway event is intentionally created to better understand how the
cell performs under failure, which helps to design fire safety
[[Page 34086]]
features to limit the propagation of fire from one cell to another, in
the event of a failure. Systems that meet UL 9540A, in addition to all
the other requirements included in the National Fire Protection
Association Standard 855 would ensure layers of protection to prevent
accidents and mitigate safety risk. (See Technical Support Document, p.
56.)
Commenters also stated that DOE's Technical Support Document should
not include information from the American Clean Power Association
because a lobbyist organization is not an appropriate source for safety
standards. DOE includes three reference documents from the American
Clean Power Association in the Technical Support Document: a
compilation of relevant codes and standards for battery energy storage
systems prepared by other organizations, guidelines for first
responders in the event of an accident, and a summary of information
related to battery energy storage systems. DOE has reviewed these
documents and finds them helpful in explaining useful information about
the safe operation of battery energy storage systems.
Commenters also requested that DOE issue a new policy that
addresses how the public safety risks posed by lithium-based battery
energy storage systems should be accounted for in future NEPA actions.
DOE will consider whether there is a need for guidance on the
consideration of battery energy storage systems in NEPA reviews.
However, that is outside the scope of this rulemaking.
Commenters also stated that battery energy storage systems should
have sensors that provide information on the presence of flammable
gases onsite and that information should be available to emergency
responders. DOE has supplemented the Technical Support Document to
include information that battery energy storage systems contain fire
and gas detection systems. Further, DOE notes that the current National
Fire Protection Association Standard 855 contains a variety of
provisions related to gas detection; fire control and suppression,
measures to prevent explosions and safely contain fires, hazard
mitigation analysis, emergency response plans, and requirements for
initial and annual training. (See Technical Support Document, p. 56.)
Commenters requested that DOE investigate whether these energy
storage systems emit toxins or carcinogens during normal operation. DOE
has supplemented the Technical Support Document with additional
information explaining that energy storage systems do not leak
chemicals or emit toxic or carcinogenic gases during normal operation.
(See Technical Support Document, p. 41.)
2. Comments Regarding Siting of Battery Energy Storage Systems
Commenters stated that battery energy storage systems should not be
sited near earthquake fault zones, sole-source aquifers, residential
areas, densely populated areas, schools, daycare facilities, hospitals,
nursing homes, threatened and endangered species, recreational areas,
or transportation corridors. Commenters stated that battery energy
storage systems should be sited only in desolate areas. Commenters
expressed concern that battery energy storage systems would be sited in
fire-prone landscapes and that sparks from a fire originating at a
battery energy storage system would spread to nearby areas. Commenters
stated that disruption to nearby communities should be mitigated, and
expressed concern that without adequate planning and siting, important
emergency routes, such as to and from hospitals and between nursing
homes and hospitals, could be disrupted. Commenters requested that DOE
include measures to ensure energy storage systems are not sited on
areas of prime or sensitive habitat. DOE incorporates siting
considerations into its decision whether to apply categorical exclusion
B4.14 to any proposed action. This includes conditions within the
categorical exclusion regarding the type of land on which the proposed
project may be located, the requirement to be in accordance with land
use and zoning requirements, and the integral elements that include the
requirement not to pose a significant impact to environmentally
sensitive resources. Categorical exclusion B4.14 also requires that, to
apply it to a particular proposed project, the proposed action must
incorporate safety standards and other specified conditions that reduce
the risk of accidents. As noted in the Pacific Northwest National
Laboratory's October 2023 report, Energy Storage in Local Zoning
Ordinances, there is variation in local siting and zoning
considerations for energy storage systems. This report notes that
safety is frequently the most important concern expressed in local
zoning proceedings for energy storage projects and identifies several
case studies for how local planners have mitigated impacts from various
jurisdictions. (See Technical Support Document, p. 59.) At any point
during DOE's review of whether categorical exclusion B4.14 applies, DOE
can determine that additional information is needed to make a
categorical exclusion determination or decide to prepare an
environmental assessment or environmental impact statement.
Commenters stated that a battery energy storage system should never
be sited in an undeveloped area. Other commenters expressed concern
that siting battery energy storage systems on undisturbed land could
significantly impact the environment and surrounding communities and
requested additional support for DOE's inclusion of undisturbed areas
contiguous to previously disturbed or developed areas. Commenters
stated that DOE's supporting information relied on an environmental
assessment for the Vonore Project that included mitigation measures to
reach a finding of no significant impact. DOE responds that, as
explained in section III.C of this document, based on past experience,
DOE anticipates that energy storage systems typically require 15 acres
or less and would be sited close to energy, transmission, or industrial
facilities. Consistent with this expectation and because contiguous
land might be undisturbed and undeveloped, siting outside a previously
disturbed or developed in the new categorical exclusion would be
limited to a ``small'' contiguous area. DOE would consider whether a
contiguous area is small, based on the criteria discussed in 10 CFR
1021.410(g)(2)). DOE has revised its Technical Support Document to
clarify that there are three EAs and FONSIs that evaluate battery
energy storage systems ranging in size up to 225 megawatts located on
sites contiguous to previously disturbed and developed areas. (See
Technical Support Document, p. 42.) Further, DOE reviewed the Vonore
Project that the commenter suggested relied on mitigation measures in
an environmental assessment to reach a finding of no significant impact
and notes that the Tennessee Valley Authority indicated that two ``non-
routine measures would be applied during the construction, operation,
and maintenance of the proposed Vonore [battery energy storage system],
transmission lines, and access roads to reduce the potential for
adverse environmental effects'', not that those measures were necessary
to reach a finding of no significant impact. (See Technical Support
Document, p. 50.) Commenters stated that DOE's supporting information
included an environmental assessment tiered from a programmatic
environmental impact statement. DOE removed this environmental
assessment from the Technical Support Document.
[[Page 34087]]
5. Comments Regarding Siting Contiguous to a Previously Disturbed or
Developed Area
Commenters stated that DOE should not limit the categorical
exclusion to a ``small'' or 15-acre area contiguous to previously
disturbed or developed areas and that DOE should clarify that there
would be no acreage limitation. Commenters stated that DOE's supporting
information did not accurately reflect the acreage required and that 25
MW per acre is a more accurate assumption for battery energy storage
systems. Commenters also stated that an acreage limitation could result
in more densely packed battery energy storage systems with greater risk
of thermal runaway. Similarly, other commenters recommended that DOE
remove reference to specific acreages that were included in the
preamble to DOE's Notice of Proposed Rulemaking and instead use the
definition of ``small'' in 10 CFR 1021.410(g)(2). DOE responds that
section II of this document includes discussion of DOE's definition of
previously disturbed or developed area and DOE's experience referring
to contiguous areas in its categorical exclusions. The total acreage
used for an energy storage system will be defined by the needs of the
proposed project. Based on past experience, DOE anticipates that energy
storage systems typically require 15 acres or less and would be sited
close to energy, transmission, or industrial facilities. However, this
recognition of that past experience does not indicate an acreage limit
on the scope of categorical exclusion B4.14. (See Technical Support
Document, p. 41.) As previously explained, DOE would consider whether a
contiguous area is small, based on the criteria discussed in 10 CFR
1021.410(g)(2).
Other commenters stated that 15 acres or less should be added as a
numeric limit in the categorical exclusion. DOE considered this
suggestion but has concluded that an acreage limit is not an
appropriate method for determining whether a project normally would
result in significant environmental effects. Rather, the terms of
categorical exclusion B4.14, including the integral elements and need
to consider extraordinary circumstances, provide a reasoned basis for
the categorical exclusion.
Commenters stated that areas contiguous to previously disturbed or
developed land may have particular conservation values or be more
likely to be located in communities that have historically experienced
disproportionate impacts. Commenters requested that DOE require that
contiguous areas be evaluated separately under a land use plan, a
programmatic environmental impact statement or environmental analysis,
or other equivalent decisions that provide detailed analysis and
opportunity for public engagement. Similarly, another commenter
requested that DOE revise the categorical exclusion conditions to
include limitations regarding site dimensions, land use history, and
proximate uses and resources to indicate a preference for siting
locations where fewer impacts would be expected to occur. Commenters
requested that DOE include measures to ensure energy storage systems
are not sited on areas of prime or sensitive habitat. Because
contiguous land might be undisturbed and undeveloped, DOE proposes that
siting outside a previously disturbed or developed area be limited to a
``small'' contiguous area. DOE would consider whether a contiguous area
is small, based on the criteria discussed in 10 CFR 1021.410(g)(2)),
``in the context of the particular proposal, including its proposed
location. In assessing whether a proposed action is small, in addition
to the actual magnitude of the proposal, DOE considers factors such as
industry norms, the relationship of the proposed action to similar
types of development in the vicinity of the proposed action, and
expected outputs of emissions or waste. When considering the physical
size of a proposed facility, for example, DOE would review the
surrounding land uses, the scale of the proposed facility relative to
existing development, and the capacity of existing roads and other
infrastructure to support the proposed action.'' In addition, the
proposed project must be ``in accordance with applicable requirements
(such as land use and zoning requirements) in the proposed project area
and the integral elements listed at the start of appendix B of this
part, and would incorporate appropriate safety standards (including the
current National Fire Protection Association 855, Standard for the
Installation of Stationary Energy Storage Systems), design and
construction standards, control technologies, and best management
practices.''
4. Comments Regarding Other Potential Impacts of Energy Storage Systems
Commenters stated battery energy storage systems would result in
noise and light pollution and visual impacts for nearby residents.
Commenters expressed concern about adverse socioeconomic impacts of
battery energy storage systems, stating that the risk of fire, toxic
chemical releases, and emergency lockdowns would negatively affect home
values, quality of life, and the local economy. DOE has supplemented
the Technical Support Document to include additional information
regarding potential noise and light pollution impacts from proposed
projects. (See Technical Support Document, p. 41).
Commenters expressed concern regarding disposal of batteries at the
end of their useful life and questioned if the batteries would be
recycled or taken to hazardous waste landfills. Commenters stated that
battery energy storage systems should not be categorically excluded due
to the associated environmental impact of rare earth mining for battery
materials, as well as the transport of hazardous materials to and from
the facility upon decommissioning. Commenters stated that battery
energy storage systems are waste-generating facilities with large
quantities of hazardous, flammable materials stored onsite. DOE has
supplemented the Technical Support Document to include additional
information regarding waste management and decommissioning plans for
proposed projects. For example, a decommissioning plan should be
prepared during project planning that details what will happen when a
battery energy storage system reaches its end of life. Decommissioning
plans generally should include removal of all structures; recycling of
equipment to the greatest extent possible; the proper disposal of non-
recyclable equipment in accordance with manufacturer specifications and
applicable local, state, and Federal requirements; and re-establishment
of vegetation and restoration of the project site. (See Technical
Support Document, p. 41.) In addition, National Fire Protection
Association Standard 855 mandates a decommissioning plan for removing
and disposing of the system at the end of its useful life.
Commenters stated that a battery energy storage system operating as
a new entrant to the electrical grid introduces security
vulnerabilities that could adversely affect the electrical grid. DOE
has supplemented the Technical Support Document to include additional
information regarding the North American Electric Reliability
Corporation Critical Infrastructure Protection security requirements
for system integrators of certain battery energy storage equipment,
including cyber systems, asset categorization, and security system
management. DOE also notes that the use of energy storage systems has
increased substantially in recent years. This has demonstrated
[[Page 34088]]
through real world experience that energy storage systems can be safely
integrated into the electrical grid and provides experience that is
used to improve related guidance and practices. (See Technical Support
Document, p. 56.)
Commenters recommended that if categorical exclusion B4.14 is
applied to a proposed project that is within or would affect a state's
coastal zone, DOE continue to comply with relevant requirements of the
Coastal Zone Management Act. DOE recognizes its responsibility to
comply with the Coastal Zone Management Act and will continue to do so.
DOE also notes that one of the conditions, or integral elements, for
applying categorical exclusion B4.14 to a proposed action is that the
proposed action would not ``Threaten a violation of applicable
statutory, regulatory, or permit requirements for environment, safety,
and health, or similar requirements of DOE or Executive Orders'' (10
CFR part 1021, subpart D, appendix B). This condition includes
compliance with relevant requirements of the Coastal Zone Management
Act.
5. Comments Regarding Public Scoping and Alternatives Analysis
Commenters explained that DOE's categorical exclusion for battery
energy storage systems removes transparency for communities and
explained that there is a lack of public outreach for proposed battery
energy storage systems when applying a categorical exclusion. Some
commenters specified that communities should have public review and
comment for proposed battery energy storage systems, including for
example, potential environmental and safety risks, evacuation plans,
and mitigation strategies. DOE responds that to provide transparency in
the use of categorical exclusions, DOE began posting categorical
exclusion determinations online in 2009. DOE will continue to regularly
post categorical exclusion determinations for B4.14 and other
categorical exclusions listed in appendix B of DOE's NEPA regulations
(10 CFR part 1021, subpart D) at www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations.
Commenters further stated that an alternatives analysis should be
required to compare alternatives to battery energy storage system
technology, as well as alternative siting locations. DOE considers
alternatives, as appropriate, in NEPA reviews and in its decision
making. Whether DOE evaluates alternatives for a particular proposed
action, and the nature of those alternatives, depends on several
factors including the potential for significant impacts and the purpose
and need for DOE's action.
6. Comments Requesting That DOE Expand Categorical Exclusion B4.14
In explaining why categorical exclusion B4.14 is limited to
electrochemical-battery and flywheel energy storage systems, DOE stated
in the notice of proposed rulemaking that, ``At this time, DOE has not
identified sufficient information to conclude that compressed air
energy storage, thermal energy storage (e.g., molten salt storage), or
other technologies normally do not present the potential for
significant environmental impacts. DOE welcomes comments that provide
analytic support for whether these other energy storage technologies
meet the requirements for a categorical exclusion.'' Commenters
recommended that DOE expand categorical exclusion B4.14 to include any
energy storage system that is technologically feasible or was developed
either by a DOE laboratory or with financial support from the Federal
Government. Commenters also recommended expansion of categorical
exclusion B4.14 to include specific energy storage technologies,
including above-ground compressed air energy storage; thermal energy
storage, including molten salt storage; solid-state thermal batteries;
pumped storage hydropower; gravity storage; underground hydrogen
storage. DOE appreciates these suggestions, including the rationale
provided by the commenters. DOE has determined, however, that it does
not currently have sufficient information to determine that these
technologies normally do not pose a potential for significant impacts.
DOE will retain the comments for consideration in a future rulemaking.
Commenters recommended that categorical exclusion B4.14 include the
use of iron-air batteries. Iron-air batteries are a type of
electrochemical battery and, therefore, included within the scope of
categorical exclusion B4.14.
Commenters suggested that DOE add a new categorical exclusion for
combined battery and solar projects. DOE may apply more than one
categorical exclusion to a proposed action so long as the potential
effects of the total project are analyzed and the proposed action
fulfills all the conditions, including integral elements, of each
categorical exclusion applied. For example, it could be appropriate to
apply categorical exclusions B4.14, Construction and operation of
electrochemical-battery or flywheel energy storage systems, and B5.16,
Solar photovoltaic systems, to the same proposed action, depending on
project- and site-specific conditions. Given this practice, the
commenters' suggested addition is unnecessary.
7. Comments Regarding Specific Energy Storage System Projects
Commenters expressed opposition to specific battery energy storage
system projects including those in Morro Bay, CA, East Hampton, NY,
Warwick, NY, Holtsville, NY, Covington, WA, and in Eldorado near Santa
Fe, NM. Commenters requested to be informed of all future battery
energy storage systems. This rulemaking does not involve decisions or
actions related to any particular proposed battery energy storage
system. As described in section II of this document, before DOE may
apply categorical exclusion B4.14 to a particular proposed action, DOE
must conduct a project-specific environmental review to determine
whether all conditions applicable to the categorical exclusion are met.
DOE does not review or have a decision-making role regarding all
battery energy storage systems and has no mechanism to inform local
residents of all future battery energy storage systems.
D. Comments Regarding Solar Photovoltaic Systems
1. Comments Regarding the Lake Effect Hypothesis (LEH)
There is a potential that birds, particularly waterfowl, perceive
large solar PV facilities as water bodies. Underlying this lake effect
hypothesis is the possibility that solar panels and water polarize
light in a similar way. This might cause birds to try to land or feed
on solar PV panels, which could cause bird fatalities and other harms.
Some commenters raised this concern and stated that birds may mistake
solar panels for water bodies and be stranded, injured, or killed.
Commenters requested that best management practices, such as non-
reflective coating, increased panel spacing, and vertical positioning
of the panels at night for panels on rotating axes, be incorporated
into solar facilities to minimize this risk. Other commenters added
that certain mitigation measures may depend on the species of bird and
other animal being affected, and that mitigation is best addressed in
an environmental impact statement. DOE is aware of this potential
impact and is one of the Federal agencies sponsoring research to better
understand whether birds mistake solar panels for water, whether that
might affect behavior, and what effective mitigation is available. (See
Technical Support Document, p. 103.)
[[Page 34089]]
Categorical exclusion B5.16 includes conditions that require that the
proposed project not have significant effects on protected species. At
any point in its environmental review of a particular project, DOE can
decide to prepare an environmental assessment or environmental impact
statement rather than relying on a categorical exclusion.
2. Comments Regarding Wildlife and Habitat
Commenters stated that insect populations may be at risk from solar
PV facilities and that PV panels produce polarized light that may
confuse insects seeking water for feeding or breeding purposes,
potentially leading to reproductive failure and possible ecosystem
effects. DOE has supplemented the Technical Support Document to include
research that summarizes the potential for negative impacts, including
potential light pollution that may adversely impact aquatic insect
breeding, as well as the positive impacts of solar PV systems on insect
populations. (See Technical Support Document, p. 103.) The Technical
Support Document summarizes research regarding siting considerations
that demonstrate that use of previously disturbed or developed lands,
such as former agricultural fields, is preferable to siting on
undisturbed land. In addition, use of native mixes of flowering plants
and grasses during revegetation can improve the biodiversity of both
plant and insect populations, including pollinators, as the habitat
matures post-construction. Proper siting of proposed solar PV systems
and revegetation plans that use diverse, pollinator-friendly seed mixes
would ensure that adverse impacts to insect populations are not
significant. Categorical exclusion B5.16 includes conditions that
require that the proposed project not have significant effects on
protected species. At any point in its environmental review of a
particular project, DOE can decide to prepare an environmental
assessment or environmental impact statement rather than relying on a
categorical exclusion.
Commenters stated that habitat fragmentation and the spread of non-
native, invasive species could result from building solar projects
along linear corridors such as utility rights-of-way, particularly in
cases where the projects are fully fenced. These commenters further
stated that land and wildlife managers must assess current wildlife
habitat connectivity in the proposed project area, as well as future
connectivity needs in light of climate change. DOE appreciates
commenters raising concerns about habitat connectivity. DOE's integral
elements and consideration of extraordinary circumstances would ensure
consideration of these impacts. Nonetheless, to better highlight
potential effects on habitat, in this final rule, DOE added conditions
to categorical exclusion B5.16 to ensure that proposed solar PV
projects would be consistent with applicable plans for management of
wildlife and habitat, including plans to maintain habitat connectivity.
Commenters stated that the Wild Springs Solar Project included in
the Technical Support Document is not a typical design because the
fencing encloses blocks of panels, rather than surrounding the entire
project. These commenters stated that the project was designed and
sited to avoid prairie dog colony areas. These commenters asserted that
if a categorical exclusion had been applied to this project, these
protective measures are unlikely to have been taken. Categorical
exclusion B5.16 requires that the proposed project not have significant
effects on species, habitat, and other local environmental conditions,
as well as the use of best management practices. DOE disagrees with the
assertion that the protective design elements would not have been
included in the project if a categorical exclusion would have been used
for NEPA review.
3. Comments Regarding Various Environmental Effects
Commenters expressed concerns regarding impacts from toxic dust
during construction, visual impacts, lower property values, harm to
tourism economies, and a heat island effect. Commenters expressed
concern over water use during construction and for dust control and the
cumulative impact of dust emissions, both during construction and
operation. Commenters stated that categorical exclusion B5.16 must
include provisions for effective dust control in desert and dry, wind-
prone areas. DOE is aware of these concerns. Dust control and
limitations on other effects are encompassed in the requirement that
the proposed project be in ``accordance with applicable requirements
(such as land use and zoning requirements) in the proposed project area
and the integral elements listed at the start of appendix B of this
part, and would be consistent with applicable plans for the management
of wildlife and habitat, including plans to maintain habitat
connectivity, and incorporate appropriate control technologies and best
management practices.''
One individual expressed concern about fire risk due to electrical
lines associated with solar energy systems. DOE responds that any
electrical lines associated with a solar PV system would be required to
meet all applicable standards for vegetation management, system design,
and other conditions to prevent the lines from causing fires.
4. Comments Regarding Cumulative Effects
Commenters expressed concern over the cumulative effects of
removing the 10-acre size limit for solar PV systems in categorical
exclusion B5.16, suggesting that the impacts could extend to tens of
thousands of acres in a concentrated area. Commenters also stated that
the categorical exclusion must not apply to utility-scale solar
developments larger than 500 acres because of cumulative impacts. DOE
considers cumulative impacts in determining whether to apply a
categorical exclusion to a proposed action. DOE's regulations list
conditions that must be met before making a categorical exclusion
determination. Among these conditions is a requirement to consider
``connected and cumulative actions, that is, the proposal is not
connected to other actions with potentially significant impacts (40 CFR
1508.25(a)(1)), [and] is not related to other actions with individually
insignificant but cumulatively significant impacts (40 CFR
1508.27(b)(7)).'' DOE might also consider cumulative impacts in the
context of extraordinary circumstances, integral elements, or other
conditions such as consistency with applicable plans for the management
of wildlife and habitat, including plans to maintain habitat
connectivity. In regard to the suggested 500-acre limit for the
categorical exclusion, as explained in section II of this document, DOE
does not have a basis for identifying a particular acreage limit for
categorical exclusion B5.16. Local conditions are the appropriate basis
for assessing the significance of environmental impacts for a
particular proposed project.
5. Comments Regarding the Need for Additional Guidance and Regulation
Commenters identified a need for further guidance on responsible
solar buildout, particularly regarding critical wildlife habitats and
productive agricultural lands. DOE appreciates this recommendation and
expects that guidance and best practices will continue to improve as
the technology advances. Categorical exclusion B5.16 includes
flexibility to accommodate these changes (e.g., by providing for
[[Page 34090]]
consideration of the best practices relevant at the time the proposed
action is reviewed).
Other commenters stated that categorical exclusion B5.16 requires
that actions ``would be in accordance with applicable requirements
(such as land use and zoning requirements)'' but noted that not all
jurisdictions have current planning and zoning that expressly addresses
siting of large-scale solar PV projects. Commenters asserted that a
large-scale PV solar project, therefore, could be permitted in a
corridor or right-of-way without meaningful NEPA review simply because
it is not prohibited in those areas under the current zoning and
planning requirements. DOE disagrees with this characterization. As
explained in section II of this document and in response to comments,
DOE must consider several conditions related to environmental impacts
before deciding whether to apply categorical exclusion B5.16 to a
particular proposed action. In an area without applicable land use and
zoning requirements, DOE still would consider whether the proposed
project location is on previously disturbed or developed land,
applicable requirements and plans for the management of wildlife and
habitat, including plans to maintain habitat connectivity, whether the
proposed project incorporates appropriate control technologies and best
management practices, the integral elements listed in DOE's
regulations, and other conditions required of every categorical
exclusion, such as consideration of any extraordinary circumstances.
6. Comments Regarding the Definition of Previously Disturbed or
Developed Lands
Some commenters proposed edits to narrow DOE's definition of
``previously disturbed or developed lands.'' DOE considered these
suggestions and concluded that the changes are unnecessary. DOE has
successfully applied the current definition over more than a decade for
a variety of projects involving several DOE categorical exclusions that
use the phrase ``previously disturbed or developed.'' This phrase and
definition are only part of the criteria that must be met to use
categorical exclusion B5.16. As described in section II of this
document and in response to other comments, the use of the categorical
exclusion is dependent upon successfully satisfying several conditions
related to environmental effects.
7. Comments Regarding Scope
Commenters suggested that DOE extend categorical exclusion B5.16 to
include agricultural lands, especially where the project developers
agree to follow certain practices to protect native habitats and manage
stormwater. DOE considers agricultural land potentially within the
scope of categorical exclusion B5.16 so long as the proposed action
meets all applicable conditions. Those conditions include avoiding
significant impacts on habitat and following applicable plans for the
management of wildlife and habitat, including plans to maintain habitat
connectivity, among others.
Commenters stated that large, solar PV power plants built on water
decrease photosynthesis and primary productivity and may have adverse
ecosystem effects. Categorical exclusion B5.16 does not apply to solar
PV projects proposed to be located on water. In DOE's NEPA regulations,
the term `` `previously disturbed or developed' refers to land'' (10
CFR 1021.410(g)(1)).
8. Comments Regarding Solar Panel Production and Decommissioning
Commenters expressed concern about environmental impacts of solar
panel production, citing the environmental effects and carbon emissions
of raw material sourcing, mining, smelting, and refining. The effects
of solar panel production are not within DOE's control or
responsibility and are therefore outside the scope of DOE's NEPA review
for solar PV systems. The scope of categorical exclusion B5.16 includes
of installation, modification, and decommissioning of solar PV systems,
and the related environmental effects are within the scope of DOE's
NEPA review.
Commenters stated that use of the categorical exclusion would
prevent public review of materials used in solar panels with potential
to leach into landfills and impact water quality. Commenters stated
that potential carcinogens such as PFAS (per- and polyfluoroalkyl
substances) and metals such as silver, cadmium, and tellurium may be
used in solar PV panels. DOE has supplemented the Technical Support
Document regarding the safe operation and maintenance of solar PV
panels. PV panels are sealed and do not leach chemicals during normal
operation. Maintenance and repair of PV panels ensures that broken or
cracked PV panels do not leach metals or other potentially hazardous
contaminants. Recycling PV panels keeps PV panels out of landfills.
(See Technical Support Document, p. 52.)
Commenters stated that consideration has not been given to the safe
decommissioning and recycling of PV panels. DOE conducts research on
the safe decommissioning and recycling of PV panels. Categorical
exclusion B5.16 includes decommissioning of a solar PV system, and the
environmental effects of decommissioning are considered as part of this
rulemaking. (See Technical Support Document, p. 74.) DOE has
supplemented the Technical Support Document to include additional
information regarding waste management and decommissioning plans for
proposed projects. For example, a decommissioning plan should be
prepared during project planning and best practices for what will
happen when the solar PV project reaches its end of life.
Decommissioning plans generally should include removal of all
structures, including solar panels and all related equipment; recycling
of PV panels and related equipment to the greatest extent possible; the
proper disposal of non-recyclable equipment in accordance with
manufacturer specifications and applicable local, state, and Federal
requirements; and re-establishment of vegetation and restoration of the
project site. (See Technical Support Document, p. 74.) In addition,
National Fire Protection Association Standard 855 mandates a
decommissioning plan for removing and disposing of the system at the
end of its useful life.
V. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866, 13563, and 14094
Executive Order (``E.O.'') 12866, ``Regulatory Planning and
Review,'' as supplemented and reaffirmed by E.O. 13563, ``Improving
Regulation and Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011) and
amended by E.O. 14094, ``Modernizing Regulatory Review,'' 88 FR 21879
(April 11, 2023), requires agencies, to the extent permitted by law, to
(1) propose or adopt a regulation only upon a reasoned determination
that its benefits justify its costs (recognizing that some benefits and
costs are difficult to quantify); (2) tailor regulations to impose the
least burden on society, consistent with obtaining regulatory
objectives, taking into account, among other things, and to the extent
practicable, the costs of cumulative regulations; (3) select, in
choosing among alternative regulatory approaches, those approaches that
maximize net benefits (including
[[Page 34091]]
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity); (4) to the extent
feasible, specify performance objectives, rather than specifying the
behavior or manner of compliance that regulated entities must adopt;
and (5) identify and assess available alternatives to direct
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public. DOE
emphasizes as well that E.O. 13563 requires agencies to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible. In its guidance, the
Office of Information and Regulatory Affairs (OIRA) in the Office of
Management and Budget (OMB) has emphasized that such techniques may
include identifying changing future compliance costs that might result
from technological innovation or anticipated behavioral changes. Many
benefits and costs associated with this final rule are not
quantifiable. The direct benefits include reduced cost and time for
environmental analysis incurred by DOE, project proponents, and the
public. Indirect benefits are expected to include deployment of
technologies that improve the reliability and resilience of the
Nation's electric grid and that expand electricity generation capacity
while reducing emissions of GHGs. For the reasons stated in this
preamble, this regulatory action is consistent with these principles.
This regulatory action has been determined not to be ``a
significant regulatory action'' under E.O. 12866, ``Regulatory Planning
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action
is not subject to review under that Executive Order by OIRA of OMB.
B. Review Under Executive Orders 12898 and 14096
E.O. 12898, ``Federal Actions To Address Environmental Justice in
Minority Populations and Low-Income Populations,'' as supplemented and
amended by E.O. 14096, ``Revitalizing Our Nation's Commitment to
Environmental Justice for All,'' requires each Federal agency,
consistent with its statutory authority, to make achieving
environmental justice part of its mission. E.O. 14096 directs Federal
agencies to carry out environmental reviews under NEPA in a manner that
``(A) analyzes direct, indirect, and cumulative effects of Federal
actions on communities with environmental justice concerns; (B)
considers best available science and information on any disparate
health effects (including risks) arising from exposure to pollution and
other environmental hazards, such as information related to the race,
national origin, socioeconomic status, age, disability, and sex of the
individuals exposed; and (C) provides opportunities for early and
meaningful involvement in the environmental review process by
communities with environmental justice concerns potentially affected by
a proposed action, including when establishing or revising agency
procedures under NEPA.'' DOE provided opportunities for public
engagement in this rulemaking, including opportunities for communities
with environmental justice concerns, and DOE considered and responded
to comments raising environmental justice concerns (section IV of this
document). Also, in determining whether the categorical exclusions
apply to a future proposed action, DOE will consider whether the
proposed action threatens a violation of these Executive Orders,
consistent with the first integral element listed in appendix B of
DOE's NEPA procedures.
C. Review Under National Environmental Policy Act
The Department's NEPA procedures assist the Department in
fulfilling its responsibilities under NEPA and the CEQ regulations but
are not themselves final determinations of the level of environmental
review required for any proposed action. The CEQ regulations do not
direct agencies to prepare an environmental assessment or environmental
impact statement before establishing agency procedures that supplement
the CEQ regulations to implement NEPA (40 CFR 1507.3). In establishing
a new categorical exclusion and making other changes as described in
this final rule, DOE followed the requirements of CEQ's procedural
regulations, which include publishing the notice of proposed rulemaking
in the Federal Register for public review and comment, considering
public comments, and consulting with CEQ regarding conformity with NEPA
and the CEQ regulations (40 CFR 1507.3(b)).
In this final rule, DOE finalizes amendments that establish,
modify, and clarify procedures for considering the environmental
effects of DOE actions within DOE's decisionmaking process, thereby
enhancing compliance with the letter and spirit of NEPA. DOE has
determined that this final rule qualifies for categorical exclusion
under 10 CFR part 1021, subpart D, appendix A6, because it is a
strictly procedural rulemaking, and no extraordinary circumstances
exist that require further environmental analysis. Therefore, DOE has
determined that promulgation of these amendments is not a major Federal
action significantly affecting the quality of the human environment
within the meaning of NEPA, and does not require an environmental
assessment or an environmental impact statement.
D. Review Under Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by E.O. 13272, ``Proper Consideration of Small Entities in Agency
Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published procedures and
policies on February 19, 2003, to ensure that the potential impacts of
its rules on small entities are properly considered during the
rulemaking process (68 FR 7990). DOE has made its procedures and
policies available on the Office of the General Counsel's website:
https://energy.gov/gc under Resources.
DOE has reviewed this rule under the provisions of the Regulatory
Flexibility Act and the procedures and policies published on February
19, 2003. The revisions to 10 CFR part 1021 streamline the
environmental review for proposed actions, resulting in a decrease in
burdens associated with carrying out such reviews. For example, the
revisions to DOE's categorical exclusions are expected to reduce the
number of environmental assessments that applicants would need to pay
to have prepared for DOE's consideration. Applicants may sometimes
incur costs in providing environmental information that DOE requires
when making a categorical exclusion determination. The Government
Accountability Office found in 2014 that there is little data available
on the costs for preparing NEPA reviews and that agencies ``generally
do not reports costs that are `paid by the applicant' because these
costs reflect business transactions between applicants and their
contractors and are not available to agency officials.'' \16\ In 2011,
DOE estimated the cost of preparing
[[Page 34092]]
environmental assessments over the prior decade at an average of
$100,000 and a median of $65,000.\17\ DOE does not have more current
cost data. The costs of making a categorical exclusion determination
are less than those to prepare an EA. Although DOE does not have data
on what percentage of EAs were funded by applicants that qualified as
small entities, a beneficial cost impact is expected to accrue to
entities of all sizes.
---------------------------------------------------------------------------
\16\ GAO-14-369, NATIONAL ENVIRONMENTAL POLICY ACT: Little
Information Exists on NEPA Analyses, April 2014, available at
www.gao.gov/assets/gao-14-369.pdf.
\17\ 76 FR 237, January 3, 2011.
---------------------------------------------------------------------------
Based on the foregoing, DOE certifies that this final rule will not
have a significant economic impact on a substantial number of small
entities. Accordingly, DOE has not prepared a regulatory flexibility
analysis for this rulemaking. DOE's certification and supporting
statement of factual basis will be provided to the Chief Counsel for
Advocacy of the Small Business Administration pursuant to 5 U.S.C.
605(b).
E. Review Under Paperwork Reduction Act
This rulemaking imposes no new information or record-keeping
requirements. Accordingly, OMB clearance is not required under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and the procedures
implementing that Act (5 CFR 1320.1 et seq).
F. Review Under Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub.
L. 104-4) requires each Federal agency to assess the effects of Federal
regulatory actions on state, local, and tribal governments, in the
aggregate, or to the private sector, other than to the extent such
actions merely incorporate requirements specifically set forth in a
statute. Section 202 of UMRA requires a Federal agency to perform a
detailed assessment of the anticipated costs and benefits of any rule
that includes a Federal mandate which may result in costs to State,
local, or Tribal governments, or to the private sector, of $100 million
or more in any one year (adjusted annually for inflation) (2 U.S.C.
1532(a) and (b)). Section 204 of UMRA requires each agency that
proposes a rule containing a significant Federal intergovernmental
mandate to develop an effective process for obtaining meaningful and
timely input from elected officers of State, local, and Tribal
governments (2 U.S.C. 1534).
This final rule amends DOE's existing regulations governing
compliance with NEPA to better align DOE's regulations, including its
categorical exclusions, with its current activities and recent
experiences. This final rule will not 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. Accordingly,
no assessment or analysis is required under the UMRA.
G. Review Under Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule that may affect family
well-being. This final rule will not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
H. Review Under Executive Order 13132
E.O. 13132, ``Federalism,'' 64 FR 43255 (Aug. 4, 1999), imposes
certain requirements on agencies formulating and implementing policies
or regulations that preempt state law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the states and carefully assess the
necessity for such actions. DOE has examined this final rule and has
determined that it will not preempt state law and will not have a
substantial direct effect on the states, on the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by E.O. 13132.
I. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' 61 FR 4729 (Feb. 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 E.O. 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
E.O. 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, this final rule meets the relevant standards
of E.O. 12988.
J. Review Under Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note) provides for agencies to review most disseminations
of information to the public under information quality guidelines
established by each agency pursuant to general guidelines issued by
OMB.
OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has
reviewed this final rule under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.
K. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to OMB
a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgated or is expected to lead to promulgation of a
final rule, and that: (1)(i) is a significant regulatory action under
E.O. 12866, or any successor order, and (ii) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy; or (2) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use. This regulatory
action does not have a
[[Page 34093]]
significant adverse effect on the supply, distribution, or use of
energy, and is therefore not a significant energy action. Accordingly,
DOE has not prepared a Statement of Energy Effects.
L. Review Under Executive Order 12630
DOE has determined pursuant to E.O. 12630, ``Governmental Actions
and Interference with Constitutionally Protected Property Rights,'' 53
FR 8859 (Mar. 18, 1988), that this final rule would not result in any
takings that might require compensation under the Fifth Amendment to
the United States Constitution.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule prior to its effective date. The report will
state that the Office of Information and Regulatory Affairs has
determined that this action meets the criteria set forth in 5 U.S.C.
804(2).
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of
final rulemaking.
List of Subjects in 10 CFR Part 1021
Environmental impact statements.
Signing Authority
This document of the Department of Energy was signed on April 24,
2024, by Samuel T. Walsh, General Counsel, pursuant to delegated
authority from the Secretary of Energy. That document with the original
signature and date is maintained by DOE. For administrative purposes
only, and in compliance with requirements of the Office of the Federal
Register, the undersigned DOE Federal Register Liaison Officer has been
authorized to sign and submit the document in electronic format for
publication, as an official document of the Department of Energy. This
administrative process in no way alters the legal effect of this
document upon publication in the Federal Register.
Signed in Washington, DC, on April 24, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE amends part 1021 of
chapter X of title 10, Code of Federal Regulations, as set forth below:
PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING
PROCEDURES
0
1. The authority citation for part 1021 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 4321 et seq.; 50
U.S.C. et seq.
0
2. Appendix B of subpart D of part 1021 is amended by:
0
a. Revising B4.4, B4.6, and B4.13;
0
b. Adding B4.14; and
0
c. Revising B5.1 and B5.16.
The revisions and addition read as follows:
Appendix B to Subpart D of Part 1021--Categorical Exclusions Applicable
to Specific Agency Actions
* * * * *
B4. * * *
* * * * *
B4.4 Power Marketing Services and Activities
Power marketing services and power management activities
(including, but not limited to, storage, load shaping and balancing,
seasonal exchanges, and other similar activities), provided that the
operations of generating projects would remain within normal
operating limits. (See B4.14 of this appendix for energy storage
systems.)
* * * * *
B4.6 Additions and Modifications To Transmission Facilities
Additions or modifications to electric power transmission
facilities within a previously disturbed or developed facility area.
Covered activities include, but are not limited to, switchyard rock
grounding upgrades, secondary containment projects, paving projects,
seismic upgrading, tower modifications, load shaping projects (such
as reducing energy use during periods of peak demand), changing
insulators, and replacement of poles, circuit breakers, conductors,
transformers, and crossarms. (See B4.14 of this appendix for energy
storage systems.)
* * * * *
B4.13 Upgrading and Rebuilding Existing Powerlines
Upgrading or rebuilding existing electric powerlines, which may
involve relocations of small segments of the powerlines within an
existing powerline right-of-way or within otherwise previously
disturbed or developed lands (as discussed at 10 CFR
1021.410(g)(1)). Upgrading or rebuilding existing electric
powerlines also may involve widening an existing powerline right-of-
way to meet current electrical standards if the widening remains
within previously disturbed or developed lands and only extends into
a small area beyond such lands as needed to comply with applicable
electrical standards. Covered actions would be in accordance with
applicable requirements, including the integral elements listed at
the start of appendix B of this part; and would incorporate
appropriate design and construction standards, control technologies,
and best management practices. This categorical exclusion does not
apply to underwater powerlines. As used in this categorical
exclusion, ``small'' has the meaning discussed at 10 CFR
1021.410(g)(2).
B4.14 Construction and Operation of Electrochemical-Battery or
Flywheel Energy Storage Systems
Construction, operation, upgrade, or decommissioning of an
electrochemical-battery or flywheel energy storage system within a
previously disturbed or developed area or within a small (as
discussed at 10 CFR 1021.410(g)(2)) area contiguous to a previously
disturbed or developed area. Covered actions would be in accordance
with applicable requirements (such as land use and zoning
requirements) in the proposed project area and the integral elements
listed at the start of appendix B of this part, and would
incorporate appropriate safety standards (including the current
National Fire Protection Association 855, Standard for the
Installation of Stationary Energy Storage Systems), design and
construction standards, control technologies, and best management
practices.
* * * * *
B5. * * *
B5.1 Actions To Conserve Energy or Water
(a) Actions to conserve energy or water, demonstrate potential
energy or water conservation, and promote energy efficiency that
would not have the potential to cause significant changes in the
indoor or outdoor concentrations of potentially harmful substances.
These actions may involve financial and technical assistance to
individuals (such as builders, owners, consultants, manufacturers,
and designers), organizations (such as utilities), and governments
(such as state, local, and tribal). Covered actions include, but are
not limited to weatherization (such as insulation and replacing
windows and doors); programmed lowering of thermostat settings;
placement of timers on hot water heaters; installation or
replacement of energy efficient lighting, low-flow plumbing fixtures
(such as faucets, toilets, and showerheads), heating, ventilation,
and air conditioning systems, and appliances; installation of drip-
irrigation systems; improvements in generator efficiency and
appliance efficiency ratings; efficiency improvements for vehicles
and transportation (such as fleet changeout); transportation
management systems (such as traffic signal control systems, car
navigation, speed cameras, and automatic plate number recognition);
development of energy-efficient manufacturing, industrial, or
building practices; and small-scale energy efficiency and
conservation research and development and small-scale pilot
projects. Covered actions include building renovations or new
structures, provided that they occur in a previously disturbed or
developed area. Covered actions could involve commercial,
residential, agricultural, academic, institutional, or industrial
sectors. Covered
[[Page 34094]]
actions do not include rulemakings, standard-settings, or proposed
DOE legislation, except for those actions listed in B5.1(b) of this
appendix.
* * * * *
B5.16 Solar Photovoltaic Systems
(a) The installation, modification, operation, or
decommissioning of commercially available solar photovoltaic
systems:
(1) Located on a building or other structure (such as rooftop,
parking lot or facility, or mounted to signage, lighting, gates, or
fences); or
(2) Located within a previously disturbed or developed area.
(b) Covered actions would be in accordance with applicable
requirements (such as land use and zoning requirements) in the
proposed project area and the integral elements listed at the start
of appendix B of this part, and would be consistent with applicable
plans for the management of wildlife and habitat, including plans to
maintain habitat connectivity, and incorporate appropriate control
technologies and best management practices.
0
3. Amend Appendix C of subpart D of part 1021 by revising C4 and C7 to
read as follows:
Appendix C to Subpart D of Part 1021--Classes of Actions That Normally
Require EAs But Not Necessarily EISs
* * * * *
C4 Upgrading, Rebuilding, or Construction of Powerlines
(a) Upgrading or rebuilding existing powerlines when the action
does not qualify for categorical exclusion B4.13; or construction of
powerlines:
(1) More than approximately 10 miles in length outside
previously disturbed or developed powerline or pipeline rights-of-
way; or
(2) more than approximately 20 miles in length within previously
disturbed or developed powerline or pipeline rights-of-way.
* * * * *
C7 Contracts, Policies, and Marketing and Allocation Plans for Electric
Power
(a) Establishment and implementation of contracts, policies, and
marketing and allocation plans related to electric power acquisition
that involve:
(1) The interconnection of, or acquisition of power from, new
generation resources that are equal to or less than 50 average
megawatts, unless the generation resource is eligible for a
categorical exclusion;
(2) Changes in the normal operating limits of generation
resources equal to or less than 50 average megawatts; or
(3) Service to discrete new loads of less than 10 average
megawatts over a 12-month period.
* * * * *
0
4. Amend Appendix D to subpart D of part 1021 by revising D7 to read as
follows:
Appendix D to Subpart D of Part 1021--Classes of Actions That Normally
Require EISs
* * * * *
D7 Contracts, Policies, and Marketing and Allocation Plans for Electric
Power
(a) Establishment and implementation of contracts, policies, and
marketing and allocation plans related to electric power acquisition
that involve:
(1) The interconnection of, or acquisition of power from, new
generation resources greater than 50 average megawatts, unless the
generation resource is eligible for a categorical exclusion or was
evaluated in an environmental assessment resulting in a finding of
no significant impact;
(2) Changes in the normal operating limits of generation
resources greater than 50 average megawatts; or
(3) Service to discrete new loads of 10 average megawatts or
more over a 12-month period.
* * * * *
[FR Doc. 2024-09186 Filed 4-29-24; 8:45 am]
BILLING CODE 6450-01-P