[Federal Register Volume 90, Number 126 (Thursday, July 3, 2025)]
[Rules and Regulations]
[Pages 29676-29715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-12383]
[[Page 29675]]
Vol. 90
Thursday,
No. 126
July 3, 2025
Part III
Department of Energy
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10 CFR Parts 205 and 1021
Revision of National Environmental Policy Act Implementing Procedures;
Final Rule
Federal Register / Vol. 90 , No. 126 / Thursday, July 3, 2025 / Rules
and Regulations
[[Page 29676]]
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DEPARTMENT OF ENERGY
10 CFR Parts 205 and 1021
[DOE-HQ-2025-0026]
RIN 1990-AA52
Revision of National Environmental Policy Act Implementing
Procedures
AGENCY: Office of the General Counsel, Department of Energy.
ACTION: Interim final rule; request for comments.
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SUMMARY: This interim final rule substantially revises Department of
Energy's (DOE) regulations containing its National Environmental Policy
Act (NEPA) implementing procedures, which were promulgated to
supplement now-rescinded Council on Environmental Quality regulations.
Mindful that the Supreme Court recently clarified NEPA is a ``purely
procedural statute,'' DOE will henceforth maintain the remainder of its
procedures in a procedural guidance document separate from the Code of
Federal Regulations (DOE NEPA implementing procedures). Thus, DOE is
revising 10 CFR part 1021 to contain only administrative and routine
actions excepted from NEPA review in appendix A, its existing
categorical exclusions in appendix B, related requirements, and a
provision for emergency circumstances. DOE is revising appendix A in 10
CFR part 1021 to align with DOE's new NEPA implementing procedures that
it is publishing separate from the Code of Federal Regulations.
Appendix A in 10 CFR part 1021 (formerly categorical exclusions) are
now administrative and routine actions that do not require NEPA review.
DOE is also revising 10 CFR part 205, subpart W, to remove the NEPA
procedures from its Presidential permit regulations.
DATES: This interim rule is effective July 3, 2025. Comments are due by
August 4, 2025.
ADDRESSES: Documents relevant to this rulemaking are posted on the
Federal eRulemaking Portal at https://www.regulations.gov (Docket: DOE-
HQ-2025-0026). Documents posted to this docket include: this interim
final rule; and two ``redline/strikeout'' (markup) files indicating the
changes in this interim final rule for 10 CFR parts 205 and 1021.
Submit comments, labeled ``Revision of DOE NEPA Implementing
Regulations, RIN 1990-AA52,'' using the Federal eRulemaking Portal:
www.regulations.gov.
Instructions: All submissions must include the agency name,
``Department of Energy,'' and docket number, DOE-HQ-2025-0026, for this
rulemaking. All comments received will be posted without change to
www.regulations.gov, including any personal information provided. Do
not submit any information you consider to be private, Confidential
Business Information (CBI), or other information whose disclosure is
restricted by statute.
Docket: For access to the docket to read comments received, go to
www.regulations.gov.
DOE NEPA procedures: DOE's new NEPA implementing procedures are
available at https://energy.gov/nepa.
FOR FURTHER INFORMATION CONTACT: Carrie Abravanel, Office of NEPA
Policy and Compliance, at [email protected] or (202) 586-
4600 or Office of NEPA Policy and Compliance, U.S. Department of
Energy, 1000 Independence Avenue SW, Washington, DC 20585.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
A. National Environmental Policy Act
B. DOE NEPA Implementing Procedures and Regulations
C. Changes Made in This Interim Final Rule
II. Basis for Revising DOE's NEPA Implementing Regulations
III. Basis for Issuing an Interim Final Rule
A. Notice-and-Comment Rulemaking Is Not Required
B. DOE Has Good Cause for Proceeding With an Interim Final Rule
C. DOE Solicits Comments
IV. Procedural Requirements
A. Executive Orders 12866 and 13563
B. Regulatory Flexibility Act
C. National Environmental Policy Act
D. Executive Order 13132
E. Executive Order 13175
F. Executive Order 13211
G. Unfunded Mandates Act of 1995
H. Paperwork Reduction Act
I. Executive Orders 14154 and 14192
J. Congressional Notification
VI. Approval of the Office of the Secretary
I. Introduction
The Department of Energy (DOE) is issuing this interim final rule
to remove its existing implementing regulations for the National
Environmental Policy Act of 1969, et seq., as amended (NEPA). DOE's
existing NEPA implementing regulations were promulgated as a
``supplement[ ] . . . to be used in conjunction with,'' 10 CFR
1021.100, the Council on Environmental Quality's (CEQ's) NEPA
regulations. DOE also ``adopt[ed]'' the CEQ's regulations by
incorporation. 10 CFR 1021.103. But the CEQ's regulations have been
repealed, effective April 11. See Removal of National Environmental
Policy Act Implementing Regulations (Feb. 25, 2025). Moreover, in
Executive Order (E.O.) 14154, Unleashing American Energy (90 FR 8353;
January 29, 2025), President Trump rescinded President Carter's E.O.,
11991, Relating to Protection and Enhancement of Environmental Quality
(42 FR 26967; May 24, 1977), which was the basis CEQ had invoked for
its authority to make rules to begin with. DOE's regulations, which
were a ``supplement[ ] . . . to be used in conjunction with'' those CEQ
regulations, thus stand in obvious need of fundamental revision.
President Trump in E.O. 14154 further directed agencies to revise their
NEPA implementing procedures.
Not only that, but Congress recently amended NEPA in significant
part in the Fiscal Responsibility Act of 2023 (FRA), in which Congress
increased the length of Title I of NEPA by more than 300%, providing
much detail on procedural issues, which CEQ and individual acting
agencies had previously needed to address in their own procedures. With
DOE's NEPA implementing procedures still unmodified more than two years
after this significant legislative overhaul, it is exigent that DOE
move quickly to conform its procedures to the statute as amended.
Finally, the Supreme Court has recently issued its decision in Seven
County Infrastructure Coalition v. Eagle County, Colorado, 145 S. Ct.
1497 (2025), in which it described the ``transform[ation]'' of NEPA
``from a modest procedural requirement into a blunt and haphazard tool
employed by project opponents (who may not always be entirely motivated
by concern for the environment) to try to stop or at least slow down
new infrastructure and construction projects.'' Id. at 1507, 1513. The
Supreme Court explained that part of that problem had been caused by
decisions of lower courts, which it rejected, issuing a ``course
correction'' mandating that courts give ``substantial deference'' to
reasonable agency conclusions underlying its NEPA process. Id. at 1513-
1514. But the Court also acknowledged, and through its course
correction sought to address, the effect on ``litigation-averse
agencies'' which, in light of judicial ``micromanage[ment],'' had been
``tak[ing] ever more time and [ ] prepar[ing] ever longer EISs for
future projects.'' Id. at 1513. DOE, thus, is issuing this Interim
Final Rule (IFR) to align its actions with the Supreme Court's decision
and streamline its process of ensuring reasonable NEPA
[[Page 29677]]
decisions. This revision has thus been called for, authorized, and
directed by all three branches of government at the highest possible
levels.
DOE's procedures for implementing the National Environmental Policy
Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., as amended, are contained
principally in 10 CFR part 1021. Additional DOE NEPA procedures are
contained in 10 CFR part 205, subpart W. These procedures in 10 CFR
part 205, subpart W specifically relate to applications for a
Presidential permit authorizing the construction, connection,
operation, and maintenance of facilities for transmission of electric
energy at international boundaries under E.O. 10485 (18 FR 5397;
September 3, 1953), as amended by E.O. 12038 (43 FR 4957; February 3,
1978).
DOE is issuing this interim final rule to revise 10 CFR part 1021
so that it includes only DOE's existing categorical exclusions in
appendix B, related requirements, and a provision for emergency
circumstances; and to remove NEPA procedures from 10 CFR part 205,
subpart W. Other than these few provisions, DOE's procedures will
henceforth be contained in the U.S. Department of Energy National
Environmental Policy Act (NEPA) Implementing Procedures, a copy of
which is reprinted below for explanatory purposes only (and will not
codified in the CFR). The procedures are intended to be non-binding
guidance.
The Supreme Court could not have been clearer in Seven County that
NEPA is a procedural statute. See Seven County, 145 S. Ct. 1507 (``NEPA
is a purely procedural statute.''); see id. at 1510 (``NEPA is purely
procedural. . . . NEPA does not mandate particular results, but simply
prescribes the necessary process for an agency's environmental review
of a project''); (internal quotation omitted); id. at 1511 (NEPA is a
purely procedural statute''); id. at 1513 (NEPA is properly understood
as ``a modest procedural requirement''); id. at 1514 (``NEPA's status
as a purely procedural statute''); see also id. at 1507 (``Simply
stated, NEPA is a procedural cross-check, not a substantive
roadblock.''). The history of DOE's implementing regulations also
reflects the understanding that they were understood as procedural
rules, for they were uncodified for over a decade before being codified
``as a matter of good policy,'' id. at 1517. This is, moreover,
consistent with the approach that several other Federal agencies have
used for decades.
Also, this action fulfills President Trump's directive in E.O.
14154 for each agency to, in consultation with the CEQ, revise its
agency-level NEPA implementing procedures in light of the Fiscal
Responsibility Act. 90 FR 8355. Executive Order 14301, Reforming
Nuclear Reactor Testing at the Department of Energy, (May 23, 2025)
directed DOE in section 6(a) to ``take action to reform the
Department's rules governing compliance with the National Environmental
Policy Act (NEPA) no later than June 30, 2025, consistent with the
policies articulated in sections 2 and 5 of Executive Order 14154 of
January 20, 2025 (Unleashing American Energy), and with applicable
law.'' This interim final rule also fulfills that direction.
In addition, DOE is removing NEPA procedures from its Presidential
permit regulations (10 CFR part 205, subpart W) to be consistent with
the removal of most DOE NEPA procedures in 10 CFR part 1021 and to
avoid confusion among potential applicants. DOE has previously stated
that it issues Presidential permits pursuant to authority delegated by
the President under E.O. 10485, as amended by E.O. 12038, which
provides that ``the proper conduct of foreign relations of the United
States requires that executive permission be obtained for the
construction and maintenance at the borders of the United States of
facilities for the exportation or importation of electric energy and
natural gas[.]'' \1\ The authority delegated to DOE by the E.O. does
not derive from any act of Congress but arises ``by virtue of the
authority vested in [the President] as President of the United States
and Commander in Chief of the armed forces of the United States[.]''
\2\ Thus, in issuing a Presidential permit, DOE does not act pursuant
to its congressionally established authority as a Federal agency, but
on behalf of the President pursuant to a delegation of the President's
authority under the United States Constitution. It is settled and
established law that the President is not an ``agency'' within the
meaning of the Administrative Procedure Act (APA) and that Presidential
actions are not subject to NEPA review.\3\ Because NEPA review is not
required for Presidential actions, DOE has further determined it
appropriate to remove the NEPA procedures within its Presidential
permit regulations at 10 CFR part 205, subpart W.
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\1\ 18 FR 5397 (preamble).
\2\ Id.
\3\ Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) (holding
the President is not subject to judicial review under the APA, given
``the separation of powers and the unique constitutional position of
the President); see also Dalton v. Specter, 511 U.S. 462, 469-471
(1994); Portland Audubon Soc'y v. Endangered Species Committee, 984
F.2d 1534, 1547 (9th Cir. 1993); and, Greene County. Planning Bd. v.
Fed. Power Comm'n, 528 F.2d 38 (2d Cir. 1975) (holding that issuance
of a Presidential permit by DOE's predecessor agency was not subject
to judicial review under the Federal Power Act because the issuance
of such a permit is ``a function rooted in the President's power
with respect to foreign relations if not as Commander in Chief of
the Armed Forces'').
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DOE is retaining its categorical exclusions in appendix B and
related requirements in regulation to avoid any uncertainty about the
continuation of its already-established categorical exclusions or the
procedural mechanism through which DOE established them. The 2023
revisions to NEPA and the 2025 repeal of the Council on Environmental
Quality's (CEQ's) NEPA procedures do not require reconsideration or
repeal of DOE's previous determinations as to which of its actions
normally do not significantly affect the quality of the human
environment, which is the basis for an agency's establishment of a
categorical exclusion, see NEPA Sec. 111(1). DOE is retaining a
provision for action in emergency situations to ensure that DOE can
respond timely to any such event and to avoid any confusion regarding
the continued validity of this already-established provision for action
in emergency situations.
DOE has prepared new NEPA implementing procedures that are
reprinted as part of this IFR for explanatory purposes only; they will
not be codified in the CFR. These new DOE NEPA implementing procedures
ensure compliance with NEPA, as amended. DOE's new NEPA procedures are
also available at https://energy.gov/nepa. DOE will begin implementing
its new NEPA procedures immediately.
Prior to and separate from this interim final rule, DOE published a
direct final rule on May 16, 2025, (90 FR 20753) that removes several
sections of 10 CFR part 205 as part of a deregulatory action consistent
with Executive Order 14192, Unleashing Prosperity Through Deregulation
signed on January 31, 2025 (90 FR 9065). Some of the changes made in
this interim final rule duplicate aspects of that prior direct final
rule, with the same effect regarding removing the NEPA provisions from
DOE's Presidential permit regulations. There is, however, no
substantive conflict between this interim final rule and the previously
published direct final rule.
A. National Environmental Policy Act
Congress enacted NEPA to declare a national policy ``to use all
practicable means and measures, including financial and technical
assistance, in a manner calculated to foster and promote
[[Page 29678]]
the general welfare, to create and maintain conditions under which man
and nature can exist in productive harmony, and [to] fulfill the
social, economic, and other requirements of present and future
generations of Americans.'' 42 U.S.C. 4331(a).
NEPA, as amended by the Fiscal Responsibility Act of 2023 (FRA),
Public Law 118-5, furthers this national policy by requiring Federal
agencies to prepare an environmental impact statement (EIS)--``in
essence, a report''--for proposed ``major Federal actions significantly
affecting the quality of the human environment.'' 42 U.S.C. 4332(2)(C);
Seven County, 145 S. Ct. 1507. This statement must address: (1) The
reasonably foreseeable environmental effects of the proposed agency
action; (2) any reasonably foreseeable adverse environmental effects
that cannot be avoided should the proposal be implemented; (3) a
reasonable range of alternatives to the proposed agency action,
including an analysis of any negative environmental impacts of not
implementing the proposed agency action in the case of a no action
alternative, that are technically and economically feasible, and meet
the purpose and need of the proposal; (4) the relationship between
local short-term uses of man's environment and the maintenance and
enhancement of long-term productivity; and (5) any irreversible and
irretrievable commitments of Federal resources which would be involved
in the proposed action should it be implemented. 42 U.S.C. 4332(2)(C).
NEPA does not mandate particular results or substantive outcomes.
Seven County,145 S. Ct. at 1510-1512. Rather, NEPA requires Federal
agencies to consider the environmental effects of proposed actions as
part of agencies' decision-making processes. As amended by the Fiscal
Responsibility Act of 2023, NEPA provides requirements to facilitate
timely and unified Federal reviews, including provisions clarifying
lead, joint lead, and cooperating agency designations, generally
requiring the development of a single environmental document, directing
agencies to develop procedures for project sponsors to prepare
environmental assessments and environmental impact statements, and
prescribing page limits and deadlines. 42 U.S.C. 4336a. NEPA also sets
forth the circumstances under which agencies may rely on programmatic
environmental documents, 42 U.S.C. 4336b, and adopt and use another
agency's categorical exclusions. 42 U.S.C. 4336c.
NEPA identifies three levels of review--categorical exclusion,
environmental assessment, and environmental impact statement. 42 U.S.C.
4336a. A categorical exclusion is a ``a category of actions that a
Federal agency has determined normally does not significantly affect
the quality of the human environment within the meaning of [NEPA]
section 102(2)(C).'' 42 U.S.C. 4336e(1). An environmental assessment is
a ``concise'' document ``set[ting] forth the basis of [an] agency's
finding of no significant impact or determination that an environmental
impact statement is necessary,'' prepared in connection with a proposed
agency action that does not have a significant impact or the
significance of whose impact is unknown. 42 U.S.C. 4336(b)(2). An
environmental impact statement is a document analyzing a proposed
agency action with significant impact, governed by the provisions of 42
U.S.C. 4332(2)(C), 4336(b)(1).
B. DOE NEPA Implementing Procedures and Regulations
In 1979, DOE established 10 CFR part 1021 through a rulemaking that
adopted the CEQ NEPA implementing regulations (44 FR 45918). From 1979
to 1992, as a supplement to the CEQ NEPA implementing regulations, DOE
issued its NEPA implementing procedures as ``guidelines,'' which also
listed categories of actions that normally do not have potential to
cause significant environmental impacts (categorical exclusions) (45 FR
20694; 45 FR 78756; 47 FR 7976; 48 FR 685; 52 FR 659; 52 FR 47662; 54
FR 12474; 55 FR 37174).
In 1992, after notice and comment, DOE replaced the NEPA guidelines
with revised and expanded DOE NEPA regulations at 10 CFR part 1021 (57
FR 15122), including adoption of the CEQ NEPA implementing regulations.
The proposed and final rulemakings were both explicit that DOE was
``issuing its NEPA Guidelines as regulations that will be published in
the Code of Federal Regulations'' to ``ensure that its NEPA procedures
are more accessible to the public,'' and not because the agency had
changed its mind that the procedures were just that, procedural. 57 FR
15122; 55 FR 46444. Indeed, both emphasized that ``[t]he rule amends
and codifies already existing policies and procedures for compliance
with NEPA,'' and contained no substantive changes that would impose
obligations on private citizens. 57 FR 15144; 55 FR 46448. In 1996, DOE
made changes to the DOE NEPA regulations to improve efficiency by
clarifying and streamlining certain DOE requirements, including those
relating to power marketing activities (61 FR 36222; 61 FR 64603). In
2011, DOE amended the DOE NEPA regulations to modify and clarify
existing provisions and to add 20 new categorical exclusions and make
associated changes (76 FR 63764). In 2020, DOE updated the DOE NEPA
regulations regarding authorizations under section 3 of the Natural Gas
Act, including revising a categorical exclusion for exporting natural
gas (85 FR 78197). In 2024, DOE added a new categorical exclusion for
certain energy storage systems and revised categorical exclusions for
upgrading and rebuilding powerlines and for solar photovoltaic systems
(89 FR 34074).
C. Changes Made in This Interim Final Rule
In 10 CFR part 205, subpart W, DOE is removing and reserving
sections 321, 328, and 329 in their entirety. DOE also is removing
paragraphs (c) and (d) in section 322 and re-lettering paragraph (e) to
now be paragraph (c).
In 10 CFR part 1021, DOE is removing the reference to CEQ NEPA
implementing regulations from section 100, Purpose, and is merging in
section 102(a), Applicability, to more concisely state the purpose of
these regulations. DOE is renumbering the Definitions from section 104
to be section 101 and removing definitions that are no longer relevant
to this part. DOE is renumbering section 410, Application of
categorical exclusions, to be section 102, is updating references to
other sections of the revised part 1021, and is removing references to
the CEQ NEPA implementing regulations. DOE is removing the reference to
CEQ NEPA implementing regulations from section 343(a), Emergency
actions, and renumbering that paragraph as section 103. DOE is moving
appendices A and B to subpart D of part 1021 to be appendices A and B
to part 1021 and is updating references to other sections of the
revised part 1021 throughout those appendices. DOE is removing all
other sections of 10 CFR part 1021.
In the relocated 10 CFR part 1021, appendix A, DOE is modifying the
title from Categorical Exclusions Applicable to General Agency Actions
to Administrative and Routine Actions Excepted from NEPA Review. The
actions in this list were formerly identified as categorical exclusions
for DOE. NEPA does not apply to actions that are solely administrative
and routine that are undertaken to support the normal conduct of DOE
business. While such activities are Federal actions, they are not
``major'' and therefore not subject to NEPA. These can now be
classified as actions where NEPA does not apply because they do not
fall within the definition of ``major
[[Page 29679]]
Federal action'' in Section 110(10) of NEPA, 42 U.S.C. 4336e(10). These
actions have been retained as appendix A for ease of reference and to
avoid confusion.
II. Basis for Revising DOE's NEPA Implementing Regulations
As stated previously, DOE relied on CEQ's NEPA implementing
regulations in promulgating its NEPA implementing regulations.
President Carter originally directed CEQ to implement NEPA regulations
via E.O. 11991. However, President Trump rescinded that Executive Order
in E.O. 14154.\4\ As CEQ explained in its interim final rule rescinding
its NEPA implementing regulations, the President removed CEQ's prior
asserted basis for issuing and maintaining its NEPA implementing
regulations, and directed CEQ to rescind those regulations.
Accordingly, CEQ concluded those regulations cannot stand.\5\ CEQ has
accordingly repealed its NEPA regulations. See Removal of National
Environmental Policy Act Implementing Regulations, (Feb. 25, 2025).
That rule became effective on April 11, 2025. See id.
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\4\ E.O. 14154 at sec. 5(a).
\5\ 90 FR 10610.
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As explained previously, DOE's existing NEPA implementing
regulations were promulgated as a ``supplement[ ] . . . to be used in
conjunction with,'' 10 CFR 1021.100, the Council on Environmental
Quality's (CEQ's) NEPA regulations, and DOE also ``adopt[ed]'' the
CEQ's regulations by incorporation.\6\ Subsequent revisions to the DOE
regulations added additional language to supplement the CEQ NEPA
implementing regulations in certain sections, but in others retained
the original language from the CEQ NEPA implementing regulations.
Within part 1021 there are numerous cross references to the CEQ NEPA
implementing regulations. Because DOE's regulations expressly adopt and
repeatedly reference CEQ's regulations, removal of the CEQ NEPA
implementing regulations from the Code of Federal Regulations leaves
DOE's existing regulations hanging in air. They are now a ``supplement
. . . to be used in conjunction with'' rules that no longer exist and
that could not exist again under existing Executive Orders.
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\6\ See 10 CFR 1021.103.
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Moreover, under these circumstances, leaving DOE's existing
regulations on the books would create grave uncertainty and confusion
in the application of the DOE NEPA regulations, in conflict with a
directive from the President. E.O. 14154 directs agencies to revise
their NEPA implementing procedures to ``prioritize efficiency and
certainty.'' Leaving DOE's existing regulations on the books,
``supplementing'' CEQ's nonexistent regulations, would obviously create
confusion. This directive also explains in pertinent part the major
part of the existing regulation that has been retained: As explained in
Section I, DOE has determined that retaining its categorical exclusions
as appendix B in regulation will avoid any uncertainty regarding the
continued validity of its already-established categorical exclusions or
the procedural mechanism through which DOE established them.
Where such categorical-exclusion-specific concerns do not prevail,
however, DOE has decided that the flexibility to respond to new
developments in this fast-evolving area of law, afforded by using non-
codified procedures, outweighs the appeal of codifying its regulations
going forward. Notably, in 1992, when DOE codified its existing
procedures to ``ensure that [they] are more accessible to the public,''
57 FR 15122; 55 FR 46444, the internet was in its infancy. Now, DOE
can--and will--ensure that accessibility to the public by posting these
procedures online, which removes the upside of codification. By
contrast, not codifying its procedures will enable it to rapidly update
these procedures in response to future court decisions (such as Seven
County) or Presidential directives (such as E.O. 14301). The balance
thus tips decisively toward using a non-regulatory, but publicly
accessible, procedural document. Because rescinding DOE's existing
regulations without simultaneously adopting a replacement would likely
cause uncertainty among regulated parties, these new procedures that
DOE adopts have informed its decision to rescind most of its prior
regulations.
DOE's new NEPA implementing procedures are a more faithful
implementation of the statute as amended in 2023 than its old
procedures. They implement major structural features of the 2023
amendments, such as deadlines and page limits for environmental
assessments and environmental impact statements, as directed at NEPA
Section 107(g), and provide that DOE will complete preparation of these
documents within the maximum length and on the timeline that Congress
intends. They incorporate Congress's definition of ``major Federal
action'' and the exclusions thereto, as codified at NEPA Section
111(10). They incorporate Congress's mandated procedure for determining
the appropriate level of review under NEPA, as codified in NEPA Section
106. They incorporate Congress's direction with respect to
establishment, adoption, and application of categorical exclusions, as
codified at NEPA Section 111(10). They provide procedures governing
project-sponsor-prepared environmental assessments and environmental
impact statements, as directed at NEPA Section 107(f). And they
incorporate Congress's revision to the requirements for what an agency
must address in its environmental impact statements, as codified at
NEPA Section 102(2)(C), and Congress's requirement that public notice
and solicitation of comment be provided when issuing a notice of intent
to prepare an environmental impact statement, as directed at NEPA
Section 107(c). All of these are crucial features of Congress's policy
design and its purpose in the 2023 amendments that NEPA review be more
efficient and certain.
Moreover, all of these respond to the President's directive in E.O.
14154; and all of these reflect the Supreme Court's recent and
unequivocal statement that NEPA is a purely procedural statute. DOE is
conscious of the Supreme Court's admonition that NEPA review has grown
out of all proportion to its origins of a ``modest procedural
requirement,'' creating, ``under the guise of just a little more
process,'' ``[d]elay upon delay, so much so that the process seems to
`borde[r] on the Kafkaesque.' '' Seven County, 145 S. Ct. at 1513
(internal quotation omitted). These procedures, therefore, attempt to
align NEPA with its Congressionally mandated dimensions, reflecting the
guidance given also by the President and the Supreme Court, and making
review under it faster, more flexible, and more efficient.
In reaching this decision, DOE acknowledges that third parties may
claim to have reliance interests in DOE's existing NEPA procedures.
Moreover, as the Supreme Court has just explained, NEPA ``is a purely
procedural statute'' that ``imposes no substantive environmental
obligations or restrictions.'' Seven County, 145 S. Ct. at 1507. Any
asserted reliance interests grounded in substantive environmental
concerns, such interests are not in accord with the best meaning of the
law and are entitled to ``no . . . weight.'' Dep't of Homeland Sec. v.
Regents of the Univ. of California, 140 S. Ct. 1891, 1914 (2020).
Because reliance interests are inherently backward-looking, it is
unclear how any party could assert reliance interests in prospective
[[Page 29680]]
procedures. To the extent such interests exist, DOE holds that they are
``outweigh[ed]'' by ``other interests and policy concerns.'' Id.
Namely, the complex web of regulations that preexisted the 2023
amendments to NEPA and these new procedures repeatedly ``led to more
agency analysis of separate projects, more consideration of attenuated
effects, more exploration of alternatives to proposed agency action,
more speculation and consultation and estimation and litigation,''
which in turn has meant that ``[f]ewer projects make it to the finish
line,'' or even ``to the starting line.'' Seven County, 145 S. Ct. at
1513-1514. This has increased the cost of projects dramatically, ``both
for the agency preparing the EIS and for the builder of the project,''
resulting in systemic harms to America's infrastructure and economy.
Id. at 1514. Correspondingly, the wholesale revision and simplification
of this regime, effectuated by these Procedures, is necessary to ensure
efficient and predictable reviews, with significant upsides for the
economy and for projects of all sorts. This set of policy
considerations drastically outweighs any claimed reliance interests in
the preexisting procedures.
DOE has revised its NEPA implementing procedures to conform to the
2023 statutory amendments, to respond to President Trump's direction in
E.O. 14154 to, ``[c]onsistent with applicable law, prioritize
efficiency and certainty over any other objectives, including those of
activist groups, that do not align with the policy goals set forth in
section 2 of [that] order or that could otherwise add delays and
ambiguity to the permitting process,'' and to address the pathologies
of the NEPA process and NEPA litigation as identified by the Supreme
Court. Where DOE has retained an aspect of its preexisting NEPA
implementing procedures, it is because that aspect is compatible with
these guiding principles; where DOE has revised or removed an aspect,
it is because that aspect is not so compatible.
III. Basis for Issuing an Interim Final Rule
A. Notice-and-Comment Rulemaking Is Not Required
DOE is repealing its prior procedures and practices for
implementing NEPA, a ``purely procedural statute'' which `` `simply
prescribes the necessary process' for an agency's environmental review
of a project--a review that is, even in its most rigorous form, ``only
one input into an agency's decision and does not itself require any
particular substantive outcome.'' Seven County, 145 S. Ct. at 1511.
``NEPA imposes no substantive constraints on the agency's ultimate
decision to build, fund, or approve a proposed project,'' and ``is
relevant only to the question of whether an agency's final decision . .
. was reasonably explained.'' Id. at 1511. As such, notice and comment
procedures are not required because this revision falls within the APA
exception for ``rules of agency organization, procedure, or practice.''
5 U.S.C. 553(b)(A). DOE's existing regulations do not dictate what
outcomes such consideration must produce, nor do they impose binding
legal obligations on private citizens. Rather, they prescribe how DOE
will conduct its NEPA reviews: detailing the structure of environmental
impact statements, specifying submission requirements, and directing
the timing of public comment periods. These are procedural provisions,
not substantive environmental ones. DOE recognized as much, indeed,
even when codifying them: DOE was explicit that it was ``issuing its
NEPA Guidelines as regulations that will be published in the Code of
Federal Regulations'' to ``ensure that its NEPA procedures are more
accessible to the public,'' and not because the agency had changed its
mind that the procedures were just that, procedural. 57 FR 15122; 55 FR
46444. Indeed, both emphasized that ``[t]he rule amends and codifies
already existing policies and procedures for compliance with NEPA,''
and contained no substantive changes that would impose obligations on
private citizens. 57 FR 15144; 55 FR 46448. Thus, because procedural
rules do not require notice and comment, they do not require notice and
comment to be removed from the Code of Federal Regulations.
Just so, DOE's new procedures will also be purely procedural,
guiding the agency's own compliance with NEPA. Indeed, it is hard to
see how they could be otherwise, since the Supreme Court has recently
repeatedly emphasized that ``NEPA is a purely procedural statute.''
Seven County, 145 S. Ct. at 1507, see id. at 1510 (``NEPA is purely
procedural. . . . NEPA does not mandate particular results, but simply
prescribes the necessary process for an agency's environmental review
of a project'') (internal quotation omitted); id. at 1511 (NEPA is a
purely procedural statute''); id. at 1513 (NEPA is properly understood
as ``a modest procedural requirement''); id. at 1514 (``NEPA's status
as a purely procedural statute''); see also id. at 1507 (``Simply
stated, NEPA is a procedural cross-check, not a substantive
roadblock.''). Procedures for implementing a purely procedural statute
must be, by their nature, procedural rules.
Moreover, even if (and to the extent that) DOE's regulations were
not procedural rules, they may be characterized as interpretative rules
or general statements of policy under 5 U.S.C.U.S.C. 553(b)(A). An
interpretative rule provides an interpretation of a statute, rather
than making discretionary policy choices that establish enforceable
rights or obligations for regulated parties under delegated
congressional authority. The definitions sections of both the old and
new procedures, for instance, may be classified as such. General
statements of policy provide notice of an agency's intentions as to how
it will enforce statutory requirements, again without creating
enforceable rights or obligations for regulated parties under delegated
congressional authority. The prefatory sections of both the old and new
procedures, for instance, may be classified as general statements of
policy. Both of these types of agency action are expressly exempted
from notice and comment by statute.
B. DOE Has Good Cause for Proceeding With an Interim Final Rule
Moreover, DOE also finds that, to the extent that prior notice and
solicitation of public comment would otherwise be required or this
action could not immediately take effect, the need to expeditiously
replace its existing rules satisfies the APA's ``good cause''
exceptions 5 U.S.C. 553(b)(B), (d). The APA authorizes agencies to
issue regulations without notice and public comment when an agency
finds, for good cause, that notice and comment is ``impracticable,
unnecessary, or contrary to the public interest,'' 5 U.S.C.U.S.C.
553(b)(B), and to make the rule effective immediately for good cause, 5
U.S.C. 553(d)(3).As discussed in Sections I and II, previously, DOE's
prior rules were promulgated as a ``supplement[ ] . . . to be used in
conjunction with,'' 10 CFR 1021.100, CEQ's NEPA regulations, and DOE
also ``adopt[ed]'' the CEQ's regulations by incorporation. As such,
DOE's current rules are left hanging in air, supplementing a NEPA
regime that no longer exists. DOE, thus far and as a temporary,
emergency measure, has been continuing to operate under its prior
procedures as if the CEQ NEPA regime still existed. This is not,
however, tenable. As soon as proper procedures were available--i.e.,
now--this makeshift regime needs to be rescinded immediately.
[[Page 29681]]
That being so, rescinding the old procedures immediately without
replacing them would create a vacuum that would inflict immense
uncertainty on agencies and regulated parties and potentially grind all
projects under DOE's purview to a halt. So pairing the rescission with
a new structure immediately is absolutely critical. Because of this
need for speed and certainty, notice-and-comment is, to the extent it
was required at all, impracticable and contrary to the public interest.
To the extent that public comment may inform DOE as to whether it
has legal authority to make a different choice than the one it has
taken in this interim final rule, DOE's solicitation of public comment
for 30-days following the publication of the rule is intended to
accommodate that possibility. But, to the extent that this interim
final rule would otherwise require a proposal and solicitation of
public comment, DOE's view is that the ``good cause'' exception (5
U.S.C. 553(b)(B)) pertains here. And though DOE seeks comments to
obtain the public's views, such comments could not alter the legal
realities--most notably the repeal of the CEQ's NEPA rules and the
rescission of the E.O. that purported to authorize them--that create
the swift need for such a change. DOE will consider comments submitted
in response to this action and may address them when issuing a final
rule, if warranted, after consideration of the comments received.
For the same reasons stated in the present section, above, DOE
finds that ``good cause'' exists under 5 U.S.C. 553(d)(3) to waive the
30-day delay of the effective date that would otherwise be required.
This IFR will accordingly be effective immediately.
C. DOE Solicits Comment
As explained previously, DOE believes comment is not required
because its NEPA procedures were and are procedural and because, even
if comment were required under the APA, good cause exists to forego it.
Nevertheless, DOE has elected voluntarily to solicit comment. DOE is
soliciting comment on this interim final rule and the accompanying
procedural document, and may make further revisions to this action, if
DOE's review of any comments submitted suggests that further revisions
are warranted. Commenters have 30 days from the date of publication of
this interim final rule to submit comments.
IV. Procedural Requirements
A. Executive Orders 12866 and 13563
E.O. 12866, ``Regulatory Planning and Review,'' 58 FR 51735 (Oct.
4, 1993), as supplemented and reaffirmed by E.O. 13563, ``Improving
Regulation and Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011) 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 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) has emphasized that
such techniques may include identifying changing future compliance
costs that might result from technological innovation or anticipated
behavioral changes. For the reasons stated in the preamble, this
regulatory action is consistent with these principles.
Section 6(a) of E.O. 12866 also requires agencies to submit
``significant regulatory actions'' to OIRA for review. OIRA has
determined that this regulatory action does constitute a ``significant
regulatory action'' under E.O. 12866, as supplemented by E.O. 13563,
and has reviewed this action.
B. 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. Because a notice of
proposed rulemaking is not required for this action pursuant to 5
U.S.C. 553, or any other law, no regulatory flexibility analysis has
been prepared for this interim final rule. See 5 U.S.C. 601(2), 603(a).
C. National Environmental Policy Act
NEPA does not require agencies to prepare a NEPA analysis before
establishing or updating agency procedures for implementing NEPA.
Agency NEPA implementing procedures are not themselves subject to
NEPA.\7\ DOE has determined that this rule will not have a significant
effect on the environment because it will not authorize any specific
agency activity or commit resources to a project that may affect the
environment. Therefore, DOE does not intend to conduct a NEPA analysis
of this interim final rule.
---------------------------------------------------------------------------
\7\ Heartwood v. U.S. Forest Serv., 230 F.3d 947, 954-955 (7th
Cir. 2000) (finding that neither NEPA nor the CEQ NEPA implementing
regulations required the Forest Service to conduct an environmental
assessment or an environmental impact statement prior to the
promulgation of its procedures creating a categorical exclusion).
---------------------------------------------------------------------------
D. Executive Order 13132
E.O. 13132, ``Federalism'', 64 FR 43255 (August 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 the interim final rule and
has determined that it does not preempt State law and does 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.
E. Executive Order 13175
Under E.O. 13175, ``Consultation and Coordination with Indian
Tribal Governments,'' 65 FR 67249 (Nov. 6, 2000), DOE may not issue a
discretionary rule that has Tribal implications or that imposes
substantial direct compliance costs on Indian Tribal governments. DOE
has determined that this interim final rule will not have such effects
and has concluded that E.O. 13175 does not apply to this interim final
rule.
[[Page 29682]]
F. Executive Order 13211
E.O. 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) is a significant regulatory action under Executive
Order 12866, or any successor order; and (2) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy; or (3) 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 interim final rule does not have a 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.
G. Unfunded Mandates Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires Federal agencies to examine closely the impacts of regulatory
actions on State, local, and Tribal governments. Subsection 101(5) of
title I of that law defines a Federal intergovernmental mandate to
include a regulation that would impose upon State, local, or Tribal
governments an enforceable duty, except a condition of Federal
assistance or a duty arising from participating in a voluntary Federal
program. Title II of that law requires each Federal agency to assess
the effects of Federal regulatory actions on State, local, and Tribal
governments, in the aggregate, or the private sector, other than to the
extent such actions merely incorporate requirements specifically set
forth in a statute. Section 202 of the title 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 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 that title requires each agency
that proposed 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 interim final rule does not result in
the expenditure by State, local, and Tribal governments, in aggregate,
or by the private sector of $100 million or more in any one year.
Accordingly, no assessment or analysis is required under the Unfunded
Mandates Reform Act of 1995.
H. Paperwork Reduction Act
This interim final rule does not impose any new information
collection burden that would require additional review or approval by
OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
I. Executive Orders 14154 and 14192
DOE has examined this interim final rule and has determined that it
is consistent with the policies and directives outlined in E.O. 14154
``Unleashing American Energy,'' E.O. 14192, ``Unleashing Prosperity
Through Deregulation,'' and Presidential Memorandum, ``Delivering
Emergency Price Relief for American Families and Defeating the Cost-of-
Living Crisis.'' This rule is an E.O. 14192 deregulatory action.
J. Congressional Notification
As required by 5 U.S.C. 801, DOE will submit to Congress a report
regarding the issuance of this interim final rule prior to the
effective date set forth at the outset of this interim final rule. The
report will state that it has been determined that this interim final
rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this interim
final rule; request for comments.
List of Subjects
10 CFR Part 205
Administrative practice and procedure; Classified information;
Confidential business information; Environmental protection; Freedom of
information; Hazardous waste; Nuclear energy; Nuclear materials;
Nuclear power plants and reactors; Penalties; Reporting and
recordkeeping requirements; Sex discrimination; Waste treatment and
disposal.
10 CFR Part 1021
Administrative practice and procedure; Environmental impact
statements; Environmental protection; Natural resources.
Signing Authority
This document of the Department of Energy was signed on June 30,
2025, by Jeffrey Novak, Acting 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 June 30, 2025.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE amends part 205 of
chapter II and part 1021 of chapter X of title 10 of the Code of
Federal Regulations as set forth below:
PART 205--ADMINISTRATIVE PROCEDURES AND SANCTIONS
0
1. The authority citation for part 205 is revised to read as follows:
Authority: Department of Energy Organization Act, Pub. L. 95-
91, 91 Stat. 565 (42 U.S.C. 7101 et seq.); Federal Power Act, Pub.
L. 66-280, 41 Stat. 1063 (16 U.S.C. 792 et seq.); E.O. 10485, 18 FR
5397, 3 CFR, 1949-1953, Comp., p. 970 as amended by E.O. 12038, 43
FR 4957, 3 CFR 1978 Comp., p. 136; E.O. 14154, 90 FR 8353.
Sec. 205.321 [Removed and Reserved]
0
2. Remove and reserve Sec. 205.321.
Sec. 205.322 [Amended]
0
3. Amend Sec. 205.322 by removing paragraphs (c) and (d) and
redesignating paragraph (e) as paragraph (c).
Sec. 205.328 [Removed and Reserved]
0
4. Remove and reserve Sec. 205.328.
Sec. 205.329 [Removed and Reserved]
0
5. Remove and reserve Sec. 205.329.
0
6. Revise part 1021 to read as follows:
PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING
PROCEDURES
Sec.
1021.100 Purpose.
1021.101 Definitions.
[[Page 29683]]
1021.102 Application of categorical exclusions (categories of
actions that normally do not require EAs or EISs).
1021.103 Emergency actions.
Appendix A to Part 1021
Administrative and Routine Actions Excepted from NEPA Review
Appendix B to Part 1021
Categorical Exclusions Applicable to Specific Agency Actions
Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 4321 et seq.; 50
U.S.C. 2401 et seq.
PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING
PROCEDURES
Sec. 1021.100 Purpose.
The purpose of this part is to establish certain procedures that
the Department of Energy (DOE) shall use to comply with the National
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4332(2)), as
amended. This part applies to all Departmental Elements.
Sec. 1021.101 Definitions.
As used in these implementing procedures, terms have the meanings
provided in NEPA section 111, 42 U.S.C. 4336e. In addition:
CERCLA-excluded petroleum and natural gas products means petroleum,
including crude oil or any fraction thereof, that is not otherwise
specifically listed or designated as a hazardous substance under
section 101(14) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601.101(14)) and
natural gas, natural gas liquids, liquefied natural gas, or synthetic
gas usable for fuel or of pipeline quality (or mixtures of natural gas
and such synthetic gas).
Contaminant means a substance identified within the definition of
contaminant in section 101(33) of CERCLA (42 U.S.C. 9601.101(33)).
Hazardous substance means a substance identified within the
definition of hazardous substances in section 101(14) of CERCLA (42
U.S.C. 9601.101(14)). Radionuclides are hazardous substances through
their listing under section 112 of the Clean Air Act (42 U.S.C. 7412)
(40 CFR part 61, subpart H).
Pollutant means a substance identified within the definition of
pollutant in section 101(33) of CERCLA (42 U.S.C. 9601.101(33)).
Sec. 1021.102 Application of categorical exclusions (categories of
actions that normally do not require EAs or EISs).
(a) The actions listed in appendices A and B to this part are
categories of actions that DOE has determined do not normally have a
significant effect on the human environment (categorical exclusions).
(b) To find that a proposal is excluded pursuant to a categorical
exclusion, DOE shall determine the following:
(1) The proposal fits within a category of actions that is listed
in appendix B to this part;
(2) There are no extraordinary circumstances related to the
proposal that may affect the significance of the environmental effects
of the proposal. Extraordinary circumstances are 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; and
(c) All categorical exclusions may be applied by any organizational
element of the Department of Energy. The sectional divisions in
appendix B to this part are solely for purposes of organization of that
appendix and are not intended to be limiting.
(d) A category of actions includes activities foreseeably necessary
to proposals encompassed within the category of actions (such as award
of implementing grants and contracts, site preparation, purchase and
installation of equipment, and associated transportation activities).
(e) Categorical exclusion determinations for actions listed in
appendix B shall be documented and made available to the public by
posting online, generally within two weeks of the determination, unless
additional time is needed in order to review and protect classified
information, ``confidential business information,'' or other
information that DOE would not disclose pursuant to the Freedom of
Information Act (FOIA) (5 U.S.C. 552). Posted categorical exclusion
determinations shall not disclose classified information,
``confidential business information,'' or other information that DOE
would not disclose pursuant to FOIA.
(f) Proposed recurring activities to be undertaken during a
specified time period, such as routine maintenance activities for a
year, may be addressed in a single categorical exclusion determination
after considering the potential aggregated impacts.
(g) The following clarifications are provided to assist in the
appropriate application of categorical exclusions that employ the terms
or phrases:
(1) ``Previously disturbed or developed'' refers to land that has
been changed such that its functioning ecological processes have been
and remain altered by human activity. The phrase encompasses areas that
have been transformed from natural cover to 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.
(2) DOE considers terms such as ``small'' and ``small-scale'' 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.
Sec. 1021.103 Emergency actions.
DOE may take an action without observing all provisions of DOE's
NEPA implementing procedures in emergency situations that demand
immediate action. DOE shall consult with CEQ as soon as possible
regarding alternative arrangements for emergency actions having
significant environmental impacts. DOE shall document, including
publishing a notice in the Federal Register, emergency actions covered
by this paragraph within 30-days after such action occurs; this
documentation shall identify any adverse impacts from the actions
taken, further mitigation necessary, and any NEPA documents that may be
required.
Appendix A to Part 1021--Administrative and Routine Actions Excepted
From NEPA Review
Table of Contents
A1 Routine DOE business actions
A2 Clarifying or administrative contract actions
A3 Certain actions by Office of Hearings and Appeals
A4 Interpretations and rulings for existing regulations
A5 Interpretive rulemakings with no change in environmental effect
A6 Procedural rulemakings
A7 [Reserved]
A8 Awards of certain contracts
A9 Information gathering, analysis, and dissemination
[[Page 29684]]
A10 Reports and recommendations on non-DOE legislation
A11 Technical advice and assistance to organizations
A12 Emergency preparedness planning
A13 Procedural documents
A14 Approval of technical exchange arrangements
A15 International agreements for energy research and development
A1 Routine DOE Business Actions
Routine actions necessary to support the normal conduct of DOE
business limited to administrative, financial, and personnel
actions.
A2 Clarifying or Administrative Contract Actions
Contract interpretations, amendments, and modifications that are
clarifying or administrative in nature.
A3 Certain Actions by Office of Hearings and Appeals
Adjustments, exceptions, exemptions, appeals and stays,
modifications, or rescissions of orders issued by the Office of
Hearings and Appeals.
A4 Interpretations and Rulings for Existing Regulations
Interpretations and rulings with respect to existing
regulations, or modifications or rescissions of such interpretations
and rulings.
A5 Interpretive Rulemakings With No Change in Environmental Effect
Rulemakings interpreting or amending an existing rule or
regulation that does not change the environmental effect of the rule
or regulation being amended.
A6 Procedural Rulemakings
Rulemakings that are strictly procedural, including, but not
limited to, rulemaking (under 48 CFR chapter 9) establishing
procedures for technical and pricing proposals and establishing
contract clauses and contracting practices for the purchase of goods
and services, and rulemaking (under 10 CFR part 600) establishing
application and review procedures for, and administration, audit,
and closeout of, grants and cooperative agreements.
A7 [Reserved]
A8 Awards of Certain Contracts
Awards of contracts for technical support services, management
and operation of a government-owned facility, and personal services.
A9 Information Gathering, Analysis, and Dissemination
Information gathering (including, but not limited to, literature
surveys, inventories, site visits, and audits), data analysis
(including, but not limited to, computer modeling), document
preparation (including, but not limited to, conceptual design,
feasibility studies, and analytical energy supply and demand
studies), and information dissemination (including, but not limited
to, document publication and distribution, and classroom training
and informational programs), but not including site characterization
or environmental monitoring. (See also B3.1 of appendix B to this
part.)
A10 Reports and Recommendations on Non-DOE Legislation
Reports and recommendations on legislation or rulemaking that
are not proposed by DOE.
A11 Technical Advice and Assistance to Organizations
Technical advice and planning assistance to international,
national, state, and local organizations.
A12 Emergency Preparedness Planning
Emergency preparedness planning activities, including, but not
limited to, the designation of onsite evacuation routes.
A13 Procedural Documents
Administrative, organizational, or procedural Policies, Orders,
Notices, Manuals, and Guides.
A14 Approval of Technical Exchange Arrangements
Approval of technical exchange arrangements for information,
data, or personnel with other countries or international
organizations (including, but not limited to, assistance in
identifying and analyzing another country's energy resources, needs
and options).
A15 International Agreements for Energy Research and Development
Approval of DOE participation in international ``umbrella''
agreements for cooperation in energy research and development
activities that would not commit the U.S. to any specific projects
or activities.
Appendix B to Part 1021--Categorical Exclusions Applicable to Specific
Agency Actions
Table of Contents
B. Conditions That Are Integral Elements of the Categories of Actions
in Appendix B
B1. Categorical Exclusions Applicable to Facility Operation
B1.1 Changing rates and prices
B1.2 Training exercises and simulations
B1.3 Routine maintenance
B1.4 Air conditioning systems for existing equipment
B1.5 Existing steam plants and cooling water systems
B1.6 Tanks and equipment to control runoff and spills
B1.7 Electronic equipment
B1.8 Screened water intake and outflow structures
B1.9 Airway safety markings and painting
B1.10 Onsite storage of activated material
B1.11 Fencing
B1.12 Detonation or burning of explosives or propellants after
testing
B1.13 Pathways, short access roads, and rail lines
B1.14 Refueling of nuclear reactors
B1.15 Support buildings
B1.16 Asbestos removal
B1.17 Polychlorinated biphenyl removal
B1.18 Water supply wells
B1.19 Microwave, meteorological, and radio towers
B1.20 Protection of cultural resources, fish and wildlife habitat
B1.21 Noise abatement
B1.22 Relocation of buildings
B1.23 Demolition and disposal of buildings
B1.24 Property transfers
B1.25 Real property transfers for cultural resources protection,
habitat preservation, and wildlife management
B1.26 Small water treatment facilities
B1.27 Disconnection of utilities
B1.28 Placing a facility in an environmentally safe condition
B1.29 Disposal facilities for construction and demolition waste
B1.30 Transfer actions
B1.31 Installation or relocation of machinery and equipment
B1.32 Traffic flow adjustments
B1.33 Stormwater runoff control
B1.34 Lead-based paint containment, removal, and disposal
B1.35 Drop-off, collection, and transfer facilities for recyclable
materials
B1.36 Determinations of excess real property
B2. Categorical Exclusions Applicable to Safety and Health
B2.1 Workplace enhancements
B2.2 Building and equipment instrumentation
B2.3 Personnel safety and health equipment
B2.4 Equipment qualification
B2.5 Facility safety and environmental improvements
B2.6 Recovery of radioactive sealed sources
B3. Categorical Exclusions Applicable to Site Characterization,
Monitoring, and General Research
B3.1 Site characterization and environmental monitoring
B3.2 Aviation activities
B3.3 Research related to conservation of fish, wildlife, and
cultural resources
B3.4 Transport packaging tests for radioactive or hazardous material
B3.5 Tank car tests
B3.6 Small-scale research and development, laboratory operations,
and pilot projects
B3.7 New terrestrial infill exploratory and experimental wells
B3.8 Outdoor terrestrial ecological and environmental research
B3.9 Projects to reduce emissions and waste generation
B3.10 Particle accelerators
B3.11 Outdoor tests and experiments on materials and equipment
components
B3.12 Microbiological and biomedical facilities
B3.13 Magnetic fusion experiments
B3.14 Small-scale educational facilities
B3.15 Small-scale indoor research and development projects using
nanoscale materials
B3.16 Research activities in aquatic environments
[[Page 29685]]
B4. Categorical Exclusions Applicable to Electric Power and
Transmission
B4.1 Contracts, policies, and marketing and allocation plans for
electric power
B4.2 Export of electric energy
B4.3 Electric power marketing rate changes
B4.4 Power marketing services and activities
B4.5 Temporary adjustments to river operations
B4.6 Additions and modifications to transmission facilities
B4.7 Fiber optic cable
B4.8 Electricity transmission agreements
B4.9 Multiple use of powerline rights-of-way
B4.10 Removal of electric transmission facilities
B4.11 Electric power substations and interconnection facilities
B4.12 Construction of powerlines
B4.13 Upgrading and rebuilding existing powerlines
B4.14 Construction and operation of electrochemical-battery or
flywheel energy storage systems
B5. Categorical Exclusions Applicable to Conservation, Fossil, and
Renewable Energy Activities
B5.1 Actions to conserve energy or water
B5.2 Modifications to pumps and piping
B5.3 Modification or abandonment of wells
B5.4 Repair or replacement of pipelines
B5.5 Short pipeline segments
B5.6 Oil spill cleanup
B5.7 Export of natural gas and associated transportation by marine
vessel
B5.8 [Reserved]
B5.9 Temporary exemptions for electric powerplants
B5.10 Certain permanent exemptions for existing electric powerplants
B5.11 Permanent exemptions allowing mixed natural gas and petroleum
B5.12 Workover of existing wells
B5.13 Experimental wells for injection of small quantities of carbon
dioxide
B5.14 Combined heat and power or cogeneration systems
B5.15 Small-scale renewable energy research and development and
pilot projects
B5.16 Solar photovoltaic systems
B5.17 Solar thermal systems
B5.18 Wind turbines
B5.19 Ground source heat pumps
B5.20 Biomass power plants
B5.21 Methane gas recovery and utilization systems
B5.22 Alternative fuel vehicle fueling stations
B5.23 Electric vehicle charging stations
B5.24 Drop-in hydroelectric systems
B5.25 Small-scale renewable energy research and development and
pilot projects in aquatic environments
B6. Categorical Exclusions Applicable to Environmental Restoration and
Waste Management Activities
B6.1 Cleanup actions
B6.2 Waste collection, treatment, stabilization, and containment
facilities
B6.3 Improvements to environmental control systems
B6.4 Facilities for storing packaged hazardous waste for 90 days or
less
B6.5 Facilities for characterizing and sorting packaged waste and
overpacking waste
B6.6 Modification of facilities for storing, packaging, and
repacking waste
B6.7 [Reserved]
B6.8 Modifications for waste minimization and reuse of materials
B6.9 Measures to reduce migration of contaminated groundwater
B6.10 Upgraded or replacement waste storage facilities
B7. Categorical Exclusions Applicable to International Activities
B7.1 Emergency measures under the International Energy Program
B7.2 Import and export of special nuclear or isotopic materials
B. Conditions That Are Integral Elements of the Categories of Actions
in Appendix B
The categories of actions listed below include the following
conditions as integral elements of the categories of actions. To fit
within the categories of actions listed below, a proposal must be
one that would not:
(1) Threaten a violation of applicable statutory, regulatory, or
permit requirements for environment, safety, and health, or similar
requirements of DOE or Executive Orders;
(2) Require siting and construction or major expansion of waste
storage, disposal, recovery, or treatment facilities (including
incinerators), but the proposal may include categorically excluded
waste storage, disposal, recovery, or treatment actions or
facilities;
(3) Disturb hazardous substances, pollutants, contaminants, or
CERCLA-excluded petroleum and natural gas products that preexist in
the environment such that there would be uncontrolled or unpermitted
releases;
(4) Have the potential to cause significant impacts on
environmentally sensitive resources. An environmentally sensitive
resource is typically a resource that has been identified as needing
protection through Executive Order, statute, or regulation by
Federal, state, or local government, or a Federally recognized
Indian tribe. An action may be categorically excluded if, although
sensitive resources are present, the action would not have the
potential to cause significant impacts on those resources (such as
construction of a building with its foundation well above a sole-
source aquifer or upland surface soil removal on a site that has
wetlands). Environmentally sensitive resources include, but are not
limited to:
(i) Property (such as sites, buildings, structures, and objects)
of historic, archeological, or architectural significance designated
by a Federal, state, or local government, Federally recognized
Indian tribe, or Native Hawaiian organization, or property
determined to be eligible for listing on the National Register of
Historic Places;
(ii) Federally-listed threatened or endangered species or their
habitat (including critical habitat) or Federally-proposed or
candidate species or their habitat (Endangered Species Act); state-
listed or state-proposed endangered or threatened species or their
habitat; Federally-protected marine mammals and Essential Fish
Habitat (Marine Mammal Protection Act; Magnuson-Stevens Fishery
Conservation and Management Act); and otherwise Federally-protected
species (such as the Bald and Golden Eagle Protection Act or the
Migratory Bird Treaty Act);
(iii) Floodplains and wetlands (as defined in 10 CFR 1022.4,
``Compliance with Floodplain and Wetland Environmental Review
Requirements: Definitions,'' or its successor);
(iv) Areas having a special designation such as Federally- and
state-designated wilderness areas, national parks, national
monuments, national natural landmarks, wild and scenic rivers, state
and Federal wildlife refuges, scenic areas (such as National Scenic
and Historic Trails or National Scenic Areas), and marine
sanctuaries;
(v) Prime or unique farmland, or other farmland of statewide or
local importance, as defined at 7 CFR 658.2(a), ``Farmland
Protection Policy Act: Definitions,'' or its successor;
(vi) Special sources of water (such as sole-source aquifers,
wellhead protection areas, and other water sources that are vital in
a region); and
(vii) Tundra, coral reefs, or rain forests; or
(5) Involve genetically engineered organisms, synthetic biology,
governmentally designated noxious weeds, or invasive species, unless
the proposed activity would be contained or confined in a manner
designed and operated to prevent unauthorized release into the
environment and conducted in accordance with applicable
requirements, such as those of the Department of Agriculture, the
Environmental Protection Agency, and the National Institutes of
Health.
B1. Categorical Exclusions Applicable to Facility Operation
B1.1 Changing Rates and Prices
Changing rates for services or prices for products marketed by
parts of DOE other than Power Marketing Administrations, and
approval of rate or price changes for non-DOE entities, that are
consistent with the change in the implicit price deflator for the
Gross Domestic Product published by the Department of Commerce,
during the period since the last rate or price change.
B1.2 Training Exercises and Simulations
Training exercises and simulations (including, but not limited
to, firing-range training, small-scale and short-duration force-on-
force exercises, emergency response training, fire fighter and
rescue training, and decontamination and spill cleanup training)
conducted under appropriately controlled conditions and in
accordance with applicable requirements.
B1.3 Routine Maintenance
Routine maintenance activities and custodial services for
buildings, structures, rights-of-way, infrastructures (including,
but not limited to, pathways, roads, and
[[Page 29686]]
railroads), vehicles and equipment, and localized vegetation and
pest control, during which operations may be suspended and resumed,
provided that the activities would be conducted in a manner in
accordance with applicable requirements. Custodial services are
activities to preserve facility appearance, working conditions, and
sanitation (such as cleaning, window washing, lawn mowing, trash
collection, painting, and snow removal). Routine maintenance
activities, corrective (that is, repair), preventive, and
predictive, are required to maintain and preserve buildings,
structures, infrastructures, and equipment in a condition suitable
for a facility to be used for its designated purpose. Such
maintenance may occur as a result of severe weather (such as
hurricanes, floods, and tornados), wildfires, and other such events.
Routine maintenance may result in replacement to the extent that
replacement is in-kind and is not a substantial upgrade or
improvement. In-kind replacement includes installation of new
components to replace outmoded components, provided that the
replacement does not result in a significant change in the expected
useful life, design capacity, or function of the facility. Routine
maintenance does not include replacement of a major component that
significantly extends the originally intended useful life of a
facility (for example, it does not include the replacement of a
reactor vessel near the end of its useful life). Routine maintenance
activities include, but are not limited to:
(a) Repair or replacement of facility equipment, such as lathes,
mills, pumps, and presses;
(b) Door and window repair or replacement;
(c) Wall, ceiling, or floor repair or replacement;
(d) Reroofing;
(e) Plumbing, electrical utility, lighting, and telephone
service repair or replacement;
(f) Routine replacement of high-efficiency particulate air
filters;
(g) Inspection and/or treatment of currently installed utility
poles;
(h) Repair of road embankments;
(i) Repair or replacement of fire protection sprinkler systems;
(j) Road and parking area resurfacing, including construction of
temporary access to facilitate resurfacing, and scraping and grading
of unpaved surfaces;
(k) Erosion control and soil stabilization measures (such as
reseeding, gabions, grading, and revegetation);
(l) Surveillance and maintenance of surplus facilities in
accordance with DOE Order 435.1, ``Radioactive Waste Management,''
or its successor;
(m) Repair and maintenance of transmission facilities, such as
replacement of conductors of the same nominal voltage, poles,
circuit breakers, transformers, capacitors, crossarms, insulators,
and downed powerlines, in accordance, where appropriate, with 40 CFR
part 761 (Polychlorinated Biphenyls Manufacturing, Processing,
Distribution in Commerce, and Use Prohibitions) or its successor;
(n) Routine testing and calibration of facility components,
subsystems, or portable equipment (such as control valves, in-core
monitoring devices, transformers, capacitors, monitoring wells,
lysimeters, weather stations, and flumes);
(o) Routine decontamination of the surfaces of equipment, rooms,
hot cells, or other interior surfaces of buildings (by such
activities as wiping with rags, using strippable latex, and minor
vacuuming), and removal of contaminated intact equipment and other
material (not including spent nuclear fuel or special nuclear
material in nuclear reactors); and
(p) Removal of debris.
B1.4 Air Conditioning Systems for Existing Equipment
Installation or modification of air conditioning systems
required for temperature control for operation of existing
equipment.
B1.5 Existing Steam Plants and Cooling Water Systems
Minor improvements to existing steam plants and cooling water
systems (including, but not limited to, modifications of existing
cooling towers and ponds), provided that the improvements would not:
(1) Create new sources of water or involve new receiving waters; (2)
have the potential to significantly alter water withdrawal rates;
(3) exceed the permitted temperature of discharged water; or (4)
increase introductions of, or involve new introductions of,
hazardous substances, pollutants, contaminants, or CERCLA-excluded
petroleum and natural gas products.
B1.6 Tanks and Equipment To Control Runoff and Spills
Installation or modification of retention tanks or small
(normally under one acre) basins and associated piping and pumps for
existing operations to control runoff or spills (such as under 40
CFR part 112). Modifications include, but are not limited to,
installing liners or covers. (See also B1.33 of this appendix.)
B1.7 Electronic Equipment
Acquisition, installation, operation, modification, and removal
of electricity transmission control and monitoring devices for grid
demand and response, communication systems, data processing
equipment, and similar electronic equipment.
B1.8 Screened Water Intake and Outflow Structures
Modifications to screened water intake and outflow structures
such that intake velocities and volumes and water effluent quality
and volumes are consistent with existing permit limits.
B1.9 Airway Safety Markings and Painting
Placement of airway safety markings on, painting of, and repair
and in-kind replacement of lighting on powerlines and antenna
structures, wind turbines, and similar structures in accordance with
applicable requirements (such as Federal Aviation Administration
standards).
B1.10 Onsite Storage of Activated Material
Routine, onsite storage at an existing facility of activated
equipment and material (including, but not limited to, lead) used at
that facility, to allow reuse after decay of radioisotopes with
short half-lives.
B1.11 Fencing
Installation of fencing, including, but not limited to border
marking, that would not have the potential to significantly impede
wildlife population movement (including migration) or surface water
flow.
B1.12 Detonation or Burning of Explosives or Propellants After
Testing
Outdoor detonation or burning of explosives or propellants that
failed (duds), were damaged (such as by fracturing), or were
otherwise not consumed in testing. Outdoor detonation or burning
would be in areas designated and routinely used for those purposes
under existing applicable permits issued by Federal, state, and
local authorities (such as a permit for a RCRA miscellaneous unit
(40 CFR part 264, subpart X)).
B1.13 Pathways, Short Access Roads, and Rail Lines
Construction, acquisition, and relocation, consistent with
applicable right-of-way conditions and approved land use or
transportation improvement plans, of pedestrian walkways and trails,
bicycle paths, small outdoor fitness areas, and short access roads
and rail lines (such as branch and spur lines).
B1.14 Refueling of Nuclear Reactors
Refueling of operating nuclear reactors, during which operations
may be suspended and then resumed.
B1.15 Support Buildings
Siting, construction or modification, and operation of support
buildings and support structures (including, but not limited to,
trailers and prefabricated and modular buildings) within or
contiguous to an already developed area (where active utilities and
currently used roads are readily accessible). Covered support
buildings and structures include, but are not limited to, those for
office purposes; parking; cafeteria services; education and
training; visitor reception; computer and data processing services;
health services or recreation activities; routine maintenance
activities; storage of supplies and equipment for administrative
services and routine maintenance activities; security (such as
security posts); fire protection; small-scale fabrication (such as
machine shop activities), assembly, and testing of non- nuclear
equipment or components; and similar support purposes, but exclude
facilities for nuclear weapons activities and waste storage
activities, such as activities covered in B1.10, B1.29, B1.35, B2.6,
B6.2, B6.4, B6.5, B6.6, and B6.10 of this appendix.
B1.16 Asbestos Removal
Removal of asbestos-containing materials from buildings in
accordance with applicable requirements (such as 40 CFR part 61,
``National Emission Standards for Hazardous Air Pollutants''; 40 CFR
part 763, ``Asbestos'';
[[Page 29687]]
29 CFR part 1910, subpart I, ``Personal Protective Equipment''; and
29 CFR part 1926, ``Safety and Health Regulations for
Construction''; and appropriate state and local requirements,
including certification of removal contractors and technicians).
B1.17 Polychlorinated Biphenyl Removal
Removal of polychlorinated biphenyl (PCB)-containing items
(including, but not limited to, transformers and capacitors), PCB-
containing oils flushed from transformers, PCB-flushing solutions,
and PCB- containing spill materials from buildings or other
aboveground locations in accordance with applicable requirements
(such as 40 CFR part 761).
B1.18 Water Supply Wells
Siting, construction, and operation of additional water supply
wells (or replacement wells) within an existing well field, or
modification of an existing water supply well to restore production,
provided that there would be no drawdown other than in the immediate
vicinity of the pumping well, and the covered actions would not have
the potential to cause significant long-term decline of the water
table, and would not have the potential to cause significant
degradation of the aquifer from the new or replacement well.
B1.19 Microwave, Meteorological, And Radio Towers
Siting, construction, modification, operation, and removal of
microwave, radio communication, and meteorological towers and
associated facilities, provided that the towers and associated
facilities would not be in a governmentally designated scenic area
(see B(4)(iv) of this appendix) unless otherwise authorized by the
appropriate governmental entity.
B1.20 Protection of Cultural Resources, Fish and Wildlife Habitat
Small-scale activities undertaken to protect cultural resources
(such as fencing, labeling, and flagging) or to protect, restore, or
improve fish and wildlife habitat, fish passage facilities (such as
fish ladders and minor diversion channels), or fisheries. Such
activities would be conducted in accordance with an existing natural
or cultural resource plan, if any.
B1.21 Noise Abatement
Noise abatement measures (including, but not limited to,
construction of noise barriers and installation of noise control
materials).
B1.22 Relocation of Buildings
Relocation of buildings (including, but not limited to, trailers
and prefabricated buildings) to an already developed area (where
active utilities and currently used roads are readily accessible).
B1.23 Demolition and Disposal of Buildings
Demolition and subsequent disposal of buildings, equipment, and
support structures (including, but not limited to, smoke stacks and
parking lot surfaces), provided that there would be no potential for
release of substances at a level, or in a form, that could pose a
threat to public health or the environment.
B1.24 Property Transfers
Transfer, lease, disposition, or acquisition of interests in
personal property (including, but not limited to, equipment and
materials) or real property (including, but not limited to,
permanent structures and land), provided that under reasonably
foreseeable uses (1) there would be no potential for release of
substances at a level, or in a form, that could pose a threat to
public health or the environment and (2) the covered actions would
not have the potential to cause a significant change in impacts from
before the transfer, lease, disposition, or acquisition of
interests.
B1.25 Real Property Transfers for Cultural Resources Protection,
Habitat Preservation, and Wildlife Management
Transfer, lease, disposition, or acquisition of interests in
land and associated buildings for cultural resources protection,
habitat preservation, or fish and wildlife management, provided that
there would be no potential for release of substances at a level, or
in a form, that could pose a threat to public health or the
environment.
B1.26 Small Water Treatment Facilities
Siting, construction, expansion, modification, replacement,
operation, and decommissioning of small (total capacity less than
approximately 250,000 gallons per day) wastewater and surface water
treatment facilities whose liquid discharges are externally
regulated, and small potable water and sewage treatment facilities.
B1.27 Disconnection of Utilities
Activities that are required for the disconnection of utility
services (including, but not limited to, water, steam,
telecommunications, and electrical power) after it has been
determined that the continued operation of these systems is not
needed for safety.
B1.28 Placing a Facility in an Environmentally Safe Condition
Minor activities that are required to place a facility in an
environmentally safe condition where there is no proposed use for
the facility. These activities would include, but are not limited
to, reducing surface contamination, and removing materials,
equipment or waste (such as final defueling of a reactor, where
there are adequate existing facilities for the treatment, storage,
or disposal of the materials, equipment or waste). These activities
would not include conditioning, treatment, or processing of spent
nuclear fuel, high-level waste, or special nuclear materials.
B1.29 Disposal Facilities for Construction and Demolition Waste
Siting, construction, expansion, modification, operation, and
decommissioning of small (less than approximately 10 acres) solid
waste disposal facilities for construction and demolition waste, in
accordance with applicable requirements (such as 40 CFR part 257,
``Criteria for Classification of Solid Waste Disposal Facilities and
Practices,'' and 40 CFR part 61, ``National Emission Standards for
Hazardous Air Pollutants'') that would not release substances at a
level, or in a form, that could pose a threat to public health or
the environment.
B1.30 Transfer Actions
Transfer actions, in which the predominant activity is
transportation, provided that (1) the receipt and storage capacity
and management capability for the amount and type of materials,
equipment, or waste to be moved already exists at the receiving site
and (2) all necessary facilities and operations at the receiving
site are already permitted, licensed, or approved, as appropriate.
Such transfers are not regularly scheduled as part of ongoing
routine operations.
B1.31 Installation or Relocation of Machinery and Equipment
Installation or relocation and operation of machinery and
equipment (including, but not limited to, laboratory equipment,
electronic hardware, manufacturing machinery, maintenance equipment,
and health and safety equipment), provided that uses of the
installed or relocated items are consistent with the general
missions of the receiving structure. Covered actions include
modifications to an existing building, within or contiguous to a
previously disturbed or developed area, that are necessary for
equipment installation and relocation. Such modifications would not
appreciably increase the footprint or height of the existing
building or have the potential to cause significant changes to the
type and magnitude of environmental impacts.
B1.32 Traffic Flow Adjustments
Traffic flow adjustments to existing roads (including, but not
limited to, stop sign or traffic light installation, adjusting
direction of traffic flow, and adding turning lanes), and road
adjustments (including, but not limited to, widening and
realignment) that are within an existing right-of-way and consistent
with approved land use or transportation improvement plans.
B1.33 Stormwater Runoff Control
Design, construction, and operation of control practices to
reduce stormwater runoff and maintain natural hydrology. Activities
include, but are not limited to, those that reduce impervious
surfaces (such as vegetative practices and use of porous pavements),
best management practices (such as silt fences, straw wattles, and
fiber rolls), and use of green infrastructure or other low impact
development practices (such as cisterns and green roofs).
B1.34 Lead-Based Paint Containment, Removal, and Disposal
Containment, removal, and disposal of lead-based paint in
accordance with applicable requirements (such as provisions relating
to the certification of removal contractors and technicians at 40
CFR part 745, ``Lead-Based Paint Poisoning Prevention In Certain
Residential Structures'').
B1.35 Drop-Off, Collection, and Transfer Facilities for Recyclable
Materials
Siting, construction, modification, and operation of recycling
or compostable
[[Page 29688]]
material drop-off, collection, and transfer stations on or
contiguous to a previously disturbed or developed area and in an
area where such a facility would be consistent with existing zoning
requirements. The stations would have appropriate facilities and
procedures established in accordance with applicable requirements
for the handling of recyclable or compostable materials and
household hazardous waste (such as paint and pesticides). Except as
specified above, the collection of hazardous waste for disposal and
the processing of recyclable or compostable materials are not
included in this category of actions.
B1.36 Determinations of Excess Real Property
Determinations that real property is excess to the needs of DOE
and, in the case of acquired real property, the subsequent reporting
of such determinations to the General Services Administration or, in
the case of lands withdrawn or otherwise reserved from the public
domain, the subsequent filing of a notice of intent to relinquish
with the Bureau of Land Management, Department of the Interior.
Covered actions would not include disposal of real property.
B2. Categorical Exclusions Applicable to Safety and Health
B2.1 Workplace Enhancements
Modifications within or contiguous to an existing structure, in
a previously disturbed or developed area, to enhance workplace
habitability (including, but not limited to, installation or
improvements to lighting, radiation shielding, or heating/
ventilating/air conditioning and its instrumentation, and noise
reduction).
B2.2 Building and Equipment Instrumentation
Installation of, or improvements to, building and equipment
instrumentation (including, but not limited to, remote control
panels, remote monitoring capability, alarm and surveillance
systems, control systems to provide automatic shutdown, fire
detection and protection systems, water consumption monitors and
flow control systems, announcement and emergency warning systems,
criticality and radiation monitors and alarms, and safeguards and
security equipment).
B2.3 Personnel Safety and Health Equipment
Installation of, or improvements to, equipment for personnel
safety and health (including, but not limited to, eye washes, safety
showers, radiation monitoring devices, fumehoods, and associated
collection and exhaust systems), provided that the covered actions
would not have the potential to cause a significant increase in
emissions.
B2.4 Equipment Qualification
Activities undertaken to (1) qualify equipment for use or
improve systems reliability or (2) augment information on safety-
related system components. These activities include, but are not
limited to, transportation container qualification testing, crane
and lift-gear certification or recertification testing, high
efficiency particulate air filter testing and certification, stress
tests (such as ``burn-in'' testing of electrical components and leak
testing), and calibration of sensors or diagnostic equipment.
B2.5 Facility Safety and Environmental Improvements
Safety and environmental improvements of a facility (including,
but not limited to, replacement and upgrade of facility components)
that do not result in a significant change in the expected useful
life, design capacity, or function of the facility and during which
operations may be suspended and then resumed. Improvements include,
but are not limited to, replacement/upgrade of control valves, in-
core monitoring devices, facility air filtration systems, or
substation transformers or capacitors; addition of structural
bracing to meet earthquake standards and/or sustain high wind
loading; and replacement of aboveground or belowground tanks and
related piping, provided that there is no evidence of leakage, based
on testing in accordance with applicable requirements (such as 40
CFR part 265, ``Interim Status Standards for Owners and Operators of
Hazardous Waste Treatment, Storage, and Disposal Facilities'' and 40
CFR part 280, ``Technical Standards and Corrective Action
Requirements for Owners and Operators of Underground Storage
Tanks''). These actions do not include rebuilding or modifying
substantial portions of a facility (such as replacing a reactor
vessel).
B2.6 Recovery of Radioactive Sealed Sources
Recovery of radioactive sealed sources and sealed source-
containing devices from domestic or foreign locations provided that
(1) the recovered items are transported and stored in compliant
containers, and (2) the receiving site has sufficient existing
storage capacity and all required licenses, permits, and approvals.
B3. Categorical Exclusions Applicable to Site Characterization,
Monitoring, and General Research
B3.1 Site Characterization and Environmental Monitoring
Site characterization and environmental monitoring (including,
but not limited to, siting, construction, modification, operation,
and dismantlement and removal or otherwise proper closure (such as
of a well) of characterization and monitoring devices, and siting,
construction, and associated operation of a small-scale laboratory
building or renovation of a room in an existing building for sample
analysis). Such activities would be designed in conformance with
applicable requirements and use best management practices to limit
the potential effects of any resultant ground disturbance. Covered
activities include, but are not limited to, site characterization
and environmental monitoring under CERCLA and RCRA. (This category
of actions excludes activities in aquatic environments. See B3.16 of
this appendix for such activities.) Specific activities include, but
are not limited to:
(a) Geological, geophysical (such as gravity, magnetic,
electrical, seismic, radar, and temperature gradient), geochemical,
and engineering surveys and mapping, and the establishment of survey
marks. Seismic techniques would not include large-scale reflection
or refraction testing;
(b) Installation and operation of field instruments (such as
stream-gauging stations or flow-measuring devices, telemetry
systems, geochemical monitoring tools, and geophysical exploration
tools);
(c) Drilling of wells for sampling or monitoring of groundwater
or the vadose (unsaturated) zone, well logging, and installation of
water-level recording devices in wells;
(d) Aquifer and underground reservoir response testing;
(e) Installation and operation of ambient air monitoring
equipment;
(f) Sampling and characterization of water, soil, rock, or
contaminants (such as drilling using truck- or mobile- scale
equipment, and modification, use, and plugging of boreholes);
(g) Sampling and characterization of water effluents, air
emissions, or solid waste streams;
(h) Installation and operation of meteorological towers and
associated activities (such as assessment of potential wind energy
resources);
(i) Sampling of flora or fauna; and
(j) Archeological, historic, and cultural resource
identification in compliance with 36 CFR part 800 and 43 CFR part 7.
B3.2 Aviation Activities
Aviation activities for survey, monitoring, or security purposes
that comply with Federal Aviation Administration regulations.
B3.3 Research Related to Conservation of Fish, Wildlife, and
Cultural Resources
Field and laboratory research, inventory, and information
collection activities that are directly related to the conservation
of fish and wildlife resources or to the protection of cultural
resources, provided that such activities would not have the
potential to cause significant impacts on fish and wildlife habitat
or populations or to cultural resources.
B3.4 Transport Packaging Tests for Radioactive or Hazardous
Material
Drop, puncture, water-immersion, thermal, and fire tests of
transport packaging for radioactive or hazardous materials to
certify that designs meet the applicable requirements (such as 49
CFR 173.411 and 173.412 and 10 CFR 71.73).
B3.5 Tank Car Tests
Tank car tests under 49 CFR part 179 (including, but not limited
to, tests of safety relief devices, pressure regulators, and thermal
protection systems).
B3.6 Small-Scale Research and Development, Laboratory Operations,
and Pilot Projects
Siting, construction, modification, operation, and
decommissioning of facilities for small-scale research and
development projects; conventional laboratory operations
[[Page 29689]]
(such as preparation of chemical standards and sample analysis); and
small-scale pilot projects (generally less than 2 years) frequently
conducted to verify a concept before demonstration actions, provided
that construction or modification would be within or contiguous to a
previously disturbed or developed area (where active utilities and
currently used roads are readily accessible). Not included in this
category are demonstration actions, meaning actions that are
undertaken at a scale to show whether a technology would be viable
on a larger scale and suitable for commercial deployment.
B3.7 New Terrestrial Infill Exploratory and Experimental Wells
Siting, construction, and operation of new terrestrial infill
exploratory and experimental (test) wells, for either extraction or
injection use, in a locally characterized geological formation in a
field that contains existing operating wells, properly abandoned
wells, or unminable coal seams containing natural gas, provided that
the site characterization has verified a low potential for
seismicity, subsidence, and contamination of freshwater aquifers,
and the actions are otherwise consistent with applicable best
practices and DOE protocols, including those that protect against
uncontrolled releases of harmful materials. Such wells may include
those for brine, carbon dioxide, coalbed methane, gas hydrate,
geothermal, natural gas, and oil. Uses for carbon sequestration
wells include, but are not limited to, the study of saline
formations, enhanced oil recovery, and enhanced coalbed methane
extraction.
B3.8 Outdoor Terrestrial Ecological and Environmental Research
Outdoor terrestrial ecological and environmental research in a
small area (generally less than 5 acres), including, but not limited
to, siting, construction, and operation of a small-scale laboratory
building or renovation of a room in an existing building for
associated analysis. Such activities would be designed in
conformance with applicable requirements and use best management
practices to limit the potential effects of any resultant ground
disturbance.
B3.9 Projects To Reduce Emissions and Waste Generation
Projects to reduce emissions and waste generation at existing
fossil or alternative fuel combustion or utilization facilities,
provided that these projects would not have the potential to cause a
significant increase in the quantity or rate of air emissions. For
this category of actions, ``fuel'' includes, but is not limited to,
coal, oil, natural gas, hydrogen, syngas, and biomass; but ``fuel''
does not include nuclear fuel. Covered actions include, but are not
limited to:
(a) Test treatment of the throughput product (solid, liquid, or
gas) generated at an existing and fully operational fuel combustion
or utilization facility;
(b) Addition or replacement of equipment for reduction or
control of sulfur dioxide, oxides of nitrogen, or other regulated
substances that requires only minor modification to the existing
structures at an existing fuel combustion or utilization facility,
for which the existing use remains essentially unchanged;
(c) Addition or replacement of equipment for reduction or
control of sulfur dioxide, oxides of nitrogen, or other regulated
substances that involves no permanent change in the quantity or
quality of fuel burned or used and involves no permanent change in
the capacity factor of the fuel combustion or utilization facility;
and
(d) Addition or modification of equipment for capture and
control of carbon dioxide or other regulated substances, provided
that adequate infrastructure is in place to manage such substances.
B3.10 Particle Accelerators
Siting, construction, modification, operation, and
decommissioning of particle accelerators, including electron beam
accelerators, with primary beam energy less than approximately 100
million electron volts (MeV) and average beam power less than
approximately 250 kilowatts (kW), and associated beamlines, storage
rings, colliders, and detectors, for research and medical purposes
(such as proton therapy), and isotope production, within or
contiguous to a previously disturbed or developed area (where active
utilities and currently used roads are readily accessible), or
internal modification of any accelerator facility regardless of
energy, that does not increase primary beam energy or current. In
cases where the beam energy exceeds 100 MeV, the average beam power
must be less than 250 kW, so as not to exceed an average current of
2.5 milliamperes (mA).
B3.11 Outdoor Tests and Experiments on Materials and Equipment
Components
Outdoor tests and experiments for the development, quality
assurance, or reliability of materials and equipment (including, but
not limited to, weapon system components) under controlled
conditions. Covered actions include, but are not limited to, burn
tests (such as tests of electric cable fire resistance or the
combustion characteristics of fuels), impact tests (such as
pneumatic ejector tests using earthen embankments or concrete slabs
designated and routinely used for that purpose), or drop, puncture,
water-immersion, or thermal tests. Covered actions would not involve
source, special nuclear, or byproduct materials, except encapsulated
sources manufactured to applicable standards that contain source,
special nuclear, or byproduct materials may be used for
nondestructive actions such as detector/sensor development and
testing and first responder field training.
B3.12 Microbiological and Biomedical Facilities
Siting, construction, modification, operation, and
decommissioning of microbiological and biomedical diagnostic,
treatment and research facilities (excluding Biosafety Level-3 and
Biosafety Level-4), in accordance with applicable requirements and
best practices (such as Biosafety in Microbiological and Biomedical
Laboratories, 5th Edition, Dec. 2009, U.S. Department of Health and
Human Services) including, but not limited to, laboratories,
treatment areas, offices, and storage areas, within or contiguous to
a previously disturbed or developed area (where active utilities and
currently used roads are readily accessible). Operation may include
the purchase, installation, and operation of biomedical equipment
(such as commercially available cyclotrons that are used to generate
radioisotopes and radiopharmaceuticals, and commercially available
biomedical imaging and spectroscopy instrumentation).
B3.13 Magnetic Fusion Experiments
Performing magnetic fusion experiments that do not use tritium
as fuel, within existing facilities (including, but not limited to,
necessary modifications).
B3.14 Small-Scale Educational Facilities
Siting, construction, modification, operation, and
decommissioning of small-scale educational facilities (including,
but not limited to, conventional teaching laboratories, libraries,
classroom facilities, auditoriums, museums, visitor centers,
exhibits, and associated offices) within or contiguous to a
previously disturbed or developed area (where active utilities and
currently used roads are readily accessible). Operation may include,
but is not limited to, purchase, installation, and operation of
equipment (such as audio/visual and laboratory equipment)
commensurate with the educational purpose of the facility.
B3.15 Small-Scale Indoor Research and Development Projects Using
Nanoscale Materials
Siting, construction, modification, operation, and
decommissioning of facilities for indoor small-scale research and
development projects and small-scale pilot projects using nanoscale
materials in accordance with applicable requirements (such as
engineering, worker safety, procedural, and administrative
regulations) necessary to ensure the containment of any hazardous
materials. Construction and modification activities would be within
or contiguous to a previously disturbed or developed area (where
active utilities and currently used roads are readily accessible).
B3.16 Research Activities in Aquatic Environments
Small-scale, temporary surveying, site characterization, and
research activities in aquatic environments, limited to:
(a) Acquisition of rights-of-way, easements, and temporary use
permits;
(b) Installation, operation, and removal of passive scientific
measurement devices, including, but not limited to, antennae, tide
gauges, flow testing equipment for existing wells, weighted
hydrophones, salinity measurement devices, and water quality
measurement devices;
(c) Natural resource inventories, data and sample collection,
environmental monitoring, and basic and applied research, excluding
(1) large-scale vibratory coring techniques and
(2) seismic activities other than passive techniques; and
(d) Surveying and mapping.
These activities would be conducted in accordance with, where
applicable, an
[[Page 29690]]
approved spill prevention, control, and response plan and would
incorporate appropriate control technologies and best management
practices. None of the activities listed above would occur within
the boundary of an established marine sanctuary or wildlife refuge,
a governmentally proposed marine sanctuary or wildlife refuge, or a
governmentally recognized area of high biological sensitivity,
unless authorized by the agency responsible for such refuge,
sanctuary, or area (or after consultation with the responsible
agency, if no authorization is required). If the proposed activities
would occur outside such refuge, sanctuary, or area and if the
activities would have the potential to cause impacts within such
refuge, sanctuary, or area, then the responsible agency shall be
consulted in order to determine whether authorization is required
and whether such activities would have the potential to cause
significant impacts on such refuge, sanctuary, or area. Areas of
high biological sensitivity include, but are not limited to, areas
of known ecological importance, whale and marine mammal mating and
calving/pupping areas, and fish and invertebrate spawning and
nursery areas recognized as being limited or unique and vulnerable
to perturbation; these areas can occur in bays, estuaries, near
shore, and far offshore, and may vary seasonally. No permanent
facilities or devices would be constructed or installed. Covered
actions do not include drilling of resource exploration or
extraction wells.
B4. Categorical Exclusions Applicable to Electrical Power and
Transmission
B4.1 Contracts, Policies, and Marketing and Allocation Plans for
Electric Power
Establishment and implementation of contracts, policies, and
marketing and allocation plans related to electric power acquisition
that involve only the use of the existing transmission system and
existing generation resources operating within their normal
operating limits.
B4.2 Export of Electric Energy
Export of electric energy as provided by Section 202(e) of the
Federal Power Act over existing transmission systems or using
transmission system changes that are themselves categorically
excluded.
B4.3 Electric Power Marketing Rate Changes
Rate changes for electric power, power transmission, and other
products or services provided by a Power Marketing Administration
that are based on a change in revenue requirements if the operations
of generation projects would remain within normal operating limits.
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.)
B4.5 Temporary Adjustments to River Operations
Temporary adjustments to river operations to accommodate day-to-
day river fluctuations, power demand changes, fish and wildlife
conservation program requirements, and other external events,
provided that the adjustments would occur within the existing
operating constraints of the particular hydrosystem operation.
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.)
B4.7 Fiber Optic Cable
Adding fiber optic cables to transmission facilities or burying
fiber optic cable in existing powerline or pipeline rights-of-way.
Covered actions may include associated vaults and pulling and
tensioning sites outside of rights-of- way in nearby previously
disturbed or developed areas.
B4.8 Electricity Transmission Agreements
New electricity transmission agreements, and modifications to
existing transmission arrangements, to use a transmission facility
of one system to transfer power of and for another system, provided
that no new generation projects would be involved and no physical
changes in the transmission system would be made beyond the
previously disturbed or developed facility area.
B4.9 Multiple Use of Powerline Rights-of-Way
Granting or denying requests for multiple uses of a transmission
facility's rights-of-way (including, but not limited to, grazing
permits and crossing agreements for electric lines, water lines,
natural gas pipelines, communications cables, roads, and drainage
culverts).
B4.10 Removal of Electric Transmission Facilities
Deactivation, dismantling, and removal of electric transmission
facilities (including, but not limited to, electric powerlines,
substations, and switching stations) and abandonment and restoration
of rights-of-way (including, but not limited to, associated access
roads).
B4.11 Electric Power Substations and Interconnection Facilities
Construction or modification of electric power substations or
interconnection facilities (including, but not limited to, switching
stations and support facilities).
B4.12 Construction of Powerlines
Construction of electric powerlines approximately 10 miles in
length or less, or approximately 20 miles in length or less within
previously disturbed or developed powerline or pipeline rights-of-
way.
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
1021.102(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
1021.102(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 1021.102(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. Categorical Exclusions Applicable to Conservation, Fossil, and
Renewable Energy Activities
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
[[Page 29691]]
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 actions do not include rulemakings, standard-
settings, or proposed DOE legislation, except for those actions
listed in B5.1(b) of this appendix.
(b) Covered actions include rulemakings that establish energy
conservation standards for consumer products and industrial
equipment, provided that the actions would not:
(1) Have the potential to cause a significant change in
manufacturing infrastructure (such as construction of new
manufacturing plants with considerable associated ground
disturbance);
(2) involve significant unresolved conflicts concerning
alternative uses of available resources (such as rare or limited raw
materials);
(3) have the potential to result in a significant increase in
the disposal of materials posing significant risks to human health
and the environment (such as RCRA hazardous wastes); or
(4) have the potential to cause a significant increase in energy
consumption in a state or region.
B5.2 Modifications to Pumps and Piping
Modifications to existing pump and piping configurations
(including, but not limited to, manifolds, metering systems, and
other instrumentation on such configurations conveying materials
such as air, brine, carbon dioxide, geothermal system fluids,
hydrogen gas, natural gas, nitrogen gas, oil, produced water, steam,
and water). Covered modifications would not have the potential to
cause significant changes to design process flow rates or permitted
air emissions.
B5.3 Modification or Abandonment of Wells
Modification (but not expansion) or plugging and abandonment of
wells, provided that site characterization has verified a low
potential for seismicity, subsidence, and contamination of
freshwater aquifers, and the actions are otherwise consistent with
best practices and DOE protocols, including those that protect
against uncontrolled releases of harmful materials. Such wells may
include, but are not limited to, storage and injection wells for
brine, carbon dioxide, coalbed methane, gas hydrate, geothermal,
natural gas, and oil. Covered modifications would not be part of
site closure.
B5.4 Repair or Replacement of Pipelines
Repair, replacement, upgrading, rebuilding, or minor relocation
of pipelines within existing rights-of- way, provided that the
actions are in accordance with applicable requirements (such as Army
Corps of Engineers permits under section 404 of the Clean Water
Act). Pipelines may convey materials including, but not limited to,
air, brine, carbon dioxide, geothermal system fluids, hydrogen gas,
natural gas, nitrogen gas, oil, produced water, steam, and water.
B5.5 Short Pipeline Segments
Construction and subsequent operation of short (generally less
than 20 miles in length) pipeline segments conveying materials (such
as air, brine, carbon dioxide, geothermal system fluids, hydrogen
gas, natural gas, nitrogen gas, oil, produced water, steam, and
water) between existing source facilities and existing receiving
facilities (such as facilities for use, reuse, transportation,
storage, and refining), provided that the pipeline segments are
within previously disturbed or developed rights-of-way.
B5.6 Oil Spill Cleanup
Removal of oil and contaminated materials recovered in oil spill
cleanup operations and disposal of these materials in accordance
with applicable requirements (such as the National Oil and Hazardous
Substances Pollution Contingency Plan).
B5.7 Export of Natural Gas and Associated Transportation by Marine
Vessel
Approvals or disapprovals of new authorizations or amendments of
existing authorizations to export natural gas under section 3 of the
Natural Gas Act and any associated transportation of natural gas by
marine vessel.
B5.8 [Reserved]
B5.9 Temporary Exemptions for Electric Powerplants
Grants or denials of temporary exemptions under the Powerplant
and Industrial Fuel Use Act of 1978, as amended, for electric
powerplants.
B5.10 Certain Permanent Exemptions for Existing Electric
Powerplants
For existing electric powerplants, grants or denials of
permanent exemptions under the Powerplant and Industrial Fuel Use
Act of 1978, as amended, other than exemptions under section 312(c)
relating to cogeneration and section 312(b) relating to certain
state or local requirements.
B5.11 Permanent Exemptions Allowing Mixed Natural Gas and Petroleum
For new electric powerplants, grants or denials of permanent
exemptions from the prohibitions of Title II of the Powerplant and
Industrial Fuel Use Act of 1978, as amended, to permit the use of
certain fuel mixtures containing natural gas or petroleum.
B5.12 Workover of Existing Wells
Workover (operations to restore production, such as deepening,
plugging back, pulling and resetting lines, and squeeze cementing)
of existing wells (including, but not limited to, activities
associated with brine, carbon dioxide, coalbed methane, gas hydrate,
geothermal, natural gas, and oil) to restore functionality, provided
that workover operations are restricted to the existing wellpad and
do not involve any new site preparation or earthwork that would have
the potential to cause significant impacts on nearby habitat; that
site characterization has verified a low potential for seismicity,
subsidence, and contamination of freshwater aquifers; and the
actions are otherwise consistent with best practices and DOE
protocols, including those that protect against uncontrolled
releases of harmful materials.
B5.13 Experimental Wells for Injection of Small Quantities of
Carbon Dioxide
Siting, construction, operation, plugging, and abandonment of
experimental wells for the injection of small quantities of carbon
dioxide (and other incidentally co-captured gases) in locally
characterized, geologically secure storage formations at or near
existing carbon dioxide sources to determine the suitability of the
formations for large-scale sequestration, provided that (1) The
characterization has verified a low potential for seismicity,
subsidence, and contamination of freshwater aquifers; (2) the wells
are otherwise in accordance with applicable requirements, best
practices, and DOE protocols, including those that protect against
uncontrolled releases of harmful materials; and (3) the wells and
associated drilling activities are sufficiently remote so that they
would not have the potential to cause significant impacts related to
noise and other vibrations. Wells may be used for enhanced oil or
natural gas recovery or for secure storage of carbon dioxide in
saline formations or other secure formations. Over the duration of a
project, the wells would be used to inject, in aggregate, less than
500,000 tons of carbon dioxide into the geologic formation. Covered
actions exclude activities in aquatic environments. (See B3.16 of
this appendix for activities in aquatic environments.)
B5.14 Combined Heat and Power or Cogeneration Systems
Conversion to, replacement of, or modification of combined heat
and power or cogeneration systems (the sequential or simultaneous
production of multiple forms of energy, such as thermal and
electrical energy, in a single integrated system) at existing
facilities, provided that the conversion, replacement, or
modification would not have the potential to cause a significant
increase in the quantity or rate of air emissions and would not have
the potential to cause significant impacts to water resources.
B5.15 Small-Scale Renewable Energy Research and Development and
Pilot Projects
Small-scale renewable energy research and development projects
and small-scale pilot projects, provided that the projects are
[[Page 29692]]
located within a previously disturbed or developed area. Covered
actions would be in accordance with applicable requirements (such as
local land use and zoning requirements) in the proposed project area
and would incorporate appropriate control technologies and best
management practices.
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.
B5.17 Solar Thermal Systems
The installation, modification, operation, and removal of
commercially available small-scale solar thermal systems (including,
but not limited to, solar hot water systems) located on or
contiguous to a building, and if located on land, generally
comprising less than 10 acres within a previously disturbed or
developed area. Covered actions would be in accordance with
applicable requirements (such as local land use and zoning
requirements) in the proposed project area and would incorporate
appropriate control technologies and best management practices.
B5.18 Wind Turbines
The installation, modification, operation, and removal of a
small number (generally not more than 2) of commercially available
wind turbines, with a total height generally less than 200 feet
(measured from the ground to the maximum height of blade rotation)
that (1) Are located within a previously disturbed or developed
area; (2) are located more than 10 nautical miles (about 11.5 miles)
from an airport or aviation navigation aid; (3) are located more
than 1.5 nautical miles (about 1.7 miles) from National Weather
Service or Federal Aviation Administration Doppler weather radar;
(4) would not have the potential to cause significant impacts on
bird or bat populations; and (5) are sited or designed such that the
project would not have the potential to cause significant impacts to
persons (such as from shadow flicker and other visual effects, and
noise). Covered actions would be in accordance with applicable
requirements (such as local land use and zoning requirements) in the
proposed project area and would incorporate appropriate control
technologies and best management practices. Covered actions include
only those related to wind turbines to be installed on land.
B5.19 Ground Source Heat Pumps
The installation, modification, operation, and removal of
commercially available small-scale ground source heat pumps to
support operations in single facilities (such as a school or
community center) or contiguous facilities (such as an office
complex) (1) Only where (a) major associated activities (such as
drilling and discharge) are regulated, and (b) appropriate leakage
and contaminant control measures would be in place (including for
cross- contamination between aquifers); (2) that would not have the
potential to cause significant changes in subsurface temperature;
and (3) would be located within a previously disturbed or developed
area. Covered actions would be in accordance with applicable
requirements (such as local land use and zoning requirements) in the
proposed project area and would incorporate appropriate control
technologies and best management practices.
B5.20 Biomass Power Plants
The installation, modification, operation, and removal of small-
scale biomass power plants (generally less than 10 megawatts), using
commercially available technology (1) Intended primarily to support
operations in single facilities (such as a school and community
center) or contiguous facilities (such as an office complex); (2)
that would not affect the air quality attainment status of the area
and would not have the potential to cause a significant increase in
the quantity or rate of air emissions and would not have the
potential to cause significant impacts to water resources; and (3)
would be located within a previously disturbed or developed area.
Covered actions would be in accordance with applicable requirements
(such as local land use and zoning requirements) in the proposed
project area and would incorporate appropriate control technologies
and best management practices.
B5.21 Methane Gas Recovery and Utilization Systems
The installation, modification, operation, and removal of
commercially available methane gas recovery and utilization systems
installed within a previously disturbed or developed area on or
contiguous to an existing landfill or wastewater treatment plant
that would not have the potential to cause a significant increase in
the quantity or rate of air emissions. Covered actions would be in
accordance with applicable requirements (such as local land use and
zoning requirements) in the proposed project area and would
incorporate appropriate control technologies and best management
practices.
B5.22 Alternative Fuel Vehicle Fueling Stations
The installation, modification, operation, and removal of
alternative fuel vehicle fueling stations (such as for compressed
natural gas, hydrogen, ethanol and other commercially available
biofuels) on the site of a current or former fueling station, or
within a previously disturbed or developed area within the
boundaries of a facility managed by the owners of a vehicle fleet.
Covered actions would be in accordance with applicable requirements
(such as local land use and zoning requirements) in the proposed
project area and would incorporate appropriate control technologies
and best management practices.
B5.23 Electric Vehicle Charging Stations
The installation, modification, operation, and removal of
electric vehicle charging stations, using commercially available
technology, within a previously disturbed or developed area. Covered
actions are limited to areas where access and parking are in
accordance with applicable requirements (such as local land use and
zoning requirements) in the proposed project area and would
incorporate appropriate control technologies and best management
practices.
B5.24 Drop-In Hydroelectric Systems
The installation, modification, operation, and removal of
commercially available small-scale, drop-in, run-of-the-river
hydroelectric systems that would (1) Involve no water storage or
water diversion from the stream or river channel where the system is
installed and (2) not have the potential to cause significant
impacts on water quality, temperature, flow, or volume. Covered
systems would be located up-gradient of an existing anadromous fish
barrier that is not planned for removal and where fish passage
retrofit is not planned and where there would not be the potential
for significant impacts to threatened or endangered species or other
species of concern (as identified in B(4)(ii) of this appendix).
Covered actions would involve no major construction or modification
of stream or river channels, and the hydroelectric systems would be
placed and secured in the channel without the use of heavy
equipment. Covered actions would be in accordance with applicable
requirements (such as local land use and zoning requirements) in the
proposed project area and would incorporate appropriate control
technologies and best management practices.
B5.25 Small-Scale Renewable Energy Research and Development and
Pilot Projects in Aquatic Environments
Small-scale renewable energy research and development projects
and small-scale pilot projects located in aquatic environments.
Activities would be in accordance with, where applicable, an
approved spill prevention, control, and response plan, and would
incorporate appropriate control technologies and best management
practices. Covered actions would not occur (1) Within areas of
hazardous natural bottom conditions or (2) within the boundary of an
established marine sanctuary or wildlife refuge, a governmentally
proposed marine sanctuary or wildlife refuge, or a governmentally
recognized area of high biological sensitivity, unless authorized by
the agency responsible for such refuge, sanctuary, or area (or after
consultation with the responsible agency, if no authorization is
required). If the proposed activities would occur outside such
refuge, sanctuary, or area and if the activities would have the
potential to cause impacts within such refuge, sanctuary, or area,
then the responsible agency shall be consulted in order to determine
whether authorization is
[[Page 29693]]
required and whether such activities would have the potential to
cause significant impacts on such refuge, sanctuary, or area. Areas
of high biological sensitivity include, but are not limited to,
areas of known ecological importance, whale and marine mammal mating
and calving/pupping areas, and fish and invertebrate spawning and
nursery areas recognized as being limited or unique and vulnerable
to perturbation; these areas can occur in bays, estuaries, near
shore, and far offshore, and may vary seasonally. No permanent
facilities or devices would be constructed or installed. Covered
actions do not include drilling of resource exploration or
extraction wells, use of large-scale vibratory coring techniques, or
seismic activities other than passive techniques.
B6. Categorical Exclusions Applicable to Environmental Restoration and
Waste Management Activities
B6.1 Cleanup Actions
Small-scale, short-term cleanup actions, under RCRA, Atomic
Energy Act, or other authorities, less than approximately 10 million
dollars in cost (in 2011 dollars), to reduce risk to human health or
the environment from the release or threat of release of a hazardous
substance other than high-level radioactive waste and spent nuclear
fuel, including treatment (such as incineration, encapsulation,
physical or chemical separation, and compaction), recovery, storage,
or disposal of wastes at existing facilities currently handling the
type of waste involved in the action. These actions include, but are
not limited to:
(a) Excavation or consolidation of contaminated soils or
materials from drainage channels, retention basins, ponds, and spill
areas that are not receiving contaminated surface water or
wastewater, if surface water or groundwater would not collect and if
such actions would reduce the spread of, or direct contact with, the
contamination;
(b) Removal of bulk containers (such as drums and barrels) that
contain or may contain hazardous substances, pollutants,
contaminants, CERCLA-excluded petroleum or natural gas products, or
hazardous wastes (designated in 40 CFR part 261 or applicable state
requirements), if such actions would reduce the likelihood of
spillage, leakage, fire, explosion, or exposure to humans, animals,
or the food chain;
(c) Removal of an underground storage tank including its
associated piping and underlying containment systems in accordance
with applicable requirements (such as RCRA, subtitle I; 40 CFR part
265, subpart J; and 40 CFR part 280, subparts F and G) if such
action would reduce the likelihood of spillage, leakage, or the
spread of, or direct contact with, contamination;
(d) Repair or replacement of leaking containers;
(e) Capping or other containment of contaminated soils or
sludges if the capping or containment would not unduly limit future
groundwater remediation and if needed to reduce migration of
hazardous substances, pollutants, contaminants, or CERCLA-excluded
petroleum and natural gas products into soil, groundwater, surface
water, or air;
(f) Drainage or closing of man-made surface impoundments if
needed to maintain the integrity of the structures;
(g) Confinement or perimeter protection using dikes, trenches,
ditches, or diversions, or installing underground barriers, if
needed to reduce the spread of, or direct contact with, the
contamination;
(h) Stabilization, but not expansion, of berms, dikes,
impoundments, or caps if needed to maintain integrity of the
structures;
(i) Drainage controls (such as run-off or run-on diversion) if
needed to reduce offsite migration of hazardous substances,
pollutants, contaminants, or CERCLA-excluded petroleum or natural
gas products or to prevent precipitation or run-off from other
sources from entering the release area from other areas;
(j) Segregation of wastes that may react with one another or
form a mixture that could result in adverse environmental impacts;
(k) Use of chemicals and other materials to neutralize the pH of
wastes;
(l) Use of chemicals and other materials to retard the spread of
the release or to mitigate its effects if the use of such chemicals
would reduce the spread of, or direct contact with, the
contamination;
(m) Installation and operation of gas ventilation systems in
soil to remove methane or petroleum vapors without any toxic or
radioactive co-contaminants if appropriate filtration or gas
treatment is in place;
(n) Installation of fences, warning signs, or other security or
site control precautions if humans or animals have access to the
release; and
(o) Provision of an alternative water supply that would not
create new water sources if necessary immediately to reduce exposure
to contaminated household or industrial use water and continuing
until such time as local authorities can satisfy the need for a
permanent remedy.
B6.2 Waste Collection, Treatment, Stabilization, and Containment
Facilities
The siting, construction, and operation of temporary (generally
less than 2 years) pilot-scale waste collection and treatment
facilities, and pilot-scale (generally less than 1 acre) waste
stabilization and containment facilities (including siting,
construction, and operation of a small-scale laboratory building or
renovation of a room in an existing building for sample analysis),
provided that the action (1) Supports remedial investigations/
feasibility studies under CERCLA, or similar studies under RCRA
(such as RCRA facility investigations/corrective measure studies) or
other authorities and (2) would not unduly limit the choice of
reasonable remedial alternatives (such as by permanently altering
substantial site area or by committing large amounts of funds
relative to the scope of the remedial alternatives).
B6.3 Improvements to Environmental Control Systems
Improvements to environmental monitoring and control systems of
an existing building or structure (such as changes to scrubbers in
air quality control systems or ion-exchange devices and other
filtration processes in water treatment systems), provided that
during subsequent operations (1) Any substance collected by the
environmental control systems would be recycled, released, or
disposed of within existing permitted facilities and (2) there are
applicable statutory or regulatory requirements or permit conditions
for disposal, release, or recycling of any hazardous substance or
CERCLA-excluded petroleum or natural gas products that are collected
or released in increased quantity or that were not previously
collected or released.
B6.4 Facilities for Storing Packaged Hazardous Waste for 90 Days or
Less
Siting, construction, modification, expansion, operation, and
decommissioning of an onsite facility for storing packaged hazardous
waste (as designated in 40 CFR part 261) for 90 days or less or for
longer periods as provided in 40 CFR 262.34(d), (e), or (f) (such as
accumulation or satellite areas).
B6.5 Facilities for Characterizing and Sorting Packaged Waste and
Overpacking Waste
Siting, construction, modification, expansion, operation, and
decommissioning of an onsite facility for characterizing and sorting
previously packaged waste or for overpacking waste, other than high-
level radioactive waste, provided that operations do not involve
unpacking waste. These actions do not include waste storage (covered
under B6.4, B6.6, B6.10 of this appendix) or the handling of spent
nuclear fuel.
B6.6 Modification of Facilities for Storing, Packaging, and
Repacking Waste
Modification (excluding increases in capacity) of an existing
structure used for storing, packaging, or repacking waste other than
high-level radioactive waste or spent nuclear fuel, to handle the
same class of waste as currently handled at that structure.
B6.7 [Reserved]
B6.8 Modifications for Waste Minimization and Reuse of Materials
Minor operational changes at an existing facility to minimize
waste generation and for reuse of materials. These changes include,
but are not limited to, adding filtration and recycle piping to
allow reuse of machining oil, setting up a sorting area to improve
process efficiency, and segregating two waste streams previously
mingled and assigning new identification codes to the two resulting
wastes.
B6.9 Measures To Reduce Migration of Contaminated Groundwater
Small-scale temporary measures to reduce migration of
contaminated groundwater, including the siting, construction,
operation, and decommissioning of necessary facilities.
[[Page 29694]]
These measures include, but are not limited to, pumping, treating,
storing, and reinjecting water, by mobile units or facilities that
are built and then removed at the end of the action.
B6.10 Upgraded or Replacement Waste Storage Facilities
Siting, construction, modification, expansion, operation, and
decommissioning of a small upgraded or replacement facility (less
than approximately 50,000 square feet in area) within or contiguous
to a previously disturbed or developed area (where active utilities
and currently used roads are readily accessible) for storage of
waste that is already at the site at the time the storage capacity
is to be provided. These actions do not include the storage of high-
level radioactive waste, spent nuclear fuel or any waste that
requires special precautions to prevent nuclear criticality. (See
also B6.4, B6.5, B6.6 of this appendix.)
B7. Categorical Exclusions Applicable to International Activities
B7.1 Emergency Measures Under the International Energy Program
Planning and implementation of emergency measures pursuant to
the International Energy Program.
B7.2 Import and Export of Special Nuclear or Isotopic Materials
Approval of import or export of small quantities of special
nuclear materials or isotopic materials in accordance with
applicable requirements (such as the Nuclear Non-Proliferation Act
of 1978 and the ``Procedures Established Pursuant to the Nuclear
Non-Proliferation Act of 1978'' (43 FR 25326, June 9, 1978)).
Note: The following appendix will not appear in the Code of
Federal Regulations
Appendix
U.S. Department of Energy
National Environmental Policy Act (NEPA), Implementing Procedures
June 30, 2025
Table of Contents
1.0 Introduction
2.0 Planning and Decision Making
3.0 Implementing NEPA Efficiently
4.0 General
5.0 Establishing, Adopting, and Applying Categorical Exclusions
6.0 Preparing an Environmental Assessment
7.0 Preparing an Environmental Impact Statement
8.0 Definitions
Appendix A: Administrative and Routine Actions Excepted from NEPA
Review
Appendix B: Categorical Exclusions Applicable to Specific Agency
Actions
Appendix C: Categorical Exclusions Adopted Pursuant to NEPA Section
109
1.0 Introduction
All offices \1\ of the Department of Energy (DOE) will use the
procedures included herein to comply with the National Environmental
Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4331, et seq.).
These procedures are designed to inform agency decision makers
during the decision making process. When DOE is considering a
proposed action that is subject to NEPA, these procedures ensure
that DOE decision makers are informed, in a timely manner, about the
reasonably foreseeable environmental effects of the proposed actions
and reasonable alternatives. These procedures recognize that NEPA is
a purely procedural statute--it does not dictate DOE's decision--and
that DOE has discretion to determine the issues to be considered
consistent with the statute.
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\1\ As used in this document, ``DOE offices'' refers to all DOE
Departmental Elements listed at https://www.directives.doe.gov/references/doe_departmental_elements.
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These procedures describe the process by which DOE determines
what actions are subject to NEPA's procedural requirements and the
level of required NEPA review; interpret certain key terms used in
NEPA; ensure that relevant environmental information is identified
and considered early in the process in order to inform decision-
making; reduce unnecessary burdens and delays; and implement NEPA's
mandates regarding lead and cooperating agency roles, page and time
limits, and applicant preparation of environmental documents.
DOE consulted with the Council on Environmental Quality (CEQ) in
the development of these procedures for the implementation of NEPA
in accord with 42 U.S.C. 4332(B). DOE will in future consult with
CEQ when revising these procedures.
This document provides guidance on DOE's NEPA implementation.
This document is not a regulation. Nothing contained in these
procedures is intended or should be construed to limit DOE's other
authorities or legal responsibilities. These procedures do not, nor
are they intended to, confer legal rights, impose legally binding
requirements, or impose legal obligations upon DOE, States,
federally recognized Indian Tribes, or any member of the public. The
sections of these procedures are separate and severable from one
another. If any section or portion therein is stayed or determined
to be invalid, or the applicability of any section to any person or
entity is held invalid, it is DOE's intention that the validity of
the remainder of these procedures will not be affected and will
continue in effect, along with all applications thereof. DOE retains
the discretion to adopt approaches on a case-by-case basis that
differ from those described in these procedures where appropriate.
These procedures are consistent with the Supreme Court's
decision in Seven County Infrastructure Coalition et al. v. Eagle
County, Colorado.\2\ These procedures represent DOE's understanding
that DOE has broad discretion when conducting its reasonable
decision making. At a high level, DOE understands that Seven County
was about the separation of powers where agencies may weigh
environmental consequences as they reasonably see fit under their
governing statute. As made clear in Seven County, the central
principle of judicial review in NEPA cases is substantial deference
to agencies.\3\ In addition, NEPA imposes no substantive constraints
on any agency's ultimate decision to build, fund, or approve a
proposed project. As the Court explained, brevity in a NEPA document
should not be mistaken for a lack of detail. Put differently, length
is not a prerequisite for a NEPA document to be ``detailed'' within
the meaning of that term as used in the statute or to otherwise be
in compliance with NEPA. As the Court additionally explained,
Congress in 2023 incorporated deadlines and page limits into the
statute which now ``strictly prohibit[ ]'' NEPA analysis ``from
going on endlessly.'' \4\ The review of a NEPA document does not
bind DOE's ultimate determination concerning a proposed project.
Instead, NEPA documents ensure that agency decision makers are fully
informed as to the environmental effects of the proposed action.
Ordinarily, DOE NEPA analysis should not consider environmental
effects of separate projects, especially those over which DOE does
not exercise regulatory authority.
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\2\ Seven County Infrastructure Coalition v. Eagle Cnty., Colo.
(``Seven County''), 145 S. Ct. 1497 (2025).
\3\ Id. at 1511-12.
\4\ Id. at 1512 n.3.
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These DOE NEPA implementing procedures, and related guidance and
resources, are available on DOE's website at energy.gov/nepa.
Questions regarding these procedures and requests to revise these
procedures, including to adopt categorical exclusions from another
agency, should be addressed to the Office of the General Counsel.
2.0 Planning and Decision Making
As soon as practical after DOE has identified that it has a
proposal, DOE should determine whether compliance with NEPA is
required and, if it is, the required level of NEPA review. DOE
should integrate the NEPA process with other planning and
authorization processes at the earliest reasonable time to avoid
delays later in the process, to head off potential conflicts, and to
ensure that DOE considers environmental effects in its planning and
decisions.
2.1 Determining Whether NEPA Applies
As an initial matter and serving as an overriding principle,
NEPA does not require the agency to weigh environmental consequences
in any particular way. The goal of NEPA is to inform an agency
decision, not to paralyze it. See Seven County, supra.
(a) DOE will determine whether NEPA applies to a proposal in
accordance with the procedures included in this section. DOE will
make this determination on a case-by-case basis.
(b) In determining whether NEPA applies to a proposal, DOE will
consider only the action or project at hand.
(c) DOE has determined that the following non-exhaustive list of
activities are not subject to NEPA.
(1) NEPA does not apply to response actions taken under the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) (42 U.S.C. 9601 et
[[Page 29695]]
seq.) because there is a functional equivalency between NEPA and
CERCLA.
(2) NEPA does not apply to applications to authorize--
(i) The import of natural gas; or
(ii) The export of natural gas to countries with which the
United States has a free trade agreement requiring national
treatment for trade in natural gas.
For both types of applications, section 3(c) of the Natural Gas
Act (15 U.S.C. 717b) leaves DOE with no discretion whether to
approve the application.
(3) NEPA does not apply to applications for a Presidential
permit authorizing the construction, connection, operation, or
maintenance of facilities for transmission of electric energy
between the United States and a foreign country under Executive
Order (E.O.) 10485 (18 FR 5397; September 3, 1953), as amended by
E.O. 12038 (43 FR 4957; February 7, 1978). DOE's issuance of a
Presidential permit is not agency action, but rather delegated
Presidential action. Presidential actions are not subject to NEPA or
review under the Administrative Procedure Act.
(4) NEPA does not apply to hydroelectric incentive payments made
to qualified hydroelectric facilities under section 242 of the
Energy Policy Act of 2005 (42 U.S.C 15881). DOE has no discretion in
whether to provide payments to a qualified hydroelectric facility,
and the payments do not satisfy the definition of major Federal
action.
(5) NEPA does not apply to actions that are solely
administrative and routine that are undertaken to support the normal
conduct of DOE business. While such activities are Federal actions,
they are not ``major'' and therefore not subject to NEPA. These
actions were formerly identified as categorical exclusions in
appendix A in DOE's regulations. They now represent actions that are
excepted from NEPA based on the definition of ``major Federal
action'' in Section 110(10). They have been retained as appendix A
for ease of reference and to avoid confusion.
(6) NEPA does not apply to DOE's issuance of emergency Orders
pursuant to section 202(c) of the Federal Power Act (16 U.S.C.
824a(c)) because preparing an environmental document under NEPA's
generally applicable provisions would clearly and fundamentally
conflict with the emergency provisions in the Federal Power Act. As
stated at the beginning of this section, NEPA is to inform DOE's
decision-making, which is inconsistent with the language and intent
of section 202(c), adding further conflict with the statute.
(7) NEPA does not apply to funding DOE provides to local
governments, states or Tribes under the Energy Efficiency and
Conservation Block Grant Program (42 U.S.C. 17151-58), to funding
DOE provides to states under the State Energy Conservation Plan
Program (now known as the State Energy Program) (42 U.S.C. 6321-26),
or to funding DOE provides to states under the Energy Efficiency
Revolving Loan Fund Capitalization Grants Program (42 U.S.C. 18791-
92). Under these programs, DOE does not exercise sufficient control
and responsibility over the subsequent use of the financial
assistance or the effect of the actions due to the statutory
restrictions on the recipients' use of DOE's financial assistance.
Therefore, DOE's provision of financial assistance under these
programs is not a major Federal action subject to NEPA.
(8) NEPA does not apply to rulemaking actions proposed by the
Secretary pursuant to section 403(a) of the DOE Act (42 U.S.C. 7173)
because such proposals are not final agency action. Section 403(b)
specifies that FERC takes ``final action'' on any rulemaking
proposals initiated by the Secretary. NEPA only applies to final
agency actions. See 42 U.S.C. 4336(a)(1).
(d) In making a case-by-case determination whether NEPA applies
to a program (e.g., implementation of a financial assistance program
authorized by Congress) or a particular proposal (e.g., whether to
provide financial assistance for a specific project), DOE shall
follow criteria included in NEPA and listed below. NEPA does not
apply if:
(1) The proposed agency action is not a final agency action
within the meaning of such term in chapter 5 of title 5, United
States Code (42 U.S.C. 4336(a)(1)) or other relevant statute that
also includes a finality requirement. Also see 5 U.S.C. 704;
(2) The proposed activity or decision is exempted from NEPA by
law;
(3) Compliance with NEPA would conflict with the requirements of
another provision of law (42 U.S.C. 4336(a)(3));
(4) When Congress has afforded the DOE no discretion over the
proposed action.
(5) The proposed action is not a ``major Federal action.'' The
terms ``major'' and ``Federal action'' each have independent force.
NEPA applies only when both of these two criteria are met.
(i) NEPA does not apply to non-Federal actions (I) with no or
minimal Federal funding, or (II) with no or minimal Federal
involvement where a Federal agency cannot control the outcome of the
project (42 U.S.C. 4336e(10)(B)(i)). In such circumstances, there is
no legal requirement nor any practical reason for DOE to conduct a
NEPA analysis because DOE could not influence the outcome of its
action to address the environmental effects of the proposal. For
example, this might include situations where Federal funding
constitutes a small percentage of an infrastructure projects overall
funding that is provided only to help design an infrastructure
project that is otherwise funded from non-Federal sources, because
in such situations DOE cannot control the environmental effects of
the completed non-Federal action; \5\
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\5\ ``The touchstone of major [F]ederal activity constitutes a
[F]ederal agency's authority to influence nonfederal activity. `The
[F]ederal agency must possess actual power to control the nonfederal
activity.' '' United States v. S. Fla. Water Mgmt. Dist., 28 F.3d
1563, 1572 (11th Cir. 1994). A but-for causal relationship is
insufficient to make an agency responsible for a particular action
under NEPA. See Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 767
(2004). For instance, minimal Federal funding or involvement, which
may in a causal sense be a but-for cause of an action, does not by
itself convert that action into a Federal action within the meaning
of NEPA.
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(ii) NEPA does not apply to funding assistance solely in the
form of general revenue sharing funds which do not provide Federal
agency compliance or enforcement responsibility over the subsequent
use of such funds (42 U.S.C. 4336e(10)(B)(ii));
(iii) NEPA does not apply to loans, loan guarantees, or other
forms of financial assistance where a Federal agency does not
exercise sufficient control and responsibility over the subsequent
use of such financial assistance or the effect of the action (42
U.S.C. 4336e(10)(B)(iii)). For example, financial assistance for
non-Federal activities or projects where all physical work has been
completed before the applicant seeks funds or reimbursement from DOE
(e.g. incentive payments made by DOE to owners or operators of
qualified hydroelectric facilities whose project was complete at the
time of application to DOE under 42 U.S.C. 15883 (Section 247))
because DOE does not exercise sufficient control and responsibility
over the subsequent use of such financial assistance or the effect
of the action;
(iv) NEPA does not apply to business loan guarantees provided by
the Small Business Administration pursuant to section 7(a) or (b) of
the Small Business Act (15 U.S.C. 636(a), (b)), or title V of the
Small Business Investment Act of 1958 (15 U.S.C. 695 et seq.) (42
U.S.C. 4336e(10)(B)(iv));
(v) NEPA does not apply to bringing judicial or administrative
civil or criminal enforcement actions (42 U.S.C. 4336e(10)(B)(v));
or
(vi) NEPA does not apply to extraterritorial activities or
decisions, which means agency activities or decisions with effects
located entirely outside of the jurisdiction of the United States
(42 U.S.C. 4336e(10)(B)(vi)).
(6) The issuance or update of DOE's NEPA procedures is not
subject to NEPA review.
2.2 Determining the Required Level of NEPA Review
(a) If DOE determines, as described in section 2.1, that NEPA
applies to a proposal, DOE will then determine the required level of
NEPA review following the procedures described in this section. DOE
will make this determination as soon as practicable after
identifying that it has a proposal requiring NEPA review. At all
steps in the following process, DOE will consider the proposed
action or project at hand and its effects.
(b) If DOE has established a categorical exclusion (appendix B)
or adopted under section 109 of NEPA another agency's categorical
exclusion listed in the other agency's NEPA procedures (42 U.S.C.
4336(c)) (appendix C), DOE will apply the categorical exclusion(s),
following the procedures in chapter 5.
(1) If another agency has already established a categorical
exclusion that would apply to the proposed action, DOE will consider
whether to rely on that categorical exclusion pursuant to NEPA and
the procedures described in section 5.5 so that it can be applied to
the proposed action at issue, and to future proposals of that type.
(2) If no relevant categorical exclusion is otherwise available,
DOE will consider whether to establish a new categorical exclusion,
or revise an existing categorical exclusion, according to the
procedures described in section 5.1. If DOE establishes or revises a
categorical exclusion, DOE shall
[[Page 29696]]
then apply the categorical exclusion to the proposed action
according to the procedures described in section 5.4.
(c) If DOE cannot apply a categorical exclusion to the proposed
action, DOE will evaluate significance of the proposed action's
reasonably foreseeable effects consistent with section 3.2, and then
will:
(1) If the proposed action is evaluated in a prior NEPA document
prepared by DOE or another agency, DOE will consider relying on the
existing document, or any pertinent part thereof, and supplementing
that document as needed.
(2) If the proposed action is not likely to have a reasonably
foreseeable significant effect on the quality of the human
environment, or if the significance of the effects of the proposed
action is unknown, DOE will prepare an environmental assessment, as
described in chapter 6; or
(3) If the proposed action is likely to have a reasonably
foreseeable significant effect on the quality of the human
environment, DOE will prepare an environmental impact statement, as
described in in chapter 7.
(d) DOE may use an early scoping process to help determine the
required level of NEPA review. In such a process, DOE should be
driven by the need to begin the required NEPA review promptly and
should avoid steps that do not demonstrably improve the efficiency
of the process. DOE also should remain aware that the schedule for
the environmental assessment or environmental impact statement
begins once DOE has determined the required level of NEPA review
(sections 6.4 and 7.7). DOE should engage any applicant and other
parties, as will be beneficial, in the early scoping process. An
early scoping process may include, as appropriate to the proposal,
steps such as:
(1) Preliminarily identifying the Federal agencies and other
parties that will be involved and that have decisions to make
related to the proposal; the range of reasonable alternatives and
rationale for excluding certain alternatives from detailed analysis;
the scope of environmental effects to be analyzed and rationale for
excluding certain environmental effects from analysis; and the
schedule.
(2) Requesting input from state and local agencies, Tribal
governments, industry groups, and the public.
2.3 Applicant and Contractor Preparation of Documents
DOE or an applicant may prepare an environmental assessment or
environmental impact statement, including related supplements and
supplement analyses, and either may engage a contractor to help
prepare such document. An agency-directed contractor is a contractor
whose work is supervised and directed by DOE. DOE either hires the
agency-directed contractor directly or engages them as part of a
third-party contracting arrangement. Under the third-party
contracting arrangement, an applicant pays for the contractor but
has no role in directing the work of the contractor. Rather, DOE
supervises and directs the contractor's work throughout document
preparation.
An applicant-directed contractor is hired and supervised
directly by the applicant. DOE provides guidance and direction at
particular points throughout document preparation.
2.3.1 DOE Responsibilities
DOE is responsible for complying with NEPA and certain
requirements in other statutes and regulations (e.g., Endangered
Species Act). Certain decisions and actions involved in preparing a
NEPA document cannot be delegated to an applicant or contractor. DOE
will:
(a) Determine the required level of NEPA review;
(b) Ensure that the scope of analysis and procedural steps are
compliant with NEPA and other applicable requirements;
(c) Conduct any government-to-government consultation with
Tribal governments and any required consultation with other Federal
agencies;
(d) Independently evaluate and take responsibility for the
document's contents;
(e) Ensure that the document satisfies all requirements of NEPA
and these procedures, including those for page limits and schedule,
and determine whether to issue the document, and include a statement
in the document confirming that DOE has independently reviewed the
document; and
(f) Prepare and issue any finding of no significant impact,
record of decision, determination whether additional NEPA review is
required, or other decision.
2.3.2 Applicant Responsibilities
The applicant for a proposal being analyzed in a NEPA review
will:
(a) Provide all information requested by DOE, necessary for the
NEPA review, in a timely manner to support the schedule for
completing the NEPA review;
(b) Initiate any request to DOE to prepare the NEPA review (as
provided by 42 U.S.C. 4336a(f)) with the application or during the
early scoping period prior to DOE's determination of the required
level of NEPA review;
(c) Include a statement in the document that it was prepared by
the applicant or a contractor paid by the applicant.
(d) DOE may request from an applicant environmental information
used to prepare or evaluate the environmental assessment or
environmental impact statement. This may include any factual,
scientific, or technical information used, developed, or considered
by the applicant or applicant-hired contractor in the course of
preparing the environmental assessment or environmental impact
statement, including any correspondence with DOE or with other
parties.
(e) If DOE determines that the applicant-prepared document is
likely to be insufficient, DOE may request that the applicant
replace its applicant-directed contractor or may take control of
completion of the document.
(f) Develop a consolidated administrative record of the
information assembled and used to prepare the NEPA document and
provide that record to DOE within two weeks of DOE's request.
2.3.3 DOE and Applicant Coordination During NEPA Review
(a) DOE will work with the applicant to define the purpose and
need and identify alternatives for detailed analysis that meet the
purpose and need.
(b) DOE also will work with the applicant to identify other
Federal agencies, state agencies, and Tribes that may have an
interest in the proposal and will work with the applicant to
identify an appropriate list for notifications and distribution of
the document.
(c) DOE will assist applicants and applicant-directed
contractors by providing guidance and outlining the types of
information required for the preparation of the environmental
assessment or environmental impact statement. DOE also may assist in
document preparation.
(d) DOE shall develop and modify, as appropriate, a schedule for
preparation of the environmental assessment or environmental impact
statement that meets the requirements in NEPA and these procedures.
The schedule shall provide sufficient time for DOE to review the
environmental assessment or environmental impact statement and
determine its sufficiency. Major changes to the schedule or related
matters will be documented through written correspondence.
2.4 NEPA and Rulemaking
(a) Where the proposed action is the promulgation of a rule or
regulation, procedures and documentation pursuant to other statutory
or Executive Order requirements may satisfy one or more requirements
of these procedures. In such circumstances, DOE may substitute the
procedures and documentation pursuant to other statutory or
Executive Order requirements for the corresponding requirements in
these DOE NEPA implementing procedures and need not carry out
duplicative procedures or documentation. DOE will identify which
corresponding requirements in these procedures are satisfied and
consult with CEQ to confirm such determinations.
(b) Where DOE decides to issue a separate NEPA document in
connection with a rulemaking, the NEPA document will normally
accompany the proposed rule.
2.5 Lead and Cooperating Agencies
In many instances, a proposed activity or decision is undertaken
in the context which entails activities or decisions undertaken by
other Federal agencies (e.g., where multiple Federal authorizations
are required with respect to a project sponsor's overall purpose and
goal). In such instances, NEPA directs the multiple agencies
involved shall determine which of them will be the lead agency
pursuant to the criteria identified in NEPA Sec. 107(a)(1)(A), 42
U.S.C. 4336a(a)(1)(A). When serving as the lead agency, DOE is
ultimately responsible for completing the NEPA process. When a joint
lead relationship is established pursuant to NEPA Sec.
107(a)(1)(B), 42 U.S.C. 4336a(a)(1)(B), DOE and the other joint lead
agency or agencies are collectively responsible for completing the
NEPA process.
[[Page 29697]]
3.0 Implementing NEPA Efficiently
DOE will use all available means to improve the efficiency of
its implementation of NEPA. DOE will make maximum use of existing
analyses to avoid repeating work completed for previous
environmental documents or other purposes. DOE also will coordinate
with other agencies to make environmental reviews more efficient for
all agencies with a decision to make or action to take regarding a
proposal. Nothing in this section extends the statutory page limits
(sections 6.3 and 7.6) or schedule deadlines (sections 6.4 and 7.7).
3.1 Identifying Reasonably Foreseeable Environmental Effects
DOE is responsible under NEPA for analyzing reasonably
foreseeable environmental effects (42 U.S.C. 4332(C)(i)) of the
proposed action and alternatives. DOE should consider the following
factors and the definition of ``effects'' (chapter 8.0) when
identifying reasonably foreseeable effects that require analysis:
(a) DOE shall analyze only those reasonably foreseeable
environmental effects that have a reasonably close causal
relationship to the proposed agency action and alternatives.
(b) ``[W]hen the effects of an agency action arise from a
separate project--for example, a possible future project or one that
is geographically distinct from the project at hand--NEPA does not
require the agency to evaluate the effects of that separate
project.'' \6\ In addition, an agency is not required to analyze the
effects of projects over which it does not exercise regulatory
authority.\7\
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\6\ Seven County, 145 S. Ct. at 1515. The Supreme Court provided
the following explanation: ``[I]f the project at issue might lead to
the construction or increased use of a separate project--for
example, a housing development that might someday be built near a
highway--the agency need not consider the environmental effects of
that separate project. . . . [T]he separate project breaks the chain
of proximate causation between the project at hand and the
environmental effects of the separate project.'' Id. at 1515-16
(citing Public Citizen v. Dep't of Transp., 541 U.S. 752, 767 (2004)
and Metropolitan Edison Co. v. People Against Nuclear Energy, 460
U.S. 766, 774, n. 7 (1983)). ``The effects from a separate project
may be factually foreseeable, but that does not mean that those
effects are relevant to the agency's decisionmaking process or that
it is reasonable to hold the agency responsible for those effects. .
. . In those circumstances, `the causal chain is too attenuated.' ''
Id. at 1517 (citing, inter alia, Public Citizen, 541 U.S. at 766-767
and quoting Metropolitan Edison, 460 U.S. at 774). ``In other words,
there is no `reasonably close causal relationship' between the
project at hand and the environmental effects of those other
projects.'' Id. at 1516 (citing Public Citizen, 541 U.S. at 767).''
\7\ Id. at 1516.
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3.2 Evaluating Significance
Determining whether an environmental effect is significant is a
critical part of the NEPA process. Whether an impact rises to the
level of ``significant'' is a matter of DOE's expert judgment. DOE
must determine whether environmental effects of a class of actions
normally are significant when establishing or revising a categorical
exclusion and, in the use of a categorical exclusion whether
extraordinary circumstances create significant effects (chapter 5).
When a categorical exclusion does not apply to a proposal, DOE
considers whether environmental effects are likely to be significant
as the central question in deciding whether to prepare an
environmental assessment or environmental impact statement (section
2.2). DOE again considers the significance of environmental effects
when evaluating changes to a proposed action or new information
related to the environmental effects of a proposal (section 3.9).
DOE also considers the significance of effects in determining the
level of detail to include in an environmental assessment or
environmental impact statement.
(a) The analysis of environmental effects should be tailored to
the particular proposal including the location. In all cases, DOE's
analysis should be ``reasonable and reasonably explained,'' \8\ and
the analysis need not run longer than necessary to provide that
reasoned explanation.\9\ The remainder of this section describes
criteria that might factor into DOE's analysis of environmental
effects.
---------------------------------------------------------------------------
\8\ Id. at 1511.
\9\ Id. at 1512 (``Brevity should not be mistaken for lack of
detail. A relatively brief agency explanation can be reasoned and
detailed; an EIS need not meander on for hundreds or thousands of
pages.'').
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(b) DOE may use any reliable data source, and DOE need not
undertake new research unless it is essential to a reasoned choice
among alternatives and the overall costs and time frame of preparing
new information are not unreasonable. (42 U.S.C. 4336(b)(3)) When
DOE is evaluating an action's reasonably foreseeable effects on the
human environment, and there is incomplete or unavailable
information that cannot be obtained at a reasonable cost or the
means to obtain it are unknown, DOE should make clear in the
relevant environmental document that such information is lacking.
(c) The significance of effects is evaluated in the context of
the affected environment (local, regional, or national) and its
resources, as appropriate for the specific action and the mechanism
or pathway by which the action can result in an environmental
effect. Consequently, the environmental document needs a description
of the affected environment that is sufficient to support a reasoned
explanation of DOE's conclusion regarding the significance of
effects. This may be in a standalone section or chapter on the
affected environment or integrated into the discussion of
environmental effects. In any case, the discussion of the affected
environment should not be encyclopedic and need not extend beyond
areas associated with reasonably foreseeable environmental effects
that have a close causal relationship to the proposed action and
alternatives.
(d) In considering whether effects are significant, DOE should
consider the following, as appropriate to the specific resource
area:
(1) Both short- and long-term effects.
(2) Both beneficial and adverse effects.
(3) Effects on public health and safety.
(4) Economic effects.
(5) Effects on the quality of life of the American people.
(e) DOE should evaluate environmental effects in context. In
considering short-term effects, for example, DOE should acknowledge
that certain adverse effects that occur during construction may be
reversible through revegetation or other actions that return the
environment to its original condition or to a functioning ecosystem.
Such effects are not significant over the long-term, though other
effects of construction activities might be. For another example,
DOE should acknowledge that facility construction and operation will
not be authorized without compliance with applicable laws and other
requirements (e.g., DOE orders and technical standards).
3.3 Relying on ExistingEnvironmental Documents
(a) DOE may rely on an environmental assessment, environmental
impact statement, or portion thereof, issued by any Federal agency
that meets the standards under NEPA and these procedures. (The use
of ``rely on'' is the same concept as ``adopt'' in prior NEPA
practice for environmental assessments and environmental impact
statements.) The nature of DOE's reliance on an existing document
depends on the relationship of the existing document to DOE's NEPA
review of a new or modified proposal.
(1) If the actions analyzed in the original environmental
assessment or environmental impact statement and DOE's proposed
action are substantially the same, and the analysis in the original
document remains sufficient, DOE may republish the relied upon
environmental assessment or environmental impact statement to
satisfy its responsibilities under NEPA. DOE will add to the
republished document a statement that it has confirmed that the
original document satisfies DOE's NEPA responsibilities for the new
or modified proposal.
(2) If the existing environmental assessment, environmental
impact statement, or portion thereof, is only relevant to part of
DOE's proposed action, DOE should cite, briefly describe the content
and relevance to the environmental document being prepared, and may
supplement or make modifications that are necessary to render the
relied-upon document, or portion thereof, fit for fulfilling NEPA's
analytic requirements for the action at hand.
(3) There is no statutory requirement or otherwise to post a
draft EIS for public comment.
3.4 Incorporation by Reference
(a) DOE may incorporate material, such as planning studies,
technical analyses, or other relevant information, into
environmental documents by reference when the effect will be to cut
down on bulk without impeding DOE and public review of the
environmental effects of the proposed action or alternatives. When
incorporating material by reference, DOE will cite, briefly describe
the content and relevance to the environmental document, and make
the materials reasonably available by potentially interested
parties. If DOE provides an opportunity for public review of the
environmental document, DOE also will make any materials
[[Page 29698]]
incorporated by reference publicly available at the same time. DOE
will not use incorporation by reference as a means to evade the
statutory page limits (sections 6.3 and 7.6).
(b) Although NEPA itself does not require cost-benefit analysis,
DOE may prepare a cost-benefit analysis for a particular proposal.
To the extent that this cost-benefit analysis is relevant to any
alternatives analysis that DOE is conducting pursuant to NEPA, DOE
will incorporate the cost-benefit analysis or append it to the
statement to avoid duplication in evaluating the environmental
effects. In such cases, the environmental document will discuss the
relationship between that analysis and any analyses of unquantified
environmental effects, values, and amenities.
3.5 Combining Documents
DOE will combine, to the fullest extent practicable, any
environmental document with any other agency document to reduce
duplication and paperwork. Combining documents does not extend page
limits for environmental assessments and environmental impact
statements unless another statute applies (sections 6.3 and 7.6).
3.6 Integrating NEPA With Other Environmental Requirements
(a) To the fullest extent possible, DOE will prepare
environmental documents concurrently with and integrated with
analyses and related surveys and studies required by other Federal
statutes.
(b) DOE will combine an environmental document prepared in
compliance with NEPA with any other agency document to reduce
duplication and paperwork. Thus, DOE may combine an environmental
document with related plans, rules, or amendments as a single
consolidated document.
(c) If comments on a notice of intent or other aspects of a
scoping process identify consultations, permits, or licenses
necessary under other environmental laws, the environmental document
should contain a section or appendix briefly listing the applicable
requirements and how DOE has or will meet them (e.g., permits
applied for or received, consultations initiated or concluded).
3.7 Elimination of Duplication With State, Tribal, and Local
Procedures
(a) DOE will cooperate with State, Tribal, and local agencies
that have a decision or action to make relevant to the environmental
effects of the proposal, including laws comparable with NEPA.
(b) To the fullest extent practicable unless specifically
prohibited by law, DOE will cooperate with State, Tribal, and local
agencies to reduce duplication between NEPA and State, Tribal, and
local requirements, including through use by DOE of studies,
analysis, and decisions developed by State, Tribal, or local
agencies. Such cooperation may include:
(1) Joint planning processes;
(2) Joint environmental research and studies;
(3) Joint public meetings or hearings; and
(4) Joint environmental documents.
3.8 Programmatic Environmental Documents and Tiering
(a) DOE may prepare environmental documents for programmatic
Federal actions, such as the adoption of new agency programs. DOE
may evaluate the proposal(s) in one of the following ways:
(1) Geographically, including actions occurring in the same
general location, such as a DOE site, body of water, region, or
metropolitan area.
(2) Generically, including actions that have relevant
similarities, such as common timing, effects, alternatives, methods
of implementation, media, or subject matter.
(3) By stage of technological development.
(b) Consistent with NEPA Sec. 108, 42 U.S.C. 4336b, after
completing a programmatic environmental assessment or environmental
impact statement, DOE may rely on that document for 5 years if there
are not substantial new circumstances or information about the
significance of adverse effects that bear on the analysis. After 5
years, as long as DOE reevaluates the analysis in the programmatic
environmental document and any underlying assumption to ensure
reliance on the analysis remains valid and briefly documents its
reevaluation and explains why the analysis remains valid considering
any new and substantial information or circumstances, DOE may
continue to rely on the document.
(c) DOE may, but is not required to, prepare a programmatic
environmental document when it does not have a programmatic decision
to make. When a programmatic environmental document is not required,
DOE should consider whether a technical report or study would
improve the efficiency of future NEPA reviews by providing
information on a technology, region, or other subject that can be
referenced in future environmental documents.
3.9 Supplements to Environmental Documents and Supplement Analyses
(a) DOE is required to prepare supplements to environmental
documents only if a major Federal action remains to occur, and:
(1) DOE makes substantial changes to the proposed action that
are relevant to environmental concerns; or
(2) DOE decides, in its discretion, that there are substantial
new circumstances or information about the significance of the
adverse effects that bearing on the proposed action or its effects.
(b) When it is unclear whether or not a supplement to an
environmental document is required, DOE may prepare a supplement
analysis.
(1) The supplement analysis should discuss the circumstances
that are pertinent to deciding whether to prepare a supplement to an
environmental document.
(2) The supplement analysis should be brief and need only
contain sufficient information for DOE to determine whether:
(i) An existing environmental document should be supplemented;
(ii) A new environmental document should be prepared; or
(iii) No further NEPA documentation is required.
(3) DOE will make the determination and the related supplement
analysis available to the public for information.
4.0 General
4.1 Classified, Confidential, and Otherwise Exempt Information
(a) Notwithstanding other sections of this part, DOE shall not
disclose classified, confidential, or other information that DOE
otherwise would not disclose pursuant to the Freedom of Information
Act (FOIA) (5 U.S.C. 552) and DOE's regulations implementing the
FOIA (10 CFR 1004.10(b)).
(b) To the fullest extent possible, DOE will segregate any
information that is exempt from disclosure requirements into an
appendix to allow public review of the remainder of the NEPA
document.
(c) If exempt information cannot be segregated, or if
segregation would leave essentially meaningless material, DOE will
withhold the entire NEPA document from the public; however, DOE will
prepare the NEPA document and use it in DOE decision-making.
4.2 Appendices
If DOE prepares an appendix, DOE will publish it with the NEPA
document. Appendices are to be used for voluminous materials, such
as scientific tables, collections of data, statistical calculations,
and the like, which substantiate the analysis provided in the
environmental assessment. Appendices are not to be used to provide
additional substantive analysis, because that would circumvent the
congressionally mandated page limits.
Materials may include:
(a) Material prepared in connection with the NEPA document (as
distinct from material that is not so prepared and is incorporated
by reference (section 3.4)).
(b) Data, brief descriptions of methodology, and other material
substantiating any analysis fundamental to the NEPA document, but
not analysis. Analysis of environmental effects will be included in
the body of the NEPA document.
(c) Comments (or summaries thereof where the response has been
exceptionally voluminous) received during the NEPA process and DOE's
response to those comments.
4.3 Unique Identification Numbers
For all environmental documents, DOE will provide a unique
identification number for tracking purposes, which DOE will
reference on all associated environmental review documents prepared
for the proposed agency action and in any database or tracking
system for such documents. DOE will coordinate with the CEQ and
other Federal agencies to ensure compatibility of such
identification numbers across Federal agencies.
4.4 Emergencies
Where emergency circumstances make it necessary to take an
action with reasonably foreseeable significant environmental effects
without observing the provisions of these procedures, DOE will
consult with CEQ about alternative arrangements for
[[Page 29699]]
compliance with NEPA. In other emergency circumstances, DOE will
determine how best to comply with NEPA, including any necessary
variance from these DOE NEPA implementing procedures, and notify CEQ
about the emergency circumstances and DOE's plan for NEPA
compliance.
5.0 Establishing, Adopting, and Applying Categorical Exclusions
Categorical exclusions provide a mechanism to identify types of
Federal actions that normally do not have significant environmental
effects and for which neither an environmental assessment nor
environmental impact statement is normally required. This ensures
that resources are not expended conducting environmental analysis of
proposals that do not present potential for significant
environmental impacts. Categorical exclusions established or adopted
by DOE are listed in appendices B-C of these procedures.
(a) All categorical exclusions may be applied by any DOE office.
The sectional divisions in appendix B are solely for purposes of
organization of that appendix and are not intended to be limiting.
(b) A class of actions includes activities foreseeably necessary
to proposals encompassed within the class of actions (such as award
of implementing grants and contracts, site preparation, purchase and
installation of equipment, and associated transportation
activities).
5.1 Establishing and Revising Categorical Exclusions
(a) To establish or revise a categorical exclusion, DOE must
determine that the category of actions normally does not
significantly affect the quality of the human environment (42 U.S.C.
4336e(1)). In making this determination, DOE shall:
(1) Develop a written record containing information to
substantiate its determination;
(2) Consult with CEQ on its proposed new or revised categorical
exclusion, including the written record, for a period not to exceed
30 days prior to providing public notice as described in
subparagraph (3); and
(3) Provide public notice in the Federal Register of DOE's
establishment or revision of any categorical exclusion, including
the address of the website where the written record is available
(energy.gov/nepa).
(b) If DOE becomes aware of substantial new information about
the environmental effects of actions included in an existing
categorical exclusion, DOE will determine whether to retain, revise,
or remove that categorical exclusion.
(c) DOE will look for opportunities to forego a 30-day
consultation process when, consistent with its statutory authority
and because of the substantial deference courts give DOE under the
Seven County decision when doing so is deemed a well-reasoned
decision.
5.2 Adopting Another Agency's Categorical Exclusion
(a) Consistent with NEPA (42 U.S.C. 4336c), DOE may adopt a
categorical exclusion listed in another agency's NEPA procedures.
Once adopted, the categorical exclusion is available for use by all
DOE offices. When adopting a categorical exclusion, DOE shall:
(1) Identify the categorical exclusion listed in another
agency's NEPA procedures that covers DOE's category of proposed or
related actions;
(2) Consult with the agency that established the categorical
exclusion to ensure that the proposed adoption of the categorical
exclusion is appropriate;
(3) Provide public notification of the categorical exclusion
that DOE is adopting, including a brief description of the proposed
action or category of proposed actions to which DOE intends to apply
the adopted categorical exclusion. DOE shall publish a notice of its
adoption on DOE's website at energy.gov/nepa. This notice should
explain how DOE intends to use the adopted categorical exclusion
(e.g., types of projects, process for considering extraordinary
circumstances, and public notice of categorical exclusion
determinations), and a brief description of the agencies'
consultation; and
(4) DOE will list adopted categorical exclusions in appendix C
of these procedures.
(b) If the establishing agency revises a categorical exclusion
that DOE has adopted, DOE will determine whether to retain the
categorical exclusion as adopted, or to remove the adopted
categorical exclusion and adopt the revised categorical exclusion.
(c) After adoption of another agency's categorical exclusion,
DOE may decide to follow the process described in section 5.1 to
establish it as a DOE categorical exclusion. This could allow, for
example, DOE to modify the text of the categorical exclusion to
better fit DOE's programs and activities. Otherwise, the categorical
exclusion remains as written by the establishing agency.
5.3 Removing a Categorical Exclusion
(a) To remove a categorical exclusion from DOE's NEPA
procedures, DOE will:
(1) Develop a written justification for the removal;
(2) Consult with CEQ on its proposed removal of the categorical
exclusion, including the written justification for the removal, for
a period not to exceed 30 days prior to providing public notice as
described in subparagraph (3); and
(3) Provide public notice of DOE's removal of the categorical
exclusion in the Federal Register and include the written
justification or a link to where that justification is available on
DOE's website.
5.4 Applying One or More Categorical Exclusions to a Proposal
(a) Proposed recurring activities to be undertaken during a
specified time period, such as routine maintenance activities for a
year, may be addressed in a single categorical exclusion
determination after considering the potential aggregated impacts.
(b) The following clarifications are provided to assist in the
appropriate application of categorical exclusions that employ these
terms or phrases:
(1) ``Previously disturbed or developed'' refers to land that
has been changed such that its functioning ecological processes have
been and remain altered by human activity. The phrase encompasses
areas that have been transformed from natural cover to 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.
(2) DOE considers terms such as ``small'' and ``small-scale'' 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.
(c) To find that a proposal is categorically excluded, DOE shall
affirmatively determine the factors listed below. When applying more
than one categorical exclusion to a proposal, DOE shall consider
these factors for the full scope of the proposal and the collective
scope of the categorical exclusions.
(1) The proposal fits within one or more classes of actions
listed in appendices B-C of these procedures;
(2) The proposal has not been segmented to meet the definition
of a categorical exclusion. Segmentation can occur when a proposal
is broken down into small parts in order to avoid the appearance of
significance of the total action. However, segmentation does not
include proposals that are developed and potentially implemented
over multiple phases where each phase results in a decision whether
to proceed to the subsequent phase.
(3) There are no extraordinary circumstances related to the
proposal that indicate a normally excluded agency action is likely
to have a reasonably foreseeable significant adverse effect. It is
not the presence of an extraordinary circumstance that precludes
application of a categorical exclusion, but rather application of a
categorical exclusion is not possible only when DOE concludes that
the extraordinary circumstance is likely to cause a reasonably
foreseeable significant adverse effect or that DOE does not know the
environmental effect of the extraordinary circumstance. DOE or an
applicant may modify the proposal to avoid reasonably foreseeable
adverse significant effects such that the categorical exclusion
would apply. Extraordinary circumstances are unique situations
presented by specific proposals, including, but not limited to,
uncertain effects or effects involving unique or unknown risks.
(d) DOE will document its determination that one or more
categorical exclusions applies to a proposed agency action for any
application of a categorical exclusion included in appendices B or C
of these procedures.
(e) Categorical exclusion determinations for actions listed in
appendix B shall be
[[Page 29700]]
documented and made available to the public by posting online,
generally within two weeks of the determination, unless additional
time is needed in order to review and protect classified
information, ``confidential business information,'' or other
information that DOE would not disclose pursuant to the Freedom of
Information Act (FOIA) (5 U.S.C. 552). Posted categorical exclusion
determinations shall not disclose classified information,
``confidential business information,'' or other information that DOE
would not disclose pursuant to FOIA. (See also section 4.1)
(f) If DOE determines that it cannot apply one or more
categorical exclusions to the proposed action, DOE shall prepare an
environmental assessment or environmental impact statement, as
required (section 2.2(c)).
5.5 Relying on Another Agency's Categorical Exclusion Determination
DOE may rely on another agency's determination that a
categorical exclusion applies to a particular proposed agency action
if the agency action covered by that determination and DOE's
proposed action are substantially the same.
(a) DOE will coordinate with the agency that made the
categorical exclusion determination to ensure that the agency is
aware of DOE's intended reliance on its categorical exclusion
determination and has had an opportunity to provide input to DOE.
(b) DOE should confirm that reliance on the categorical
exclusion determination does not conflict with DOE's NEPA
implementing procedures. This would entail consideration of DOE's
extraordinary circumstances (section 5.4), integral elements
(appendix B), and any relevant categorical exclusions listed in
appendix B of these procedures.
(c) DOE will document its reliance on another agency's
categorical exclusion determination and post that documentation on
DOE's website. That documentation should include the other agency's
categorical exclusion determination and a brief explanation of how
DOE's proposed action is substantially the same as that of the
agency that made the categorical exclusion determination.
6.0 Preparing an Environmental Assessment
If an action is subject to NEPA (section 2.1) and an
environmental assessment is the required level of NEPA review
(section 2.2), DOE shall prepare an environmental assessment with
respect to the proposed agency action following NEPA and the
procedures described herein.
6.1 Public Engagement in Preparation of an Environmental Assessment
(a) DOE may publish a notice of intent to prepare an
environmental assessment or other public notice to request scoping
comments on the environmental assessment.
6.2 Contents of an Environmental Assessment
(a) The scope and level of detail shall be consistent with the
narrow purpose of an environmental assessment, i.e., to determine
whether any reasonably foreseeable effects of the proposal are
likely to be significant and set forth the basis of DOE's finding of
no significant impact or determination that an environmental impact
statement is required. In preparing the environmental assessment,
DOE will focus its analysis on whether the environmental effects of
the action or project at hand are significant. As appropriate, DOE
will document in the environmental assessment where and how it drew
a reasonable and manageable line relating to its consideration of
any environmental effects from the action. NEPA directs that
environmental assessments are to be ``concise'' and conform to the
page limits (42 U.S.C. 4336(b)(2) and Sec. 4336a(e)(2)) and time
limits (42 U.S.C. 4336a(g)) established in the law.
(b) DOE shall include in an environmental assessment a brief
discussion of the following topics:
(1) Purpose and need for the proposed action based on DOE's
statutory authority. When the proposed action involves a response to
an applicant's proposal, the purpose and need shall be informed by
the goals of the applicant;
(2) The proposed action, a reasonable number of alternatives to
the extent required by NEPA (42 U.S.C. 4332(2)(F) and 4332(2)(H)),
and no action alternative (which may be encompassed within the
discussion of the affected environment);
(3) An explanation why particular environmental effects would
not result in significant impact and, thus, are not further analyzed
in the environmental assessment (section 3.2); and
(4) The reasonably foreseeable effects of the proposed agency
action and the alternatives evaluated sufficiently to determine
whether any of the effects are likely to be significant and whether
any significant effects can be made non-significant through
mitigation.
6.3 Page Limits
(a) DOE shall conform to page limits established in NEPA (42
U.S.C. 4336(e)(2)) and as described in this section.
(1) The text of an environmental assessment is strictly
prohibited from exceeding 75 pages, not including citations or
appendices. NEPA does not provide agencies with the authority or a
mechanism to exceed this page limit.
(2) Appendices are to be used for voluminous materials, such as
scientific tables, collections of data, statistical calculations,
and the like, which substantiate the analysis provided in the
environmental assessment. Appendices are not to be used to provide
additional substantive analysis, because that would circumvent the
congressionally mandated page limits.
(3) Environmental assessments shall be formatted for an 8.5'' x
11'' page with one-inch margins using a 12-point proportionally
spaced font, single spaced. Footnotes may be in 10-point font. Such
size restrictions do not apply to explanatory maps, diagrams,
graphs, tables, and other means of graphically displaying
quantitative or geospatial information. When an item of graphical
material is larger than 8.5'' x 11'', each such item shall count as
one page.
(4) Certification Related to Page Limits. The breadth and depth
of analysis in an environmental assessment shall be tailored to
ensure that the environmental analysis does not exceed this 75-page
limit. As part of the finalization of the environmental assessment,
a responsible official shall certify (and the certification shall be
incorporated into the environmental assessment) that DOE has
considered the factors mandated by NEPA; that the environmental
assessment represents DOE's good-faith effort to prioritize
documentation of the most important considerations required by the
statute within the Congressionally mandated page limits; that this
prioritization reflects DOE's expert judgment; and that any
considerations addressed briefly or left unaddressed were, in DOE's
judgment, comparatively not of a substantive nature that
meaningfully informed the consideration of environmental effects and
the resulting decision.
(5) DOE recognizes that NEPA imposes no substantive
environmental obligations or restrictions because it is a purely
procedural statute that requires an agency to prepare a report, as
stated in the Seven County decision, supra. DOE is encouraged to
maximize its substantial discretion to not only stay within the page
limits but also to limit lengthy appendices.
6.4 Deadlines
(a) As the Supreme Court has repeatedly held, NEPA is governed
by a ``rule of reason.'' Congress supplied the measure of that
reason in the 2003 revision of NEPA by setting the deadlines in NEPA
107(g), 42 U.S.C. 4336a(g). These deadlines indicate Congress's
determination that an agency has presumptively spent a reasonable
amount of time on analysis and the document should issue, absent
very unusual circumstances. In such circumstances, an extension will
be given only for such time as is necessary to complete the
analysis.
To effectively support decision making for proposals initiated
within DOE and for proposals brought to DOE by applicants for
financial assistance or other authorization, NEPA must be
implemented through predictable and reasonable timelines.\10\ Thus,
NEPA directs that Federal agencies will complete each environmental
assessment not later than the date that is one year after the sooner
of:
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\10\ ``Time and resources are simply too limited for us to
believe that Congress intended'' consideration under NEPA to extend
indefinitely. Metro. Edison Co. v. People Against Nuclear Energy,
460 U.S. 766, 776 (1983) (citing Vermont Yankee Nuclear Power Corp.
v. NRDC, 435 U.S. 519, 551 (1978)).
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(1) The date on which DOE determines that NEPA requires the
preparation of an environmental assessment with respect to the
proposal;
(2) The date on which DOE notifies the applicant that the
application to establish a right-of-way for the proposal is
complete; and
(3) The date on which DOE issues a notice of intent to prepare
the environmental assessment for the proposal. (42 U.S.C.
4336a(g)(1)(B))
(b) DOE should document the start date of each environmental
assessment in writing and approved by the DOE official responsible
for completing the environmental assessment on schedule. This
documentation will assist DOE in tracking the schedule and preparing
[[Page 29701]]
the report to congressional committees required by NEPA (42 U.S.C.
4336a(h)). The start date normally will be the date that DOE
determines that preparation of an environmental assessment is
required (option (a)(1) above). DOE does not receive applications to
establish a right-of-way (though this option might be relevant in
circumstances when DOE is participating with another Federal
agency). If DOE were to issue a notice of intent to prepare an
environmental assessment, that normally would follow DOE's
determination that an environmental assessment is required.
(c) If DOE determines it is not able to meet the one-year
deadline, it must consult with the applicant, if any (42 U.S.C.
4336a(g)(2)). After such consultation, if needed, DOE may establish
a new deadline that provides only so much additional time as is
necessary to complete the environmental assessment. The deadline
extension should be approved, in writing, by the DOE official
responsible for completing the environmental assessment on schedule.
This documentation will assist DOE in tracking the schedule and
preparing the report to congressional committees required by NEPA
(42 U.S.C. 4336a(h)).
Cause for setting a new deadline is only established if the EA
is not sufficiently researched and written to support a FONSI or NOI
to prepare an EIS. The announcement of the new deadline shall
specify the reason why the environmental assessment was not able to
be completed under the statutory deadline.
(d) DOE shall calculate environmental assessment schedules from
the applicable start date to issuance of the environmental
assessment.
(e) DOE should publish the environmental assessment, at the
latest, on the day the deadline elapses, in as substantially
complete form as is possible.
(f) Certification Related to Deadline. When the environmental
assessment is published, a responsible DOE official should certify
(and the certification will be incorporated into the environmental
assessment) that the resulting environmental assessment represents
DOE's good-faith effort to fulfill NEPA's requirements within the
Congressional timeline; that such effort is substantially complete;
that, in DOE's expert opinion, the analysis contained therein is
adequate to inform and reasonably explain DOE's final decision
regarding the proposed action.
6.5 Findings of No Significant Impact
(a) DOE shall prepare a finding of no significant impact if DOE
determines, based on the environmental assessment, not to prepare an
environmental impact statement because the proposed action or
project at hand will not have significant effects. The finding of no
significant impact shall:
(1) Include the environmental assessment or incorporate it by
reference;
(2) Document the reasons why DOE has determined that the
selected alternative will not have a significant effect on the
quality of the human environment;
(3) State the authority for any mitigation that DOE has adopted
and any applicable monitoring or enforcement provisions. If DOE
finds no significant effects based on mitigation, the mitigated
finding of no significant impact shall state any mitigation
requirements enforceable by the agency (e.g., through conditions on
awards or contractor requirements) or voluntary mitigation
commitments that will be undertaken to avoid significant effects;
(4) Identify any other documents related to the finding of no
significant impact; and
(5) State that an environmental impact statement will not be
prepared, concluding the NEPA process for that action.
(b) DOE shall make each environmental assessment and finding of
no significant impact available to the public by posting on its
website.
7.0 Preparing an Environmental Impact Statement
If an action is subject to NEPA (section 2.1) and an
environmental impact statement is the required level of NEPA review
(section 2.2), DOE shall prepare an environmental impact statement
with respect to the proposed agency action following NEPA and the
procedures described herein.
7.1 Notice of Intent and Scoping
(a) As a preliminary step to determining whether, in connection
with a proposal that is not excluded pursuant to a categorical
exclusion, DOE will prepare an environmental assessment or an
environmental impact, DOE will determine and document the scope of
the project at hand.
(b) DOE should publish a concise notice of intent to prepare an
environmental impact statement as soon as practicable after
determining that an environmental impact statement is required for a
proposed agency action. This is important to ensure timely decision
making and because the two-year deadline for completing the
environmental impact statement will typically be measured from the
date that DOE determined that an environmental impact statement is
required (section 7.7).
(c) The notice of intent shall include a request for public
comment on alternatives or effects and on relevant information,
studies, or analyses with respect to the proposed agency action (42
U.S.C. 4336a(c)). The notice of intent also should include
information to inform the public in preparing comments, such as:
(1) The purpose and need for the proposed action (section 7.2);
(2) A preliminary description of the proposed action and
reasonable alternatives expected to be analyzed;
(3) A brief summary of environmental effects that DOE expects to
analyze and identification of those environmental effects that DOE
anticipates are not likely to be significant and, therefore, not
analyzed in detail;
(4) Anticipated permits and other authorizations required for
the proposed action and reasonable alternatives to proceed (e.g.,
connected actions);
(5) A schedule for the decision-making process that is
consistent with the deadlines for an environmental impact statement
established in NEPA. There is no statutory requirement or otherwise
to post a draft EIS for public comment;
(6) A description of planned opportunities for engagement by
Tribes, the public, and other parties, including any scoping
meeting(s), the end date for the public comment period, and whether
DOE anticipates releasing a draft environmental impact statement or
related materials;
(7) Identification of any cooperating and participating
agencies, and any information that such agencies require in the
notice to facilitate their decisions or authorizations; and
(8) Contact information for a person within DOE who can answer
questions about the proposed action and the environmental impact
statement.
7.2 Purpose and Need
DOE shall include in the environmental impact statement a brief
summary of the underlying of purpose and need for the proposed
agency action based on DOE's statutory authority. (42 U.S.C.
4336(d)) When the proposed agency action concerns DOE's duty to act
on an application for authorization of financial assistance or other
purposes, the purpose and need for the proposed agency action should
be informed by the goals of the applicant.
7.3 Alternatives in an Environmental Impact Statement
(a) NEPA requires that an environmental impact statement include
``a reasonable range of alternatives to the proposed agency action,
including an analysis of any negative environmental impacts of not
implementing the proposed agency action in the case of a no action
alternative, that are technically and economically feasible, and
meet the purpose and need of the proposal.'' (42 U.S.C.
4332(C)(iii)) Accordingly, in all environmental impact statements,
DOE shall analyze:
(1) the proposed action;
(2) a reasonable range of technically and economically feasible
alternatives that meet the purpose and need of the proposal and,
where applicable, meet the goals of the applicant; and
(3) no action, which may be limited to an analysis of negative
environmental effects of not implementing the proposed action.
(b) DOE shall identify the reasonable range of alternatives on a
project-by-project basis. To be included within the reasonable range
of alternatives, the evaluation of that alternative should
contribute to DOE's decision making.
(c) For any alternative that DOE considered but determined not
to analyze in detail, DOE will provide a brief explanation of why
the alternative was not included among the reasonable range of
alternatives in the environmental impact statement. DOE should
include this explanation in the environmental impact statement.
7.4 Contents of an Environmental Impact Statement
(a) An environmental impact statement shall demonstrate DOE's
consideration of:
(1) reasonably foreseeable environmental effects of the proposed
agency action;
(2) any reasonably foreseeable adverse environmental effects
which cannot be
[[Page 29702]]
avoided should the proposal be implemented;
(3) a reasonable range of alternatives to the proposed agency
action, including an analysis of any adverse environmental impacts
of not implementing the proposed agency action in the case of a no
action alternative, that are technically and economically feasible,
and meet the purpose and need of the proposal;
(4) the relationship between local short-term impacts on the
human environment and the maintenance and enhancement of long-term
productivity;
(5) any irreversible and irretrievable commitments of Federal
resources which would be involved in the proposed agency action
should it be implemented; and
(6) any means identified to mitigate adverse environmental
effects of the proposed action. DOE is mindful that in this respect
NEPA itself does not require or authorize DOE to impose any
mitigation measures.
(b) In preparing the environmental impact statement, DOE will
focus its analysis on whether the environmental effects of the
action or project at hand are significant. DOE will document in the
environmental impact statement where and how it drew a reasonable
and manageable line relating to its consideration of any
environmental effects from the action or project at hand that extend
outside the geographical territory of the project or might
materialize later in time.
(c) Environmental impact statements should discuss effects in
proportion to their significance. With respect to issues that are
not substantive and do not meaningfully inform the consideration of
environmental effects and the resulting decision on how to proceed,
there should be no more than the briefest possible discussion to
explain why those issues are not substantive and therefore not
amenable to further analysis. Environmental impact statements should
be analytic, concise, and no longer than necessary to comply with
NEPA in light of the congressionally mandated page limits and
deadlines.
7.5 Receipt of Comments
During the process of preparing an environmental impact
statement, DOE will seek the comments of any Federal agency that has
jurisdiction by law or special expertise with respect to any
environmental impact involved. As appropriate, DOE will seek the
comments of State, Tribal, and local agencies that may be affected
by the proposed action. In addition, DOE may seek comments if it
believes such comments will aid in discharging its duties under
NEPA.
7.6 Page Limits
(a) The text of an environmental impact statement shall not
exceed 150 pages, not including citations or appendices, unless the
proposal is of extraordinary complexity, in which case the text is
strictly prohibited from exceeding 300 pages, not including any
citations or appendices (42 U.S.C. 4336(e)(1)). NEPA provides no
method for an agency to extend the latter page limit.
(b) Environmental impact statements should be formatted for an
8.5'' x 11'' page with one-inch margins using a word processor with
12-point proportionally spaced font, single spaced. Footnotes may be
in 10-point font. Such size restrictions do not apply to explanatory
maps, diagrams, graphs, tables, and other means of graphically
displaying quantitative or geospatial information, although pages
containing such material do count towards the page limit. When an
item of graphical material is larger than 8.5'' x 11'', each such
item shall count as one page.
(c) Certification Related to Page Limits. The breadth and depth
of analysis in an environmental impact statement shall be tailored
to ensure that the environmental impact statement does not exceed
these page limits. In this regard, as part of the finalization of
the environmental impact statement, a responsible official should
certify that DOE has considered the factors mandated by NEPA; that
the environmental impact statement represents DOE's good-faith
effort to prioritize documentation of the most important
considerations required by the statute within the Congressionally
mandated page limits; that this prioritization reflects DOE's expert
judgment; and that any considerations addressed briefly or left
unaddressed were, in DOE's judgment, comparatively unimportant or
frivolous.
7.7 Deadlines
(a) As the Supreme Court has repeatedly held, NEPA is governed
by a ``rule of reason.'' Congress supplied the measure of that
reason in the 2023 revision of NEPA by setting the deadlines in NEPA
107(6), 42 U.S.C. 4336a(g). These deadlines indicate Congress's
determination that an agency, working within Congress's allocation
of resources, has presumptively spent a reasonable amount of time on
analysis and the document should issue, absent very unusual
circumstances. In such circumstances, an extension will be given
only for such time as is necessary to complete the analysis.
To effectively support decision making for proposals initiated
within DOE and for proposals brought to DOE by applicants for
financial assistance or other authorization, NEPA must be
implemented through a predictable and reasonable schedule.\11\ Thus,
NEPA directs that Federal agencies will complete each environmental
impact statement not later than the date that is two years after the
earlier of:
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\11\ ``Time and resources are simply too limited for us to
believe that Congress intended'' consideration under NEPA to extend
indefinitely. Metro. Edison Co. v. People Against Nuclear Energy,
460 U.S. 766, 776 (1983) (citing Vermont Yankee Nuclear Power Corp.
v. NRDC, 435 U.S. 519, 551 (1978)).
---------------------------------------------------------------------------
(1) The date on which DOE determines that NEPA requires the
preparation of an environmental impact statement with respect to the
proposal;
(2) The date on which DOE notifies the applicant that the
application to establish a right-of-way for the proposal is
complete; and
(3) The date on which DOE issues a notice of intent to prepare
the environmental impact statement for the proposal. (42 U.S.C.
4336a(g)(1)(A))
(b) DOE should document the start date of each environmental
impact statement in writing and approved by the DOE official
responsible for completing the environmental impact statement on
schedule. This documentation will assist DOE in tracking the
schedule and preparing the report to congressional committees
required by NEPA (42 U.S.C. 4336a(h)). The start date normally will
be the date that DOE determines that preparation of an environmental
impact statement is required (option (a)(1) above). DOE does not
receive applications to establish a right-of-way (though this option
might be relevant in circumstances when DOE is participating with
another Federal agency). If DOE were to issue a notice of intent to
prepare an environmental impact statement, that normally would
follow DOE's determination that an environmental impact statement is
required.
(c) DOE shall calculate environmental impact statement schedules
from the applicable start date to the date of publication by the
U.S. Environmental Protection Agency in the Federal Register of a
notice of availability of the environmental impact statement as the
end date. Where DOE has prepared an environmental assessment that
results in a decision to prepare an EIS, DOE will use the start date
for the environmental assessment as the start date for the EIS
unless it exercises its discretion to determine otherwise by
direction of DOE leadership.
(d) DOE will strive to publish the EIS, complete, as soon as
possible. DOE should publish the environmental impact statement, at
the latest, on the day the deadline elapses, in as substantially
complete form as is possible.
(e) If DOE determines it is not able to meet the two-year
deadline, it must consult with the applicant, if any (42 U.S.C.
4336a(g)(2)). After such consultation, if needed, DOE may establish
a new deadline that provides only so much additional time as is
necessary to complete the environmental impact statement. The
deadline extension should be approved, in writing, by the DOE
official responsible for completing the environmental impact
statement on schedule. This documentation will assist DOE in
tracking the schedule and preparing the report to congressional
committees required by NEPA (42 U.S.C. 4336a(h)).
Cause for setting a new deadline is only established if the
environmental impact statement is not sufficiently developed to
support a Record of Decision. The announcement of the new deadline
shall specify the reason why the environmental impact statement was
not able to be completed under the statutory deadline.
(f) Certification Related to Deadlines. When the environmental
impact statement is published, a responsible DOE official should
certify (and the certification will be incorporated into the
environmental impact statement) that the resulting environmental
impact statement represents DOE's good faith effort to fulfill
NEPA's requirements within the Congressional timeline; that such
effort is substantially complete; and that, in DOE's expert opinion,
it has thoroughly considered the factors mandated by NEPA; and that
in DOE's judgement the analysis contained therein is adequate to
inform and reasonably
[[Page 29703]]
explain DOE's final decision regarding the proposed Federal action.
7.8 Publication of an Environmental Impact Statement
It is the policy of DOE to undertake no obligation beyond those
required by NEPA in the creation and publication of an EIS. NEPA
should not unnecessarily obstruct projects, create inefficiencies,
or add costs that are not mandated by statute.
(a) DOE shall file each environmental impact statement together
with comments and responses it solicited with the U.S. Environmental
Protection Agency (EPA), Office of Federal Activities, following
EPA's filing guidance (https://www.epa.gov/nepa/environmental-impact-statement-filing-guidance). EPA will include the EIS in its
weekly notice of availability published in the Federal Register.
(b) DOE shall publish the entire environmental impact statement,
including any appendices, and DOE's decision by posting it on DOE's
website consistent with NEPA (42 U.S.C. 4332(c)). During the process
of preparing the environmental impact statement, DOE also may
publish on its website or a website developed by a contractor such
draft materials as in DOE's judgment may assist in fulfilling its
responsibilities under NEPA and these procedures.
7.9 Decision
(a) DOE's decision shall come from analyzed alternatives.
(b) DOE's decision may be described in a record of decision or
incorporated into a separate decision document (e.g., a DOE order).
(c) DOE's decision may be made concurrently with or at any time
after the environmental impact statement is made publicly available.
8.0 Definitions
As used in these implementing procedures, terms have the
meanings provided in NEPA Sec. 111, 42 U.S.C. 4336e. In addition:
Appendix means additional matter placed at the end of a NEPA
document or in a separate volume that provides support for analysis
in the NEPA document but does not include analysis of environmental
effects.
Applicant means a non-Federal entity requesting financial
assistance or other authorization from DOE. This has the same
meaning as ``project sponsor'' as used in NEPA.
Authorization means any license, permit, approval, finding,
determination, or other administrative decision issued by an agency
that is required or authorized under Federal law in order to
implement a proposed action.
CEQ means the Council on Environmental Quality.
CERCLA-excluded petroleum and natural gas products means
petroleum, including crude oil or any fraction thereof, that is not
otherwise specifically listed or designated as a hazardous substance
under section 101(14) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601.101(14))
and natural gas, natural gas liquids, liquefied natural gas, or
synthetic gas usable for fuel or of pipeline quality (or mixtures of
natural gas and such synthetic gas).
Connected action means a separate Federal action within the
authority of DOE that is closely related to the proposed agency
action and should be addressed in a single environmental document
because the proposed agency action::
(i) Automatically triggers the separate Federal action, which
independently would require the preparation of additional
environmental documents;
(ii) Cannot proceed unless the separate Federal action is taken
previously or simultaneously; or
(iii) Is an interdependent part of a larger Federal action that
includes a separate Federal action, which mutually depend on the
larger Federal action for their justification.
Contaminant means a substance identified within the definition
of contaminant in section 101(33) of CERCLA (42 U.S.C.
9601.101(33)).
Day means a calendar day.
DOE means the U.S. Department of Energy.
Early scoping means the period after identifying that a proposal
requires NEPA review (section 2.1) and prior to DOE determining the
required level of NEPA review (section 2.2). DOE may conduct this
process internally and may involve external parties at its
discretion.
Effects or impacts means changes to the human environment from
the proposed action or alternatives that are reasonably foreseeable
and have a reasonably close causal relationship to the proposed
action or alternatives. The terms effects and impacts are used
interchangeably.
(1) Effects include ecological (such as the effects on natural
resources and on the components, structures, and functioning of
affected ecosystems), aesthetic, historic, cultural, economic (such
as the effects on employment), social, or health effects. Effects
appropriate for analysis under NEPA may be either beneficial or
adverse, or both, with respect to these values.
(2) A ``but for'' causal relationship is insufficient to make an
agency responsible for a particular effect under NEPA. Effects
should generally not be considered if they are remote in time,
geographically remote, or the product of a lengthy causal chain.
Effects do not include those effects that the agency has no ability
to prevent due to the limits of its regulatory authority, or that
would occur regardless of the proposed action, or that would need to
be initiated by a third party.
Hazardous substance means a substance identified within the
definition of hazardous substances in section 101(14) of CERCLA (42
U.S.C. 9601.101(14)). Radionuclides are hazardous substances through
their listing under section 112 of the Clean Air Act (42 U.S.C.
7412) (40 CFR part 61, subpart H).
Human environment means comprehensively the natural and physical
environment and the relationship of present and future generations
of Americans with that environment.
Interim action means an action concerning a proposal that is the
subject of an ongoing NEPA review and that DOE proposes to take
before that NEPA review is complete, and that is permissible under
NEPA.
Jurisdiction by law means agency authority to approve, veto, or
finance all or part of the proposal.
Mitigation means measures that avoid, minimize, or compensate
for effects caused by a proposed action or alternatives as described
in an environmental document or record of decision and that have a
nexus to those effects. NEPA does not mandate the form or adoption
of any mitigation. Mitigation includes:
(1) Avoiding the impact altogether by not taking a certain
action or parts of an action.
(2) Minimizing effects by limiting the degree or magnitude of
the action and its implementation.
(3) Rectifying the impact by repairing, rehabilitating, or
restoring the affected environment.
(4) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action.
(5) Compensating for the impact by replacing or providing
substitute resources or environments.
NEPA means the National Environmental Policy Act, as amended (42
U.S.C. 4321, et seq.).
NEPA document means a DOE notice of intent (NOI), environmental
impact statement (EIS), record of decision (ROD), environmental
assessment (EA), finding of no significant impact (FONSI),
supplement analysis (SA), categorical exclusion (CX) determination,
or any other document prepared pursuant to a requirement of NEPA or
these procedures.
NEPA process or NEPA review means all measures necessary for
compliance with the requirements of NEPA.
Notice of Availability means a formal notice, published by EPA
in the Federal Register, that announces the issuance and public
availability of a draft or final EIS. A DOE Notice of Availability
is an optional notice used to provide information to the public that
may be published in the Federal Register or otherwise made publicly
available.
Notice of early scoping means an optional public notice that DOE
has identified a proposed action and is soliciting input to help DOE
determine the scope of analysis and appropriate type of NEPA review.
Notice of intent means a public notice that an agency will
prepare and consider an environmental document.
Pollutant means a substance identified within the definition of
pollutant in section 101(33) of CERCLA (42 U.S.C. 9601.101(33)).
Program means a sequence of connected or related DOE actions or
projects.
Project means a specific DOE undertaking including actions
approved by permit or other regulatory decision as well as Federal
and federally assisted activities, which may include design,
construction, and operation of an individual facility; research,
development, demonstration, and testing for a process or product;
financial assistance or funding for a facility, process, or product;
or similar activities.
Proposed agency action or proposed action means the decision to
be made by DOE or another Federal agency. For example, in common
usage, an applicant's proposal
[[Page 29704]]
might be to construct and operate a facility, and DOE's proposed
action might be to provide financial assistance to the applicant for
that proposal.
Publish and publication mean methods used by DOE to efficiently
and effectively make environmental documents and information
available for review by interested persons, including electronic
publication.
Reasonable alternatives means a reasonable range of alternatives
that are technically and economically feasible, meet the purpose and
need for the proposed action, and, where applicable, meet the goals
of the applicant.
Reasonably foreseeable means sufficiently likely to occur such
that a person of ordinary prudence would take it into account in
reaching a decision.
Related action means an action undertaken by an agency, e.g., a
permitting action, some other type of authorization action, an
analysis required by statute, or the like, that bears a relationship
to other actions undertaken by other agencies relevant to NEPA,
e.g., that a set of related actions are all related to one
overarching project.
ROD means a Record of Decision.
Scope consists of the range of actions, alternatives, and
effects to be considered in an environmental document. The scope of
an individual statement may depend on its relationships to other
statements.
Scoping means the process, whether internal or public, to
identify the scope of the NEPA review.
Site-wide NEPA document means a broad-scope environmental impact
statement or environmental assessment that identifies and assesses
the impacts of ongoing and reasonably foreseeable future actions at
a DOE site; it may also refer to an associated NEPA document, such
as a notice of intent, record of decision, or finding of no
significant impact.
Special expertise means statutory responsibility, agency
mission, or related program experience. (42 U.S.C. 4336e(13))
Substantially the same means that DOE and another agency are
proposing actions related to the same project. For example, one
agency has permitting authority and the other agency proposes to
provide financial support for the same project. For another example,
an agency has requested DOE assistance to work on a site, facility,
or land managed by or under the jurisdiction of the requesting
agency.
Supplement Analysis means a DOE document used to determine
whether a supplemental EIS should be prepared (section 3.9), or to
support a decision to prepare a new EIS.
Supplemental EIS means an EIS prepared to supplement a prior EIS
(section 3.9).
The Secretary means the Secretary of Energy.
Tiering refers to the coverage of general matters in broader
environmental impact statements or environmental assessments (such
as national program or policy statements) with subsequent narrower
statements or environmental analyses (such as regional or basin-wide
program statements or ultimately site-specific statements)
incorporating by reference the general discussions and concentrating
solely on the issues specific to the statement subsequently
prepared.
Appendix A: Administrative and Routine Actions Excepted From NEPA
Review
[These actions were formerly identified as categorical
exclusions in appendix A of subpart D in DOE's regulations. They now
represent actions that are excepted from NEPA based on the
definition of ``major Federal action'' in Section 110(10). They have
been retained as appendix A for ease of reference and to avoid
confusion.]
Table of Contents
A1 Routine DOE business actions
A2 Clarifying or administrative contract actions
A3 Certain actions by Office of Hearings and Appeals
A4 Interpretations and rulings for existing regulations
A5 Interpretive rulemakings with no change in environmental effect
A6 Procedural rulemakings
A7 [Reserved]
A8 Awards of certain contracts
A9 Information gathering, analysis, and dissemination
A10 Reports and recommendations on non-DOE legislation
A11 Technical advice and assistance to organizations
A12 Emergency preparedness planning
A13 Procedural documents
A14 Approval of technical exchange arrangements
A15 International agreements for energy research and development
A1 Routine DOE Business Actions
Routine actions necessary to support the normal conduct of DOE
business limited to administrative, financial, and personnel
actions.
A2 Clarifying or Administrative Contract Actions
Contract interpretations, amendments, and modifications that are
clarifying or administrative in nature.
A3 Certain Actions by Office of Hearings and Appeals
Adjustments, exceptions, exemptions, appeals and stays,
modifications, or rescissions of orders issued by the Office of
Hearings and Appeals.
A4 Interpretations and Rulings for Existing Regulations
Interpretations and rulings with respect to existing
regulations, or modifications or rescissions of such interpretations
and rulings.
A5 Interpretive Rulemakings With No Change in Environmental Effect
Rulemakings interpreting or amending an existing rule or
regulation that does not change the environmental effect of the rule
or regulation being amended.
A6 Procedural Rulemakings
Rulemakings that are strictly procedural, including, but not
limited to, rulemaking (under 48 CFR chapter 9) establishing
procedures for technical and pricing proposals and establishing
contract clauses and contracting practices for the purchase of goods
and services, and rulemaking (under 10 CFR part 600) establishing
application and review procedures for, and administration, audit,
and closeout of, grants and cooperative agreements.
A7 [Reserved]
A8 Awards of Certain Contracts
Awards of contracts for technical support services, management
and operation of a government-owned facility, and personal services.
A9 Information Gathering, Analysis, and Dissemination
Information gathering (including, but not limited to, literature
surveys, inventories, site visits, and audits), data analysis
(including, but not limited to, computer modeling), document
preparation (including, but not limited to, conceptual design,
feasibility studies, and analytical energy supply and demand
studies), and information dissemination (including, but not limited
to, document publication and distribution, and classroom training
and informational programs), but not including site characterization
or environmental monitoring. (See also B3.1 of appendix B to these
procedures.)
A10 Reports and Recommendations on Non-DOE Legislation
Reports and recommendations on legislation or rulemaking that
are not proposed by DOE.
A11 Technical Advice and Assistance to Organizations
Technical advice and planning assistance to international,
national, state, and local organizations.
A12 Emergency Preparedness Planning
Emergency preparedness planning activities, including, but not
limited to, the designation of onsite evacuation routes.
A13 Procedural Documents
Administrative, organizational, or procedural Policies, Orders,
Notices, Manuals, and Guides.
A14 Approval of Technical Exchange Arrangements
Approval of technical exchange arrangements for information,
data, or personnel with other countries or international
organizations (including, but not limited to, assistance in
identifying and analyzing another country's energy resources, needs
and options).
A15 International Agreements for Energy Research and Development
Approval of DOE participation in international ``umbrella''
agreements for cooperation in energy research and development
activities that would not
[[Page 29705]]
commit the U.S. to any specific projects or activities.
Appendix B:Categorical Exclusions Applicable to Specific Agency Actions
[These categorical exclusions are copied from DOE's existing
regulations.]
Table of Contents
B. Conditions That Are Integral Elements of the Classes of Actions in
Appendix B
B1. Categorical Exclusions Applicable to Facility Operation
B1.1 Changing rates and prices
B1.2 Training exercises and simulations
B1.3 Routine maintenance
B1.4 Air conditioning systems for existing equipment
B1.5 Existing steam plants and cooling water systems
B1.6 Tanks and equipment to control runoff and spills
B1.7 Electronic equipment
B1.8 Screened water intake and outflow structures
B1.9 Airway safety markings and painting
B1.10 Onsite storage of activated material
B1.11 Fencing
B1.12 Detonation or burning of explosives or propellants after
testing
B1.13 Pathways, short access roads, and rail lines
B1.14 Refueling of nuclear reactors
B1.15 Support buildings
B1.16 Asbestos removal
B1.17 Polychlorinated biphenyl removal
B1.18 Water supply wells
B1.19 Microwave, meteorological, and radio towers
B1.20 Protection of cultural resources, fish and wildlife habitat
B1.21 Noise abatement
B1.22 Relocation of buildings
B1.23 Demolition and disposal of buildings
B1.24 Property transfers
B1.25 Real property transfers for cultural resources protection,
habitat preservation, and wildlife management
B1.26 Small water treatment facilities
B1.27 Disconnection of utilities
B1.28 Placing a facility in an environmentally safe condition
B1.29 Disposal facilities for construction and demolition waste
B1.30 Transfer actions
B1.31 Installation or relocation of machinery and equipment
B1.32 Traffic flow adjustments
B1.33 Stormwater runoff control
B1.34 Lead-based paint containment, removal, and disposal
B1.35 Drop-off, collection, and transfer facilities for recyclable
materials
B1.36 Determinations of excess real property
B2. Categorical Exclusions Applicable to Safety and Health
B2.1 Workplace enhancements
B2.2 Building and equipment instrumentation
B2.3 Personnel safety and health equipment
B2.4 Equipment qualification
B2.5 Facility safety and environmental improvements
B2.6 Recovery of radioactive sealed sources
B3. Categorical Exclusions Applicable to Site Characterization,
Monitoring, and General Research
B3.1 Site characterization and environmental monitoring
B3.2 Aviation activities
B3.3 Research related to conservation of fish, wildlife, and
cultural resources
B3.4 Transport packaging tests for radioactive or hazardous material
B3.5 Tank car tests
B3.6 Small-scale research and development, laboratory operations,
and pilot projects
B3.7 New terrestrial infill exploratory and experimental wells
B3.8 Outdoor terrestrial ecological and environmental research
B3.9 Projects to reduce emissions and waste generation
B3.10 Particle accelerators
B3.11 Outdoor tests and experiments on materials and equipment
components
B3.12 Microbiological and biomedical facilities
B3.13 Magnetic fusion experiments
B3.14 Small-scale educational facilities
B3.15 Small-scale indoor research and development projects using
nanoscale materials
B3.16 Research activities in aquatic environments
B4. Categorical Exclusions Applicable to Electric Power and
Transmission
B4.1 Contracts, policies, and marketing and allocation plans for
electric power
B4.2 Export of electric energy
B4.3 Electric power marketing rate changes
B4.4 Power marketing services and activities
B4.5 Temporary adjustments to river operations
B4.6 Additions and modifications to transmission facilities
B4.7 Fiber optic cable
B4.8 Electricity transmission agreements
B4.9 Multiple use of powerline rights-of-way
B4.10 Removal of electric transmission facilities
B4.11 Electric power substations and interconnection facilities
B4.12 Construction of powerlines
B4.13 Upgrading and rebuilding existing powerlines
B4.14 Construction and operation of electrochemical-battery or
flywheel energy storage systems
B5. Categorical Exclusions Applicable to Conservation, Fossil, and
Renewable Energy Activities
B5.1 Actions to conserve energy or water
B5.2 Modifications to pumps and piping
B5.3 Modification or abandonment of wells
B5.4 Repair or replacement of pipelines
B5.5 Short pipeline segments
B5.6 Oil spill cleanup
B5.7 Export of natural gas and associated transportation by marine
vessel
B5.8 [Reserved]
B5.9 Temporary exemptions for electric powerplants
B5.10 Certain permanent exemptions for existing electric powerplants
B5.11 Permanent exemptions allowing mixed natural gas and petroleum
B5.12 Workover of existing wells
B5.13 Experimental wells for injection of small quantities of carbon
dioxide
B5.14 Combined heat and power or cogeneration systems
B5.15 Small-scale renewable energy research and development and
pilot projects
B5.16 Solar photovoltaic systems
B5.17 Solar thermal systems
B5.18 Wind turbines
B5.19 Ground source heat pumps
B5.20 Biomass power plants
B5.21 Methane gas recovery and utilization systems
B5.22 Alternative fuel vehicle fueling stations
B5.23 Electric vehicle charging stations
B5.24 Drop-in hydroelectric systems
B5.25 Small-scale renewable energy research and development and
pilot projects in aquatic environments
B6. Categorical Exclusions Applicable to Environmental Restoration and
Waste Management Activities
B6.1 Cleanup actions
B6.2 Waste collection, treatment, stabilization, and containment
facilities
B6.3 Improvements to environmental control systems
B6.4 Facilities for storing packaged hazardous waste for 90 days or
less
B6.5 Facilities for characterizing and sorting packaged waste and
overpacking waste
B6.6 Modification of facilities for storing, packaging, and
repacking waste
B6.7 [Reserved]
B6.8 Modifications for waste minimization and reuse of materials
B6.9 Measures to reduce migration of contaminated groundwater
B6.10 Upgraded or replacement waste storage facilities
B7. Categorical Exclusions Applicable to International Activities
B7.1 Emergency measures under the International Energy Program
B7.2 Import and export of special nuclear or isotopic materials
B. Conditions That Are Integral Elements of the Classes of Actions in
Appendix B
The classes of actions listed below include the following
conditions as integral elements of the classes of actions. To fit
within the classes of actions listed below, a proposal must be one
that would not:
(1) Threaten a violation of applicable statutory, regulatory, or
permit requirements for environment, safety, and health, or similar
requirements of DOE or Executive Orders;
(2) Require siting and construction or major expansion of waste
storage, disposal, recovery, or treatment facilities (including
incinerators), but the proposal may include categorically excluded
waste storage, disposal, recovery, or treatment actions or
facilities;
(3) Disturb hazardous substances, pollutants, contaminants, or
CERCLA-excluded petroleum and natural gas products
[[Page 29706]]
that preexist in the environment such that there would be
uncontrolled or unpermitted releases;
(4) Have the potential to cause significant impacts on
environmentally sensitive resources. An environmentally sensitive
resource is typically a resource that has been identified as needing
protection through Executive Order, statute, or regulation by
Federal, state, or local government, or a Federally recognized
Indian tribe. An action may be categorically excluded if, although
sensitive resources are present, the action would not have the
potential to cause significant impacts on those resources (such as
construction of a building with its foundation well above a sole-
source aquifer or upland surface soil removal on a site that has
wetlands). Environmentally sensitive resources include, but are not
limited to:
(i) Property (such as sites, buildings, structures, and objects)
of historic, archeological, or architectural significance designated
by a Federal, state, or local government, Federally recognized
Indian tribe, or Native Hawaiian organization, or property
determined to be eligible for listing on the National Register of
Historic Places;
(ii) Federally-listed threatened or endangered species or their
habitat (including critical habitat) or Federally-proposed or
candidate species or their habitat (Endangered Species Act); state-
listed or state-proposed endangered or threatened species or their
habitat; Federally-protected marine mammals and Essential Fish
Habitat (Marine Mammal Protection Act; Magnuson-Stevens Fishery
Conservation and Management Act); and otherwise Federally-protected
species (such as the Bald and Golden Eagle Protection Act or the
Migratory Bird Treaty Act);
(iii) Floodplains and wetlands (as defined in 10 CFR 1022.4,
``Compliance with Floodplain and Wetland Environmental Review
Requirements: Definitions,'' or its successor);
(iv) Areas having a special designation such as Federally- and
state-designated wilderness areas, national parks, national
monuments, national natural landmarks, wild and scenic rivers, state
and Federal wildlife refuges, scenic areas (such as National Scenic
and Historic Trails or National Scenic Areas), and marine
sanctuaries;
(v) Prime or unique farmland, or other farmland of statewide or
local importance, as defined at 7 CFR 658.2(a), ``Farmland
Protection Policy Act: Definitions,'' or its successor;
(vi) Special sources of water (such as sole-source aquifers,
wellhead protection areas, and other water sources that are vital in
a region); and
(vii) Tundra, coral reefs, or rain forests; or
(5) Involve genetically engineered organisms, synthetic biology,
governmentally designated noxious weeds, or invasive species, unless
the proposed activity would be contained or confined in a manner
designed and operated to prevent unauthorized release into the
environment and conducted in accordance with applicable
requirements, such as those of the Department of Agriculture, the
Environmental Protection Agency, and the National Institutes of
Health.
B1. Categorical Exclusions Applicable to Facility Operation
B1.1 Changing Rates and Prices
Changing rates for services or prices for products marketed by
parts of DOE other than Power Marketing Administrations, and
approval of rate or price changes for non-DOE entities, that are
consistent with the change in the implicit price deflator for the
Gross Domestic Product published by the Department of Commerce,
during the period since the last rate or price change.
B1.2 Training Exercises and Simulations
Training exercises and simulations (including, but not limited
to, firing-range training, small-scale and short-duration force-on-
force exercises, emergency response training, fire fighter and
rescue training, and decontamination and spill cleanup training)
conducted under appropriately controlled conditions and in
accordance with applicable requirements.
B1.3 Routine Maintenance
Routine maintenance activities and custodial services for
buildings, structures, rights-of-way, infrastructures (including,
but not limited to, pathways, roads, and railroads), vehicles and
equipment, and localized vegetation and pest control, during which
operations may be suspended and resumed, provided that the
activities would be conducted in a manner in accordance with
applicable requirements. Custodial services are activities to
preserve facility appearance, working conditions, and sanitation
(such as cleaning, window washing, lawn mowing, trash collection,
painting, and snow removal). Routine maintenance activities,
corrective (that is, repair), preventive, and predictive, are
required to maintain and preserve buildings, structures,
infrastructures, and equipment in a condition suitable for a
facility to be used for its designated purpose. Such maintenance may
occur as a result of severe weather (such as hurricanes, floods, and
tornados), wildfires, and other such events. Routine maintenance may
result in replacement to the extent that replacement is in-kind and
is not a substantial upgrade or improvement. In-kind replacement
includes installation of new components to replace outmoded
components, provided that the replacement does not result in a
significant change in the expected useful life, design capacity, or
function of the facility. Routine maintenance does not include
replacement of a major component that significantly extends the
originally intended useful life of a facility (for example, it does
not include the replacement of a reactor vessel near the end of its
useful life). Routine maintenance activities include, but are not
limited to:
(a) Repair or replacement of facility equipment, such as lathes,
mills, pumps, and presses;
(b) Door and window repair or replacement;
(c) Wall, ceiling, or floor repair or replacement;
(d) Reroofing;
(e) Plumbing, electrical utility, lighting, and telephone
service repair or replacement;
(f) Routine replacement of high-efficiency particulate air
filters;
(g) Inspection and/or treatment of currently installed utility
poles;
(h) Repair of road embankments;
(i) Repair or replacement of fire protection sprinkler systems;
(j) Road and parking area resurfacing, including construction of
temporary access to facilitate resurfacing, and scraping and grading
of unpaved surfaces;
(k) Erosion control and soil stabilization measures (such as
reseeding, gabions, grading, and revegetation);
(l) Surveillance and maintenance of surplus facilities in
accordance with DOE Order 435.1, ``Radioactive Waste Management,''
or its successor;
(m) Repair and maintenance of transmission facilities, such as
replacement of conductors of the same nominal voltage, poles,
circuit breakers, transformers, capacitors, crossarms, insulators,
and downed powerlines, in accordance, where appropriate, with 40 CFR
part 761 (Polychlorinated Biphenyls Manufacturing, Processing,
Distribution in Commerce, and Use Prohibitions) or its successor;
(n) Routine testing and calibration of facility components,
subsystems, or portable equipment (such as control valves, in-core
monitoring devices, transformers, capacitors, monitoring wells,
lysimeters, weather stations, and flumes);
(o) Routine decontamination of the surfaces of equipment, rooms,
hot cells, or other interior surfaces of buildings (by such
activities as wiping with rags, using strippable latex, and minor
vacuuming), and removal of contaminated intact equipment and other
material (not including spent nuclear fuel or special nuclear
material in nuclear reactors); and
(p) Removal of debris.
B1.4 Air Conditioning Systems for Existing Equipment
Installation or modification of air conditioning systems
required for temperature control for operation of existing
equipment.
B1.5 Existing Steam Plants and Cooling Water Systems
Minor improvements to existing steam plants and cooling water
systems (including, but not limited to, modifications of existing
cooling towers and ponds), provided that the improvements would not:
(1) Create new sources of water or involve new receiving waters; (2)
have the potential to significantly alter water withdrawal rates;
(3) exceed the permitted temperature of discharged water; or (4)
increase introductions of, or involve new introductions of,
hazardous substances, pollutants, contaminants, or CERCLA-excluded
petroleum and natural gas products.
B1.6 Tanks and Equipment To Control Runoff and Spills
Installation or modification of retention tanks or small
(normally under one acre) basins and associated piping and pumps for
existing operations to control runoff or spills
[[Page 29707]]
(such as under 40 CFR part 112). Modifications include, but are not
limited to, installing liners or covers. (See also B1.33 of this
appendix.)
B1.7 Electronic Equipment
Acquisition, installation, operation, modification, and removal
of electricity transmission control and monitoring devices for grid
demand and response, communication systems, data processing
equipment, and similar electronic equipment.
B1.8 Screened Water Intake and Outflow Structures
Modifications to screened water intake and outflow structures
such that intake velocities and volumes and water effluent quality
and volumes are consistent with existing permit limits.
B1.9 Airway Safety Markings and Painting
Placement of airway safety markings on, painting of, and repair
and in-kind replacement of lighting on powerlines and antenna
structures, wind turbines, and similar structures in accordance with
applicable requirements (such as Federal Aviation Administration
standards).
B1.10 Onsite Storage of Activated Material
Routine, onsite storage at an existing facility of activated
equipment and material (including, but not limited to, lead) used at
that facility, to allow reuse after decay of radioisotopes with
short half-lives.
B1.11 Fencing
Installation of fencing, including, but not limited to border
marking, that would not have the potential to significantly impede
wildlife population movement (including migration) or surface water
flow.
B1.12 Detonation or Burning of Explosives or Propellants After
Testing
Outdoor detonation or burning of explosives or propellants that
failed (duds), were damaged (such as by fracturing), or were
otherwise not consumed in testing. Outdoor detonation or burning
would be in areas designated and routinely used for those purposes
under existing applicable permits issued by Federal, state, and
local authorities (such as a permit for a RCRA miscellaneous unit
(40 CFR part 264, subpart X)).
B1.13 Pathways, Short Access Roads, and Rail Lines
Construction, acquisition, and relocation, consistent with
applicable right-of-way conditions and approved land use or
transportation improvement plans, of pedestrian walkways and trails,
bicycle paths, small outdoor fitness areas, and short access roads
and rail lines (such as branch and spur lines).
B1.14 Refueling of Nuclear Reactors
Refueling of operating nuclear reactors, during which operations
may be suspended and then resumed.
B1.15 Support Buildings
Siting, construction or modification, and operation of support
buildings and support structures (including, but not limited to,
trailers and prefabricated and modular buildings) within or
contiguous to an already developed area (where active utilities and
currently used roads are readily accessible). Covered support
buildings and structures include, but are not limited to, those for
office purposes; parking; cafeteria services; education and
training; visitor reception; computer and data processing services;
health services or recreation activities; routine maintenance
activities; storage of supplies and equipment for administrative
services and routine maintenance activities; security (such as
security posts); fire protection; small-scale fabrication (such as
machine shop activities), assembly, and testing of non- nuclear
equipment or components; and similar support purposes, but exclude
facilities for nuclear weapons activities and waste storage
activities, such as activities covered in B1.10, B1.29, B1.35, B2.6,
B6.2, B6.4, B6.5, B6.6, and B6.10 of this appendix.
B1.16 Asbestos Removal
Removal of asbestos-containing materials from buildings in
accordance with applicable requirements (such as 40 CFR part 61,
``National Emission Standards for Hazardous Air Pollutants''; 40 CFR
part 763, ``Asbestos''; 29 CFR part 1910, subpart I, ``Personal
Protective Equipment''; and 29 CFR part 1926, ``Safety and Health
Regulations for Construction''; and appropriate state and local
requirements, including certification of removal contractors and
technicians).
B1.17 Polychlorinated Biphenyl Removal
Removal of polychlorinated biphenyl (PCB)-containing items
(including, but not limited to, transformers and capacitors), PCB-
containing oils flushed from transformers, PCB-flushing solutions,
and PCB- containing spill materials from buildings or other
aboveground locations in accordance with applicable requirements
(such as 40 CFR part 761).
B1.18 Water Supply Wells
Siting, construction, and operation of additional water supply
wells (or replacement wells) within an existing well field, or
modification of an existing water supply well to restore production,
provided that there would be no drawdown other than in the immediate
vicinity of the pumping well, and the covered actions would not have
the potential to cause significant long-term decline of the water
table, and would not have the potential to cause significant
degradation of the aquifer from the new or replacement well.
B1.19 Microwave, Meteorological, and Radio Towers
Siting, construction, modification, operation, and removal of
microwave, radio communication, and meteorological towers and
associated facilities, provided that the towers and associated
facilities would not be in a governmentally designated scenic area
(see B(4)(iv) of this appendix) unless otherwise authorized by the
appropriate governmental entity.
B1.20 Protection of Cultural Resources, Fish and Wildlife Habitat
Small-scale activities undertaken to protect cultural resources
(such as fencing, labeling, and flagging) or to protect, restore, or
improve fish and wildlife habitat, fish passage facilities (such as
fish ladders and minor diversion channels), or fisheries. Such
activities would be conducted in accordance with an existing natural
or cultural resource plan, if any.
B1.21 Noise Abatement
Noise abatement measures (including, but not limited to,
construction of noise barriers and installation of noise control
materials).
B1.22 Relocation of Buildings
Relocation of buildings (including, but not limited to, trailers
and prefabricated buildings) to an already developed area (where
active utilities and currently used roads are readily accessible).
B1.23 Demolition and Disposal of Buildings
Demolition and subsequent disposal of buildings, equipment, and
support structures (including, but not limited to, smoke stacks and
parking lot surfaces), provided that there would be no potential for
release of substances at a level, or in a form, that could pose a
threat to public health or the environment.
B1.24 Property Transfers
Transfer, lease, disposition, or acquisition of interests in
personal property (including, but not limited to, equipment and
materials) or real property (including, but not limited to,
permanent structures and land), provided that under reasonably
foreseeable uses (1) there would be no potential for release of
substances at a level, or in a form, that could pose a threat to
public health or the environment and (2) the covered actions would
not have the potential to cause a significant change in impacts from
before the transfer, lease, disposition, or acquisition of
interests.
B1.25 Real Property Transfers for Cultural Resources Protection,
Habitat Preservation, and Wildlife Management
Transfer, lease, disposition, or acquisition of interests in
land and associated buildings for cultural resources protection,
habitat preservation, or fish and wildlife management, provided that
there would be no potential for release of substances at a level, or
in a form, that could pose a threat to public health or the
environment.
B1.26 Small Water Treatment Facilities
Siting, construction, expansion, modification, replacement,
operation, and decommissioning of small (total capacity less than
approximately 250,000 gallons per day) wastewater and surface water
treatment facilities whose liquid discharges are externally
regulated, and small potable water and sewage treatment facilities.
B1.27 Disconnection of Utilities
Activities that are required for the disconnection of utility
services (including, but not limited to, water, steam,
telecommunications, and electrical power) after it has been
determined that the
[[Page 29708]]
continued operation of these systems is not needed for safety.
B1.28 Placing a Facility in an Environmentally Safe Condition
Minor activities that are required to place a facility in an
environmentally safe condition where there is no proposed use for
the facility. These activities would include, but are not limited
to, reducing surface contamination, and removing materials,
equipment or waste (such as final defueling of a reactor, where
there are adequate existing facilities for the treatment, storage,
or disposal of the materials, equipment or waste). These activities
would not include conditioning, treatment, or processing of spent
nuclear fuel, high-level waste, or special nuclear materials.
B1.29 Disposal Facilities for Construction and Demolition Waste
Siting, construction, expansion, modification, operation, and
decommissioning of small (less than approximately 10 acres) solid
waste disposal facilities for construction and demolition waste, in
accordance with applicable requirements (such as 40 CFR part 257,
``Criteria for Classification of Solid Waste Disposal Facilities and
Practices,'' and 40 CFR part 61, ``National Emission Standards for
Hazardous Air Pollutants'') that would not release substances at a
level, or in a form, that could pose a threat to public health or
the environment.
B1.30 Transfer Actions
Transfer actions, in which the predominant activity is
transportation, provided that (1) the receipt and storage capacity
and management capability for the amount and type of materials,
equipment, or waste to be moved already exists at the receiving site
and (2) all necessary facilities and operations at the receiving
site are already permitted, licensed, or approved, as appropriate.
Such transfers are not regularly scheduled as part of ongoing
routine operations.
B1.31 Installation or Relocation of Machinery and Equipment
Installation or relocation and operation of machinery and
equipment (including, but not limited to, laboratory equipment,
electronic hardware, manufacturing machinery, maintenance equipment,
and health and safety equipment), provided that uses of the
installed or relocated items are consistent with the general
missions of the receiving structure. Covered actions include
modifications to an existing building, within or contiguous to a
previously disturbed or developed area, that are necessary for
equipment installation and relocation. Such modifications would not
appreciably increase the footprint or height of the existing
building or have the potential to cause significant changes to the
type and magnitude of environmental impacts.
B1.32 Traffic Flow Adjustments
Traffic flow adjustments to existing roads (including, but not
limited to, stop sign or traffic light installation, adjusting
direction of traffic flow, and adding turning lanes), and road
adjustments (including, but not limited to, widening and
realignment) that are within an existing right-of-way and consistent
with approved land use or transportation improvement plans.
B1.33 Stormwater Runoff Control
Design, construction, and operation of control practices to
reduce stormwater runoff and maintain natural hydrology. Activities
include, but are not limited to, those that reduce impervious
surfaces (such as vegetative practices and use of porous pavements),
best management practices (such as silt fences, straw wattles, and
fiber rolls), and use of green infrastructure or other low impact
development practices (such as cisterns and green roofs).
B1.34 Lead-Based Paint Containment, Removal, and Disposal
Containment, removal, and disposal of lead-based paint in
accordance with applicable requirements (such as provisions relating
to the certification of removal contractors and technicians at 40
CFR part 745, ``Lead-Based Paint Poisoning Prevention In Certain
Residential Structures'').
B1.35 Drop-Off, Collection, and Transfer Facilities for Recyclable
Materials
Siting, construction, modification, and operation of recycling
or compostable material drop-off, collection, and transfer stations
on or contiguous to a previously disturbed or developed area and in
an area where such a facility would be consistent with existing
zoning requirements. The stations would have appropriate facilities
and procedures established in accordance with applicable
requirements for the handling of recyclable or compostable materials
and household hazardous waste (such as paint and pesticides). Except
as specified above, the collection of hazardous waste for disposal
and the processing of recyclable or compostable materials are not
included in this class of actions.
B1.36 Determinations of Excess Real Property
Determinations that real property is excess to the needs of DOE
and, in the case of acquired real property, the subsequent reporting
of such determinations to the General Services Administration or, in
the case of lands withdrawn or otherwise reserved from the public
domain, the subsequent filing of a notice of intent to relinquish
with the Bureau of Land Management, Department of the Interior.
Covered actions would not include disposal of real property.
B2. Categorical Exclusions Applicable to Safety and Health
B2.1 Workplace Enhancements
Modifications within or contiguous to an existing structure, in
a previously disturbed or developed area, to enhance workplace
habitability (including, but not limited to, installation or
improvements to lighting, radiation shielding, or heating/
ventilating/air conditioning and its instrumentation, and noise
reduction).
B2.2 Building and Equipment Instrumentation
Installation of, or improvements to, building and equipment
instrumentation (including, but not limited to, remote control
panels, remote monitoring capability, alarm and surveillance
systems, control systems to provide automatic shutdown, fire
detection and protection systems, water consumption monitors and
flow control systems, announcement and emergency warning systems,
criticality and radiation monitors and alarms, and safeguards and
security equipment).
B2.3 Personnel Safety and Health Equipment
Installation of, or improvements to, equipment for personnel
safety and health (including, but not limited to, eye washes, safety
showers, radiation monitoring devices, fumehoods, and associated
collection and exhaust systems), provided that the covered actions
would not have the potential to cause a significant increase in
emissions.
B2.4 Equipment Qualification
Activities undertaken to (1) qualify equipment for use or
improve systems reliability or (2) augment information on safety-
related system components. These activities include, but are not
limited to, transportation container qualification testing, crane
and lift-gear certification or recertification testing, high
efficiency particulate air filter testing and certification, stress
tests (such as ``burn-in'' testing of electrical components and leak
testing), and calibration of sensors or diagnostic equipment.
B2.5 Facility Safety and Environmental Improvements
Safety and environmental improvements of a facility (including,
but not limited to, replacement and upgrade of facility components)
that do not result in a significant change in the expected useful
life, design capacity, or function of the facility and during which
operations may be suspended and then resumed. Improvements include,
but are not limited to, replacement/upgrade of control valves, in-
core monitoring devices, facility air filtration systems, or
substation transformers or capacitors; addition of structural
bracing to meet earthquake standards and/or sustain high wind
loading; and replacement of aboveground or belowground tanks and
related piping, provided that there is no evidence of leakage, based
on testing in accordance with applicable requirements (such as 40
CFR part 265, ``Interim Status Standards for Owners and Operators of
Hazardous Waste Treatment, Storage, and Disposal Facilities'' and 40
CFR part 280, ``Technical Standards and Corrective Action
Requirements for Owners and Operators of Underground Storage
Tanks''). These actions do not include rebuilding or modifying
substantial portions of a facility (such as replacing a reactor
vessel).
B2.6 Recovery of Radioactive Sealed Sources
Recovery of radioactive sealed sources and sealed source-
containing devices from
[[Page 29709]]
domestic or foreign locations provided that (1) the recovered items
are transported and stored in compliant containers, and (2) the
receiving site has sufficient existing storage capacity and all
required licenses, permits, and approvals.
B3. Categorical Exclusions Applicable to Site Characterization,
Monitoring, and General Research
B3.1 Site Characterization and Environmental Monitoring
Site characterization and environmental monitoring (including,
but not limited to, siting, construction, modification, operation,
and dismantlement and removal or otherwise proper closure (such as
of a well) of characterization and monitoring devices, and siting,
construction, and associated operation of a small-scale laboratory
building or renovation of a room in an existing building for sample
analysis). Such activities would be designed in conformance with
applicable requirements and use best management practices to limit
the potential effects of any resultant ground disturbance. Covered
activities include, but are not limited to, site characterization
and environmental monitoring under CERCLA and RCRA. (This class of
actions excludes activities in aquatic environments. See B3.16 of
this appendix for such activities.) Specific activities include, but
are not limited to:
(a) Geological, geophysical (such as gravity, magnetic,
electrical, seismic, radar, and temperature gradient), geochemical,
and engineering surveys and mapping, and the establishment of survey
marks. Seismic techniques would not include large-scale reflection
or refraction testing;
(b) Installation and operation of field instruments (such as
stream-gauging stations or flow-measuring devices, telemetry
systems, geochemical monitoring tools, and geophysical exploration
tools);
(c) Drilling of wells for sampling or monitoring of groundwater
or the vadose (unsaturated) zone, well logging, and installation of
water-level recording devices in wells;
(d) Aquifer and underground reservoir response testing;
(e) Installation and operation of ambient air monitoring
equipment;
(f) Sampling and characterization of water, soil, rock, or
contaminants (such as drilling using truck- or mobile- scale
equipment, and modification, use, and plugging of boreholes);
(g) Sampling and characterization of water effluents, air
emissions, or solid waste streams;
(h) Installation and operation of meteorological towers and
associated activities (such as assessment of potential wind energy
resources);
(i) Sampling of flora or fauna; and
(j) Archeological, historic, and cultural resource
identification in compliance with 36 CFR part 800 and 43 CFR part 7.
B3.2 Aviation Activities
Aviation activities for survey, monitoring, or security purposes
that comply with Federal Aviation Administration regulations.
B3.3 Research Related to Conservation of Fish, Wildlife, and
Cultural Resources
Field and laboratory research, inventory, and information
collection activities that are directly related to the conservation
of fish and wildlife resources or to the protection of cultural
resources, provided that such activities would not have the
potential to cause significant impacts on fish and wildlife habitat
or populations or to cultural resources.
B3.4 Transport Packaging Tests for Radioactive or Hazardous
Material
Drop, puncture, water-immersion, thermal, and fire tests of
transport packaging for radioactive or hazardous materials to
certify that designs meet the applicable requirements (such as 49
CFR 173.411 and 173.412 and 10 CFR 71.73).
B3.5 Tank Car Tests
Tank car tests under 49 CFR part 179 (including, but not limited
to, tests of safety relief devices, pressure regulators, and thermal
protection systems).
B3.6 Small-Scale Research and Development, Laboratory Operations,
and Pilot Projects
Siting, construction, modification, operation, and
decommissioning of facilities for small-scale research and
development projects; conventional laboratory operations (such as
preparation of chemical standards and sample analysis); and small-
scale pilot projects (generally less than 2 years) frequently
conducted to verify a concept before demonstration actions, provided
that construction or modification would be within or contiguous to a
previously disturbed or developed area (where active utilities and
currently used roads are readily accessible). Not included in this
category are demonstration actions, meaning actions that are
undertaken at a scale to show whether a technology would be viable
on a larger scale and suitable for commercial deployment.
B3.7 New Terrestrial Infill Exploratory and Experimental Wells
Siting, construction, and operation of new terrestrial infill
exploratory and experimental (test) wells, for either extraction or
injection use, in a locally characterized geological formation in a
field that contains existing operating wells, properly abandoned
wells, or unminable coal seams containing natural gas, provided that
the site characterization has verified a low potential for
seismicity, subsidence, and contamination of freshwater aquifers,
and the actions are otherwise consistent with applicable best
practices and DOE protocols, including those that protect against
uncontrolled releases of harmful materials. Such wells may include
those for brine, carbon dioxide, coalbed methane, gas hydrate,
geothermal, natural gas, and oil. Uses for carbon sequestration
wells include, but are not limited to, the study of saline
formations, enhanced oil recovery, and enhanced coalbed methane
extraction.
B3.8 Outdoor Terrestrial Ecological and Environmental Research
Outdoor terrestrial ecological and environmental research in a
small area (generally less than 5 acres), including, but not limited
to, siting, construction, and operation of a small-scale laboratory
building or renovation of a room in an existing building for
associated analysis. Such activities would be designed in
conformance with applicable requirements and use best management
practices to limit the potential effects of any resultant ground
disturbance.
B3.9 Projects To Reduce Emissions and Waste Generation
Projects to reduce emissions and waste generation at existing
fossil or alternative fuel combustion or utilization facilities,
provided that these projects would not have the potential to cause a
significant increase in the quantity or rate of air emissions. For
this category of actions, ``fuel'' includes, but is not limited to,
coal, oil, natural gas, hydrogen, syngas, and biomass; but ``fuel''
does not include nuclear fuel. Covered actions include, but are not
limited to:
(a) Test treatment of the throughput product (solid, liquid, or
gas) generated at an existing and fully operational fuel combustion
or utilization facility;
(b) Addition or replacement of equipment for reduction or
control of sulfur dioxide, oxides of nitrogen, or other regulated
substances that requires only minor modification to the existing
structures at an existing fuel combustion or utilization facility,
for which the existing use remains essentially unchanged;
(c) Addition or replacement of equipment for reduction or
control of sulfur dioxide, oxides of nitrogen, or other regulated
substances that involves no permanent change in the quantity or
quality of fuel burned or used and involves no permanent change in
the capacity factor of the fuel combustion or utilization facility;
and
(d) Addition or modification of equipment for capture and
control of carbon dioxide or other regulated substances, provided
that adequate infrastructure is in place to manage such substances.
B3.10 Particle Accelerators
Siting, construction, modification, operation, and
decommissioning of particle accelerators, including electron beam
accelerators, with primary beam energy less than approximately 100
million electron volts (MeV) and average beam power less than
approximately 250 kilowatts (kW), and associated beamlines, storage
rings, colliders, and detectors, for research and medical purposes
(such as proton therapy), and isotope production, within or
contiguous to a previously disturbed or developed area (where active
utilities and currently used roads are readily accessible), or
internal modification of any accelerator facility regardless of
energy, that does not increase primary beam energy or current. In
cases where the beam energy exceeds 100 MeV, the average beam power
must be less than 250 kW, so as not to exceed an average current of
2.5 milliamperes (mA).
B3.11 Outdoor Tests and Experiments on Materials and Equipment
Components
Outdoor tests and experiments for the development, quality
assurance, or reliability of materials and equipment (including, but
[[Page 29710]]
not limited to, weapon system components) under controlled
conditions. Covered actions include, but are not limited to, burn
tests (such as tests of electric cable fire resistance or the
combustion characteristics of fuels), impact tests (such as
pneumatic ejector tests using earthen embankments or concrete slabs
designated and routinely used for that purpose), or drop, puncture,
water-immersion, or thermal tests. Covered actions would not involve
source, special nuclear, or byproduct materials, except encapsulated
sources manufactured to applicable standards that contain source,
special nuclear, or byproduct materials may be used for
nondestructive actions such as detector/sensor development and
testing and first responder field training.
B3.12 Microbiological and Biomedical Facilities
Siting, construction, modification, operation, and
decommissioning of microbiological and biomedical diagnostic,
treatment and research facilities (excluding Biosafety Level-3 and
Biosafety Level-4), in accordance with applicable requirements and
best practices (such as Biosafety in Microbiological and Biomedical
Laboratories, 5th Edition, Dec. 2009, U.S. Department of Health and
Human Services) including, but not limited to, laboratories,
treatment areas, offices, and storage areas, within or contiguous to
a previously disturbed or developed area (where active utilities and
currently used roads are readily accessible). Operation may include
the purchase, installation, and operation of biomedical equipment
(such as commercially available cyclotrons that are used to generate
radioisotopes and radiopharmaceuticals, and commercially available
biomedical imaging and spectroscopy instrumentation).
B3.13 Magnetic Fusion Experiments
Performing magnetic fusion experiments that do not use tritium
as fuel, within existing facilities (including, but not limited to,
necessary modifications).
B3.14 Small-Scale Educational Facilities
Siting, construction, modification, operation, and
decommissioning of small-scale educational facilities (including,
but not limited to, conventional teaching laboratories, libraries,
classroom facilities, auditoriums, museums, visitor centers,
exhibits, and associated offices) within or contiguous to a
previously disturbed or developed area (where active utilities and
currently used roads are readily accessible). Operation may include,
but is not limited to, purchase, installation, and operation of
equipment (such as audio/visual and laboratory equipment)
commensurate with the educational purpose of the facility.
B3.15 Small-Scale Indoor Research and Development Projects Using
Nanoscale Materials
Siting, construction, modification, operation, and
decommissioning of facilities for indoor small-scale research and
development projects and small-scale pilot projects using nanoscale
materials in accordance with applicable requirements (such as
engineering, worker safety, procedural, and administrative
regulations) necessary to ensure the containment of any hazardous
materials. Construction and modification activities would be within
or contiguous to a previously disturbed or developed area (where
active utilities and currently used roads are readily accessible).
B3.16 Research activities in aquatic environments
Small-scale, temporary surveying, site characterization, and
research activities in aquatic environments, limited to:
(a) Acquisition of rights-of-way, easements, and temporary use
permits;
(b) Installation, operation, and removal of passive scientific
measurement devices, including, but not limited to, antennae, tide
gauges, flow testing equipment for existing wells, weighted
hydrophones, salinity measurement devices, and water quality
measurement devices;
(c) Natural resource inventories, data and sample collection,
environmental monitoring, and basic and applied research, excluding
(1) large-scale vibratory coring techniques and
(2) seismic activities other than passive techniques; and
(d) Surveying and mapping.
These activities would be conducted in accordance with, where
applicable, an approved spill prevention, control, and response plan
and would incorporate appropriate control technologies and best
management practices. None of the activities listed above would
occur within the boundary of an established marine sanctuary or
wildlife refuge, a governmentally proposed marine sanctuary or
wildlife refuge, or a governmentally recognized area of high
biological sensitivity, unless authorized by the agency responsible
for such refuge, sanctuary, or area (or after consultation with the
responsible agency, if no authorization is required). If the
proposed activities would occur outside such refuge, sanctuary, or
area and if the activities would have the potential to cause impacts
within such refuge, sanctuary, or area, then the responsible agency
shall be consulted in order to determine whether authorization is
required and whether such activities would have the potential to
cause significant impacts on such refuge, sanctuary, or area. Areas
of high biological sensitivity include, but are not limited to,
areas of known ecological importance, whale and marine mammal mating
and calving/pupping areas, and fish and invertebrate spawning and
nursery areas recognized as being limited or unique and vulnerable
to perturbation; these areas can occur in bays, estuaries, near
shore, and far offshore, and may vary seasonally. No permanent
facilities or devices would be constructed or installed. Covered
actions do not include drilling of resource exploration or
extraction wells.
B4. Categorical Exclusions Applicable to Electrical Power and
Transmission
B4.1 Contracts, Policies, and Marketing and Allocation Plans for
Electric Power
Establishment and implementation of contracts, policies, and
marketing and allocation plans related to electric power acquisition
that involve only the use of the existing transmission system and
existing generation resources operating within their normal
operating limits.
B4.2 Export of Electric Energy
Export of electric energy as provided by Section 202(e) of the
Federal Power Act over existing transmission systems or using
transmission system changes that are themselves categorically
excluded.
B4.3 Electric Power Marketing Rate Changes
Rate changes for electric power, power transmission, and other
products or services provided by a Power Marketing Administration
that are based on a change in revenue requirements if the operations
of generation projects would remain within normal operating limits.
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.)
B4.5 Temporary Adjustments to River Operations
Temporary adjustments to river operations to accommodate day-to-
day river fluctuations, power demand changes, fish and wildlife
conservation program requirements, and other external events,
provided that the adjustments would occur within the existing
operating constraints of the particular hydrosystem operation.
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.)
B4.7 Fiber Optic Cable
Adding fiber optic cables to transmission facilities or burying
fiber optic cable in existing powerline or pipeline rights-of-way.
Covered actions may include associated vaults and pulling and
tensioning sites outside of rights-of- way in nearby previously
disturbed or developed areas.
B4.8 Electricity Transmission Agreements
New electricity transmission agreements, and modifications to
existing transmission arrangements, to use a transmission facility
of one system to transfer power of and for another system, provided
that no new
[[Page 29711]]
generation projects would be involved and no physical changes in the
transmission system would be made beyond the previously disturbed or
developed facility area.
B4.9 Multiple Use of Powerline Rights-of-Way
Granting or denying requests for multiple uses of a transmission
facility's rights-of-way (including, but not limited to, grazing
permits and crossing agreements for electric lines, water lines,
natural gas pipelines, communications cables, roads, and drainage
culverts).
B4.10 Removal of Electric Transmission Facilities
Deactivation, dismantling, and removal of electric transmission
facilities (including, but not limited to, electric powerlines,
substations, and switching stations) and abandonment and restoration
of rights-of-way (including, but not limited to, associated access
roads).
B4.11 Electric Power Substations and Interconnection Facilities
Construction or modification of electric power substations or
interconnection facilities (including, but not limited to, switching
stations and support facilities).
B4.12 Construction of Powerlines
Construction of electric powerlines approximately 10 miles in
length or less, or approximately 20 miles in length or less within
previously disturbed or developed powerline or pipeline rights-of-
way.
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 section 5.4(b)(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
this appendix; 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 section 5.4(b)(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 section 5.4(b)(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 this appendix, 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. Categorical Exclusions Applicable to Conservation, Fossil, and
Renewable Energy Activities
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 actions do not include rulemakings, standard-
settings, or proposed DOE legislation, except for those actions
listed in B5.1(b) of this appendix.
(b) Covered actions include rulemakings that establish energy
conservation standards for consumer products and industrial
equipment, provided that the actions would not:
(1) Have the potential to cause a significant change in
manufacturing infrastructure (such as construction of new
manufacturing plants with considerable associated ground
disturbance);
(2) involve significant unresolved conflicts concerning
alternative uses of available resources (such as rare or limited raw
materials);
(3) have the potential to result in a significant increase in
the disposal of materials posing significant risks to human health
and the environment (such as RCRA hazardous wastes); or
(4) have the potential to cause a significant increase in energy
consumption in a state or region.
B5.2 Modifications to Pumps and Piping
Modifications to existing pump and piping configurations
(including, but not limited to, manifolds, metering systems, and
other instrumentation on such configurations conveying materials
such as air, brine, carbon dioxide, geothermal system fluids,
hydrogen gas, natural gas, nitrogen gas, oil, produced water, steam,
and water). Covered modifications would not have the potential to
cause significant changes to design process flow rates or permitted
air emissions.
B5.3 Modification or Abandonment of Wells
Modification (but not expansion) or plugging and abandonment of
wells, provided that site characterization has verified a low
potential for seismicity, subsidence, and contamination of
freshwater aquifers, and the actions are otherwise consistent with
best practices and DOE protocols, including those that protect
against uncontrolled releases of harmful materials. Such wells may
include, but are not limited to, storage and injection wells for
brine, carbon dioxide, coalbed methane, gas hydrate, geothermal,
natural gas, and oil. Covered modifications would not be part of
site closure.
B5.4 Repair or Replacement of Pipelines
Repair, replacement, upgrading, rebuilding, or minor relocation
of pipelines within existing rights-of- way, provided that the
actions are in accordance with applicable requirements (such as Army
Corps of Engineers permits under section 404 of the Clean Water
Act). Pipelines may convey materials including, but not limited to,
air, brine, carbon dioxide, geothermal system fluids, hydrogen gas,
natural gas, nitrogen gas, oil, produced water, steam, and water.
B5.5 Short Pipeline Segments
Construction and subsequent operation of short (generally less
than 20 miles in length) pipeline segments conveying materials (such
as air, brine, carbon dioxide, geothermal system fluids, hydrogen
gas, natural gas, nitrogen gas, oil, produced water, steam, and
water) between existing source facilities and existing receiving
facilities (such as facilities for use, reuse, transportation,
storage, and refining), provided that the pipeline segments are
within previously disturbed or developed rights-of-way.
B5.6 Oil Spill Cleanup
Removal of oil and contaminated materials recovered in oil spill
cleanup operations and disposal of these materials in accordance
with applicable requirements (such as the National Oil and Hazardous
Substances Pollution Contingency Plan).
B5.7 Export of Natural Gas and Associated Transportation by Marine
Vessel
Approvals or disapprovals of new authorizations or amendments of
existing authorizations to export natural gas under
[[Page 29712]]
section 3 of the Natural Gas Act and any associated transportation
of natural gas by marine vessel.
B5.8 [Reserved]
B5.9 Temporary Exemptions for Electric Powerplants
Grants or denials of temporary exemptions under the Powerplant
and Industrial Fuel Use Act of 1978, as amended, for electric
powerplants.
B5.10 Certain Permanent Exemptions for Existing Electric
Powerplants
For existing electric powerplants, grants or denials of
permanent exemptions under the Powerplant and Industrial Fuel Use
Act of 1978, as amended, other than exemptions under section 312(c)
relating to cogeneration and section 312(b) relating to certain
state or local requirements.
B5.11 Permanent Exemptions Allowing Mixed Natural Gas and Petroleum
For new electric powerplants, grants or denials of permanent
exemptions from the prohibitions of Title II of the Powerplant and
Industrial Fuel Use Act of 1978, as amended, to permit the use of
certain fuel mixtures containing natural gas or petroleum.
B5.12 Workover of Existing Wells
Workover (operations to restore production, such as deepening,
plugging back, pulling and resetting lines, and squeeze cementing)
of existing wells (including, but not limited to, activities
associated with brine, carbon dioxide, coalbed methane, gas hydrate,
geothermal, natural gas, and oil) to restore functionality, provided
that workover operations are restricted to the existing wellpad and
do not involve any new site preparation or earthwork that would have
the potential to cause significant impacts on nearby habitat; that
site characterization has verified a low potential for seismicity,
subsidence, and contamination of freshwater aquifers; and the
actions are otherwise consistent with best practices and DOE
protocols, including those that protect against uncontrolled
releases of harmful materials.
B5.13 Experimental Wells for Injection of Small Quantities of
Carbon Dioxide
Siting, construction, operation, plugging, and abandonment of
experimental wells for the injection of small quantities of carbon
dioxide (and other incidentally co-captured gases) in locally
characterized, geologically secure storage formations at or near
existing carbon dioxide sources to determine the suitability of the
formations for large-scale sequestration, provided that (1) The
characterization has verified a low potential for seismicity,
subsidence, and contamination of freshwater aquifers; (2) the wells
are otherwise in accordance with applicable requirements, best
practices, and DOE protocols, including those that protect against
uncontrolled releases of harmful materials; and (3) the wells and
associated drilling activities are sufficiently remote so that they
would not have the potential to cause significant impacts related to
noise and other vibrations. Wells may be used for enhanced oil or
natural gas recovery or for secure storage of carbon dioxide in
saline formations or other secure formations. Over the duration of a
project, the wells would be used to inject, in aggregate, less than
500,000 tons of carbon dioxide into the geologic formation. Covered
actions exclude activities in aquatic environments. (See B3.16 of
this appendix for activities in aquatic environments.)
B5.14 Combined Heat and Power or Cogeneration Systems
Conversion to, replacement of, or modification of combined heat
and power or cogeneration systems (the sequential or simultaneous
production of multiple forms of energy, such as thermal and
electrical energy, in a single integrated system) at existing
facilities, provided that the conversion, replacement, or
modification would not have the potential to cause a significant
increase in the quantity or rate of air emissions and would not have
the potential to cause significant impacts to water resources.
B5.15 Small-Scale Renewable Energy Research and Development and
Pilot Projects
Small-scale renewable energy research and development projects
and small-scale pilot projects, provided that the projects are
located within a previously disturbed or developed area. Covered
actions would be in accordance with applicable requirements (such as
local land use and zoning requirements) in the proposed project area
and would incorporate appropriate control technologies and best
management practices.
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 this appendix, 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.
B5.17 Solar Thermal Systems
The installation, modification, operation, and removal of
commercially available small-scale solar thermal systems (including,
but not limited to, solar hot water systems) located on or
contiguous to a building, and if located on land, generally
comprising less than 10 acres within a previously disturbed or
developed area. Covered actions would be in accordance with
applicable requirements (such as local land use and zoning
requirements) in the proposed project area and would incorporate
appropriate control technologies and best management practices.
B5.18 Wind Turbines
The installation, modification, operation, and removal of a
small number (generally not more than 2) of commercially available
wind turbines, with a total height generally less than 200 feet
(measured from the ground to the maximum height of blade rotation)
that (1) Are located within a previously disturbed or developed
area; (2) are located more than 10 nautical miles (about 11.5 miles)
from an airport or aviation navigation aid; (3) are located more
than 1.5 nautical miles (about 1.7 miles) from National Weather
Service or Federal Aviation Administration Doppler weather radar;
(4) would not have the potential to cause significant impacts on
bird or bat populations; and (5) are sited or designed such that the
project would not have the potential to cause significant impacts to
persons (such as from shadow flicker and other visual effects, and
noise). Covered actions would be in accordance with applicable
requirements (such as local land use and zoning requirements) in the
proposed project area and would incorporate appropriate control
technologies and best management practices. Covered actions include
only those related to wind turbines to be installed on land.
B5.19 Ground Source Heat Pumps
The installation, modification, operation, and removal of
commercially available small-scale ground source heat pumps to
support operations in single facilities (such as a school or
community center) or contiguous facilities (such as an office
complex) (1) Only where (a) major associated activities (such as
drilling and discharge) are regulated, and (b) appropriate leakage
and contaminant control measures would be in place (including for
cross-contamination between aquifers); (2) that would not have the
potential to cause significant changes in subsurface temperature;
and (3) would be located within a previously disturbed or developed
area. Covered actions would be in accordance with applicable
requirements (such as local land use and zoning requirements) in the
proposed project area and would incorporate appropriate control
technologies and best management practices.
B5.20 Biomass Power Plants
The installation, modification, operation, and removal of small-
scale biomass power plants (generally less than 10 megawatts), using
commercially available technology (1) Intended primarily to support
operations in single facilities (such as a school and community
center) or contiguous facilities (such as an office complex); (2)
that would not affect the air quality attainment status of the area
and would not have the potential to cause a significant increase in
the quantity or rate of air emissions and would not have the
potential to cause significant impacts to water resources; and (3)
would be located within a previously disturbed or developed area.
Covered actions would be in accordance with applicable requirements
(such as local land use and zoning requirements) in the proposed
project area and would incorporate appropriate control technologies
and best management practices.
[[Page 29713]]
B5.21 Methane Gas Recovery and Utilization Systems
The installation, modification, operation, and removal of
commercially available methane gas recovery and utilization systems
installed within a previously disturbed or developed area on or
contiguous to an existing landfill or wastewater treatment plant
that would not have the potential to cause a significant increase in
the quantity or rate of air emissions. Covered actions would be in
accordance with applicable requirements (such as local land use and
zoning requirements) in the proposed project area and would
incorporate appropriate control technologies and best management
practices.
B5.22 Alternative Fuel Vehicle Fueling Stations
The installation, modification, operation, and removal of
alternative fuel vehicle fueling stations (such as for compressed
natural gas, hydrogen, ethanol and other commercially available
biofuels) on the site of a current or former fueling station, or
within a previously disturbed or developed area within the
boundaries of a facility managed by the owners of a vehicle fleet.
Covered actions would be in accordance with applicable requirements
(such as local land use and zoning requirements) in the proposed
project area and would incorporate appropriate control technologies
and best management practices.
B5.23 Electric Vehicle Charging Stations
The installation, modification, operation, and removal of
electric vehicle charging stations, using commercially available
technology, within a previously disturbed or developed area. Covered
actions are limited to areas where access and parking are in
accordance with applicable requirements (such as local land use and
zoning requirements) in the proposed project area and would
incorporate appropriate control technologies and best management
practices.
B5.24 Drop-In Hydroelectric Systems
The installation, modification, operation, and removal of
commercially available small-scale, drop-in, run-of-the-river
hydroelectric systems that would (1) Involve no water storage or
water diversion from the stream or river channel where the system is
installed and (2) not have the potential to cause significant
impacts on water quality, temperature, flow, or volume. Covered
systems would be located up-gradient of an existing anadromous fish
barrier that is not planned for removal and where fish passage
retrofit is not planned and where there would not be the potential
for significant impacts to threatened or endangered species or other
species of concern (as identified in B(4)(ii) of this appendix).
Covered actions would involve no major construction or modification
of stream or river channels, and the hydroelectric systems would be
placed and secured in the channel without the use of heavy
equipment. Covered actions would be in accordance with applicable
requirements (such as local land use and zoning requirements) in the
proposed project area and would incorporate appropriate control
technologies and best management practices.
B5.25 Small-Scale Renewable Energy Research and Development and
Pilot Projects in Aquatic Environments
Small-scale renewable energy research and development projects
and small-scale pilot projects located in aquatic environments.
Activities would be in accordance with, where applicable, an
approved spill prevention, control, and response plan, and would
incorporate appropriate control technologies and best management
practices. Covered actions would not occur (1) Within areas of
hazardous natural bottom conditions or (2) within the boundary of an
established marine sanctuary or wildlife refuge, a governmentally
proposed marine sanctuary or wildlife refuge, or a governmentally
recognized area of high biological sensitivity, unless authorized by
the agency responsible for such refuge, sanctuary, or area (or after
consultation with the responsible agency, if no authorization is
required). If the proposed activities would occur outside such
refuge, sanctuary, or area and if the activities would have the
potential to cause impacts within such refuge, sanctuary, or area,
then the responsible agency shall be consulted in order to determine
whether authorization is required and whether such activities would
have the potential to cause significant impacts on such refuge,
sanctuary, or area. Areas of high biological sensitivity include,
but are not limited to, areas of known ecological importance, whale
and marine mammal mating and calving/pupping areas, and fish and
invertebrate spawning and nursery areas recognized as being limited
or unique and vulnerable to perturbation; these areas can occur in
bays, estuaries, near shore, and far offshore, and may vary
seasonally. No permanent facilities or devices would be constructed
or installed. Covered actions do not include drilling of resource
exploration or extraction wells, use of large-scale vibratory coring
techniques, or seismic activities other than passive techniques.
B6. Categorical Exclusions Applicable to Environmental Restoration and
Waste Management Activities
B6.1 Cleanup Actions
Small-scale, short-term cleanup actions, under RCRA, Atomic
Energy Act, or other authorities, less than approximately 10 million
dollars in cost (in 2011 dollars), to reduce risk to human health or
the environment from the release or threat of release of a hazardous
substance other than high-level radioactive waste and spent nuclear
fuel, including treatment (such as incineration, encapsulation,
physical or chemical separation, and compaction), recovery, storage,
or disposal of wastes at existing facilities currently handling the
type of waste involved in the action. These actions include, but are
not limited to:
(a) Excavation or consolidation of contaminated soils or
materials from drainage channels, retention basins, ponds, and spill
areas that are not receiving contaminated surface water or
wastewater, if surface water or groundwater would not collect and if
such actions would reduce the spread of, or direct contact with, the
contamination;
(b) Removal of bulk containers (such as drums and barrels) that
contain or may contain hazardous substances, pollutants,
contaminants, CERCLA-excluded petroleum or natural gas products, or
hazardous wastes (designated in 40 CFR part 261 or applicable state
requirements), if such actions would reduce the likelihood of
spillage, leakage, fire, explosion, or exposure to humans, animals,
or the food chain;
(c) Removal of an underground storage tank including its
associated piping and underlying containment systems in accordance
with applicable requirements (such as RCRA, subtitle I; 40 CFR part
265, subpart J; and 40 CFR part 280, subparts F and G) if such
action would reduce the likelihood of spillage, leakage, or the
spread of, or direct contact with, contamination;
(d) Repair or replacement of leaking containers;
(e) Capping or other containment of contaminated soils or
sludges if the capping or containment would not unduly limit future
groundwater remediation and if needed to reduce migration of
hazardous substances, pollutants, contaminants, or CERCLA-excluded
petroleum and natural gas products into soil, groundwater, surface
water, or air;
(f) Drainage or closing of man-made surface impoundments if
needed to maintain the integrity of the structures;
(g) Confinement or perimeter protection using dikes, trenches,
ditches, or diversions, or installing underground barriers, if
needed to reduce the spread of, or direct contact with, the
contamination;
(h) Stabilization, but not expansion, of berms, dikes,
impoundments, or caps if needed to maintain integrity of the
structures;
(i) Drainage controls (such as run-off or run-on diversion) if
needed to reduce offsite migration of hazardous substances,
pollutants, contaminants, or CERCLA-excluded petroleum or natural
gas products or to prevent precipitation or run-off from other
sources from entering the release area from other areas;
(j) Segregation of wastes that may react with one another or
form a mixture that could result in adverse environmental impacts;
(k) Use of chemicals and other materials to neutralize the pH of
wastes;
(l) Use of chemicals and other materials to retard the spread of
the release or to mitigate its effects if the use of such chemicals
would reduce the spread of, or direct contact with, the
contamination;
(m) Installation and operation of gas ventilation systems in
soil to remove methane or petroleum vapors without any toxic or
radioactive co-contaminants if appropriate filtration or gas
treatment is in place;
(n) Installation of fences, warning signs, or other security or
site control precautions if humans or animals have access to the
release; and
(o) Provision of an alternative water supply that would not
create new water sources if necessary immediately to reduce exposure
to
[[Page 29714]]
contaminated household or industrial use water and continuing until
such time as local authorities can satisfy the need for a permanent
remedy.
B6.2 Waste Collection, Treatment, Stabilization, and Containment
Facilities
The siting, construction, and operation of temporary (generally
less than 2 years) pilot-scale waste collection and treatment
facilities, and pilot-scale (generally less than 1 acre) waste
stabilization and containment facilities (including siting,
construction, and operation of a small-scale laboratory building or
renovation of a room in an existing building for sample analysis),
provided that the action (1) Supports remedial investigations/
feasibility studies under CERCLA, or similar studies under RCRA
(such as RCRA facility investigations/corrective measure studies) or
other authorities and (2) would not unduly limit the choice of
reasonable remedial alternatives (such as by permanently altering
substantial site area or by committing large amounts of funds
relative to the scope of the remedial alternatives).
B6.3 Improvements to Environmental Control Systems
Improvements to environmental monitoring and control systems of
an existing building or structure (such as changes to scrubbers in
air quality control systems or ion-exchange devices and other
filtration processes in water treatment systems), provided that
during subsequent operations (1) Any substance collected by the
environmental control systems would be recycled, released, or
disposed of within existing permitted facilities and (2) there are
applicable statutory or regulatory requirements or permit conditions
for disposal, release, or recycling of any hazardous substance or
CERCLA-excluded petroleum or natural gas products that are collected
or released in increased quantity or that were not previously
collected or released.
B6.4 Facilities for Storing Packaged Hazardous Waste for 90 Days or
Less
Siting, construction, modification, expansion, operation, and
decommissioning of an onsite facility for storing packaged hazardous
waste (as designated in 40 CFR part 261) for 90 days or less or for
longer periods as provided in 40 CFR 262.34(d), (e), or (f) (such as
accumulation or satellite areas).
B6.5 Facilities for Characterizing and Sorting Packaged Waste and
Overpacking Waste
Siting, construction, modification, expansion, operation, and
decommissioning of an onsite facility for characterizing and sorting
previously packaged waste or for overpacking waste, other than high-
level radioactive waste, provided that operations do not involve
unpacking waste. These actions do not include waste storage (covered
under B6.4, B6.6, B6.10 of this appendix) or the handling of spent
nuclear fuel.
B6.6 Modification of Facilities for Storing, Packaging, and
Repacking Waste
Modification (excluding increases in capacity) of an existing
structure used for storing, packaging, or repacking waste other than
high-level radioactive waste or spent nuclear fuel, to handle the
same class of waste as currently handled at that structure.
B6.7 [Reserved]
B6.8 Modifications for Waste Minimization and Reuse of Materials
Minor operational changes at an existing facility to minimize
waste generation and for reuse of materials. These changes include,
but are not limited to, adding filtration and recycle piping to
allow reuse of machining oil, setting up a sorting area to improve
process efficiency, and segregating two waste streams previously
mingled and assigning new identification codes to the two resulting
wastes.
B6.9 Measures To Reduce Migration of Contaminated Groundwater
Small-scale temporary measures to reduce migration of
contaminated groundwater, including the siting, construction,
operation, and decommissioning of necessary facilities. These
measures include, but are not limited to, pumping, treating,
storing, and reinjecting water, by mobile units or facilities that
are built and then removed at the end of the action.
B6.10 Upgraded or Replacement Waste Storage Facilities
Siting, construction, modification, expansion, operation, and
decommissioning of a small upgraded or replacement facility (less
than approximately 50,000 square feet in area) within or contiguous
to a previously disturbed or developed area (where active utilities
and currently used roads are readily accessible) for storage of
waste that is already at the site at the time the storage capacity
is to be provided. These actions do not include the storage of high-
level radioactive waste, spent nuclear fuel or any waste that
requires special precautions to prevent nuclear criticality. (See
also B6.4, B6.5, B6.6 of this appendix.)
B7. Categorical Exclusions Applicable to International Activities
B7.1 Emergency Measures Under the International Energy Program
Planning and implementation of emergency measures pursuant to
the International Energy Program.
B7.2 Import and Export of Special Nuclear or Isotopic Materials
Approval of import or export of small quantities of special
nuclear materials or isotopic materials in accordance with
applicable requirements (such as the Nuclear Non-Proliferation Act
of 1978 and the ``Procedures Established Pursuant to the Nuclear
Non-Proliferation Act of 1978'' (43 FR 25326, June 9, 1978)).
Appendix C: Categorical Exclusions Adopted Pursuant to NEPA Section 109
DOE has adopted the categorical exclusions listed below from
other Federal agencies pursuant to section 109 of NEPA (42 U.S.C.
4336(c)). These categorical exclusions are available for use by all
DOE offices pursuant to procedures contained in section 5.2. DOE's
notice of adoption, cited below, may contain additional information
relevant to the adoption and use of particular categorical
exclusions.
U.S. Forest Service (USFS) Categorical Exclusions
USFS (e)(11): Post-fire rehabilitation activities, not to exceed
4,200 acres (such as tree planting, fence replacement, habitat
restoration, heritage site restoration, repair of roads and trails,
and repair of damage to minor facilities such as campgrounds), to
repair or improve lands unlikely to recover to a management approved
condition from wildland fire damage, or to repair or replace minor
facilities damaged by fire. Such activities:
(i) Shall be conducted consistent with Agency and Departmental
procedures and applicable land and resource management plans;
(ii) Shall not include the use of herbicides or pesticides or
the construction of new permanent roads or other new permanent
infrastructure; and
(iii) Shall be completed within 3 years following a wildland
fire.
DOE announced adoption of this categorical exclusion on July 23,
2024 (89 FR 59726).
USFS (e)(12): Harvest of live trees not to exceed 70 acres,
requiring no more than 2 mile of temporary road construction. Do not
use this category for even-aged regeneration harvest or vegetation
type conversion. The proposed action may include incidental removal
of trees for landings, skid trails, and road clearing. Examples
include, but are not limited to:
(i) Removal of individual trees for sawlogs, specialty products,
or fuelwood, and
(ii) Commercial thinning of overstocked stands to achieve the
desired stocking level to increase health and vigor.
DOE announced adoption of this categorical exclusion on July 23,
2024 (89 FR 59726).
USFS (e)(13): Salvage of dead and/or dying trees not to exceed
250 acres, requiring no more than 1/2 mile of temporary road
construction. The proposed action may include incidental removal of
live or dead trees for landings, skid trails, and road clearing.
Examples include, but are not limited to:
(i) Harvest of a portion of a stand damaged by a wind or ice
event and construction of a short temporary road to access the
damaged trees, and
(ii) Harvest of fire-damaged trees.
DOE announced adoption of this categorical exclusion on July 23,
2024 (89 FR 59726).
USFS (e)(14): Commercial and noncommercial sanitation harvest of
trees to control insects or disease not to exceed 250 acres,
requiring no more than 2 mile of temporary road construction,
including removal of infested/infected trees and adjacent live
uninfested/uninfected trees as determined necessary to control the
spread of
[[Page 29715]]
insects or disease. The proposed action may include incidental
removal of live or dead trees for landings, skid trails, and road
clearing. Examples include, but are not limited to:
(i) Felling and harvest of trees infested with southern pine
beetles and immediately adjacent uninfested trees to control
expanding spot infestations, and
(ii) Removal and/or destruction of infested trees affected by a
new exotic insect or disease, such as emerald ash borer, Asian long
horned beetle, and sudden oak death pathogen.
DOE announced adoption of this categorical exclusion on July 23,
2024 (89 FR 59726).
USFS (e)(18): Restoring wetlands, streams, riparian areas or
other water bodies by removing, replacing, or modifying water
control structures such as, but not limited to, dams, levees, dikes,
ditches, culverts, pipes, drainage tiles, valves, gates, and
fencing, to allow waters to flow into natural channels and
floodplains and restore natural flow regimes to the extent
practicable where valid existing rights or special use
authorizations are not unilaterally altered or canceled. Examples
include but are not limited to:
(i) Repairing an existing water control structure that is no
longer functioning properly with minimal dredging, excavation, or
placement of fill, and does not involve releasing hazardous
substances;
(ii) Installing a newly-designed structure that replaces an
existing culvert to improve aquatic organism passage and prevent
resource and property damage where the road or trail maintenance
level does not change;
(iii) Removing a culvert and installing a bridge to improve
aquatic and/or terrestrial organism passage or prevent resource or
property damage where the road or trail maintenance level does not
change; and
(iv) Removing a small earthen and rock fill dam with a low
hazard potential classification that is no longer needed.
DOE announced adoption of this categorical exclusion on July 23,
2024 (89 FR 59726).
USFS (e)(19): Removing and/or relocating debris and sediment
following disturbance events (such as floods, hurricanes, tornados,
mechanical/engineering failures, etc.) to restore uplands, wetlands,
or riparian systems to pre-disturbance conditions, to the extent
practicable, such that site conditions will not impede or negatively
alter natural processes. Examples include but are not limited to:
(i) Removing an unstable debris jam on a river following a flood
event and relocating it back in the floodplain and stream channel to
restore water flow and local bank stability;
(ii) Clean-up and removal of infrastructure flood debris, such
as, benches, tables, outhouses, concrete, culverts, and asphalt
following a hurricane from a stream reach and adjacent wetland area;
and
(iii) Stabilizing stream banks and associated stabilization
structures to reduce erosion through bioengineering techniques
following a flood event, including the use of living and nonliving
plant materials in combination with natural and synthetic support
materials, such as rocks, riprap, geo-textiles, for slope
stabilization, erosion reduction, and vegetative establishment and
establishment of appropriate plant communities (bank shaping and
planting, brush mattresses, log, root wad, and boulder stabilization
methods).
DOE announced adoption of this categorical exclusion on July 23,
2024 (89 FR 59726).
USFS (e)(20): Activities that restore, rehabilitate, or
stabilize lands occupied by roads and trails, including unauthorized
roads and trails and National Forest System roads and National
Forest System trails, to a more natural condition that may include
removing, replacing, or modifying drainage structures and ditches,
reestablishing vegetation, reshaping natural contours and slopes,
reestablishing drainage-ways, or other activities that would restore
site productivity and reduce environmental impacts. Examples include
but are not limited to:
(i) Decommissioning a road to a more natural state by restoring
natural contours and removing construction fills, loosening
compacted soils, revegetating the roadbed and removing ditches and
culverts to reestablish natural drainage patterns;
(ii) Restoring a trail to a natural state by reestablishing
natural drainage patterns, stabilizing slopes, reestablishing
vegetation, and installing water bars; and
(iii) Installing boulders, logs, and berms on a road segment to
promote naturally regenerated grass, shrub, and tree growth.
DOE announced adoption of this categorical exclusion on July 23,
2024 (89 FR 59726).
[FR Doc. 2025-12383 Filed 7-1-25; 2:30 pm]
BILLING CODE 6450-01-P