### 214 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

**DEPARTMENT OF ENERGY**

**[Docket ID: DOE–HQ–2010–0002]**

**10 CFR Part 1021**

**RIN 1990–AA34**

**National Environmental Policy Act Implementing Procedures** 

**AGENCY :**  Office of the General Counsel, U.S. Department of Energy.

**ACTION :**  Notice of proposed rulemaking and public hearing.

**SUMMARY :**  The U.S. Department of Energy (DOE or the Department) proposes to amend its existing regulations governing compliance with the National Environmental Policy Act (NEPA). The majority of the changes are proposed for the categorical exclusions provisions contained in its NEPA Implementing Procedures, with a small number of related changes proposed for other provisions. These proposed changes are intended to better align the Department’s regulations, particularly its categorical exclusions, with DOE’s
current activities and recent experiences, and to update the provisions with respect to current technologies and regulatory requirements. DOE proposes to establish 20 new categorical exclusions, and to remove two categorical exclusion categories, one environmental assessment (EA) category, and two environmental impact statement (EIS) categories. Other proposed changes modify and clarify DOE’s existing provisions.

**DATES :**  Comments should be received by (or, if mailed, postmarked by) February 17, 2011 to ensure consideration. Late comments may be considered to the extent practicable. DOE will hold a public hearing on February 4, 2011, from 1 p.m. to 4 p.m. in Washington, DC. Persons who wish to speak at the public hearing should register before 3 p.m. on February 1, 2011, as described

in **FOR FURTHER INFORMATION CONTACT**

. **ADDRESSES :**  Documents relevant to this rulemaking are posted at http:// www.regulations.gov (Docket ID: DOE– HQ–2010–0002). Documents posted to
this docket include: This notice of proposed rulemaking, DOE’s ‘‘ Technical Support Document’’ that provides additional information regarding certain proposed changes, and a ‘‘redline/
strikeout’’ (markup) file of affected sections of the DOE NEPA regulations indicating the changes proposed in this proposed rule.

Submit comments, labeled ‘‘DOE NEPA Implementing Procedures, RIN 1990–AA34, ’’ by one of the following

methods:

1. Federal eRulemaking Portal: http:// www.regulations.gov. Follow the online instructions for submitting comments electronically. This rulemaking is assigned Docket ID: DOE–HQ–2010– 0002. Comments may be entered directly on the Web site. Electronic files may be submitted to this Web site.

2. Mail: Mail comments to NEPA Rulemaking Comments, Office of NEPA Policy and Compliance (GC–54), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585. Because security screening may delay mail sent through the U.S. Postal Service, DOE encourages electronic submittal of

comments.

3. Public Hearing: A public hearing will be held at the U.S. Department of Energy, Forrestal Building, Room 1E– 245, 1000 Independence Avenue, SW., Washington, DC 20585. Oral and written comments will be accepted at the public hearing. See **DATES**
**,** above, and Section III, Invitation to Comment, below, for procedures.

**FOR FURTHER INFORMATION CONTACT :**  For general information about DOE’s NEPA procedures, contact Ms. Carol Borgstrom, Director, Office of NEPA Policy and Compliance, at 202–586– 4600 or leave a message at 800–472– 2756. To register to speak at the public hearing and for questions concerning how to comment on this proposed rule, contact Ms. Yardena Mansoor, Office of NEPA Policy and Compliance, at askNEPA@hq.doe.gov or 202–586–9326. For detailed information on submitting comments and the public hearing, see Section III, Invitation to Comment,
below.

**SUPPLEMENTARY INFORMATION :** 

I. Introduction and Background

What is NEPA?

The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) requires Federal agencies to consider the potential environmental impacts of
their ‘‘ proposed actions ’’ before taking action. (Please note the terms ‘‘ effects ’’
and ‘‘ impacts ’’ as used in this proposed rule are synonymous. See 40 CFR 1508.8.) Proposed actions include actions directly undertaken by a Federal agency, as well as certain actions undertaken by a State, local, or private entity with Federal involvement, e.g., certain projects that may receive Federal funding, permits, or other support. What is environmental review under

NEPA?

The Council on Environmental Quality’s (CEQ’s) NEPA implementing regulations (40 CFR parts 1500–1508)
establish three levels of review for proposed actions—EIS, EA, and categorical exclusion determinations— each involving different levels of information and analysis. An EIS is a detailed analysis of the potential environmental impacts of a proposed action (and alternatives) that may have a significant impact on the environment.

See NEPA Section 102(2)(C), 42 U.S.C. 4332(2)(C); 40 CFR 1508.11. An EA is a briefer analysis conducted to determine whether a proposed action may have a significant impact on the environment and thus whether an EIS is required. See 40 CFR 1508.9. A categorical exclusion
is a class of actions that a Federal agency has determined do not, absent extraordinary circumstances, individually or cumulatively have a significant impact on the human environment and for which, therefore, neither an EA nor an EIS is required.

See 40 CFR 1508.4. A categorical
exclusion determination is made when an agency finds that a proposed action fits within a categorical exclusion and meets other applicable requirements, such as the absence of extraordinary

circumstances.

How does DOE establish categorical
exclusions?

DOE establishes categorical exclusions pursuant to a rulemaking, such as this one, for defined classes of actions that the Department determines are supported by a record showing that they normally will not have significant environmental impacts, individually or cumulatively. DOE establishes categorical exclusions based on its experience, the experience of other agencies, and information provided by the public.

A complete list of DOE’s current categorical exclusions can be found at 10 CFR part 1021, subpart D, appendices A and B. Appendix A lists categorical exclusions applicable to general agency actions (for example, routine administrative, financial, and personnel actions). Appendix B lists categorical exclusions that are applicable to specific agency actions.

How does DOE make a categorical
exclusion determination?

Under the regulations, before a proposed action may be categorically excluded, DOE must determine in accordance with 10 CFR 1021.410(b) that: (1) The proposed action fits within


### 215 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

a class of actions listed in appendix A or B to subpart D, (2) there are no extraordinary circumstances related to the proposal that may affect the significance of the environmental impacts of the proposed action, and (3) there are no connected or related actions with cumulatively significant impacts and, as appropriate, the proposed action is not precluded as an impermissible interim action (40 CFR 1506.1 and 10 CFR 1021.211).

In addition, to fit within a class of actions in appendix B, a proposed action must satisfy certain conditions
known as ‘‘ integral elements ’’ (appendix B, paragraphs (1) through (4)). Briefly,
these conditions ensure that an
excluded action would not have the potential to cause significant environmental impacts due to, for example, a threatened violation of applicable environmental, safety, and health requirements, or by disturbing
hazardous substances such that there would be uncontrolled or unpermitted
releases.

What does DOE propose to change in its NEPA regulations?

With this proposed rule, DOE proposes to update its NEPA regulations (10 CFR part 1021), primarily with changes to subpart D and with a few changes to subpart C. Most changes are to categorical exclusions (subpart D, appendices A and B, discussed in Sections IV.D and IV.E below, respectively), including establishing new categorical exclusions and modifying existing categorical exclusions. DOE also proposes to make changes to its classes of actions that normally require an EA (appendix C, discussed in Section IV.F) or EIS (appendix D, discussed in Section IV.G). In addition, DOE proposes to change several procedural provisions of the Department’s regulations (Section IV.C) and modify wording for consistency and clarity (Section IV.B).

II. Purpose and Development of the Proposed Changes

Why does DOE propose to amend its NEPA implementing procedures?

The Department last updated its categorical exclusions in 1996. Since that time, the range of activities in which DOE is involved has changed and expanded. For example, in recent years, DOE has received more applications for financial support from private applicants for actions that promote energy efficiency and energy independence. DOE has received thousands of applications under grant and loan programs established by the Energy Policy Act of 2005, the Energy Independence and Security Act of 2007, and the American Recovery and
Reinvestment Act of 2009. Another change since 1996 is the growth and development of new technologies in the private and public sectors, including energy efficient and renewable energy technologies, and DOE’s experience with those technologies. Through this proposed rulemaking, DOE proposes to update its categorical exclusions to address the Department’s current activities and its experience and bring the provisions up-to-date with current technology and regulatory requirements.

How did DOE seek input on the proposed changes?

DOE has sought input from a number of different sources. First, DOE issued
an internal memorandum on December 7, 2009, soliciting suggestions for new categorical exclusions or revisions from DOE Program and Field Offices, including DOE’s network of NEPA Compliance Officers. Second, DOE Office of NEPA Policy and Compliance
staff identified additional candidates for new or expanded categorical exclusions by reviewing the archive of DOE EAs that led to findings of no significant impact (FONSIs), researched the existing categorical exclusions established by approximately 50 Federal agencies, and reviewed existing DOE categorical exclusions to identify potential new categorical exclusions or revisions. Third, on December 29, 2009, DOE published a Request for
Information in the Federal Register (74 FR 68720) seeking suggestions from interested parties. Eleven entities responded to the Request for Information: Endicott Biofuels, LLC; Golder Associates, Inc.; INFORM (Information Network for Responsible Mining); Johnson Controls, Inc.; Nuclear Watch New Mexico; Presco Energy, LLC; Sierra Geothermal Power Corp.; Solar Energy Industries Association; State of Oregon’s Department of Energy; U.S. Chamber of Commerce; and a
contractor for DOE’s Golden Field Office. The Request for Information and
these comments are available at http:// www.regulations.gov.

The comments included proposals for new categorical exclusions and suggested revisions to limit or expand existing categorical exclusions or other related provisions. DOE addresses these comments in its discussion of specific
classes of actions in Section IV. Comments of a more general nature that were not associated with a particular provision are addressed below in

Section V. How did DOE develop the proposed changes?

As described above, DOE reviewed and evaluated each of the proposed revisions, reviewed past DOE NEPA analyses and other agencies’ NEPA analyses and categorical exclusions, and drafted proposed categorical exclusions
and revisions. DOE created a Technical Support Document that presents proposed changes and information that supplements the Preamble discussion of the supporting basis for the changes. ( See http://www.regulations.gov, Docket ID: DOE–HQ–2010–0002.) The proposed changes were developed in consultation with CEQ ( see 40 CFR 1507.3), and are now, through this notice of proposed rulemaking, published for public review
and comment. Instructions for how to provide comments are provided in Section III. DOE is also scheduling a public hearing to accept comments on the proposed rule. Details regarding the public hearing are provided in the

**DATES** and **ADDRESSES** section and in
Section III.B below. DOE will review the comments received during the public comment period, including those presented at the public hearing, and revise its proposal as appropriate. The final rule with DOE responses to comments would then be published in
the Federal Register.

What kinds of changes does DOE propose?

DOE proposes to amend 10 CFR part 1021, subparts C and D. The majority of changes are proposed for the categorical exclusion provisions at 10 CFR part 1021, subpart D, appendices A and B, with a small number of related changes proposed for other provisions within subparts C and D.

DOE proposes to add 20 new categorical exclusions. These categorical exclusions (in the order in which they appear in appendix B) address: Stormwater runoff control; lead-based paint removal; recycling stations; determinations of excess real property;small-scale educational facilities; smallscale indoor research and development projects using nanoscale materials;
research activities in salt water and freshwater environments; experimental wells for injection of small quantities of carbon dioxide; combined heat andpower or cogeneration systems; smallscale renewable energy research and development and pilot projects; solar photovoltaic systems; solar thermal systems; wind turbines; ground source heat pumps; biomass power plants; methane gas recovery and utilization systems; alternative fuel vehicle fueling stations; electric vehicle charging


### 216 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

stations; drop-in hydroelectric systems; and small-scale renewable energy research and development and pilot projects in salt water and freshwater environments. DOE proposes to remove two categorical exclusion categories, one EA category, and two EIS categories.

DOE also proposes to modify many of the existing categorical exclusions.
These revisions include substantive changes, as well as changes to reflect current regulatory or statutory references and requirements, and punctuation and grammatical changes to improve readability, clarity, and internal consistency. (By ‘‘ substantive ’’ changes DOE means a change that is more than a clarifying or consistency change; this term includes changes that alter the scope or meaning of a provision or that result in the addition or deletion of a provision.)

What would result from DOE’s proposed changes?

The proposed changes would better align DOE’s categorical exclusions with its current activities and its experience and bring the provisions up-to-date with current technology and regulatory requirements. The changes would also facilitate compliance with NEPA by providing for more efficient review of actions (helping the Department meet the goals set forth by Congress, for example, in the Energy Policy Act of 2005), and allowing the Department to focus its resources on proposed actions that have the potential for significant environmental impacts.

III. Invitation To Comment

DOE invites interested persons to participate in this rulemaking by submitting comments on the proposed rule and on the supporting information for proposed changes set forth in the Preamble and the Technical Support
Document. Comments would be particularly useful to DOE if those comments: (1) Provide information to support or oppose a proposed change (for example, describing experience
with similar actions that did or did not have significant environmental impacts or providing references to such experience); (2) justify increased or lessened limitations on the application of a categorical exclusion; or (3) explain recommended changes in addition to those that DOE proposes and provide
the rationale for such additional changes. As appropriate, comments should refer to the specific section of the proposed rule to which the comment applies, identify a comment as a general comment, or identify a comment as a new proposal. DOE will consider all timely comments received in response to this notice of proposed rulemaking, whether presented orally at the public hearing or written and submitted electronically or by mail.

A. Written Comments

Comments may be submitted by one
of the methods in the **ADDRESSES** section of this proposed rule. Comments
received will be included in the
administrative record and will be made
available online at http://www. regulations.gov, including any personal information provided, unless the
comment includes information specifically identified as Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Information that you consider to be CBI or otherwise protected should be submitted by mail, not through http://www.regulations.gov. If you submit information that you believe to be exempt by law from public disclosure, you should mail one complete copy, as well as one copy from
which the information claimed to be exempt by law from public disclosure
has been redacted. Please include written justification as to why the redacted information is exempt from disclosure. DOE is responsible for the final determination with regard to
disclosure or nondisclosure of the information and for treating it accordingly under the DOE Freedom of Information Act regulations at 10 CFR

1004.11.

The http://www.regulations.gov Web

site is an ‘‘ anonymous access ’’ system, which means DOE will not know your contact information unless you provide it. If you choose not to provide contact information and DOE cannot read your comment due to technical difficulties, DOE may not be able to consider your
comment. Electronic files should avoid the use of special characters and any form of encryption, and be free of any
defects or viruses.

B. Public Hearing

Attendance

The time, date, and location of the public hearing are listed in the **DATES** and **ADDRESSES** sections at the beginning of this proposed rule. Persons wishing to attend the public hearing must present government-issued identification and pass through security screening upon entering the building. Foreign nationals are subject to advance security screening procedures. Any foreign national wishing to participate or attend the public hearing should advise DOE promptly in order to initiate the necessary procedures as soon as possible; see **FOR FURTHER INFORMATION**

**CONTACT**
**,** above.

Registering To Speak

Any person who has an interest in the topics addressed in this proposed rule may speak at the public hearing, either as an individual or as a representative of a group or organization of interested persons. Persons wishing to speak should register in advance, as described

in **FOR FURTHER INFORMATION CONTACT**

. After registered speakers have made their presentations, other persons may speak to the extent that time allows.

Conduct of Public Hearing

DOE will designate an official or facilitator to preside at the public hearing. The public hearing will be informal and not a judicial or evidentiary-type hearing. DOE reserves the right to schedule the order of speakers and to establish the procedures governing the conduct of the hearing. To ensure that all persons wishing to make a presentation can be heard, DOE may limit each presentation to 10 minutes or less. The presiding official or facilitator will announce any further procedural rules needed for the proper conduct of the public hearing. After the public hearing, interested persons may submit
further comments until the end of the comment period.

A transcript of the hearing will be made and posted at http://www. regulations.gov.

C. Issues on Which DOE Seeks

Comment

DOE is particularly interested in receiving comments and views of interested parties on several topics. As
discussed in more detail in Section IV.B below, DOE seeks comments on its use of the phrases ‘‘ including, but not limited to, ’’ and ‘‘ such as ’’ to introduce lists of examples. Unless otherwise specified, DOE’s lists of examples are
not intended to be exhaustive of all possible actions that fit within a categorical exclusion. DOE also seeks comments on its use of the phrase

‘‘would not have the potential to cause significant impacts ’’ (or a similar construct) in lieu of the use of terms
such as ‘‘ adverse ’’ or ‘‘ substantial ’’ as modifiers for potential impacts. DOE believes that the proposed phrase more accurately reflects NEPA and the CEQ NEPA regulations.

DOE is particularly interested in receiving comments and views of interested parties on the proposals relating to the following classes of

actions:


### 217 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

B3.7 New Terrestrial Infill Exploratory and

Experimental Wells
B3.15 Small-Scale Indoor Research and

Development Projects Using Nanoscale
Materials
B3.16 Research Activities in Salt Water and

Freshwater Environments B4.1 Contracts, Policies, and Marketing and

Allocation Plans for Electric Power
B4.11 Electric Power Substations and

Interconnection Facilities
B4.12 Construction of Transmission Lines B4.13 Upgrading and Rebuilding Existing

Transmission Lines B5.1(b) Actions To Conserve Energy or

Water B5.13 Experimental Wells for Injection of

Small Quantities of Carbon Dioxide 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 B5.24 Drop-in Hydroelectric Systems B5.25 Small-Scale Renewable Energy

Research and Development and Pilot Projects in Salt Water and Freshwater

Environments B6.1 Cleanup Actions C7 Contracts, Policies, and Marketing and

Allocation Plans for Electric Power D5 [Removed and Reserved: Main

Transmission System Additions] D6 [Removed and Reserved: Integrating

Transmission Facilities] D7 Contracts, Policies, and Marketing and

Allocation Plans for Electric Power

DOE also welcomes comments on those categorical exclusions for classes
of actions for which DOE has not proposed any revisions at this time.

IV. Description of Proposed Changes

A. Overview

This section describes and explains the proposed amendments to the existing DOE NEPA regulations at 10 CFR part 1021, subparts C and D.

In subpart C, Implementing Procedures, the proposed amendments are minor technical changes. Specifically, to correct internal references, DOE proposes changes to three sections in subpart C: (1) 10 CFR 1021.311—Notice of intent and scoping; (2) 10 CFR 1021.322—Findings of no significant impact; and (3) 10 CFR 1021.331—Mitigation action plans. These proposed minor technical changes to subpart C are not discussed
further below.

In subpart D, DOE proposes extensive substantive and clarifying changes. Recurring proposals for subpart D are
described in Section IV.B and then unique proposed changes to subpart D are described in Sections IV.C through IV.G. Support for the proposed revisions is summarized below, and more information regarding the supporting basis for certain provisions is provided in the Technical Support Document.

What is subpart D of the DOE NEPA regulations?

DOE’s NEPA regulations at 10 CFR part 1021 include subpart D, which lists classes of actions and the typical level of NEPA review required for those classes of actions. Subpart D appendices A and B describe DOE’s categorical exclusions. Appendix C describes classes of actions that normally require preparation of an EA, but not necessarily an EIS, and appendix D
describes classes of actions that normally require preparation of an EIS.

Listing a class of actions in these appendices does not constitute a conclusive determination regarding the appropriate level of NEPA review for a proposed action. Rather, the listing creates an initial assumption that the defined level of review is appropriate
for the listed actions. As indicated in the existing 10 CFR 1021.400(c) and (d), this assumption does not apply when there are extraordinary circumstances related to the proposed action that may affect the significance of the
environmental effects of the action.

What types of changes does DOE propose to subpart D?

DOE proposes to make several types of changes to its subpart D regulations:
these revisions include substantive changes, as well as changes to reflect current regulatory or statutory references and requirements, and punctuation and grammatical changes to improve readability, clarity, and internal consistency. A proposed change does not imply that any previous application of these regulations was inappropriate. See 10 CFR 1021.400(b).

DOE also proposes to delete the tables
of contents for the classes of actions in subpart D, and instead to precede each section or paragraph with a short title. These short titles are included merely to guide the reader and do not have any regulatory effect.

Some of the proposed changes apply multiple times throughout the provisions; others are made in the context of a specific provision. Section IV.B of this proposed rule contains an explanation of proposals that recur, that is, that affect more than one class of actions, instead of duplicating the explanation for multiple individual classes of actions. Descriptions of specific individual proposed changes and support for such changes begin with Section IV.C. With respect to certain proposed changes, a more detailed explanation of the supporting basis is provided in the Technical Support Document. (The Technical Support

Document and the ‘‘redline/strikeout’’ markup of DOE’s existing regulations that show the proposed changes are

available at http://www.regulations.gov.)

B. Recurring Proposals, Technology Updates, and Minor Changes

DOE proposes certain changes to its regulations that recur throughout subpart D. Seven recurring proposals are described below and are followed by a listing of the existing provisions where the recurring proposals occur. Discussion of these recurring proposals is not repeated in the discussion of

classes of actions in Section IV below.

DOE also proposes to modify certain technology-specific vocabulary to reflect current usage, updates to references, and minor changes to punctuation and grammar to improve internal consistency. For example, to update technology-specific vocabulary, DOE proposes to change ‘‘ electric powerlines ’’

to ‘‘ electric transmission lines ’’ in several categorical exclusions. DOE also proposes to update references, as in categorical exclusion B3.12, which

would reference the latest edition of a

Centers for Disease Control manual. DOE is proposing to correct typographical errors (for example, changing ‘‘with ’’ to ‘‘within ’’ in categorical exclusion B1.13). Also, for certain classes of actions, DOE isproposing the addition of crossreferences to related classes of actions. For example, DOE is proposing to add a cross-reference to the proposed new categorical exclusion B1.33 into the existing categorical exclusion B1.6.

B.1. Adjacent/Contiguous/Nearby

To clarify use of terms reflecting proximity, and to promote consistency in its categorical exclusions, DOE is proposing to delete the word ‘‘ adjacent’’ from its categorical exclusions and use

‘‘ contiguous ’’ and ‘‘ nearby, ’’ as appropriate. DOE proposes to use the

word ‘‘ contiguous, ’’ where the intended application is ‘‘touching along a boundary or at a point’’ or ‘‘being in

actual contact. ’’ In contrast, DOE is proposing to use the word ‘‘ nearby, ’’ where the intended application is ‘‘ not
distant’’ or ‘‘ in proximity, but not necessarily touching. ’’ In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.31, B2.1, B4.7,
B5.8, B5.12.


### 218 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

B.2. Including, But Not Limited to/ Including/Such as

DOE proposes to use the phrases

‘‘ including, but not limited to, ’’

‘‘ including, ’’ and ‘‘ such as ’’ to introduce lists of examples. DOE considers the phrases to be synonymous. Unless otherwise specified, DOE’s lists of examples are not intended to be exhaustive of all possible actions that fit within a class of actions. DOE proposes generally to use ‘‘ including, but not limited to, ’’ the first time that examples are introduced in a provision and ‘‘ such

as ’’ for any needed clarification of the examples. In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: 1021.410(b)(2), A1, A6, A9, A12, B(4), B1.3, B1.5, B1.9,
B1.10, B1.11, B1.12, B1.13, B1.15, B1.16, B1.17, B1.20, B1.21, B1.24, B1.27, B1.29, B1.31, B1.32, B2.4, B2.5, B3.1, B3.4, B3.6, B3.7, B3.8, B3.9, B3.10, B3.11, B3.12, B3.13, B4.4, B4.6, B4.7, B4.9, B4.10, B4.11, B5.1, B5.2, B5.3, B5.4, B5.5, B5.6, B5.12, B6.1, B6.2, B6.3, B6.4, B7.2, C8, C16.

B.3. In Accordance With Applicable Requirements

DOE proposes to use the phrase ‘‘ in accordance with applicable requirements ’’ in several of its categorical exclusions for emphasis. DOE recognizes that all actions must be
conducted in accordance with all applicable requirements. However, with certain categorical exclusions, DOE finds it appropriate to refer specifically to this requirement, and, further, in some cases also to provide one or more examples of applicable requirements. By referring to a specific requirement, DOE does not imply that the requirement is
relevant to all actions to which the categorical exclusion may apply, or that the referenced requirement is the only one that applies to a proposed action. DOE’s proposed wording is intended to
allow for the evolution of the requirements over time. In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.2, B1.3, B1.9,
B1.16, B1.17, B1.29, B2.5, B3.8, B3.12, B5.4, B5.6, B6.1, B7.2.

B.4. Would Not Have the Potential To Cause Significant Impacts

Appendices A and B contain a number of provisions that contain the
word ‘‘ adverse, ’’ or the use of ‘‘ any ’’ or

‘‘ no ’’ as descriptors of, or surrogates for, impacts. Through this proposed rulemaking, DOE proposes to replace these terms with ‘‘would not have the potential to cause significant impacts ’’ or a similar construct (for example, describing a physical change that serves as a surrogate for impacts, such as in categorical exclusions B1.18, B3.4, B3.9, and B5.2). By the proposed changes, DOE’s implementing regulations are now clearly aligned with the regulatory
standard in NEPA. See 40 CFR 1508.4. Additionally, by this proposed change, DOE seeks to clarify the affected provisions and to facilitate consistent application. See also 40 CFR 1508.27 (addressing the meaning of

‘‘ significantly ’’ as used in NEPA).

DOE’s review of the existing provisions demonstrated the need for clarification and consistency. For example, the existing categorical exclusion B3.8 requires that the action

‘‘would not result in any permanent change to the ecosystem. ’’ A literal reading of this categorical exclusion would bar its use if there were any permanent change to the ecosystem, even a change that would not have the potential to cause significant impacts. DOE acknowledges that this is not what NEPA requires and thus DOE proposes to rephrase the categorical exclusion to incorporate the appropriate NEPA standard, phrased as ‘‘would not have the potential to cause significant impacts on the ecosystem. ’’ In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B(4), B1.5, B1.11,
B1.18, B1.24, B1.31, B2.3, B3.1, B3.3, B3.8, B3.9, B4.6, B5.1, B5.2, B5.12, C8.

B.5. On DOE Sites/Onsite/Employee

In recent years, DOE’s proposed actions have included more applicant proposals, including those for DOE loan guarantees, grants, cooperative agreements, and other forms of financial assistance, particularly for programs created under the Energy Policy Act of 2005, the Energy Independence and Security Act of 2007, and the American Recovery and Reinvestment Act of 2009. In an applicant situation, DOE’s proposed action normally would not be located on a DOE site, but rather on private property or land administered by other agencies ( e.g., Bureau of Land Management). In recognition of DOE’s recently expanded activities, DOE is proposing, where appropriate, to delete
references to ‘‘DOE site, ’’ ‘‘ onsite, ’’ or

‘‘ employee ’’ from its classes of actions. For example, DOE is proposing to amend existing categorical exclusion B1.13, Pathways, short access roads, and rail lines, by deleting ‘‘ onsite ’’ and instead inserting the condition that the construction, acquisition, and relocation of these linear features be ‘‘ consistent with applicable right-of-way conditions and approved land use or transportation improvement plans. ’’ The significance of environmental impacts resulting from a class of actions does not depend on whether they occur at DOE sites.

In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions:
B1.13, B1.15, B1.29, B1.32, B3.1, B6.10, C7, D7.

B.6. Previously Disturbed or Developed

Area

In DOE’s experience, the potential for certain types of actions to have significant impacts on the human environment is generally avoided when that action takes place within a previously disturbed or developed area,
i.e., land that has been changed such
that the former state of the area and its functioning ecological processes have been altered. Thus, DOE includes a requirement in several of its proposed provisions that actions be located within previously disturbed or developed areas. In other instances, the existing provision contains a similar requirement, and DOE proposes to replace the existing language with the phrase ‘‘ previously disturbed or developed area’’ for purposes of internal consistency. In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions: B1.31, B2.1, B3.6,
B3.10, B3.12, B4.6, B4.7, B4.8, B4.12, B5.1, B5.5, B5.8, B6.10, C4, C11.

B.7. Small/Small-Scale/Minor/ Negligible/Short/Short-Term

DOE uses adjectives (such as ‘‘ small, ’’

‘‘ small-scale, ’’ ‘‘ minor, ’’ ‘‘ negligible, ’’

‘‘ short, ’’ and ‘‘ short-term ’’ ) as limitations in a variety of its existing and proposed provisions and recognizes that these descriptors are subjective. In general, DOE did not and does not propose to define these terms, and DOE would apply a reasonable interpretation to
such terms within the context of individual proposals. The CEQ regulations state that ‘‘ significantly, ’’ as used in NEPA, requires consideration of context and intensity. See 40 CFR 1508.27. Likewise, consideration of context and intensity is useful when interpreting descriptors such as small,small-scale, minor, short, and shortterm, in making categorical exclusion determinations for proposals. (DOE proposes to discontinue the use of the
word ‘‘ negligible. ’’ )

For example, in considering whether
the use of 5–10 acres of land is ‘‘ small ’’


### 219 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

for a particular proposal, it is reasonable
to conclude that 5–10 acres of land at a large DOE site would likely be
considered ‘‘ small, ’’ but 5–10 acres of land might not be considered ‘‘ small ’’ in
an urban environment. In some instances, however, the Department has quantified these descriptors because the size is more directly linked to impacts. For example, DOE categorizes a ‘‘ small ’’ area for outdoor ecological and other environmental research as generally less than 5 acres in its existing categorical exclusion B3.8. Additionally, DOE
defines ‘‘ small ’’ water treatment facilities as those that have a total capacity of less than 250,000 gallons/day in existing categorical exclusion B1.26.

In order to facilitate consistent understanding and application of this concept, DOE, therefore, proposes changes to the following provisions:
B1.2, B1.13, B1.15, B3.6, B3.8, B4.13, B5.1, B5.4, B5.7, C8.

C. Proposed Changes to Subpart D (Other Than Appendices)

10 CFR 1021.410 Application of Categorical Exclusions (Classes of Actions That Normally Do Not Require EAs or EISs)

DOE proposes to clarify four requirements in 10 CFR 1021.410. First, DOE proposes to remove the reference to Section 102(2)(E) of NEPA to clarify
that DOE’s consideration of unresolved conflicts concerning alternative uses of available resources is independent of
the need to evaluate alternatives in an EA as indicated in Section 102(2)(E) of

NEPA.

Second, in 10 CFR 1021.410(b)(3), DOE proposes to refer explicitly to the requirement that a categorically excludable project has not been segmented. DOE also proposes to change its references to the CEQ regulations to clarify consideration of potential cumulative impacts (40 CFR 1508.27(b)(7)), and to clarify that its
references to 40 CFR 1506.1 and 10 CFR
1021.211 concern limitations on actions during EIS preparation.

Third, DOE proposes to add site preparation and purchase and installation of equipment to 10 CFR 1021.410(d) as examples of activities foreseeably necessary to implement proposals that are encompassed within
the class of actions.

Fourth, DOE proposes to codify its policy to document and post online appendix B categorical exclusion determinations at 10 CFR 1021.410(e), consistent with the policy established by the Deputy Secretary of Energy’s Memorandum to Departmental
Elements on NEPA Process Transparency and Openness , October 2,

2009.

D. Proposed Changes to Appendix A— General Agency Actions

For an explanation of recurring proposals applicable to the appendix A categorical exclusions, please see Section IV.B, Recurring Proposals, above, where these proposed revisions are discussed and where the particular provisions affected are listed. The short titles listed below for particular categorical exclusions reflect DOE’s proposed titles.

A1 Routine DOE Business Actions

DOE proposes to replace ‘‘ agency ’’
with ‘‘DOE ’’ to clarify that this categorical exclusion applies only to
DOE business actions. DOE also proposes to limit such actions to administrative, financial, and personnel

actions.

A7 [Removed and Reserved: Transfer of Property, Use Unchanged]

To increase transparency of DOE’s NEPA processes, DOE proposes to delete this categorical exclusion and to incorporate its key components within B1.24, which also addresses property transfers, so that any categorically excluded property transfers are
documented and made available to the public. ( See proposed changes to 10 CFR 1021.410(e) concerning documentation and public availability of DOE’s appendix B categorical exclusion determinations.)

In response to DOE’s December 2009 Request for Information, a commentor expressed concern that DOE, in making land transfer decisions under existing categorical exclusion A7, would be

‘‘ circumventing local authority ’’ and

‘‘ normal land use planning and zoning

processes. ’’ See the discussion of categorical exclusion B1.24 for DOE’s

response.
A9 Information Gathering, Analysis,
and Dissemination

DOE proposes to clarify this categorical exclusion by providing site visits as an additional example of an action included within the category.

A13 Procedural Documents

DOE proposes to clarify this categorical exclusion by providing additional examples of actions included within the class of actions ( e.g., Policies
and Manuals within the DOE Directives System).

E. Proposed Changes to Appendix B

For an explanation of recurring proposals applicable to the appendix B categorical exclusions, please see Section IV.B, Recurring Proposals, above, where these proposed revisions are discussed and the particular categorical exclusions affected are
listed. The short titles listed below for particular categorical exclusions reflect DOE’s proposed titles.

Integral Elements of the Classes of Actions in Appendix B

In appendix B(4), DOE proposes to clarify its use of ‘‘ environmentally sensitive resource, ’’ defining it as

‘‘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. ’’ This definition is not intended to, and does not, grant, expand, create, or diminish any legally enforceable rights, benefits, or responsibilities, substantive or procedural, not otherwise granted or created under existing law. Nor shall this language be construed to alter, amend, repeal, interpret, or modify Tribal sovereignty, any treaty rights of any Indian Tribes, or to preempt, modify, or limit the exercise of any such rights.

In appendix B(4)(i), DOE proposes to
add ‘‘ Federally recognized Indian Tribe ’’ to its list of entities that designate property as historically, archeologically, or architecturally significant. DOE also proposes to redefine other environmentally sensitive properties as

‘‘ determined to be eligible ’’ for listing on the National Register of Historic Places (rather than the phrase ‘‘ eligible for listing, ’’ which is used in the existing provision, but is not the proper characterization of an official listing). In appendix B(4)(iii), DOE proposes to apply the same definition of floodplains and wetlands in its NEPA regulations as that used in DOE’s floodplain and
wetland environmental review regulations (10 CFR part 1022.4). In appendix B(4)(iv), DOE proposes to supplement the list of areas having special designation with additional examples (national monuments and scenic areas). In appendix B(4)(v), DOE proposes changes to the prime agricultural lands listing to conform to the terminology of the applicable regulation (7 CFR 658.2(a), ‘‘ Farmland Protection Policy Act: Definitions ’’ ).

In response to the Department’s December 2009 Request for Information,
one commentor addressed DOE’s list of

‘‘ environmentally sensitive resources ’’ in appendix B(4). First, the commentor indicated that DOE must recognize State and Tribal protected or candidate species and habitat as equal to Federally designated or considered species and


### 220 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

habitats. Currently, appendix B(4)(ii)
includes consideration of State-listed endangered and threatened species and their habitats, and DOE is proposing to add Federally-protected marine
mammals and Essential Fish Habitat to the list of environmentally sensitive resources. DOE is not proposing to include Tribal protected or candidate species and habitat because it is DOE’s understanding that Tribes do not have the authority to designate species or habitat for protection outside of Tribal
lands.

Second, the commentor stated that

‘‘ groundwater and aquifers are State, not
Federal resources ’’ and indicated that DOE’s regulations must protect andpreserve all aquifers, and not just solesource aquifers. The commentor further stated that adverse impacts to rivers, lakes, and bays, among other bodies of water, should not be allowed ‘‘unless they are specifically covered by a State and/or Tribal discharge permit under appropriate authority. ’’ DOE is not proposing a change to the existing appendix B(4)(vi), which lists ‘‘ special sources of water (such as sole source aquifers, wellhead protection areas, and
other water sources that are vital in a region) ’’ in its list of environmentally sensitive resources, because those resources are listed as examples and are not the only water sources to be considered in applying a categorical exclusion. Further, the existing appendix B(4) includes States and Federally recognized Tribes as entities with jurisdiction to identify water sources needing protection.

Categorical Exclusions Applicable to Facility Operation (B1)

B1.1 Changing Rates and Prices

DOE proposes to change this categorical exclusion to encompass the setting of ‘‘ prices ’’ as well as ‘‘rates ’’ (prices apply to products, and rates apply to services) and to consider price and rate changes instead of only increases. DOE proposes to change the measure of inflation specified in this categorical exclusion from the Gross National Product fixed weight price index, which the Department of Commerce no longer publishes, to the implicit price deflator for Gross Domestic Product. ( See the Technical Support Document.)

B1.2 Training Exercises and
Simulations

DOE proposes to provide additional examples of training actions (namely,
small-scale and short-duration force-onforce exercises, and decontamination and spill cleanup training), and has added the condition that all training
exercises and simulations be conducted under appropriately controlled
conditions and in accordance with applicable requirements. The term

‘‘ force-on-force ’’ as used in this categorical exclusion refers to activities
such as assault and defensive team exercises conducted by security forces or military units, often on parcels of DOE property not in use. Exercises that test the ability of security forces to defend a facility are one common example of this type of training. DOE’s experience with these types of security force and military training actions and emergency response training at its sites indicates that they fit within the class of actions. ( See the Technical Support Document.)

B1.3 Routine Maintenance

DOE proposes to clarify that routine maintenance actions may occur as a result of nonroutine events ( e.g., severe weather, such as hurricanes, floods, and tornadoes, and wildfires) by adding a sentence to that effect in its description of routine maintenance. Normally, maintenance following a nonroutine event would qualify as routine maintenance; however, for a nonroutine event, the potential for extraordinary circumstances is higher ( e.g., increased exposure to pesticides due to extreme runoff).

DOE proposes to clarify the scope of the categorical exclusion by providing additional examples of activities. Specifically, DOE is proposing to clarify that replacement is included in the categorical exclusion’s scope under items (a), (c), and (e), as well as the existing example of repair; to add

‘‘ lighting ’’ to those items that can be repaired or replaced (item (e)); to add

‘‘ scraping and grading of unpaved
surfaces ’’ to the example of road and parking area resurfacing (item (j)); and to add the additional example of

‘‘removal of debris ’’ under item (p). DOE’s experience with these activities has demonstrated that they properly fit
within this class of actions.

In response to the Department’s December 2009 Request for Information,
one commentor stated that use of pesticides for outdoor or aquatic use should not be the subject of a categorical exclusion; instead an EA should be prepared. The commentor expressed a specific concern about the possibility for environmental impacts beyond the intended application. In existing categorical exclusion B1.3, DOE has
described routine maintenance activities including localized vegetation and pest control. DOE now proposes to clarify that any routine maintenance activities would be conducted in a manner in accordance with applicable requirements. In the case of pesticides and other chemicals, for example, the proposed change would provide that the application would be in accordance with the registered and approved uses established by appropriate authorities to minimize the possibility of environmental impacts beyond the product’s intended application.

B1.5 Existing Steam Plants and Cooling Water Systems

DOE proposes to delete the words

‘‘within an existing building or

structure, ’’ so as to include modifications to ponds, which may be outdoor components of cooling water systems. This proposed expansion of the scope of this categorical exclusion
would address the need for improvements to an entire cooling water system, rather than only those parts of a system associated with structures. Based on DOE experience, minor improvements would not have the potential to cause significant impacts, provided the three limitations placed on the scale and type of improvements listed in the categorical exclusion are

met.

DOE also proposes to add minor improvements of existing steam plants in the scope of the categorical exclusion. DOE’s experience is that these actions, when subject to the three limitations placed on the scale and type of such improvements, fit appropriately within
this class of actions and would not have the potential to cause significant impacts.

B1.7 Electronic Equipment

DOE proposes to update the existing categorical exclusion by adding examples of current technology and equipment that improve operational efficiency and stability of the nation’s power grid, commonly referred to as

‘‘ smart grid ’’ technologies. Based on DOE’s experience, such technology and equipment ( i.e., electricity transmission control and monitoring devices for grid demand and response) fit within the scope of this categorical exclusion.

B1.9 Airway Safety Markings and Painting

DOE proposes to include repair and in-kind replacement of lighting within the scope of this categorical exclusion. Within the context of this categorical exclusion, in-kind replacement is defined as replacement that does not result in a significant change in the expected useful life, design capacity (for example, energy output in lumens), function, or shielding of existing


### 221 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

lighting. The initial installation of such lighting would remain ineligible for categorical exclusion. In addition, DOE proposes to add wind turbines as
structures similar to transmission lines
and antenna structures to which the exclusion applies. DOE has determined that these proposed changes would not have the potential to cause significant impacts.

B1.11 Fencing

DOE proposes to clarify that the limitation in this categorical exclusion applies to fencing that would have the potential to cause significant impacts to
surface water flow or wildlife populations or migration, as opposed to individual animal movements. Fencing can and probably often does affect individual movements, but such impacts on individual animals would not be considered significant unless the context and intensity of the impacts would have the potential to cause significant impacts to wildlife populations or migration.

B1.12 Detonation or Burning of Explosives or Propellants After Testing

DOE proposes to delete the restriction that explosives or propellants must have
failed in outdoor tests and thus to expand the categorical exclusion to include explosives or propellants that
failed in indoor tests. Whether the explosives or propellants were tested indoors or outdoors, the outdoor detonation or burning of those explosives or propellants would not have the potential to cause significant impacts. The phrase ‘‘ otherwise not consumed in testing ’’ refers to excess or residual explosive or propellant
materials that remain after a test is completed. DOE also proposes to specify one type of permit under the Resource Conservation and Recovery Act that could be applicable.

In response to DOE’s December 2009 Request for Information, one commentor requested that DOE specify the amount, types, and methods allowed for the activities included in this categorical
exclusion. DOE has determined that the limits contained in this categorical exclusion do not require quantification and is not proposing any changes to the categorical exclusion in response to this

comment.

B1.13 Pathways, Short Access Roads,
and Rail Lines

DOE proposes to expand the scope of the categorical exclusion to include more projects related to transportation, recreation, and fitness ( e.g., pedestrian walkways and trails, bicycle paths, and small outdoor fitness areas). Other Federal agencies that have categorical exclusions for comparable projects are the Bureau of Indian Affairs, the Federal Highway Administration, and the Department of Homeland Security, and the experience of these agencies supports DOE’s proposed expansion of this categorical exclusion.

DOE also proposes to include a condition in the categorical exclusion
that the actions be consistent with existing rights-of-way and approved land use or transportation improvement plans. In addition, DOE proposes to replace ‘‘railroads ’’ with the term ‘‘rail lines, ’’ adding branch or spur lines as examples. DOE’s experience is that the
construction of rail access to or within an existing site has generally occurred at a scale that is better characterized by
these small-scale activities—branch line (a secondary rail line which may branch off a main line) and spur (a rail track on which cars are left for loading, unloading, or rail car storage).

In response to the DOE’s December 2009 Request for Information, a
commentor stated that road construction or expansion should not be the subject of a categorical exclusion. Further, the commentor expressed a concern about the potential for damage to ‘‘ high quality, high priority habitat’’ as a result of constructing and operating roads and that use of such a categorical exclusion
would limit or circumvent consideration of appropriate mitigation
for habitat disturbance or loss. As outlined above, DOE’s proposed amendments to categorical exclusion B1.13 require the construction, acquisition, and relocation of short
access roads and rail lines to be consistent with applicable right-of-way conditions and approved land use or transportation improvement plans. Furthermore, consideration of the integral elements in applying this categorical exclusion addresses the possibility of damage to ‘‘ high quality, high priority habitat’’ because, among other things, one of the

‘‘ environmentally sensitive resources ’’ to consider in those integral elements is habitat for Federally or State-listed species. ( See the Technical Support Document.)

B1.15 Support Buildings

DOE proposes to expand the list of examples of support buildings and support structures to include those for

‘‘ small-scale fabrication (such as machine shop activities and modularbuildings), assembly, and testing of nonnuclear equipment or components. ’’ Such structures are comparable to, or smaller in scale than, other structures given as examples in the categorical exclusion, and DOE’s experience at DOE sites is that siting, construction, and operation of these activities normally fit within the class of actions. Also, DOE proposes to further clarify the scope of the categorical exclusion by specifying
that it excludes facilities for nuclear weapon activities.

B1.19 Microwave, Meteorological, and
Radio Towers

DOE proposes to add ‘‘ modification, ’’

‘‘ abandonment, ’’ and ‘‘removal ’’ to the
list of activities included in this class of
actions in order to describe the complete life cycle of categorically excluded towers. In DOE’s experience, modification, abandonment, and
removal of these towers and associated facilities, when subject to the restrictions in this categorical exclusion, would have fewer impacts than
construction and would not have the potential to cause significant impacts.

DOE proposes to include meteorological towers as an additional example of applicable facilities within this categorical exclusion because DOE
has determined that the environmental impacts resulting from siting, construction, modification, operation, abandonment, and removal of meteorological towers would be similar to the impacts from these activities relating to microwave and radio towers already contained in the scope of the existing categorical exclusion.

DOE proposes to clarify the restriction in the existing categorical exclusion, by replacing ‘‘ great visual value ’’ with a more objective criteria of

‘‘ governmentally designated scenic area’’ and cross-referencing to the relevant integral element (appendix B(4)(iv)).

B1.20 Protection of Cultural Resources, Fish and Wildlife Habitat

DOE proposes to add to the scope of this categorical exclusion by referencing activities taken to protect cultural resources and by including examples of those activities (fencing, labeling, or flagging). DOE’s Power Marketing Administrations often engage in such
activities for cultural and wildlife protection purposes, and these activities would not have the potential to cause significant impacts. DOE also proposes to include a condition in the categorical
exclusion that the activities would be
conducted in accordance with an existing natural or cultural resource plan, if any.

B1.23 Demolition and Disposal of Buildings

In response to DOE’s December 2009 Request for Information, one commentor questioned whether there should be a


### 222 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

size limitation for the activities under this categorical exclusion. Further, the
commentor asked how DOE takes into consideration possible contamination when applying this categorical exclusion. In response to these comments, DOE proposes to modify this categorical exclusion by adding a
limitation that these activities could be categorically excluded only if 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.

The application of this categorical
exclusion is intended to be based on existing data and knowledge about historical uses of the area, including chemical and other processes employed. DOE has extensive experience (former Rocky Flats Site, Hanford Site, Idaho National Laboratory, and other sites) in determining the potential for release of
harmful substances from activities through modeling and safety basis
authorization documentation. Potential hazards are considered before taking action (for example, demolition actions), and monitoring is conducted, as appropriate, to verify that there are no harmful releases of radiological or
hazardous materials. Potential for releases can reliably be determinedthrough site inventories, the use of wellestablished release models, and established best practices.

B1.24 Property Transfers

As discussed under categorical exclusion A7 (above), DOE proposes to delete A7 and incorporate its key components, including transfers of personal property (equipment and materials), within B1.24. By doing this, DOE makes categorical exclusion determinations for property transfers subject to documentation and online posting. DOE proposes to remove the
reference to ‘‘uncontaminated ’’ as unnecessary given the incorporation of
the substance of this limitation in the revised categorical exclusion.

DOE proposes to delete the phrases

‘‘there would not be any lessening in quality or increases in volumes, concentrations, or discharge rates, of wastes, air emissions, or water effluents ’’
and ‘‘ environmental impacts would generally be similar to those before the
transfer’’ as potentially inconsistent. DOE proposes to replace these phrases
with ‘‘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 ‘‘would not have the potential to cause a significant change in impacts from the
transfer. ’’ Such terminology will, in DOE’s experience, ensure that any property transfers under this categorical exclusion would not have the potential to cause significant impacts.

In response to DOE’s December 2009 Request for Information, a commentor expressed concern that DOE, in making land transfer decisions under existing categorical exclusion A7, would be

‘‘ circumventing local authority ’’ and

‘‘ normal land use planning and zoning

processes. ’’ The potential applicability of such authority and processes to a potential land transfer would be addressed on a case-by-case basis.

B1.25 Property Transfers for Cultural Resources Protection, Habitat Preservation, and Wildlife Management

DOE proposes to include in B1.25 actions undertaken to protect cultural resources. DOE’s Power Marketing Administrations often engage in property transfers for cultural protection purposes. Based on this experience, DOE finds property transfers intended for protecting cultural resources normally would not have the potential to cause significant impacts. Further, DOE proposes to remove the limitation that only associated buildings supporting certain purposes are to be transferred with property under this categorical exclusion, because the existing purpose of structures present on a property to be transferred for wildlife or cultural resource purposes is unrelated to environmental impacts
associated with such transfer.

Also, for the reasons discussed for categorical exclusion B1.24, above, DOE proposes to eliminate the references to

‘‘uncontaminated, ’’ but include a limitation on actions subject to categorical exclusion B1.25, that there would be no potential for release of a substance at a level or in a form, that could pose a threat to public health or
the environment.

B1.29 Disposal Facilities for
Construction and Demolition Waste

DOE proposes to add ‘‘ expansion ’’ and

‘‘ modification ’’ to the list of activities included in this categorical exclusion in order to include all aspects of the life cycle of the disposal facilities. In DOE’s experience, expansion and modification actions, when subject to the limitations expressed in this categorical exclusion, would have fewer impacts than construction, and would not have the potential to cause significant impacts.

B1.30 Transfer Actions

DOE proposes to modify this categorical exclusion (based on its experience transferring materials and equipment) to remove the condition that the amounts of materials, equipment, or waste being transferred must be ‘‘ small
and incidental ’’ to the amount of such material at the receiving site. Instead, DOE proposes to add a condition that the receiving site has existing storage capacity and management capability for
the material.

In addition, DOE proposes to limit use of the categorical exclusion to, as appropriate, facilities and operations that are already permitted, licensed, and approved. That is, this proposed categorical exclusion would not apply to circumstances where the receiving site requires a permit or license amendment or variance from its existing approvals in order to receive or manage the materials, and it also would not apply to circumstances where the receiving facilities are not yet completed and operational.

DOE has decades of experience transporting materials, including various types of radioactive materials and waste, and has completed NEPA reviews of such transportation under many different scenarios. DOE NEPA reviews of such transfers consistently
show that these actions would not have the potential to cause significant impacts. Nevertheless, DOE will continue to analyze transportation impacts in EAs and EISs where the scope of the proposed action presents the potential for significant impacts or where the proposed action fails to meet
the conditions contained in this categorical exclusion. ( See the Technical Support Document.)

B1.31 Installation or Relocation of Machinery and Equipment

DOE proposes several changes to this categorical exclusion. DOE proposes to
add ‘‘ installation ’’ to the list of actions,
which is now limited to the ‘‘relocation ’’ of machinery and equipment; explicitly
include ‘‘ operation ’’ of installed or relocated machinery and equipment;
add ‘‘ manufacturing machinery ’’ in the list of examples of machinery and equipment; and clarify that the scope of the categorical exclusion includes modifications to an existing building, within or contiguous to a previously disturbed or developed area, provided
that the modifications do 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. DOE also proposes to delete the restriction that
uses of the installed or relocated equipment be similar to their former uses, because it is duplicative of the
limitation that the actions be consistent with the general missions of the receiving structure. DOE has determined


### 223 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

that these proposed changes would not have the potential to cause significant impacts.

In response to DOE’s December 2009 Request for Information, one commentor suggested that DOE categorically exclude projects ( e.g., residential, commercial, and industrial) that involve retrofitting or retooling of existing structures, provided that the projects do not include new construction, disturb previously undisturbed areas, or require new or significantly modified environmental permits. Further, the commentor explained that such a categorical exclusion would help facilitate alternative energy manufacturing projects ( e.g., batteries, solar equipment, and wind turbines) that are proposed to be located in existing manufacturing/industrial facilities and complexes. As described above, DOE has proposed several changes to this categorical exclusion
that address these comments.

B1.32 Traffic Flow Adjustments

Because DOE proposes to broaden the scope of this categorical exclusion to include actions off DOE sites ( see Recurring Proposals, Section IV.B), DOE proposes to require that the activities in this categorical exclusion occur within an existing right-of-way and be consistent with approved land use or transportation improvement plans. A

‘‘traffic flow adjustment’’ is a change to the flow of traffic on an existing street or road. Statewide and Metropolitan Transportation Planning processes are regulated by the U.S. Department of Transportation (23 CFR part 450, subparts B and C, respectively) and result in approved, legally-binding, multiyear plans that stipulate transportation actions that may be carried out in a given area and over a given length of time.

B1.33 Stormwater Runoff Control

DOE proposes a new categorical
exclusion for stormwater runoff control practices that reduce stormwater runoff and maintain natural hydrology. The actions included in the proposed categorical exclusion are found in Environmental Protection Agency’s Guidance No. EPA 841–B–09–001, Technical Guidance on Implementing the Stormwater Runoff Requirements for Federal Projects under Section 438 of the Energy Independence and Security Act (December 2009). Based on the experience of Federal agencies, the opinions of subject matter experts, and private sector experience developing and deploying stormwater runoff control and low impact development practices, the types of actions included in this categorical exclusion are, in most cases, mitigation or best management practices commonly employed to protect surface water quality and to
reduce erosion associated with runoff.
DOE has concluded that such activities would not have the potential to cause significant environmental impacts. ( See the Technical Support Document.)

B1.34 Lead-Based Paint

DOE proposes a new categorical exclusion for the containment, removal, and disposal of lead-based paint. This proposed categorical exclusion is based on laws and regulations governing such activities for buildings and other structures. Use of the proposed categorical exclusion would require adherence to applicable laws and regulations. Further, the creation of this categorical exclusion is supported by existing lead paint removal categorical
exclusions from the Environmental Protection Agency and the Department of the Army. DOE has determined that such paint removal actions would not have the potential to cause significant impacts. ( See the Technical Support Document.)

B1.35 Drop-Off, Collection and Transfer Facilities for Recyclable
Materials

DOE proposes a new categorical exclusion for the siting, construction, modification, and operation of arecycling or compostable material dropoff, collection, and transfer station on or contiguous to developed or previously
disturbed land and in an area where such a facility would be consistent with existing zoning requirements. The Department of Homeland Security and the Department of Agriculture’s Rural Utilities Service have existing categorical exclusions for similar facilities. Specifically, Homeland Security has a categorical exclusion for the recycling of non-hazardous materials from routine/operational activities, and the Rural Utilities Service has a categorical exclusion for the
construction of facilities for the transfer of waste that will be recycled or stored.
DOE has determined that the limitations placed on recycling stations proposed in this new categorical exclusion would
ensure that such actions would not have the potential to cause significant impacts. ( See the Technical Support Document.)

B1.36 Determinations of Excess Real Property

DOE proposes a new categorical
exclusion for determinations that real property is excess to the needs of the Department. This proposed categorical exclusion includes associated reporting
of such determinations to the General
Services Administration and the Bureau of Land Management, as appropriate. DOE would allow the categorical exclusion of reporting of excess property, but the actual disposal of real property is not included in the scope of this proposed categorical exclusion.

Other Federal agencies ( e.g., Department of Homeland Security) have existing categorical exclusions for determinations of excess real property and, based on a review of these categorical exclusions, DOE has determined that it would be conducting
the same or similar activities under similar circumstances. Accordingly,
DOE has concluded that its activities under this proposed categorical exclusion would not have the potential to cause significant impacts. ( See the Technical Support Document.)

Categorical Exclusions Applicable to Safety and Health (B2)

B2.1 Workplace Enhancements

DOE proposes to clarify that improvements to enhance workplace habitability may include installation of equipment necessary for the improvements by adding ‘‘ installation ’’ before its examples of improvements.
DOE has determined that installation and subsequent operation of equipment necessary for improvements to workplace habitability would not have the potential for significant environmental impacts.

B2.2 Building and Equipment

Instrumentation

DOE proposes clarifying the scope of the existing categorical exclusion by providing additional examples of instrumentation (water consumption monitors and controls).

B2.4 Equipment Qualification

DOE proposes to delete the reference to DOE Order 5480.6 ( ‘‘ Safety of DOE
owned Nuclear Reactors ’’ ) because it has been cancelled. Actions previously encompassed by the Order are still performed by DOE and other organizations to qualify equipment for use and are still appropriate for a categorical exclusion, and DOE proposes to provide examples of such
actions. Calibration of sensors anddiagnostic equipment, crane and liftgear certifications, and high efficiency particulate air ( ‘‘ HEPA ’’ ) filter testing and certifications, to name a few, are activities that DOE proposes to list as examples in the categorical exclusion. These types of actions have been performed routinely by DOE, other


### 224 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

Federal agencies, and private entities. In DOE’s experience, these activities would not have the potential to cause significant impacts.

B2.6 Recovery of Radioactive Sealed

Sources

DOE proposes changes to this categorical exclusion to better reflect the current scope of DOE’s sealed source recovery activities. At the time the existing categorical exclusion was established, the focus of DOE’s effortswas primarily the recovery of DOEowned radioactive materials that had been loaned or leased, such as to universities for research, and a small
number of sealed sources. DOE later established the Off-Site Source Recovery Project (OSRP) to reflect an increased emphasis on recovery of sealed sources from Nuclear Regulatory Commission (NRC) and Agreement State licensees in response to requests from the NRC and other Federal or State agencies. After 2001, DOE further expanded the scope of OSRP to focus on the recovery of sources with a wider variety of radioisotopes of concern from a public health, safety, or national security perspective. Due to their high activity and portability, many sealed sources could be used either individually or in aggregate in radiological dispersal devices commonly referred to as ‘‘ dirty
bombs. ’’ DOE prioritizes the recovery of
radioactive sealed sources based on threat reduction criteria developed in
coordination with the NRC. DOE’s experience with the recovery of more than 25,000 radioactive sealed sources
since 1979 demonstrates that these activities are routinely conducted and do not have the potential to cause significant environmental impact.

DOE proposes to simplify the existing categorical exclusion to address the 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.

These proposed changes would reflect changes in DOE’s source recovery activities since the existing categorical exclusion was formulated. First, recovery activities are no longer limited to requests from NRC or other Federal or State agencies. DOE also considers requests for source recovery from foreign governments and private parties, including private parties in foreign countries. Also, DOE provides financial and technical support to third parties (principally the Conference of Radiation Control Program Directors) for source recovery activities. Second, the scope of
DOE activities is not limited to materials
or licensees addressed in 10 CFR 51.22(14).

The proposed changes also would
remove the reference to certain items that are not sealed sources (such as uranium shielding material and packaged radioactive waste not exceeding 50 curies). DOE has determined that the packaging, transportation, and storage of these types of materials normally would fit within categorical exclusion B1.30, Transfer actions. ( See the Technical Support Document.)

Categorical Exclusions Applicable to Site Characterization, Monitoring, and General Research (B3)

B3.1 Site Characterization and Environmental Monitoring

DOE proposes several changes to categorical exclusion B3.1. DOE proposes to limit the scope of this categorical exclusion to terrestrial characterization and monitoring, as DOE is proposing a new categorical exclusion
for such actions in salt water and freshwater environments (categorical exclusion B3.16 below). DOE also proposes to limit categorically excluded
activities to those that would not have the potential to cause significant impacts from ground disturbance. Based on a project description for seismic surveying submitted by a commentor in response to DOE’s December 2009 Request for Information, and after considering the potential scale of seismic surveying projects, DOE proposes to also limit the scope of the categorical exclusion so as not to include large-scale reflection or refraction testing with regard to seismic techniques.

One commentor responding to DOE’s Request for Information suggested that DOE’s list of categorical exclusions match all the categorical exclusions currently being used by the Bureau of Land Management and the U.S. Forest Service, particularly for geophysical surveys for exploration of geothermal
resources. Another commentor suggested that DOE include a categorical exclusion for terrestrial seismic survey activities. In response to both comments, DOE notes that item (a) of the existing B3.1 categorical exclusion lists geological, geophysical, and geochemical surveying and mapping, including seismic surveying, as examples of actions in the scope of the categorical exclusion. Thus DOE determined that it was not necessary to propose new categorical exclusions in response to these comments.

DOE proposes to clarify the scope of the existing categorical exclusion, however, by providing additional examples of actions that DOE’s experience has demonstrated properly
fit within this class of actions. In response to the suggestion above and from another commentor concerning geothermal resources, DOE proposes to include temperature gradient surveying as an example of geophysical surveying activities encompassed within item (a). DOE also proposes to add underground reservoir response testing for item (d). The potential impacts of aquifer andreservoir response testing are wellknown and normally insignificant; underground reservoir response testing could help determine, for example, whether further study of a reservoir for carbon sequestration purposes is warranted. DOE also proposes to add drilling using truck or mobile-scale equipment and modification, use, and plugging of boreholes as representative examples of small-scale drilling activities under item (f). DOE experience indicates that these changes would not have the potential to cause significant impacts. ( See the Technical Support Document.)

B3.3 Research Related to Conservation of Fish, Wildlife, and Cultural

Resources

DOE proposes to modify this categorical exclusion to include actions undertaken to protect cultural resources. These types of actions (such as walking a site, visually surveying, and digging small, shallow test holes with hand tools) are similar to types of actions undertaken for wildlife protection and would not have the potential to cause significant impacts.

B3.6 Small-Scale Research and Development, Laboratory Operations, and Pilot Projects

DOE proposes changes to this categorical exclusion for clarity. First, DOE proposes to delete the phrase

‘‘ indoor bench-scale research, ’’ which DOE views as encompassed within

‘‘ small-scale research and development, ’’ which is more easily understood. DOE also proposes to define ‘‘ demonstration

actions ’’ in the context of this categorical
exclusion and the related EA class of

actions C12 as ‘‘ actions that are
undertaken at a scale to show whether a technology would be viable on a larger
scale and suitable for commercial deployment. Demonstration actions frequently follow research and development and pilot projects that are directed at establishing proof of


### 225 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

concept. ’’ This definition reflects DOE’s understanding of the delineation between pilot projects and demonstration projects that would be relevant to the scope of this categorical
exclusion.

B3.7 New Terrestrial Infill Exploratory and Experimental Wells

DOE proposes to modify the scope of the categorical exclusion. DOE proposes to expand the categorical exclusion by providing additional examples of resources (brine, carbon dioxide, coalbed methane, gas hydrate) for which exploratory or experimental wells may be drilled. For carbon sequestration wells, DOE proposes to list examples of possible uses, including, but not limited to, the study of saline formations, enhanced oil recovery, and enhanced
coalbed methane extraction. DOE also proposes to expand the locations where the infill wells may be drilled (now only in fields with operating wells) to fields with properly abandoned wells or
unminable coal seams.

DOE proposes to limit this categorical
exclusion to the terrestrial environment and to require that characterization has verified a low potential for seismicity, subsidence, and contamination of freshwater aquifers.

DOE experience with new infill exploratory and experimental (test) oil, gas, and geothermal wells continues to show that they would not have the potential to cause significant impacts. DOE experience also shows that the potential impacts of infill exploratory
and test wells for substances such as brine, carbon dioxide, coalbed methane, and gas hydrate would be similar and would not have the potential to cause significant impacts under the limitations of this proposed categorical exclusion. Based on DOE’s experience, the proposal to expand the scope of this categorical exclusion, subject to the proposed additional limitations, would not have the potential to cause significant impacts.

DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.

B3.8 Outdoor Terrestrial Ecological
and Environmental Research

DOE is proposing two new categorical exclusions covering small-scale research
activities in salt water and freshwater environments, and those two categorical exclusions limit the types of activities and their location specifically to protect aquatic environments. ( See B3.16 for
research activities in salt water and
freshwater environments and B5.25 for small-scale renewable energy research and development and pilot projects in salt water and freshwater environments.) DOE is therefore proposing to clarify that the types of
covered actions included in B3.8 are solely limited to terrestrial

environments.

DOE is also proposing to clarify that this categorical exclusion includes
small-scale biomass and biofuels
research. Given the current focus on the development of biomass and biofuel production and the need for proof of concept research in this area, DOE proposes to state explicitly that small test plots for energy-related biomass or biofuels research (including the use of genetically engineered plants) are within the scope of this categorical
exclusion.

Research using genetically engineered plants to be grown specifically for biomass production has reached the point where field tests are being performed outdoors for proof of concept purposes. At the same time, residues from biotechnology crops such as corn and soybeans are being tested as feedstocks for biofuel production. Such plants are currently regulated by the U.S. Department of Agriculture and these existing regulatory regimes have analyzed the environmental impacts resulting from the experimental and commercial growth of these crops, so there is no need for DOE to analyze separately these impacts to show their insignificance. DOE has determined that a categorical exclusion would be appropriate for small field tests, provided that the applicant already has all the necessary authorizations from the U.S. Department of Agriculture and received all necessary permissions to proceed with the trial. ( See the Technical Support Document.)

B3.9 Projects To Reduce Emissions
and Waste Generation

This categorical exclusion was initially created for demonstration
actions under DOE’s Clean Coal Technology Demonstration Program. However, after many years of experience with projects that reduce emissions and waste generation at existing fossil fuel facilities and, more recently, at alternative energy facilities, DOE is proposing modifications to the categorical exclusion for these activities regardless of whether or not they are part of DOE’s Clean Coal Technology Demonstration Program. Specifically, DOE is proposing to expand the scope of this categorical exclusion to include projects to reduce emissions and waste generation at alternative fuel ( e.g., biomass) facilities, in addition to fossil fuel facilities. As a result, DOE is proposing conforming revisions throughout this categorical exclusion ( e.g., replacing ‘‘ coal ’’ with ‘‘ fuel ’’ ). Further, DOE proposes to define fuel to
include ‘‘ coal, oil, natural gas, hydrogen, syngas [synthesis gas], and biomass, ’’ and specifically to exclude nuclear
fuels.

Based on its experience with these activities, DOE has found that projects that demonstrate ways to reduce emissions and waste generation at existing fossil or alternative fuel
combustion or utilization facilities would not have the potential to cause significant impacts. ( See the Technical Support Document.) DOE also proposes to remove from categorical exclusion B3.9(a) the 20 percent limitation on test treatment of the throughput product (solid, liquid, or gas) generated at existing, fully operational fuel
combustion or utilization facilities. Although test treatment on a fraction of the throughput product (sometimes
referred to as ‘‘ slipstream testing ’’ ) may be helpful in evaluating new treatment technologies, DOE experience shows
that test treatment of the entire throughput product stream may be needed to provide an adequate
demonstration of the commercial viability of technologies that could reduce emissions from existing facilities. DOE analyses and experience show that such test treatment normally would not have the potential to cause significant impacts under the limitations of this categorical exclusion.

Further, DOE proposes to remove from B3.9(c) the two-year limitation on the addition or replacement of equipment for reduction or control of sulfur dioxide, oxides of nitrogen, or other regulated substances at existing facilities. In DOE’s experience, the potential for significant impacts of such projects does not depend on the
duration of the demonstration. Moreover, two years may be too short a period of time for an adequate demonstration of equipment whose continued use is likely to be beneficial.

In addition to the provisions of B3.9(c), DOE proposes explicitly to
include the 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. The use of such equipment offers the potential for environmental benefits by providing needed information on the costs, operability, and reliability of capture technologies
that could enable their future deployment in existing conventional
coal and other fuel utilization facilities. DOE’s knowledge and experience with the physical or chemical unit processes


### 226 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

that could capture carbon dioxide at existing facilities show such processes would not have the potential to cause significant impacts under the conditions specified in the proposed modification of this categorical exclusion.

B3.10 Particle Accelerators

DOE proposes to modify this categorical exclusion by more clearly specifying the operating parameters for particle accelerators. This categorical exclusion currently has only one limiting parameter (primary beam energy less than approximately 100 million electron volts (MeV)). DOE’s proposed modification would provide two additional limiting parameters (average beam power less than approximately 250 kilowatts (kW) and average current of 2.5 milliamperes (mA)). The voltage would be allowed to increase, as long as the resulting average
current was 2.5 mA. Such result could be accomplished by lowering the power (wattage). Alternately, the wattage could increase if voltage decreased to result in an average current of 2.5 mA. DOE has
determined that the use of three parameters will provide flexibility in the application of the categorical exclusion, but the actions still would not have the potential to cause significant impacts. ( See the Technical Support Document.)

B3.11 Outdoor Tests and Experiments on Materials and Equipment Components

The existing categorical exclusion precludes DOE from categorically excluding outdoor burn, impact, drop, puncture, and similar tests involving radiological sources, whether or not they were encapsulated. Because encapsulated sources can be used safely in these types of tests, DOE proposes to expand the scope of the categorical
exclusion to cover their use under certain conditions. Specifically, DOE is proposing that nondestructive actions such as detector/sensor development and testing and first responder field training, using encapsulated sources that contain source, special nuclear, or byproduct materials, be included in the scope of this categorical exclusion. DOE experience demonstrates that such activities can be done safely and would not have the potential to cause significant impacts.

B3.14 Small-Scale Educational
Facilities

DOE proposes a new categorical exclusion for the siting, construction or modification, operation, and decommissioning of small-scale educational facilities, including, but not limited to, conventional teaching laboratories, libraries, classroom facilities, auditoriums, museums, visitors 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). Based on DOE’s experience, and supported by past NEPA analyses, such activities, under the limitations provided, would not have the potential to cause significant impacts. ( See the Technical Support Document.)

B3.15 Small-Scale Indoor Research and Development Projects Using
Nanoscale Materials

DOE proposes a new categorical exclusion for the siting, construction, or modification, operation, and decommissioning of facilities for indoor small-scale research and development and small-scale pilot projects using nanoscale materials, in accordance with applicable requirements necessary to ensure the containment of any
biohazardous materials. Construction or
modification would be within or contiguous to an already developed area (where active utilities and currently used roads are readily accessible). This proposed categorical exclusion includes activities that are already in the scope of B3.6 (Small-scale research and development, laboratory operations, and pilot projects); however, as part of its rulemaking effort, DOE finds it appropriate to propose a categorical exclusion that specifically addresses
nanoscale activities.

DOE has extensive small-scale or laboratory-scale experience working with engineered (intentionally created, rather than natural or incidentally formed) nanoscale materials. For example, DOE is participating in interagency workgroups, such as the National Nanotechnology Initiative ( http://www.nano.gov/html/about/
home

_ about.html), that seek to promote responsible research and development of nanotechnology, ensure that the important benefits to environmental protection that nanotechnology may offer are realized, and better understand any potential risks from exposure to
nanomaterials in the environment. DOE
conducts basic research and development that supports the National Nanotechnology Initiative at its nanoscale research centers, in accordance with DOE Policy 456.1 (DOE P 456.1, Secretarial Policy Statement on Nanoscale Safety), and best management practices and policies that ensure protection of workers and the environment, such as DOE Nanoscale Science Research Centers: Approach to Nanomaterials ES&H, (Rev3a, May 2008) ( ‘‘ Approach to Nanomaterial ES&H ’’ ) ( http://orise.orau.gov/ihos/ Nanotechnology/
nanotech

_DOE

_Nanoscale

_ SC.html). As explained in ‘‘ Approach to Nanomaterial ES&H, ’’ ‘‘ laboratory-scale ’’ research
excludes those activities whose function is to produce commercial quantities of materials, as defined in 29 CFR 1910.1450(b)(2), ‘‘ Occupational Exposure to Hazardous Chemicals in Laboratories, Definitions. ’’

Laboratory-scale experimentation
with nanoscale materials has been the subject of four DOE EAs, in which the Department has analyzed the construction and operation of
nanomaterials facilities. DOE has determined that, with appropriate controls in place (as specified in the proposed categorical exclusion and described above), these activities would not have the potential to cause significant impacts. ( See the Technical Support Document.)

DOE is particularly interested in receiving comments on this proposed categorical exclusion.

B3.16 Research Activities in Salt
Water and Freshwater Environments

DOE proposes a new categorical exclusion for small-scale, temporary surveying, site characterization, and research actions to be performed in salt
water and freshwater environments. DOE proposes limiting the actions covered by this categorical exclusion to the acquisition of rights-of-way, easements, and temporary use permits; data collection, environmental monitoring, and nondestructive research programs; resource evaluation activities; collection of various types of data and samples; installation of monitoring and recording devices; installation of equipment for flow testing of existing wells; and ecological and environmental
research in a small area.

DOE proposes specifically to exclude
the construction or installation of permanent facilities or devices and to exclude the drilling of resource exploration or extraction wells. In addition, DOE has included several limits on the type, scope, and location of covered actions to protect the aquatic environment from potential significant impacts.

DOE proposes to limit the covered actions in this categorical exclusion through the following conditions. Covered actions under this categorical
exclusion would be conducted in accordance with, where applicable, an approved spill prevention, control, and response plan, and would incorporate appropriate control technologies and


### 227 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

best management practices. Furthermore, none of the above
activities would occur within the boundary of an established marine sanctuary or wildlife refuge, a governmentally proposed marine sanctuary or wildlife refuge, or a recognized area of high biological sensitivity, or outside those areas if the activities would have the potential to cause significant impacts within those areas. Additionally, no permanent
facilities or devices would be constructed or installed. The categorical exclusion also lists other factors, specific to aquatic environments, to be considered by proponents of covered actions before applying this categorical
exclusion to ensure that the activities would not have the potential to cause significant impacts.

DOE has determined that, subject to the proposed limitations, the activities would not have the potential to cause significant impacts. DOE is particularly interested in receiving comments on this categorical exclusion due to heightened sensitivity to activities in the salt water environment in light of recent oil-related incidents. ( See the Technical Support Document.)

Categorical Exclusions Applicable to Power Resources (B4)

DOE proposes to make a number of recurring changes to the categorical exclusion provisions applicable to power resources. In reference to adding electric power resources (such as wind farms) into an electric power system, DOE proposes to use the term

‘‘ interconnection ’’ rather than the term

‘‘ integration ’’ now used in its existing
classes of actions. ‘‘ Interconnection ’’ is
the current term used in the electric
transmission field for such actions. DOE, therefore, proposes changes to the following provisions: B4.1, B4.11,
B4.12, B4.13.

DOE proposes to delete references to

‘‘ main transmission system ’’ in its existing classes of actions as unnecessary because DOE actions would only apply to its own transmission system. DOE, therefore, proposes changes to the following provisions: B4.11, B4.12.

DOE proposes to add pipeline rightsof-way as locations where actions could occur that are now categorically excluded or proposed for categorical exclusion in previously developed ordisturbed transmission line rights-ofway. The impacts from siting, constructing, operating, or decommissioning actions in these linear rights-of-way are essentially similar. DOE, therefore, proposes changes to the following provisions: B4.7, B4.12. (DOE also proposes a similar change to EA class of actions C4.)

B4.1 Contracts, Policies, and Marketing and Allocation Plans for
Electric Power

DOE proposes to simplify the description of the scope of this categorical exclusion, without changing the scope. The categorical exclusion would still apply to electric power contracts, policies, and plans that do not involve a new generation resource and do not involve changes in the normal operating limits of existing generation resources. DOE proposes to delete the existing reference to ‘‘ excess electric

power’’ as unnecessary as it simply applies to power that is available for transmission. DOE is proposing changes to its corresponding classes of actions for EAs (C7) and EISs (D7), as discussed below in Section IV.F and IV.G, respectively.

DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.

B4.4 Power Marketing Services and

Activities

DOE proposes to clarify this categorical exclusion by adding ‘‘ power management activities ’’ to its existing categorical exclusion for power marketing services to indicate that the activities that are appropriately categorically excluded do not necessarily need to be taken in the context of marketing power. The existing categorical exclusion was established based on the experience of DOE’s power marketing administrations, but has been appropriately applied recently by other elements of the Department, for example, in evaluating actions under the American Recovery and Reinvestment Act. The proposed change would provide transparency to DOE’s application of this categorical exclusion, and DOE has determined that
the covered actions would not have the potential to cause significant impacts.

B4.6 Additions and Modifications to
Transmission Facilities

DOE proposes to add ‘‘ load shaping projects (such as the installation and use of flywheels and battery arrays) ’’ to the list of example actions in this categorical exclusion. With the wider deployment and accompanying improvement in load shaping technologies, DOE’s experience
indicates that these actions fit within the scope of this categorical exclusion.

B4.7 Fiber Optic Cable

DOE proposes that certain actions associated with adding fiber optic cable to transmission facilities (such as vaults and pulling and tensioning sites) be within the scope of this categorical
exclusion with certain limitations. DOE has found that it is often necessary to place vaults and pulling and tensioning sites outside of rights-of-way. DOE has determined that, if vaults or such sites are in nearby previously disturbed or developed areas, they would not have the potential to cause significant environmental impact.

B4.9 Multiple Use of Transmission Line Rights-of-Way

DOE proposes to add examples of crossing agreements affecting a transmission facility’s rights-of-way that DOE has determined are in the scope of this categorical exclusion, namely natural gas pipelines, communications cables, and roads.

B4.10 Removal of Electric
Transmission Lines and Substations

DOE proposes to add ‘‘ abandonment’’
and ‘‘restoration ’’ of rights-of-way to the list of activities in this categorical exclusion, because DOE has determined that these actions, which generally
follow the removal of electric transmission lines and substations, would not have the potential to cause significant impacts.

B4.11 Electric Power Substations and
Interconnection Facilities

DOE proposes to add interconnection facilities to its categorical exclusion for
construction or modification of electric power substations because the facilities have similar equipment and function. Substations switch, step down, or regulate voltage of electricity being transmitted, and may serve as controls and transfer points on a transmission system; interconnection facilities add electric power resources to transmission systems through similar functions.

DOE proposes that actions under this categorical exclusion, instead of being
limited to those that do not interconnect a new generation resource (under the existing categorical exclusion), be limited to interconnecting new generation resources that meet two conditions: The new generation resource (1) would be eligible for categorical exclusion under the DOE NEPA regulations (that is, under proposed categorical exclusions for combined heat and power or cogeneration systems (B5.14), solar energy (B5.16 and B5.17), wind energy (B5.18), biomass power plants (B5.20), methane gas recovery and utilization systems (B5.21) and drop-in hydroelectric systems (B5.24)), and (2) would be equal to or less than 50


### 228 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

average megawatts (which is considered a major resource under the Northwest Power Act).

DOE is also proposing to delete actions regarding construction, upgrading, or rebuilding transmission lines from this categorical exclusion
because substation actions do not necessarily involve transmission line actions. Categorically excluded
transmission line actions are addressed in proposed B4.12 and B4.13.

DOE is proposing to delete the
restriction that facilities under this categorical exclusion be limited to no
more than 230 kilovolts because DOE has determined that voltage of a substation or interconnection facility is not a determinant of the potential for significant environmental impacts.

In response to the Department’s December 2009 Request for Information, one commentor suggested that DOE categorically exclude modifications and upgrades to existing substations to accommodate electricity generated from renewable energy sources, to the extent that an upgrade does not increase the overall capacity of the substation or the
disturbed areas associated with the substation, noting that additional capacity is needed at substations throughout the electric grid. DOE notes that it is proposing to delete the
restriction that facilities under this categorical exclusion be limited to no
more than 230 kilovolts.

DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.

B4.12 Construction of Transmission

Lines

DOE proposes to incorporate within the scope of categorical exclusion B4.12 an action currently addressed in the existing categorical exclusion B4.11,
that is ‘‘relocation of existing electric transmission lines approximately 20 miles in length or less. ’’ By doing so,
transmission line construction and rebuilding activities will be consolidated in categorical exclusions B4.12 and B4.13, rather than also included in categorical exclusion B4.11, which predominantly relates to
substations and interconnection facilities. DOE’s long-term experience
with electric transmission line
construction indicates that the approximately 10-mile limit for categorical exclusion of transmission line construction outside of a previously disturbed or developed right-of-way, and the approximately 20-mile limit for categorical exclusion of transmissionline in a previously disturbed right-ofway, have been reliable guides to the appropriate level of NEPA review for
the actions.

DOE proposes that actions under this categorical exclusion, instead of being
limited to those that do not interconnect a new generation resource (as under the existing categorical exclusion), be limited to interconnecting new generation resources that meet the two conditions discussed with respect to categorical exclusion B4.11.

In response to the Department’s December 2009 Request for Information, one commentor suggested that the
addition of transmission lines to existing transmission line or pipeline rights-of-way be categorically excluded.
The commentor noted that additional transmission capacity is required to move electricity generated by renewable resources to population centers and thatadding that capacity in an existing rightof-way will have very little environmental impact. DOE agrees and
does not restrict the addition of transmission lines to an existing transmission or pipeline right-of-way if the limitations specified in the categorical exclusion are met.

DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.

B4.13 Upgrading and Rebuilding Existing Transmission Lines

DOE proposes to continue to categorically exclude the upgrading and rebuilding of existing transmission lines of approximately 20 miles in length or less (including minor relocations of small segments of such lines), as under the existing categorical exclusion B4.13. DOE also proposes to categorically exclude the use of the upgraded or
rebuilt lines for the interconnection of new generation resources that meet the two conditions discussed with respect to categorical exclusion B4.11. Further, DOE proposes to delete the purposes for which minor relocations of the existing line may occur.

DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.

Categorical Exclusions Applicable to Conservation, Fossil, and Renewable Energy Activities (B5)

B5.1 Actions To Conserve Energy or

Water

In B5.1, DOE proposes four types of changes to the existing categorical exclusion: (1) Adding examples to better represent the type of energy conservation actions, including those for which DOE provides financial assistance, that fall within the scope of this categorical exclusion, (2) adding actions to conserve water, (3) deleting reference to renewable energy research and development because DOE is proposing separate categorical exclusions for those actions (under B5.15 and B5.25 below), and (4) including new B5.1(b).

In B5.1(a), DOE proposes to clarify the scope of the categorical exclusion by providing additional examples of
conservation actions similar in nature to the existing examples, such as weatherization, energy efficiency for vehicles and transportation (such as fleet change out), power storage (such as flywheels and batteries, generally less than 10 MW), and transportation management systems (such as traffic signal control systems). DOE’s experience with these proposed covered actions demonstrate that they fit within the scope of the categorical exclusion. In addition, to ensure that the categorical exclusion would not encompass actions with potentially significant impacts on the human environment, DOE proposes to clarify that the actions include building renovations or new structures, provided that they occur in a previously disturbed or developed area. Also, DOE proposes to clarify that the categorical
exclusion could also involve actions in
the academic or institutional sectors.

In B5.1(b), DOE proposes to include rulemakings that establish energy conservation standards in the scope of this categorical exclusion. DOE has prepared numerous EAs and FONSIs for rulemakings that establish energy
conservation standards for consumer products and industrial equipment and has determined that, within the limitations on the scope of actions that could be taken under the proposed categorical exclusion, establishment of
such standards would not have the potential to cause significant impacts. The limitations on scope of actions concern changes in manufacturing infrastructure, uses of available resources, disposal, and energy consumption. ( See the Technical Support Document.)

DOE is particularly interested in receiving comments on B5.1(b) of this categorical exclusion.

B5.2 Modifications to Pumps and Piping

DOE proposes to broaden the scope of this categorical exclusion by not limiting it to oil, gas, and geothermal facilities, but by providing examples of materials that could be conveyed by pump and piping configurations (that is, by adding as examples, air, brine, carbon dioxide, produced water, steam, and water to the currently listed materials). DOE also proposes to clarify


### 229 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

that the existing reference to ‘‘ gas ’’ includes natural gas, hydrogen gas, and nitrogen gas. DOE has determined that the environmental impacts resulting from modifications to pump and piping configurations on systems conveying
such materials would be similar to impacts from modifications to the pump and piping configurations on systems carrying the existing categorically excluded materials. DOE’s experience
with these materials has demonstrated that modifying such pump and piping configurations would not have the potential to cause significant impacts.

B5.3 Modification or Abandonment of
Wells

DOE proposes to broaden the scope of this categorical exclusion for storage and injection wells by not limiting the wells to those for oil, brine, geothermal, and gas wells, but by adding these wells as examples: Carbon dioxide, coalbed methane, and gas hydrate wells. DOE’s experience has demonstrated that
actions associated with the modification and abandonment (including plugging)
of carbon dioxide and similar wells normally do not have the potential to cause significant impacts. DOE is proposing to limit use of the categorical
exclusion to situations where there is low potential for seismicity, subsidence,
and contamination of freshwater aquifers and where the actions are otherwise consistent with best practices and DOE protocols, including those that protect against uncontrolled releases of
harmful materials. DOE is also proposing to clarify that ‘‘ gas ’’ in the existing categorical exclusion refers to natural gas.

B5.4 Repair or Replacement of Pipelines

DOE proposes to broaden the scope of this categorical exclusion by not limiting it to actions including oil, produced water, brine, and geothermal pipelines, but also to exclude repair and replacement actions on pipelines carrying materials similar in nature (such as air, carbon dioxide, hydrogen gas, natural gas, nitrogen gas, steam, and water). In DOE’s experience, the conveyance of the proposed additional materials similar to those currently categorically excluded normally does not pose a potential to cause significant impacts. DOE also proposes to clarify that upgrading, rebuilding, and minor relocation may be involved in repair or replacement of pipelines. Further, DOE proposes to list Army Corps of Engineer permits as one type of requirement that may apply to these actions, while also acknowledging that there may be others. B5.5 Short Pipeline Segments
DOE proposes to broaden the scope of this categorical exclusion by not limiting it to oil, steam, geothermal or natural gas resources, but by providing additional examples (air, brine, carbon dioxide, hydrogen gas, nitrogen gas, produced water, and water) of materials potentially conveyed by pipeline segments under this categorical exclusion. The potential impacts resulting from pipelines conveying the
additional materials would be similar to those from the existing categorically excluded materials. DOE’s experience conveying these materials has demonstrated that they would not have the potential to cause significant impacts.

DOE further proposes to remove the limitation that pipelines must be within a single industrial complex. DOE proposes to remove that limitation because potential impacts do not depend on whether the action is conducted within an arbitrary boundary. DOE is therefore proposing to replace the reference to ‘‘DOE facilities ’’
with references to ‘‘ existing source
facilities ’’ and ‘‘ existing receiving
facilities. ’’ Categorically excluded actions are limited to short pipelines, which DOE proposes be generally less than 20 miles in length in previously developed or disturbed areas.

B5.6 Oil Spill Cleanup

DOE is proposing to clarify that the
National Oil and Hazardous Substances Pollution Contingency Plan is not necessarily the only applicable requirement for oil spill cleanup by making this an example of an applicable requirement.

B5.7 Import or Export Natural Gas, With Operational Changes

DOE proposes to add disapprovals to the current scope (approvals) for consistency with existing classes of actions C13, D8, and D9.

B5.8 Import or Export Natural Gas, With New Cogeneration Powerplant

DOE proposes to add disapprovals to the current scope (approvals) for consistency with existing classes of actions C13, D8, and D9. DOE proposes to include in the scope of this categorical exclusion pipelines generally less than 20 miles in length in previously disturbed or developed rights-of-way.

B5.10 Certain Permanent Exemptions for Existing Electric Powerplants

DOE proposes to delete two references to provisions of the Powerplant and
Industrial Fuel Use Act as those provisions have been deleted from the

Act.

B5.12 Workover of Existing Wells

DOE proposes to broaden the scope of this categorical exclusion by not limiting it to oil, gas, and geothermal wells, but by providing additional examples (brine, carbon dioxide, coalbed methane and gas hydrate) of
wells that could be restored to functionality. DOE’s experience with
these materials has demonstrated that the potential impacts would be similar in nature to the impacts of wells using materials named in the existing categorical exclusion and that workover
of such wells would not have the potential to cause significant impacts. In addition, DOE is proposing to limit use of the categorical exclusion to situations where there is low potential for seismicity, subsidence, and contamination of freshwater aquifers,
and where the actions are otherwise consistent with best practices and DOE protocols, including those that protect against uncontrolled releases of harmful materials. DOE is also proposing to clarify that ‘‘ gas ’’ in the existing categorical exclusion refers to ‘‘ natural

gas. ’’

B5.13 Experimental Wells for the Injection of Small Quantities of Carbon
Dioxide

DOE proposes a new categorical exclusion for experimental wells for the injection of small quantities of carbon dioxide in locally characterized geologically secure storage formations at or near existing carbon dioxide sources. The activities encompassed in the new proposed categorical exclusion are intended to help determine the suitability of geological formations for large-scale sequestration, as information from small-scale projects can be used to ensure that commercial-scale projects can be conducted safely and in an environmentally sound manner.

The proposed categorical exclusion is supported by DOE’s National Energy Technology Laboratory’s experience with carbon sequestration wells, through DOE-directed research projects
and collaboration with the nationwide network of regional carbon sequestration partnerships tasked with determining the best technologies for carbon capture, storage, and sequestration. Through this work, DOE has gained substantial experience with small-scale carbon sequestration, showing that these projects can be managed safely and would not have the potential to cause significant impacts. In addition, the proposed categorical exclusion is supported by FONSIs for


### 230 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

three DOE EAs for projects with scales ranging up to one million tons of carbon dioxide over the lifetime of the project (typically one to four years).

Based on experience with small-scale projects, DOE proposes that the injection of carbon dioxide under this categorical exclusion be limited to, in aggregate, less than 500,000 tons over the duration of a project. In addition, DOE also proposes a number of conditions that the project must meet in order for the activity to be categorically excluded. For example, the proposed categorical exclusion would require that
characterization has verified a low potential for seismicity, subsidence, and contamination of freshwater aquifers. DOE’s proposed limitations will ensure that injection of carbon dioxide at this scale would not have significant impacts. ( See the Technical Support Document.)

DOE is particularly interested in receiving comments on this categorical exclusion, including the limit of 500,000 tons of carbon dioxide over the duration of the project.

B5.14 Combined Heat and Power or Cogeneration Systems

DOE proposes a new categorical exclusion for the conversion to, and replacement or modification of, combined heat and power or cogeneration systems at existing facilities provided that the action 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.

DOE has determined that combined heat and power or cogeneration system activities under this categorical exclusion, when subject to the proposed limitations, would not have the potential to cause significant impacts because (1) these systems would be modifications to existing systems, and thus generally would not involve more than minor changes to facility footprints and do not involve major new construction, and (2) these systems would improve operating efficiency (such as making use of otherwise waste heat) and thus would be designed to lessen potential impacts.

B5.15 Small-Scale Renewable Energy Research and Development and Pilot Projects

As part of DOE’s proposal to clarify and focus existing categorical exclusion B5.1 on energy efficiency and conservation actions (including research and development-related actions), DOE proposes a separate categorical
exclusion for small-scale renewable energy research and development and pilot projects. In doing so, DOE proposes to limit the covered actions to those in previously disturbed and developed areas and to emphasize that
such actions would be in accordance with applicable requirements and incorporate appropriate controls and practices. See also B5.25 for small-scale renewable energy research and development and pilot projects in salt
water and freshwater environments.

In addition, this proposal is responsive to a commentor’s suggestion to have a categorical exclusion for small-scale pilot projects for renewable energy generation, modeled on DOE’s existing categorical exclusion B6.2 for pilot-scale waste collection and
treatment facilities.

DOE is particularly interested in receiving comments on this categorical
exclusion.

B5.16–B5.24

As part of DOE’s proposal to clarify and focus existing categorical exclusion B5.1 on energy efficiency and conservation actions, and in response to commentors’ suggestions to include more explicitly renewable energy technologies, DOE is proposing several new categorical exclusions. DOE proposes eight new categorical exclusion classes of actions involving renewable energy technologies, as described below. The proposed categorical exclusions apply to the installation, modification, operation, and removal of small-scale, commercially available renewable energy technologies. DOE proposes to specify conditions by technology ( e.g., wind) to ensure appropriate limitations, but does not generally set limits on energy output because DOE experience and data review suggest that the potential for significant impacts is more closely related to the site selected for a renewable energy project and the
interaction of resources at a selected site with the renewable technology. DOE has proposed specific limitations for these categorical exclusions to ensure that any renewable energy technology project that would have the potential to cause significant impacts to particular
resources would be identified as outside the scope of the categorical exclusion. Further, DOE proposes one new class of actions involving electric vehicle charging stations.

The proposed categorical exclusions in B5.16–B5.24 identify many of the types of projects for which DOE has made categorical exclusion determinations based on existing categorical exclusion B5.1. The actions listed in these proposed categorical exclusions are also consistent with categorical exclusions promulgated by other Federal agencies, EAs and FONSIs prepared by DOE and other Federal agencies, the opinions of subject matter experts, and private sector experience developing and deploying renewable energy technologies. DOE has
determined that the activities under these categorical exclusions, when subject to the proposed limitations, would not have the potential to cause significant impacts because the categorical exclusions apply specifically to systems that are: (1) Located on or adjacent to existing structures, or on previously developed or disturbed land, (2) sited in accordance with local land use and zoning requirements, and (3) designed to incorporate appropriate control technologies and best management practices to lessen potential impacts.

The proposed categorical exclusions are responsive to the numerous suggestions that DOE received, both from within DOE and in response to its December 2009 Request for Information, to include explicitly renewable energy technologies and associated equipment in its categorical exclusions. Several commentors also suggested that DOE categorically exclude actions intended

to ‘‘ co-locate renewables ’’ or to support

‘‘ distributed generation projects. ’’ These suggestions describe similar actions that: (1) Support the operation of an existing facility by providing a renewable energy source on-site, (2) would be compatible with existing land use, and (3) would require minimal to no expansion of the footprint of an existing facility. As a result, DOE’s review of available data led it to propose to exclude select small-scale, renewable energy technology projects, under specified proposed conditions, for the purpose of providing a renewable energy generation capability to existing facilities (specifically, B5.16–B5.21).

B5.16 Solar Photovoltaic Systems

The actions listed in categorical exclusion B5.16 apply to the installation, modification, operation, and removal of commercially available solar photovoltaic systems located on a building or other existing structure ( e.g., covered parking facility), or on land generally comprising less than 10 acres.
The actions listed are consistent with DOE and other Federal agency experience with ‘‘ co-located ’’ solar photovoltaic energy projects generally comprising less than 10 acres within a previously disturbed or developed area, categorical exclusion determinations DOE has made based on existing regulations, categorical exclusions


### 231 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

promulgated by other Federal agencies, EAs and FONSIs prepared by DOE and other Federal agencies, and the opinions of subject matter experts. ( See the Technical Support Document.)

DOE has determined that the solar photovoltaic system activities under this categorical exclusion, when subject to proposed limitations, would not have the potential to cause significant impacts because (1) these are systems located on or adjacent to existing structures, or on previously developed or disturbed land, and thus generally involve no more than minor changes to facility footprints and do not involve major new construction, and (2) these systems generally would support the operation of an existing facility ( e.g., providing an on-site, renewable electricity generation source). Such activities also may serve to lessen potential air emissions impacts when compared to electricity generated by fossil fuel ( e.g., coal) sources.

DOE is particularly interested in receiving comments on this categorical
exclusion.

B5.17 Solar Thermal Systems

DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of commercially available small-scale solar thermal systems ( e.g., solar hot water systems) at an existing facility or on land generally comprising less than 10 acres within a previously disturbed or developed area. These actions are consistent with categorical exclusion
determinations DOE has made based on existing regulations and EAs and FONSIs prepared by DOE. ( See the Technical Support Document.)

DOE has determined that the solar thermal system activities under this categorical exclusion, when subject to proposed limitations, would not have the potential to cause significantimpacts because (1) these are smallscale systems located on or contiguous to an existing building, or in a previously developed or disturbed area, and thus generally involve no more than minor changes to facility footprints and do not involve major new construction, and (2) these systems generally would support the operation of an existing building ( e.g., providing an on-site, renewable source of energy for heat). Such activities also may serve to lessen potential air emissions impacts when compared to electricity generated by fossil fuel ( e.g., coal) sources.

DOE is particularly interested in receiving comments on this categorical
exclusion. B5.18 Wind Turbines

DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of small ( i.e., generally 200 feet in height or less when measured from ground to maximum vertical blade rotation), commercially available wind turbines.
Such turbines must be located within previously disturbed or developed areas; more than 10 miles from an airport or aviation navigation aid; and
more than 1.5 nautical miles from
National Weather Service or Federal Aviation Administration Doppler
weather radar. Also such turbines must not have the potential to cause significant impacts to bird or bat species and must be appropriately designed and located so as to not cause significant impacts to persons ( e.g., noise or shadow flicker). These actions are consistent with categorical exclusion
determinations DOE has made based on existing regulations, EAs and FONSIs prepared by DOE and other Federal agencies, and the opinions of subject matter experts. ( See the Technical Support Document.)

DOE has determined that the activities under this categorical exclusion, when subject to proposed limitations, would not have the potential to cause significant impacts because (1) these are small-scale wind turbines located within a previously developed or disturbed area, and thus generally involve no more than minor changes to an existing footprint and do not involve major new construction, and (2) these systems generally would support improved operation of an existing facility ( e.g., providing an onsite, renewable source of energy for electricity). Such activities also may serve to lessen potential air emissions impacts when compared to electricity generated by fossil fuel ( e.g., coal)

sources.

DOE is particularly interested in receiving comments on this categorical
exclusion.

B5.19 Ground Source Heat Pumps

DOE proposes a new categorical exclusion for commercially available, small-scale ground source heat pumps, designed to include appropriate leakage and contaminant control measures ( e.g., grouting) to support the operation of single facilities ( e.g., a school) or contiguous facilities ( e.g., an office complex), and sited only in previously disturbed and developed areas where associated activities ( e.g., drilling or geothermal water discharge) are regulated by a local, regional, or State authority. The actions listed in this proposed categorical exclusion are consistent with categorical exclusion
determinations DOE has made based on existing regulations, categorical exclusions promulgated by other Federal agencies, and EAs and FONSIs prepared by DOE. ( See the Technical Support Document.)

DOE has determined that the ground source heat pump system activities under this categorical exclusion, when subject to the proposed limitations, would not have the potential to cause significant impacts because (1) these are systems located within or adjacent to existing structures, or on previously developed or disturbed land, and thus generally involve no more than minor changes to facility footprints and do not involve major new construction, and (2) these systems generally would support the operation of an existing facility ( e.g., providing an on-site, renewable heating or cooling source) that would serve to lessen potential air emissions impacts when compared to energy provided by traditional fossil fuel ( e.g., coal) sources. DOE has proposed limitations for this categorical exclusion to ensure that any project that may result in a significant change in subsurface temperature would be outside the scope of the categorical
exclusion.

DOE is particularly interested in receiving comments on this categorical
exclusion.

B5.20 Biomass Power Plants

DOE proposes a new categorical exclusion for small-scale biomass power plants, designed using commercially available technologies for an average energy output of 10 megawatts, to support the operation of single facilities ( e.g., a school) or contiguous facilities ( e.g., an office complex), and sited within previously disturbed and developed areas. The actions listed in this proposed categorical exclusion are
consistent with EAs and FONSIs prepared by DOE. ( See the Technical Support Document.)

DOE has determined that the activities covered by this categorical exclusion, when subject to the proposed limitations, would not have the potential to cause significant impacts because (1) these are systems located within or adjacent to existing structures, or within previously developed or disturbed areas, and thus generally involve no more than minor changes to facility footprints or land use, and (2) these systems generally would support the operation of an existing building or contiguous facilities ( e.g., providing an on-site, renewable electricity generation source). Such activities also may serve to lessen potential air emissions impacts


### 232 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

when compared to electricity generated by fossil fuel ( e.g., coal) sources. DOE has proposed limitations for this categorical exclusion to ensure that any project that may result in a significant increase in the quantity or rate of air emissions or have the potential to cause significant impacts to water resources would be outside the scope of the categorical exclusion.

DOE is particularly interested in receiving comments on this categorical
exclusion.

B5.21 Methane Gas Recovery and Utilization Systems

DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of commercially available methane gas recovery and utilization systems on or contiguous to an existing landfill or wastewater treatment plant, or within a previously disturbed and developed area. The actions listed in this proposed categorical exclusion are consistent with categorical exclusion determinations for methane gas recovery and utilization technologies that DOE has made based on existing regulations.

DOE has determined that the methane recovery and utilization system activities under this categorical exclusion, when subject to the proposed limitations, would not have the potential to cause significant impacts because (1) these are modifications to existing waste disposal or treatment facilities, and thus generally involve no more than minor changes to facility footprints and do not involve major new construction, and (2) these modifications generally would improve operating efficiency ( e.g., making use of otherwise waste gas for energy production at existing facilities) and thus would be designed to lessen potential impacts. Such activities also may serve to lessen potential air emissions impacts when compared to electricity generated by fossil fuel ( e.g., coal) sources. DOE has proposed limitations for this categorical exclusion to ensure that any project that may result in a significant increase in quantity or rate of air emissions would be outside the scope of the categorical
exclusion.

B5.22 Alternative Fuel Vehicle Fueling

Stations

DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of fueling stations for compressed natural gas, hydrogen, ethanol or other commercially available biofuels that are
located on the site of a current or former fueling station, or in a previously disturbed or developed area controlled by the owner of the existing facility and
vehicle fleet the station is meant to
service. The actions listed in this proposed categorical exclusion are consistent with categorical exclusion
determinations DOE has made based on existing regulations for alternative fuel vehicle fueling technologies and an EA and FONSI prepared by DOE. ( See the Technical Support Document.)

DOE has determined that the alternative vehicle fueling system activities under this categorical exclusion, when subject to proposed limitations, would not have the potential to cause significant impacts because these are systems located at existing stations, or on previously developed or disturbed land, and thus generally involve no more than minor changes to facility footprints and do not involve major new construction. These systems would support the operation and use of alternative fuel vehicles ( e.g., providing the fueling infrastructure necessary to support the use of vehicles run on alternative fuels). Such activities also may serve to lessen potential air emissions impacts when compared to traditional fossil fuel combustion engine
vehicles.

B5.23 Electric Vehicle Charging

Stations

DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of
electric vehicle stations within a previously disturbed or developed area. The actions listed in this proposed categorical exclusion are consistent with categorical exclusion determinations DOE has made based on existing regulations.

DOE has determined that the electric vehicle charging station activities under this categorical exclusion, when subject to proposed limitations, would not have the potential to cause significant impacts because these are systems located on previously developed or disturbed land, and thus generally do not involve major new construction. These systems would support the use of electric vehicles ( e.g., providing infrastructure necessary to support
current and future use of electric vehicles). Such activities also may serve to lessen potential air emissions impacts when compared to traditional fossil fuel combustion engine vehicles.

B5.24 Drop-in Hydroelectric Systems

DOE proposes a new categorical exclusion for the installation, modification, operation, and removal of commercially available small-scale, drop-in, run-of-the-river hydroelectric systems where there would not be the potential for significant impacts to threatened and endangered species or significant impacts on water quality, temperature, flow, or volume.

The term ‘‘run-of-the-river’’ as used in this categorical exclusion refers to hydroelectric systems that would be fully dependent on the natural flow of the river or stream at the point of system installation; would have no water storage, such as in an impoundment;

and would involve no water diversion

from the stream or river. The term

‘‘ drop-in ’’ refers to prefabricated systems that are placed in a river or stream, not systems that are constructed in a river

or stream such as a dam. Under this categorical exclusion, DOE envisions small turbines placed in a stream or river for small operations, where allenergy would likely be consumed onsite ( e.g., for a home, ranch, or other small commercial operation) and unlikely to be put on the commercial grid. Hydroelectric systems capable of producing electricity for the commercial grid would likely be secured in a channel (requiring the use of heavy equipment), may require channel modification, and may have a potential to significantly affect fish, wildlife, habitat, and water flow and quality; these systems would be excluded from the scope of this categorical exclusion. The actions listed in this proposed categorical exclusion are consistent with the opinions of subject matter experts, including fish biologists with regulatory and fisheries management experience. ( See the Technical Support Document.)

DOE has determined that the activities under this categorical exclusion would not have the potential to cause significant impacts when subject to the proposed limitations: involve no water storage or water diversion; be located only in areas upstream of a natural anadromous fish barrier (such as a waterfall that has historically prevented anadromous fish passage); and involve no major construction, modification of stream or river channels, or the use of heavy equipment. Projects in the scope of this categorical exclusion generally support adjacent uses with a renewable source of direct electricity production. Such activities also may serve to lessen potential air emissions impacts when compared to traditional systems where electrical energy is generated by fossil

fuel sources.

DOE is particularly interested in receiving comments on this categorical

exclusion.


### 233 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

B5.25 Small-Scale Renewable Energy Research and Development and Pilot Projects in Salt Water and Freshwater

Environments

DOE proposes to create a new categorical exclusion for small-scale renewable energy research and development and pilot projects in salt
water and freshwater environments. Research with respect to wave or tidal energy or the growth and harvest of algae as biomass for proof of concept purposes would be appropriate projects in this class of actions. However, as with B3.16, DOE proposes to impose similar limits on the scope and location
of the activities to ensure that renewable energy research is conducted in a
manner that would not have the potential to cause significant impacts.
These actions are consistent with categorical exclusion determinations DOE has made based on existing regulations, EAs and FONSIs prepared by other Federal agencies, and the opinions of subject matter experts. (See the Technical Support Document.)

DOE proposes specifically to exclude
the construction or installation of permanent facilities or devices and to exclude the drilling of wells for resource exploration or extraction. In addition,
DOE has included several limits on the type, scope, and location of covered actions to protect the aquatic environment from potential significant impacts.

DOE proposes to limit the covered actions in this categorical exclusion through the following conditions. Covered actions under this categorical
exclusion 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. Furthermore, none of the above activities would 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 recognized area of high biological sensitivity, or outside those areas if the activities would have the potential to cause significant impacts within those areas. Additionally, no permanent
facilities or devices would be constructed or installed. The categorical exclusion also lists other factors, specific to aquatic environments, to be considered by proponents of covered actions before applying this categorical
exclusion to ensure that the activities would not have the potential to have significant impacts. DOE is particularly interested in receiving comments on this categorical
exclusion.

Categorical Exclusions Applicable to
Environmental Restoration and Waste Management Activities (B6)

B6.1 Cleanup Actions

DOE proposes to remove the specified limit of 5 years duration for categorically excluded short-term, small-scale cleanup actions because in DOE’s experience that duration has not been representative of the potential for significant environmental impacts. DOE proposes to retain a specified limit to cost, but to raise the limit from approximately $5 million to approximately $10 million, in light of
the fact that this cost limitation has not
been revised since 1996. DOE also proposes to add encapsulation, physical or chemical separation, and compaction to the examples of treatment methods. DOE proposes to change the text of the categorical exclusion from ‘‘would not affect future groundwater remediation ’’

to ‘‘would not unduly limit future groundwater remediation ’’ because a literal reading of the existing categorical
exclusion would bar its use if there were any affect on future groundwater
remediation.

DOE is particularly interested in receiving comments on the proposed revisions to this categorical exclusion.

B6.7 [Removed and Reserved: Granting/Denying Petitions for Allocation of Commercial Disposal Capacity]

Existing B6.7 refers to a DOE regulation that was repealed in 1995. That regulation implemented a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985, which is no longer in effect. Therefore, DOE proposes deleting this categorical exclusion, marking B6.7 as ‘‘removed
and reserved ’’ in the regulations.

B6.10 Upgraded or Replacement Waste Storage Facilities

DOE proposes to identify ‘‘ expansion ’’ as within the scope of this categorical exclusion, which limits total facility size to 50,000 square feet.

F. Proposed Changes to Appendix C

For an explanation of recurring proposals applicable to the appendix C classes of actions, please see Section IV.B, Recurring Proposals, above, where they are discussed and the particular
classes of actions affected are listed. The short titles listed below for particular
classes of actions reflect DOE’s proposed titles. C2 [Removed and Reserved: Rate Increases More Than Inflation, Not Power Marketing]

DOE proposes to delete EA class of
actions C2 because DOE has not prepared an EA and FONSI under C2.

C4 Upgrading, Rebuilding, or
Construction of Electric Transmission

Lines

DOE proposes changes to this class of actions to conform to the changes DOE is proposing for categorical exclusions B4.12 and B4.13. Proposed changes to
C4 would address electric transmission lines of lengths greater than those to which categorical exclusions might apply.

C7 Contracts, Policies, and Marketing
and Allocation Plans for Electric Power

DOE proposes changes to this class of actions to conform to the changes DOE has proposed for categorical exclusion B4.1. This provision addresses the establishment and implementation of contracts, policies, and marketing and allocation plans related to electric power acquisition or transmission that involve (1) the interconnection of, or acquisition of power from, new generation resources that are equal to or less than 50 average megawatts and that would not be eligible for categorical exclusion under 10 CFR part 1021; (2) changes in the normal operating limits of generation resources equal to or less than 50 average megawatts; or (3)
service to discrete new loads of less than 10 average megawatts over a 12- month period. DOE also proposes to delete the description that implies that this class of actions applies only to DOE power marketing operations and
facilities at DOE sites.

DOE is particularly interested in receiving comments on the proposed revisions to this provision.

C8 Protection of Cultural Resources
and Fish and Wildlife Habitat

DOE proposes changes to this class of actions to conform to the changes DOE is proposing for categorical exclusion B1.20. Proposed changes to C8 would address large-scale activities undertaken to protect cultural resources.

C11 Particle Acceleration Facilities

DOE proposes to change the parameters for when an EA would normally be required to conform to the changes DOE is proposing for categorical exclusion B3.10. Whether an EA would normally be required would depend upon the energy associated with the particle acceleration facility.


### 234 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

C12 Energy System Demonstration

Actions

DOE proposes changes to this class of actions to conform to the changes DOE is proposing for categorical exclusion B3.6. Proposed changes to C12 would
address ‘‘ demonstration actions, ’’ which are outside the scope of B3.6.

C13 Import or Export Natural Gas Involving Minor New Construction

DOE proposes changes for consistency with categorical exclusions B5.7 and

B5.8.

G. Proposed Changes to Appendix D

For an explanation of recurring proposals applicable to the appendix D classes of actions, please see Section IV.B, Recurring Proposals, above, where they are discussed and the particular
classes of actions affected are listed. The short titles listed below for particular
classes of actions reflect DOE’s proposed titles.

D5 [Removed and Reserved: Main Transmission System Additions]

D6 [Removed and Reserved: Integrating Transmission Facilities]

DOE proposes deleting D5, Main transmission system additions, and D6, Integrating transmission facilities, because there is redundancy and ambiguity between D5 and D6 that makes them of limited utility. Furthermore, there is overlap between D5 (addition of new lines) and C4 (construction of new lines) in the current regulations, which makes it difficult to discern which category is appropriate for a specific project. DOE also proposes not to have EIS categories that correspond to the categorical
exclusions and the EA class of actions
that address the level of NEPA review
for electric transmission facilities and lines (B4.11, B4.12, B4.13, and C4). Based on DOE experience, the level of
NEPA review for transmission facilities and lines that are not categorically excluded is at least at an EA level, but does not necessarily warrant an EIS
level. DOE has found that the
determination whether an EA or an EIS is appropriate is project-specific ( e.g.,type and size of facility) and sitespecific ( e.g., site conditions, other facilities and lines in the area, or the proximity of residences). Working with its stakeholders, DOE has often successfully mitigated potentially significant impacts so that an EA level of review is often adequate. In those cases where an EA is not applicable, DOE completes an EIS, and the lack of an EIS category in this proposed rulemaking does not preclude such action in the future. (See the Technical Support Document.)

DOE is particularly interested in receiving comments on these provisions.

D7 Contracts, Policies, and Marketing
and Allocation Plans for Electric Power

DOE proposes changes to this class of actions to conform to changes that DOE is proposing for both categorical
exclusion B4.1 and the EA class of actions C7. This provision addresses establishment and implementation of contracts, policies, and marketing and allocation plans related to electric power acquisition or transmission that involve (1) the interconnection of, or acquisition of power from, new generation resources greater than 50 average megawatts; (2) changes in the normal operating limits of generation resources greater than 50 average megawatts; or (3) service to discrete new loads of 10 average megawatts or more over a 12-month period. DOE also proposes to delete the description that implies that this class of actions applies only to its power marketing operations
and facilities at its sites.

DOE is particularly interested in receiving comments on the proposed revisions to this provision.

D8 Import or Export of Natural Gas Involving Major New Facilities

DOE proposes changes for consistency with categories B5.7, B5.8, and C13.

D9 Import or Export of Natural Gas Involving Major Operational Change

DOE proposes changes for consistency with categories B5.7, B5.8, and C13.

V. General Comments Received in Response to the December 2009 Request
for Information

DOE reviewed and evaluated each of the suggestions provided by the 11 respondents to its December 2009 Request for Information, as discussed above in Section II. Many of the comments included proposals for new categorical exclusions and revisions to limit or expand existing categorical exclusions, or were related to other existing provisions in subpart D of the DOE NEPA regulations. In addition to comments related to specific provisions,
which are discussed above in Section IV.C through IV.G, DOE received comments of a more general nature, not associated with a particular provision. These comments and DOE’s responses are presented below.

Categorical exclusions, generally. In its Request for Information, DOE described categorical exclusions as categories of actions that normally do not have the potential, individually or cumulatively, to have a significant effect
on the ‘‘ human environment. ’’ One commentor expressed a concern that DOE focused too narrowly on the
human environment and ‘‘ seems to miss the true purpose of the NEPA process. ’’ In addition, a commentor stated that the DOE categorical exclusion process
should ‘‘ explicitly include recognition of the Department’s trust and trustee duties and responsibilities that ensure actions evaluated for categorical exclusion do not adversely impact the
environment or violate these responsibilities. ’’ DOE’s characterization of a categorical exclusion in its Request
for Information is consistent with the definition of categorical exclusion in the CEQ NEPA regulations (40 CFR 1508.4), and DOE applies the comprehensive interpretation of ‘‘ human environment’’ as defined in the CEQ NEPA regulations (40 CFR 1508.14) ‘‘to include the natural and physical environment and the relationship of people with that

environment. ’’

Land transfers. A commentor stated that DOE should not use a categorical
exclusion when land transfers have the potential to impact Tribal Nations’ rights, uses, or historical, religious or cultural assets, or DOE should ensure that those rights are preserved and thatthere is adequate government-togovernment consultation.

DOE conducts its government-togovernment consultations with Tribal
Nations in accordance with its
American Indian Tribal Government Policy, as outlined in DOE Order 1230.2. With respect to Federally recognized Indian Tribe interests, also

see Section IV.E for a discussion of appendix B(4) conditions that are integral elements of appendix B categorical exclusions.

Land and water contaminated with
radioactive and/or hazardous materials. A commentor noted that many of DOE’s facilities, and the land and water beneath these facilities, are
contaminated with radioactive and/or
hazardous materials. The commentor
stated that DOE should not allow for the
transfer or lease of contaminated facilities and land through a categorical exclusion. DOE is proposing changes to DOE’s land transfer-related categorical exclusions. Proposed categorical exclusions B1.24 and B1.25 pertain to the transfer, lease, disposition, or acquisition of interests (personal property and real property). Both proposed B1.24 and B1.25 contain limitations such that they may not be applied if there is a ‘‘ potential for release of substances at a level, or in a form, that could pose a threat to public health


### 235 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

and the environment. ’’ For further information, see the detailed discussion of proposed changes to A7, B1.24, and B1.25 in Section IV.D and IV.E, above.

Construction and operation of facilities. A commentor stated that

‘‘ most construction of facilities (even temporary) ’’ should not be performed under a categorical exclusion. Construction and operation under the Department’s existing and proposed categorical exclusions are limited to certain types of small-scale facilities
that DOE has determined would not have potential to cause significant impacts when the conditions specified in the categorical exclusion and the integral elements in appendix B(4) are considered. Under DOE’s existing NEPA regulations these include, for example, support buildings (such as cafeterias),
small-scale wastewater and surface water treatment facilities, and
microwave and communications towers. DOE is now proposing to add recycling drop-off stations and small-scale
educational facilities to that list. DOE has determined that, absent extraordinary circumstances, these types of actions are appropriately categorically excluded.

Mitigation actions. A commentor stated that mitigation actions, such as reseeding and revegetation, should not conflict with existing mitigation, restoration, and preservation activities
or exacerbate environmental contamination, and that DOE’s procedures for categorical exclusion
determinations should include a checklist to ensure that the potential for such conflicts is considered in applying a categorical exclusion. DOE’s existing and proposed categorical exclusion regulations require determinations that there are no extraordinary circumstances related to the proposal that may affect the significance of the proposal’s environmental effects. The regulations also require that the proposal not be connected to other actions with significant impacts or
related to other actions with cumulatively significant impacts. DOE believes that these existing procedures adequately address this concern.

Rulemaking process. A commentor
stated that DOE should distribute draft categorical exclusion determinations and supporting documents to those who have specific interests or oversight responsibilities for DOE sites, providing a 30-day comment period. DOE respectfully disagrees with this proposal. Such a process would be counter to the purpose of a categorical exclusion, which is to expedite the environmental review process for proposed actions that normally do not require more resource intensive EAs or EISs. Before an agency can establish a categorical exclusion, however, an agency is required to provide an opportunity for public review of those
actions that it intends to exclude. Through the publication of this notice of proposed rulemaking, DOE is providing its proposed changes to the public and providing an opportunity for public review and comment. Additionally, DOE is required to consult with CEQ on conformity of the proposed categorical exclusions with NEPA and the CEQ NEPA implementing procedures.

A commentor requested that DOE’s December 2009 Request For Information

‘‘ not be used to remove types of projects that are currently required to perform an

EA or EIS. ’’ As discussed further in Section IV.G, DOE is proposing to
remove two classes of actions that are now listed as normally requiring an EIS, D5, Main transmission system additions, and D6, Integrating
transmission facilities. DOE has found that, for the most part, it has been able to mitigate impacts such that those impacts are not significant. DOE is proposing to remove one EA class of actions (C2, Rate increases more than inflation, not power marketing). DOE has not been able to identify any proposed action that has been included
in that class of actions.

New technologies. A commentor requested that ‘‘ if the effects of new technologies in the private and public sectors are going to influence ’’ the proposed categorical exclusions, the technologies and their impacts must be fully explained. DOE has based its proposed categorical exclusions on its previous NEPA reviews, expert advice, categorical exclusions of other Federal agencies, and private sector experience, and it has explained the basis for its proposed decisions both here and in the Technical Support Document.

Geothermal. A commentor requested that no further regulations be promulgated that would make it more difficult to obtain permitting for the installation of geothermal wells. The commentor also emphasized the

‘‘tremendous energy savings ’’ provided by geothermal heat pumps for heating and cooling buildings.

DOE currently has an existing categorical exclusion, B3.7, for the siting, construction, and operation of new infill exploratory and experimental (test) wells, including geothermal wells, drilled in a geological formation that has existing operating wells. Although DOE is proposing to add certain restrictions, DOE does not believe these changes would make the permitting process for geothermal wells more difficult. In addition, DOE is proposing a new categorical exclusion, B5.19, for the installation, modification, operation, and removal of commercially available small-scale ground source heat pumps to support operations in single facilities or contiguous facilities. (See discussion of B3.7 and B5.19 in Section IV.E, above.)

Renewable energy projects. A commentor suggested that DOE adopt a

‘‘ fast-track’’ review process for renewable energy projects, similar to a process that the Bureau of Land Management, an agency within the Department of the Interior, has adopted. DOE is a cooperating agency with the Bureau of Land Management on several of its EISs for renewable energy proposals (for example, for proposals for which an application for a loan guarantee has been submitted to DOE),
and is familiar with the Bureau’s process. In other cases, DOE’s Program Offices (for example, the Office of Electricity Delivery and Energy Reliability, the Loan Program Office, and Bonneville Power Administration) work as expeditiously as possible on NEPA and other necessary reviews (such as electric system reliability review and financial review) needed before project approval. Part of DOE’s aim in proposing updates to its categorical exclusions is to expedite the environmental review process for proposals that normally do not require

more resource intensive EAs or EISs. DOE’s proposed new categorical exclusions include (1) eight specifically for installation, modification, operation, and removal of commercially available renewable energy technologies (as listed in the proposed categorical exclusions B5.16 to B5.22, inclusive, and B5.24) and (2) small-scale renewable energy research and development and pilot projects (B5.15 and B5.25). DOE expects that the use of these categorical
exclusions will allow for more expeditious NEPA review for projects
that fit within the classes of actions.

Biofuels production projects. A commentor suggested that DOE categorically exclude new biofuels production projects, ‘‘ provided that certain conditions are met with respect to air and water emissions, water consumption and other high-level
considerations. ’’ At this time, DOE is not proposing a categorical exclusion for commercial-scale biofuels production projects. First, the Department conducted a survey of Federal agencies’ NEPA regulations and did not identify existing (or proposed) categorical
exclusions for new commercial biofuels projects that could guide DOE in proposing an appropriate scope for such


### 236 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

a category. Second, a Notice of Funds Availability published by the U.S. Department of Agriculture’s Rural Business Cooperative Service regarding new construction and retrofitting of advanced biofuels facilities (non-corn ethanol) concluded that such facilities
would not meet the classification of a categorical exclusion (75 FR 25076; May 6, 2010). DOE, nevertheless, is requesting input from the public as to whether a categorical exclusion for commercial-scale biofuel production projects would be appropriate, and, if so, what limits might be applicable (for example, throughput and operation parameters).

Consistency among Federal and State categorical exclusions. A commentor suggested that DOE should work with States to create consistency among Federal and State categorical exclusions
because there is a disconnect between what the Federal government categorically excludes under NEPA and
what States exclude under their environmental review provisions. DOE develops its categorical exclusions
based on classes of actions it has identified that do not individually or cumulatively have a significant effect on
the environment based on actions it has
considered nationwide. DOE does not have any involvement in how a State assigns particular classes of actions to a particular level of environmental review. However, States have the opportunity to comment on an agency’s proposed categorical exclusions and
associated administrative records and also to consider whether to change their own categorical exclusions or other implementing procedures based on a Federal agency’s exclusions. DOE
welcomes comments from States on DOE’s categorical exclusions and, in particular, as to a State’s experience
with similar exclusions.

Evaluation of greenhouse gases. A commentor noted that CEQ had stated that it sees no basis for excluding greenhouse gases from NEPA jurisdiction. The commentor suggested that DOE have additional categorical
exclusions ‘‘to protect against abuse of this expansive new jurisdiction by entities seeking to stop or stall projects. ’’ In proposing 20 new categorical exclusions and modifying others to promote efficiency in the NEPA process while ensuring protection of the environment, DOE has considered the potential for significant environmental impacts, including potential impacts from greenhouse gas emissions. DOE’s approach in this regard is consistent with draft guidance issued in February 2010 by CEQ, Consideration of the Effects of Climate Change and Greenhouse Gas Emissions ( http:// ceq.hss.doe.gov/nepa/regs/
Consideration

_ of

_Effects

_ of

_ GHG

_Draft

_NEPA

_ Guidance

_FINAL

_ 02182010.pdf ). The draft guidance

states, ‘‘ In many cases, the [greenhouse gas] emissions of the proposed action may be so small as to be a negligible consideration. Agency NEPA procedures may identify actions for which [greenhouse gas] emissions and
other environmental effects are neither individually or cumulatively significant.

40 CFR 1507.3. ’’ The draft guidance further states that, in proposing that the NEPA process incorporate consideration of both the impact of an agency action on the environment through the mechanism of greenhouse gas emissions and the impact of changing climate on that agency action, ‘‘ This is not intended as a ‘new’ component of NEPA analysis, but rather as a potentially important
factor to be considered within the existing NEPA framework. ’’

Level of involvement necessary to require a NEPA review (or ‘‘Federal
handle’’). A commentor requested that DOE provide guidance on the level of Federal involvement necessary to categorize a project as ‘‘ Federal, ’’ thereby triggering an environmental review under NEPA. Specifically, the commentor suggested that DOE consider setting a minimum threshold of 10% of the overall project budget as a funding level that would trigger NEPA, and further, that only Federal funds actually allocated to the project should be counted (that is, budgeted or anticipated
funds should be excluded in determining the level of Federal financing). The commentor requested that factors be specified to help
determine what level of Federal control
or involvement is needed for NEPA to be triggered.

In determining whether an action constitutes a major Federal action for purposes of NEPA, DOE considers the degree of Federal control over or involvement in a project. As part of this consideration, DOE examines the total amount and percentage of Federal funding among other factors. In many cases, the fact that Federal government funding is in the range of 10 percent (or less) of total project costs will make the percentage of Federal funding an important factor in finding that an action is not a major Federal action. These are essentially the same factors suggested by the commentor. DOE also may consider other factors specific to the proposed action at issue. DOE finds this case-by-case approach workable and consistent with applicable precedent and does not propose to establish specific criteria through this proposed rulemaking for determining whether a proposed action constitutes a major Federal action.

Uranium mineral activities. A commentor, noting interest in uranium mineral exploration, development, and
reclamation activities on DOE uranium leases in Western Colorado, stated that

‘‘ activities related to mining and mineral exploration on Department of Energy
mineral leases should remain barred from categorical exclusion. ’’ DOE’s proposed revisions to the Department’s NEPA regulations would not allow categorical exclusion of uranium mineral development. However, under certain conditions, some exploration
and reclamation actions could be categorically excluded under DOE’s existing and proposed categorical exclusions, such as, categorical exclusion B3.1, Site characterization and environmental monitoring, and categorical exclusion B6.1, Cleanup

actions.

Cost parameters for environmental
review under NEPA. A commentor suggested that the estimated cost of a project be factored into the categorical exclusion process. Specifically, the commentor suggested that DOE establish an upper limit of $25 million (estimated cost) for a proposed action that can be categorically excluded and a lower limit of $100 million (estimated cost) over which a proposed action requires an EIS. DOE has determined that cost is generally not a reliable indicator of environmental impacts and is not proposing to establish general cost parameters to dictate the level of NEPA review in its regulations. One exception is categorical exclusion B6.1, which contains a cost limit for small-scale, short-term cleanup actions. See
discussion of B6.1 in Section IV.E
above.

VI. Procedural Requirements

A. Review Under Executive Order 12866

Today’s proposed rule has been determined to be a significant regulatory action under Executive Order 12866,

‘‘ Regulatory Planning and Review, ’’ 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).

B. Review Under National Environmental Policy Act

In this proposed rule, DOE proposes amendments that establish, modify, and clarify procedures for considering the
environmental effects of DOE actions within DOE’s decisionmaking process,


### 237 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

thereby enhancing compliance with the letter and spirit of NEPA. DOE has determined that this proposed rule qualifies for categorical exclusion under 10 CFR part 1021, subpart D, appendix A6, because it is a strictly procedural rulemaking and no extraordinary circumstances exist that require further environmental analysis. Therefore, DOE has determined that promulgation of these amendments is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA, and does not require an EA or an EIS.

C. Review Under Regulatory Flexibility

Act

The Regulatory Flexibility Act (5

U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, ‘‘Proper
Consideration of Small Entities in Agency Rulemaking, ’’ 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies
available on the Office of General
Counsel’s Web site: http://gc.doe.gov

.

DOE has reviewed today’s proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The proposed revisions to 10 CFR part 1021 streamline the environmental review for proposed actions, resulting in a decrease in burdens associated with carrying out such reviews. For example, the proposed revisions are expected to reduce in aggregate the number of EAs that DOE is required to prepare, thus reducing the burden on applicants to prepare an EA for DOE’s consideration, pay for the preparation of an EA, and/ or provide environmental information for DOE’s use in preparing an EA. During the past 10 years, DOE has completed approximately 30 EAs per year. The number of EAs completed each year has not varied significantly. However, in 2010, DOE expects to complete more than 75 EAs which
reflect an increase in the number of proposed projects as a result of the American Recovery and Reinvestment Act. DOE expects the number of EAs it prepares after 2010 will be closer to historical norms. The cost per EA has ranged from $3,000 to $630,000; the average and median cost has been $100,000 and $65,000, respectively. DOE expects that although the number of EAs it prepares annually could increase in response to recent emphasis on certain program areas, such as renewable energy technologies, proposed new categorical exclusions in
these areas would reduce the number of EAs that might otherwise be required. In addition, the costs of making a categorical exclusion determination are less than those to prepare an EA. DOE
estimates that DOE’s administrativecosts for research, staff time, and Webposting for a categorical exclusion determination would most likely be less than $2,000 on average. Applicants may sometimes incur costs in providing
environmental information DOE requires when making a categorical
exclusion determination. While DOE does not have data on such applicant costs, DOE estimates that such costs
would be similar to DOE’s costs for a categorical exclusion determination, and much less than the cost of a typical EA. Although the number of EAs that
would be avoided and the associated costs saved by applicants is uncertain, the proposed revisions are expected to
result in a net decrease in environmental review costs and thus, are expected to have a beneficial cost impact. DOE estimates that approximately 15 percent of the EAs prepared in the last 10 years were funded by applicants, while the other 85 percent were funded by DOE. Although
DOE does not have data on what percentage of those applicants qualified as small entities, a beneficial cost impact is expected to be felt by entities
of all sizes.

On the basis of the foregoing, DOE tentatively certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this proposed rulemaking. DOE’s certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b).

D. Review Under Paperwork Reduction

Act

This proposed rulemaking willimpose no new information or recordkeeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act. (44

U.S.C. 3501 et seq. ) E. Review Under Unfunded Mandates Reform 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 any 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 to the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of that 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 to the private sector, of $100 million or more in any one year (adjusted annually for inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title requires each agency that proposes a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and Tribal governments. 2 U.S.C. 1534.

The proposed rule would amend DOE’s existing regulations governing compliance with NEPA to better align DOE’s regulations, particularly its categorical exclusions, with its current activities and recent experiences, and update the provisions with respect to current technologies and regulatory requirements. The proposed rule would not result in the expenditure by State, local, and Tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the Unfunded
Mandates Reform Act of 1995.

F. Review Under Treasury and General Government Appropriations Act, 1999

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well being. The proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has


### 238 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

concluded that it is not necessary to prepare a Family Policymaking

Assessment.

G. Review Under Executive Order 13132

Executive Order 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 this proposed rule and has determined that it would not preempt State law and
would 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 Executive Order

13132.

H. Review Under Executive Order 12988

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, ‘‘ Civil Justice Reform, ’’ 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is
unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of
Executive Order 12988.

I. Review Under Treasury and General Government Appropriations Act, 2001

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by

OMB.

OMB’s guidelines were published at 67 FR 8452 (February 22, 2002), and DOE’s guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today’s proposed rule under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those guidelines.

J. Review Under Executive Order 13211

Executive Order 13211, ‘‘ Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, ’’ 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any proposed significant energy action. A ‘‘ significant energy action ’’ is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1)(i) Is a significant regulatory action under Executive Order 12866, or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable
alternatives to the action and their expected benefits on energy supply, distribution, and use. Today’s regulatory action would 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.

K. Review Under Executive Order 12630

DOE has determined pursuant to Executive Order 12630, ‘‘ Governmental
Actions and Interference with Constitutionally Protected Property Rights, ’’ 53 FR 8859 (March 18, 1988), that this proposed rule would not result in any takings which might require compensation under the Fifth
Amendment to the United States

Constitution. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of proposed rulemaking.

List of Subjects in 10 CFR Part 1021

Environmental impact statements.

Issued in Washington, DC, on December

20, 2010.
Scott Blake Harris,

General Counsel.

For the reasons stated in the Preamble, DOE proposes to amend part 1021 of chapter X of title 10 of the Code of Federal Regulations as set forth
below:

**PART 1021—NATIONAL**
**ENVIRONMENTAL POLICY ACT**
**IMPLEMENTING PROCEDURES**

1. The authority citation for part 1021
continues to read as follows:

Authority: 42 U.S.C. 7101 et seq.; 42
U.S.C. 4321 et seq.; 50 U.S.C. 2401 et seq.

2. Section 1021.311 is amended by revising the first sentence in paragraph (d) and revising paragraph (f) to read as
follows:

**§ 1021.311 Notice of intent and scoping.**

* * * * *

(d) Except as provided in paragraph (f) of this section, DOE shall hold at least one public scoping meeting as part of the public scoping process for a DOE

EIS. * * *

* * * * *

(f) A public scoping process is optional for DOE supplemental EISs (40 CFR 1502.9(c)(4)). If DOE initiates a public scoping process for a supplemental EIS, the provisions of paragraphs (a) through (e) of this section shall apply.

3. Section 1021.322 is amended by revising the last sentence of paragraph (f) to read as follows:

**§ 1021.322 Findings of no significant impact.** 

* * * * *

(f) * * * A revised FONSI is subject to all provisions of this section.

4. Section 1021.331 is amended by revising paragraph (b) to read as follows:

**§ 1021.331 Mitigation action plans.**

* * * * *

(b) In certain circumstances, as specified in § 1021.322(b)(1), DOE shall also prepare a Mitigation Action Plan for commitments to mitigations that are essential to render the impacts of the proposed action not significant.

* * * * *

5. Subpart D is revised to read as
follows:


### 239 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

**Subpart D—Typical Classes of Actions**

Sec.
1021.400 Level of NEPA review. 1021.410 Application of categorical exclusions (classes of actions that normally do not require EAs or EISs). Appendix A to Subpart D of Part 1021— Categorical Exclusions Applicable to General Agency Actions Appendix B to Subpart D of Part 1021— Categorical Exclusions Applicable to Specific Agency Actions Appendix C to Subpart D of Part 1021— Classes of Actions That Normally Require EAs But Not Necessarily EISs Appendix D to Subpart D of Part 1021— Classes of Actions That Normally Require EISs

**§ 1021.400 Level of NEPA review.**

(a) This subpart identifies DOE actions that normally:

(1) Do not require preparation of either an EIS or an EA (are categorically excluded from preparation of either document) (appendices A and B to this subpart D);

(2) Require preparation of an EA, but not necessarily an EIS (appendix C to this subpart D); or

(3) Require preparation of an EIS (appendix D to this subpart D).

(b) Any completed, valid NEPA review does not have to be repeated, and no completed NEPA documents need to be redone by reasons of these regulations, except as provided in § 1021.314.

(c) If a DOE proposal is encompassed
within a class of actions listed in the appendices to this subpart D, DOE shall proceed with the level of NEPA review indicated for that class of actions, unless there are extraordinary circumstances related to the specific proposal that may affect the significance of the environmental effects of the proposal.

(d) If a DOE proposal is not encompassed within the classes of actions listed in the appendices to this subpart D, or if there are extraordinary circumstances related to the proposal that may affect the significance of the environmental effects of the proposal,
DOE shall either:

(1) Prepare an EA and, on the basis of that EA, determine whether to prepare an EIS or a FONSI; or

(2) Prepare an EIS and ROD.

**§ 1021.410 Application of categorical exclusions (classes of actions that normally**  **do not require EAs or EISs).**

(a) The actions listed in appendices A and B to this subpart D are classes of
actions that DOE has determined do not individually or cumulatively have a significant effect on the human environment (categorical exclusions). (b) To find that a proposal is categorically excluded, DOE shall determine the following:

(1) The proposal fits within a class of actions that is listed in appendix A or B to this subpart D;

(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

(3) 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. The scope of a proposal must
include the consideration of connected and cumulative actions, that is, the proposal is not connected to other actions with potentially significant impacts (40 CFR 1508.25(a)(1)), is not
related to other actions with individually insignificant but cumulatively significant impacts (40 CFR 1508.27(b)(7)), and is not precluded by 40 CFR 1506.1 or § 1021.211 of this part concerning limitations on actions during EIS preparation.

(c) All categorical exclusions may be applied by any organizational element
of DOE. The sectional divisions in appendix B to this subpart D are solely for purposes of organization of that appendix and are not intended to be limiting.

(d) 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).

(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. ( See also 10 CFR 1021.340.)

Appendix A to Subpart D of Part 1021—Categorical Exclusions Applicable to General Agency Actions

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


### 240 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

characterization or environmental monitoring. (See also B3.1 of appendix B to this subpart.)

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 Subpart D of Part 1021— Categorical Exclusions Applicable to Specific Agency Actions

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 CERCLAexcluded petroleum and natural gas products that preexist in the environment such that there would be uncontrolled or unpermitted releases; or

(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 Federal, State, or local governments, or a Federally recognized Indian Tribe, 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 Federallyproposed or candidate species or their habitat (Endangered Species Act); State-listed endangered or threatened species or their habitat; and Federally-protected marine mammals and Essential Fish Habitat (Marine Mammals Protection Act; Magnuson-Stevens Fishery Conservation and Management 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 solesource aquifers, wellhead protection areas,
and other water sources that are vital in a region); and

(vii) Tundra, coral reefs, or rain forests.

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, andapproval of rate or price changes for nonDOE 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 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


### 241 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

of conductors of the same nominal voltage, poles, circuit breakers, transformers, capacitors, crossarms, insulators, and downed transmission lines, 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 cause significant impacts on water withdrawals or the temperature of discharged water; or (3) increase introductions of, or involve new introductions of, hazardous substances,pollutants, contaminants, or CERCLAexcluded 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 electrical transmission lines 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 cause significant impacts on wildlife populations or 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 notlimited to, transformers and capacitors), PCBcontaining 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, abandonment, 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


### 242 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

(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 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 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,


### 243 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

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 abandonment of characterization and monitoring devices, and siting, construction, and associated operation of a small-scale laboratory building or renovation of a room in an existing building for sample analysis). Such activities would not have the potential to cause significant impacts from 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 salt

water and freshwater. See B3.16 of this appendix for salt water and freshwater 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). For purposes of this category,

‘‘ demonstration actions ’’ means actions that
are undertaken at a scale to show whether a technology would be viable on a larger scale and suitable for commercial deployment. Demonstration actions frequently follow research and development and pilot projects that are directed at establishing proof of
concept.

B3.7 New Terrestrial Infill Exploratory and Experimental Wells

Siting, construction, and operation of new terrestrial infill exploratory and experimental (test) wells 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, provided
that such activities would not have the potential to cause significant impacts on the ecosystem. These actions include, but are not limited to, small test plots for energy-related
biomass or biofuels research. Such research may include the use of genetically engineered plants where the test plot of such plants and associated activities have been authorized by the U.S. Department of Agriculture, in accordance with applicable requirements (such as 7 CFR part 340),


### 244 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

including the use of any required
confinement measures and buffer zones.

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 coal, oil, natural gas, hydrogen, syngas, and biomass.
Neither ‘‘ fuel ’’ nor ‘‘ alternative fuel ’’ herein
includes nuclear fuels. 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 thatpurpose), or drop, puncture, waterimmersion, or thermal tests. Covered actions would not involve source, special nuclear, or byproduct materials, except that encapsulated sources 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 or best practices (such as Biosafety in Microbiological and Biomedical Laboratories, 5th Edition, Feb. 2007, U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, and the National Institutes of Health) 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 smallscale 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
biohazardous 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 Salt Water and
Freshwater Environments

Small-scale, temporary surveying, site characterization, and research activities in salt water and freshwater environments,
limited to:

(a) Acquisition of rights-of-way, easements, and temporary use permits;

(b) Data collection, environmental monitoring, and nondestructive research

programs;

(c) Resource evaluation activities including surveying and mapping, but excluding seismic activities other than passive techniques;

(d) Collection of geological, paleontological, mineralogical, geochemical, biological, and geotechnical data and samples, but excluding large-scale vibratory coring techniques;

(e) Installation of monitoring and recording devices;

(f) Installation of equipment for flow testing of existing wells including equipment for fluid analysis; and

(g) Ecological and environmental research provided that such activities would not have the potential to cause significant impacts on the ecosystem.

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 above activities 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 (such as protected areas and other 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), or
outside those areas if the activities would have the potential to cause significant impacts within those areas. 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

Power Resources

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 or transmission 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


### 245 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

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, seasonal exchanges, and other similar activities), provided that the operations of generating projects would remain within normal operating limits.

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 that would not have the potential to cause significant impacts beyond the previously disturbed or developed facility area (including, but not limited to, switchyard rock grounding upgrades, secondary containment projects, paving projects, seismic upgrading, tower modifications, load shaping projects (such as the installation and use of flywheels and battery arrays), changing insulators, and replacement of poles, circuit breakers, conductors, transformers, and crossarms).

B4.7 Fiber Optic Cable

Adding fiber optic cables to transmission facilities or burying fiber optic cable inexisting transmission line or pipeline rightsof-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 Transmission Line 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
Lines and Substations

Deactivation, dismantling, and removal of electric transmission facilities (including, but not limited to, electric transmission lines, 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) that
are not for the interconnection of a new generation resource into a Power Marketing Administration’s transmission system, unless: (1) The new generation resource would be eligible for categorical exclusion under this part and (2) the new generation resource would be equal to or less than 50
average megawatts.

B4.12 Construction of Transmission Lines

Construction of electric transmission lines approximately 10 miles in length or less inside or outside of previously disturbed or developed transmission line or pipeline rights-of-way, or approximately 20 miles in length or less inside of previously disturbed or developed transmission line or pipeline rights-of-way, that are not for the interconnection of a new generation resource into a Power Marketing Administration’s transmission system, unless: (1) The new generation resource would be eligible for categorical exclusion under this part and (2) the new generation resource would be equal to or less than 50 average megawatts.

B4.13 Upgrading and Rebuilding Existing

Transmission Lines

Upgrading or rebuilding approximately 20 miles in length or less of existing electric transmission lines, which may involve minor relocations of small segments of the transmission lines, that is not for the interconnection of a new generation resource into a Power Marketing Administration’s transmission system, unless: (1) The new generation resource would be eligible for categorical exclusion under this part and (2) the new generation resource would be equal to or less than 50 average megawatts.

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); power storage (such as flywheels and batteries, generally less than 10 megawatt equivalent); 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


### 246 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

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 Import or Export Natural Gas, With Operational Changes

Approvals or disapprovals of new authorizations or amendments of existing authorizations to import or export natural gas
under section 3 of the Natural Gas Act that involve minor operational changes (such as changes in natural gas throughput, transportation, and storage operations) but

not new construction.

B5.8 Import or Export Natural Gas, With New Cogeneration Powerplant

Approvals or disapprovals of new authorizations or amendments of existing authorizations to import or export natural gas
under section 3 of the Natural Gas Act that involve new cogeneration powerplants (as defined in the Powerplant and Industrial Fuel Use Act of 1978, as amended) within or contiguous to an existing industrial complex and requiring generally less than 10 miles of new natural gas pipeline or 20 miles withinpreviously disturbed or developed rights-ofway.
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 salt water and freshwater environments. (See B3.16 of this appendix for activities in salt water and freshwater 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 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

The installation, modification, operation, and removal of commercially available solar photovoltaic systems located on a building or other structure (such as rooftop, parking lot or facility, and mounted to signage, lighting, gates, or fences), or 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.

B5.17 Solar Thermal Systems

The installation, modification, operation,and removal of commercially available smallscale 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 commercially available small 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 from an airport or aviation navigation aid; (3) are located more than 1.5
nautical 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 species; and (5) are sited or designed such that the project would not have the potential to cause significant impacts to


### 247 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

persons (such as shadow flicker and other visual impacts, 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.

B5.19 Ground Source Heat Pumps

The installation, modification, operation,and removal of commercially available smallscale ground source heat pumps to support operations in single facilities (such as a school and community center) or contiguous facilities (such as an office complex) (1) only where major associated activities (such as drilling and discharge) are regulated, and appropriate leakage and contaminant control measures would be in place; (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 smallscale, 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 a
natural anadromous fish barrier and where there would not be the potential for significant impacts to threatened or endangered species. 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 Salt Water and Freshwater Environments

Small-scale renewable energy research and development projects and small-scale pilot projects located in salt water and freshwater
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 (such as protected areas and other 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), or outside those areas if the activities would have the potential to cause significant impacts within those areas. 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, 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,


### 248 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

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 CERCLAexcluded 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 oftemporary (generally less than 2 years) pilotscale 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, and C16 of appendix C) 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, and C16 of appendix C.)

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 to Subpart D of Part 1021— Classes of Actions That Normally Require EAs But Not Necessarily EISs

C1 [Reserved]

C2 [Reserved]

C3 Electric Power Marketing Rate Changes, Not Within Normal Operating Limits

Rate changes for electric power, power transmission, and other products or services provided by Power Marketing Administrations that are based on changes in revenue requirements if the operations of generation projects would not remain within normal operating limits.

C4 Upgrading, Rebuilding, or Construction
of Electric Transmission Lines

Upgrading or rebuilding more than approximately 20 miles in length of existing electric transmission lines; or construction of electric transmission lines (1) more than approximately 10 miles in length outside previously disturbed or developed transmission line or pipeline rights-of-way or (2) more than approximately 20 miles in length within previously disturbed or developed transmission line or pipeline rights-of-way.

C5 Vegetation Management Program

Implementation of a Power Marketing Administration system-wide vegetation
management program.


### 249 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Proposed Rules

C6 Erosion Control Program

Implementation of a Power Marketing Administration system-wide erosion control

program.
C7 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 or transmission that involve (1) the interconnection of, or acquisition of power from, new generation resources that are equal to or less than 50 average megawatts and that would not be eligible for categorical exclusion under this part; (2) changes in the normal operating limits of generation resources equal to or less than 50 average megawatts; or (3) service to discrete new loads of less than10 average megawatts over a 12-month period.

C8 Protection of Cultural Resources and
Fish and Wildlife Habitat

Large-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.

C9 Wetlands Demonstration Projects

Field demonstration projects for wetlands mitigation, creation, and restoration.

C10 [Reserved]

C11 Particle Acceleration Facilities

Siting, construction or modification, operation, and decommissioning of low- or medium-energy (when the primary beam energy exceeds approximately 100 million electron volts and the average beam power exceeds approximately 250 kilowatts or where the average current exceeds 2.5 milliamperes) particle acceleration facilities, including electron beam acceleration facilities, and associated beamlines, storage rings, colliders, and detectors for research and medical purposes, within or contiguous to a previously disturbed or developed area (where active utilities and currently used roads are readily accessible).

C12 Energy System Demonstration Actions

Siting, construction, and operation of energy system demonstration actions (including, but not limited to, wind resource, hydropower, geothermal, fossil fuel, biomass, and solar energy, but excluding nuclear). For purposes of this category, ‘‘ demonstration

actions ’’ means actions that are undertaken at a scale to show whether a technology would be viable on a larger scale and suitable for commercial deployment. Demonstration actions frequently follow research and development and pilot projects that are directed at establishing proof of concept.

C13 Import or Export Natural Gas Involving Minor New Construction

Approvals or disapprovals of authorizations to import or export natural gas under section 3 of the Natural Gas Act involving minor new construction (such as adding new connections, looping, or compression to an existing natural gas or liquefied natural gas pipeline, or converting an existing oil pipeline to a natural gas pipeline using the same right-of-way).

C14 Water Treatment Facilities

Siting, construction (or expansion), operation, and decommissioning of wastewater, surface water, potable water, and sewage treatment facilities with a total capacity greater than approximately 250,000 gallons per day, and of lower capacity

wastewater and surface water treatment facilities whose liquid discharges are not subject to external regulation.

C15 Research and Development
Incinerators and Nonhazardous Waste

Incinerators

Siting, construction (or expansion), and operation of research and development incinerators for any type of waste and of any

other incinerators that would treat nonhazardous solid waste (as designated in 40 CFR 261.4(b)).

C16 Large Waste Packaging and Storage
Facilities

Siting, construction, modification to increase capacity, operation, and decommissioning of packaging and unpacking facilities (such as characterization operations) and large storage facilities (greater than approximately 50,000 square feet in area) for waste, except high-level radioactive waste, generated onsite or resulting from activities connected to site operations. These actions do not include storage, packaging, or unpacking of spent nuclear fuel. (See also B6.4, B6.5, B6.6, and B6.10 of appendix B.)

Appendix D to Subpart D of Part 1021— Classes of Actions That Normally Require EISs

D1 Strategic Systems

Strategic Systems, as defined in DOE Order

430.1, ‘‘ Life-Cycle Asset Management, ’’ or its successor, and designated by the Secretary.

D2 Nuclear Fuel Reprocessing Facilities

Siting, construction, operation, and decommissioning of nuclear fuel reprocessing facilities.

D3 Uranium Enrichment Facilities

Siting, construction, operation, and decommissioning of uranium enrichment

facilities.

D4 Reactors

Siting, construction, operation, and decommissioning of power reactors, nuclear material production reactors, and test and

research reactors. D5 [Reserved]

D6 [Reserved]

D7 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 or transmission that involve (1) the interconnection of, or acquisition of power from, new generation resources greater than 50 average megawatts; (2) changes in the normal operating limits of generation resources greater than 50 average megawatts; or (3) service to discrete new loads of 10 average megawatts or more over a 12-month period.

D8 Import or Export of Natural Gas Involving Major New Facilities

Approvals or disapprovals of authorizations to import or export natural gas

under section 3 of the Natural Gas Act involving construction of major new natural gas pipelines or related facilities (such as liquefied natural gas terminals and regasification or storage facilities) or significant expansions and modifications of existing pipelines or related facilities).

D9 Import or Export of Natural Gas Involving Major Operational Change

Approvals or disapprovals of authorizations to import or export natural gas

under section 3 of the Natural Gas Act involving major operational changes (such as a major increase in the quantity of liquefied natural gas imported or exported).

D10 Treatment, Storage, and Disposal Facilities for High-Level Waste and Spent
Nuclear Fuel

Siting, construction, operation, and decommissioning of major treatment, storage, and disposal facilities for high-level waste and spent nuclear fuel, including geologic repositories, but not including onsite replacement or upgrades of storage facilities for spent nuclear fuel at DOE sites where such replacement or upgrade would not result in increased storage capacity.

D11 Waste Disposal Facilities for

Transuranic Waste

Siting, construction or expansion, and operation of disposal facilities for transuranic (TRU) waste and TRU mixed waste (TRU waste also containing hazardous waste as designated in 40 CFR part 261).

D12 Incinerators

Siting, construction, and operation of incinerators, other than research and development incinerators or incinerators for nonhazardous solid waste (as designated in 40 CFR 261.4(b)).

[FR Doc. 2010–32316 Filed 12–30–10; 8:45 am]

**BILLING CODE 6450–01–P**