63764 Federal Register / Vol. 76, No. 198 / Thursday, October 13, 2011 / Rules and Regulations 

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: Final rule. 

SUMMARY: The U.S. Department of 

Energy (DOE or the Department) is 

revising its National Environmental 

Policy Act (NEPA) Implementing 

Procedures. The majority of the changes 

are being made to the categorical 

exclusion provisions. These revisions 

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 is establishing 20 

new categorical exclusions and 

removing two categorical exclusion 

categories, one environmental 

assessment category, and three 

environmental impact statement 

categories. Other changes modify and 

clarify DOE’s existing provisions. 

DATES: Effective Date: These rule 

changes will become effective 

November 14, 2011. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding DOE’s NEPA 

implementation regulations or general 

information about DOE’s NEPA 

procedures, contact Ms. Carol 

Borgstrom, Director, Office of NEPA 

Policy and Compliance, at 

askNEPA@hq.doe.gov or 202–586–4600 

or leave a message at 800–472–2756. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DOE promulgated its regulations 

entitled ‘‘National Environmental Policy 

Act Implementing Procedures’’ (10 CFR 

part 1021) on April 24, 1992 (57 FR 

15122), and revised these regulations on 

July 9, 1996 (61 FR 36222), December 6, 

1996 (61 FR 64603), and August 27, 

2003 (68 FR 51429). The DOE NEPA 

regulations at 10 CFR part 1021 contain 

procedures that DOE shall use to 

comply with section 102(2) of the 

National Environmental Policy Act 

(NEPA) of 1969 (42 U.S.C. 4332(2)) and 

the Council on Environmental Quality 

(CEQ) regulations for implementing the 

procedural provisions of NEPA (40 CFR 

parts 1500–1508). DOE published a 

Notice of Proposed Rulemaking on 

January 3, 2011 (76 FR 214), to solicit 

public comments on its proposal to 

further revise these regulations by 

adding new categorical exclusions, 

revising existing categorical exclusions, 

and making certain other changes. 

Publication of the Notice of Proposed 

Rulemaking began a 45-day public 

comment period, scheduled to end on 

February 17, 2011, which included a 

public hearing on February 4, 2011, at 

DOE headquarters in Washington, DC. 

On February 23, 2011, in response to a 

request from the National Wildlife 

Federation, on behalf of itself and 9 

other organizations, for additional time 

to review the proposed rule and submit 

comments, DOE re-opened the comment 

period until March 7, 2011 (76 FR 

9981). 

DOE received comments from private 

citizens, trade associations, 

nongovernmental organizations, Federal 

agencies, and a tribal government 

agency. The transcript of the public 

hearing, a request to extend the 

comment period, and the 29 comment 

documents received by DOE, including 

two documents received after the close 

of the comment period, are available on 

the DOE NEPA Web site (http:// 

energy.gov/nepa) and on the 

Regulations.gov Web site (http:// 

www.regulations.gov) at docket ID: 

DOE–HQ–2010–0002. 

DOE considered all comments 

received, including those comments on 

categorical exclusions for which DOE 

did not propose any changes. DOE’s 

response to the comments is contained 

in section IV, Comments Received and 

DOE’s Responses, below. 

The revisions DOE is making are 

consistent with guidance issued by CEQ 

on establishing, applying, and revising 

categorical exclusions under NEPA 

(CEQ, ‘‘Final Guidance for Federal 

Departments and Agencies on 

Establishing, Applying, and Revising 

Categorical Exclusions Under the 

National Environmental Policy Act’’; 

hereafter, CEQ Categorical Exclusion 

Guidance) (75 FR 75628; December 6, 

2010). On December 29, 2009, DOE 

initiated its periodic review by 

publishing a Request for Information in 

the Federal Register (74 FR 68720) 

(http://www.gpo.gov/fdsys/pkg/FR2009-12-29/pdf/E9-30829.pdf) that 

sought input from interested parties to 

help identify activities that should be 

considered for new or revised 

categorical exclusions. Moreover, DOE 

evaluated each of its existing categorical 

exclusions in preparing these revisions, 

and this rulemaking satisfies CEQ’s 

recommendation for periodic review of 

an agency’s categorical exclusions. 

This document adopts the revisions 

proposed in the Notice of Proposed 

Rulemaking, with certain changes 

discussed below, and amends DOE’s 

existing regulations at 10 CFR part 1021. 

In accordance with 40 CFR 1507.3, CEQ 

reviewed this final rule and concluded 

that the proposed amendment of DOE’s 

NEPA implementing regulations is in 

conformance with NEPA and the CEQ 

regulations. The Secretary of Energy has 

approved this final rule for publication. 

Within this document, ‘‘existing rule’’ 

refers to DOE’s current NEPA 

implementing regulations (as last 

modified in 2003, before the revisions 

announced in this document); 

‘‘proposed rule’’ refers to changes 

identified in DOE’s Notice of Proposed 

Rulemaking published on January 3, 

2011; and ‘‘new rule’’ or ‘‘final rule’’ 

refers to the changes identified in this 

document, which will become effective 

on November 14, 2011. 

II. Statement of Purpose 

The Department last revised the 

categorical exclusions in its NEPA 

implementing regulations 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 reviewed thousands of 

applications from private entities 

requesting financial support for projects 

to develop new or improved energy 

technologies, including for renewable 

energy sources. This experience 

highlighted the potential for new and 

revised categorical exclusions and 

helped DOE identify appropriate limits 

to include in these categorical 

exclusions to ensure that the activities 

described normally would not have the 

potential for significant environmental 

impact. 

The purpose of this rulemaking is to 

revise certain provisions of DOE’s NEPA 

implementing regulations to better align 

DOE’s categorical exclusions with its 

current activities and its experience and 

to bring the provisions up-to-date with 

current technology, operational 

practices, and regulatory requirements. 

The changes will facilitate compliance 

with NEPA by providing for more 

efficient review of actions (for example, 

helping the Department meet the goals 

set forth in the Energy Policy Act of 

2005), and allowing the Department to 

focus its resources on evaluating 

proposed actions that have the potential 

for significant environmental impacts. 

The changes will also increase 

transparency by providing the public 

more specific information as to the 

circumstances in which DOE is likely to 

invoke a categorical exclusion. 


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What kinds of changes is DOE making? 

DOE is amending 10 CFR part 1021, 

subparts B, C, and D. Most of the 

changes affect the categorical exclusion 

provisions at 10 CFR part 1021, subpart 

D, appendices A and B. 

DOE is adding 20 new categorical 

exclusions. These categorical exclusions 

address stormwater runoff control; leadbased paint containment, removal, and 

disposal; drop-off, collection, and 

transfer facilities for recyclable material; 

determinations of excess real property; 

small-scale educational facilities; smallscale indoor research and development 

projects using nanoscale materials; 

research activities in aquatic 

environments; experimental wells for 

injection of small quantities of carbon 

dioxide; combined heat and power or 

cogeneration systems; small-scale 

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 

stations; drop-in hydroelectric systems; 

and small-scale renewable energy 

research and development and pilot 

projects in aquatic environments. These 

new categorical exclusions include 

criteria (e.g., acreage, location, and 

height limitations), based on DOE and 

other agency experience and regulatory 

requirements, that limit the covered 

actions to those that normally would not 

have the potential to cause significant 

impacts. DOE is removing two 

categorical exclusion categories, one 

environmental assessment category, and 

three environmental impact statement 

categories. 

DOE also is modifying many of the 

existing categorical exclusions. These 

revisions include substantive changes, 

changes to update regulatory or 

statutory references and requirements, 

and editorial changes. 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. 

DOE is making several minor 

technical and organizational changes in 

the final rule, four of which were not 

identified at the time of the Notice of 

Proposed Rulemaking. First, after 

issuing the Notice of Proposed 

Rulemaking, DOE noted that 10 CFR 

1021.215(d) includes an outdated 

reference to § 1021.312. In the DOE 

NEPA regulations promulgated in 1992, 

§ 1021.312 addressed environmental 

impact statement implementation plans. 

In 1996, DOE removed this requirement, 

and the section number was reserved. 

Therefore, DOE is deleting the reference 

to § 1021.312 from § 1021.215. Second, 

in the Notice of Proposed Rulemaking, 

DOE proposed two changes to correct 

cross-references within § 1021.311. 

After further consideration, DOE is 

modifying the proposed change to 

§ 1021.311(d) to improve clarity by 

deleting the introductory clause, rather 

than only correcting the cross-reference 

in that clause. (As described in the 

Notice of Proposed Rulemaking, DOE is 

also revising § 1021.311(f) (i.e., 

correcting one cross-reference).) Third, 

in the Notice of Proposed Rulemaking, 

DOE proposed to change the title for the 

group of categorical exclusions from 

B4.1 through B4.13. After further 

consideration, DOE is further modifying 

the title to ‘‘Categorical Exclusions 

Applicable to Electric Power and 

Transmission.’’ Fourth, a comment from 

Tri-Valley CAREs (at page 1) requested 

that DOE not remove the table of 

contents from its NEPA regulations (as 

proposed in the Notice of Proposed 

Rulemaking), explaining that the table 

of contents is ‘‘extremely useful.’’ In 

response, DOE is retaining a table of 

contents in each appendix. These 

changes have no regulatory effect. 

III. Overview of Categorical Exclusions 

What is a categorical exclusion? 

A categorical exclusion is a category 

(class) of actions that a Federal agency 

has determined normally do not, 

individually or cumulatively, have a 

significant impact on the human 

environment and for which, therefore, 

neither an environmental assessment 

nor an environmental impact statement 

is required. See 40 CFR 1508.4. A 

categorical exclusion determination is 

made when an agency finds that a 

particular proposed action fits within a 

categorical exclusion and meets other 

applicable requirements, including the 

absence of extraordinary circumstances 

(i.e., circumstances in which a normally 

excluded action may have a significant 

environmental effect). 

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. This record is based on 

DOE’s experience, the experience of 

other agencies, completed 

environmental reviews, professional 

and expert opinion, and scientific 

analyses. DOE also considers public 

comment received during the 

rulemaking, as detailed in section IV, 

Comments Received and DOE’s 

Responses, below. 

As CEQ states in its Categorical 

Exclusion Guidance, ‘‘Categorical 

exclusions are not exemptions or 

waivers of NEPA review; they are 

simply one type of NEPA review * * *. 

Once established, categorical exclusions 

provide an efficient tool to complete the 

NEPA environmental review process for 

proposals that normally do not require 

more resource-intensive EAs 

[environmental assessments] or EISs 

[environmental impact statements]. The 

use of categorical exclusions can reduce 

paperwork and delay, so that EAs or 

EISs are targeted toward proposed 

actions that truly have the potential to 

cause significant environmental effects’’ 

(75 FR at 75631). 

How does DOE use a categorical 

exclusion in its decisionmaking? 

As part of its environmental review 

responsibilities under NEPA, a DOE 

NEPA Compliance Officer examines an 

individual proposed action to determine 

whether it qualifies for a categorical 

exclusion. DOE’s process is consistent 

with that described in CEQ’s Categorical 

Exclusion Guidance: ‘‘When 

determining whether to use a categorical 

exclusion for a proposed activity, a 

Federal agency must carefully review 

the description of the proposed action to 

ensure that it fits within the category of 

actions described in the categorical 

exclusion. Next, the agency must 

consider the specific circumstances 

associated with the proposed activity, to 

rule out any extraordinary 

circumstances that might give rise to 

significant environmental effects 

requiring further analysis and 

documentation’’ in an environmental 

assessment or environmental impact 

statement (75 FR at 75631). 

DOE’s existing and new regulations 

ensure that the NEPA Compliance 

Officer follows the steps described by 

CEQ. Before DOE may apply a 

categorical exclusion to a particular 

proposed action, DOE must determine 

in accordance with 10 CFR 1021.410(b) 

that: (1) The proposed action fits within 

an established categorical exclusion as 

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) the proposal is not 

‘‘connected’’ to other actions with 

potentially significant impacts and is 

not related to other actions with 

cumulatively significant impacts, and 

the proposed action is not precluded as 


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an impermissible interim action 

pursuant to 40 CFR 1506.1 and 10 CFR 

1021.211. 

To fit within a categorical exclusion 

listed in appendix B, a proposed action 

also must satisfy certain conditions 

known as ‘‘integral elements’’ (appendix 

B, paragraphs (1) through (5)). Briefly, 

these conditions require that a 

categorical exclusion listed in appendix 

B not be applied to a proposed action 

with the potential to cause significant 

environmental impacts due to, for 

example, threatening a violation of 

applicable environmental, safety, and 

health requirements; requiring siting 

and construction, or major expansion, of 

a new waste storage, disposal, recovery, 

or treatment facility; disturbing 

hazardous substances such that there 

would be uncontrolled or unpermitted 

releases; having the potential to cause 

significant impacts on environmentally 

sensitive resources; or involving 

genetically engineered organisms, 

unless the proposed activity would be 

contained in a manner to prevent 

unauthorized release into the 

environment and conducted in 

accordance with applicable 

requirements. 

The level of detail necessary to 

evaluate the potential for extraordinary 

circumstances and otherwise to 

determine whether a categorical 

exclusion is appropriate for a particular 

proposed action varies. For example, 

appendix A to subpart D lists categorical 

exclusions for several routine 

administrative actions, studies, and 

planning activities. A NEPA 

Compliance Officer normally can 

determine whether a categorical 

exclusion listed in appendix A is 

appropriate by reviewing a description 

of the proposed project. However, to 

determine whether a categorical 

exclusion from appendix B applies, in 

addition to the project description, a 

NEPA Compliance Officer also would 

consider information about a proposed 

project site and the result of reviews by 

other agencies (such as of historic 

properties or threatened and endangered 

species), as well as other related 

information. 

IV. Comments Received and DOE’s 

Responses 

DOE has considered the comments on 

the proposed rulemaking received 

during the public comment period as 

well as all late comments. DOE has 

incorporated some revisions suggested 

in these comments into the final rule. 

The following discussion describes the 

comments received, provides DOE’s 

response to the comments, and 

describes changes to the rule resulting 

from public comments and from DOE’s 

further consideration of its proposal. 

DOE does not repeat discussion of 

topics in this final rule that have not 

changed relative to what was described 

in the Notice of Proposed Rulemaking. 

Thus, the Notice of Proposed 

Rulemaking may be consulted for 

further explanation regarding changes in 

the final rule. 

DOE received no comments or only 

supportive comments on the following 

sections of the rule and is not making 

any changes beyond those discussed in 

the Notice of Proposed Rulemaking: In 

subpart C, sections 1021.322 and 

1021.331; in subpart D, sections 

1021.400; all of appendix A; in 

appendix B, paragraphs (1) through (2), 

and categorical exclusions B1.1, B1.2, 

B1.4, B1.6 through B1.8, B1.10, B1.12, 

B1.13, B1.15 through B1.17, B1.20 

through B1.23, B1.27, B1.28, B1.30 

through B1.32, B1.35, B1.36, B2.1, B2.2, 

B2.4 through B2.6, B3.2 through B3.5, 

B3.10, B3.13, B4.2, B4.3, B4.5, B4.8, 

B5.1, B5.2, B5.6, B5.7, B5.9 through 

B5.12, B5.14, B5.21 through B5.23, B6.2 

through B6.10, B7.1, B7.2; in appendix 

C, C1 through C3, C5, C6, C9 through 

C11, C13, C14, C16; and in appendix D, 

D2 through D6, D8 through D12. In the 

final rule, therefore, these sections 

remain as discussed in the Notice of 

Proposed Rulemaking and are not 

discussed further. In addition, this final 

rule does not further discuss editorial 

changes described in the Notice of 

Proposed Rulemaking or in section II, 

Statement of Purpose, above. 

A. General Comments on Proposed 

Amendments 

The U.S. Environmental Protection 

Agency stated that the ‘‘proposed 

changes will enhance the efficiency of 

DOE’s environmental review process 

while maintaining appropriate 

consideration of environmental effects 

pursuant to NEPA’’ and, accordingly, 

did not object to the proposed 

rulemaking. 

In addition, several comments 

expressed support for the establishment 

of particular new categorical exclusions, 

especially for renewable energy 

technologies. DOE received comments 

expressing support for the following 

categorical exclusions as proposed: B1.7 

(electronic equipment) from Edison 

Electric Institute (at page 2); B3.9 

(projects to reduce emissions and waste 

generation) from Edison Electric 

Institute (at page 2) and National 

Wildlife Federation (at page 1); B3.16 

(research activities in aquatic 

environments) from Biotechnology 

Industry Organization (at page 3) and 

Pacific Northwest National Laboratory, a 

DOE government research laboratory (at 

page 1); B5.13 (experimental wells for 

injection of small quantities of carbon 

dioxide) from Pacific Northwest 

National Laboratory (at page 1); B5.14 

(combined heat and power or 

cogeneration systems) from Pacific 

Northwest National Laboratory (at page 

1); B5.15 (small-scale renewable energy 

research and development and pilot 

projects) from Biotechnology Industry 

Organization (at page 3), Defenders of 

Wildlife (at page 2), and Pacific 

Northwest National Laboratory (at page 

1); B5.16 (solar photovoltaic systems) 

from Pacific Northwest National 

Laboratory (at page 1); B5.17 (solar 

thermal systems) from Pacific Northwest 

National Laboratory (at page 1); B5.18 

(wind turbines) from Granite 

Construction Company (at page 2) and 

Pacific Northwest National Laboratory 

(at page 1); B5.19 (ground source heat 

pumps) from Pacific Northwest National 

Laboratory (at page 1); B5.20 (biomass 

power plants) from Pacific Northwest 

National Laboratory (at page 1); B5.21 

(methane gas recovery and utilization 

systems) from Pacific Northwest 

National Laboratory (at page 1); B5.22 

(alternative fuel vehicle fueling stations) 

from Pacific Northwest National 

Laboratory (at page 1); B5.23 (electric 

vehicle charging stations) from National 

Electrical Manufacturers Association (at 

page 1), National Wildlife Federation (at 

page 1), and Pacific Northwest National 

Laboratory (at page 1); B5.24 (drop-in 

hydroelectric systems) from Pacific 

Northwest National Laboratory (at page 

1); and B5.25 (small-scale renewable 

energy research and development and 

pilot projects in aquatic environments) 

from Biotechnology Industry 

Organization (at page 3), Ocean 

Renewable Power Company (at page 1), 

and Pacific Northwest National 

Laboratory (at page 1). DOE received a 

comment from the Biotechnology 

Industry Organization (at pages 1 and 3) 

in support of the use of algal biomass for 

renewable energy production, stating 

that the existing regulatory framework 

was sufficient to protect human health 

and the environment. The comment 

supported the use of categorical 

exclusions for related small-scale and 

laboratory research and pilot projects. 

Finally, DOE received a comment from 

the Blue Ridge Environmental Defense 

League (at page 1) indicating general 

support for solar photovoltaic and solar 

thermal facilities and wind turbines, but 

cautioned that the public may see 

categorical exclusions as loopholes, 

which could undermine support for 

these technologies. DOE notes these 

comments. Section 1021.410 describes 


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the process for applying a categorical 

exclusion. 

Several comments expressed general 

objections to or concerns regarding 

DOE’s proposed revision of its NEPA 

regulations. A comment from an 

anonymous individual (at pages 1–2) 

rejected all proposed changes, and a 

comment from the Blue Ridge 

Environmental Defense League (at page 

1) opposed the addition of any 

categorical exclusions. DOE notes these 

comments. A comment from Jean Public 

(at page 1) listed wildlife, birds, reptiles, 

and mammals as environmental 

resources to be protected and stated that 

environmental assessments should 

never be allowed or used. DOE responds 

that DOE’s NEPA regulations provide 

for the consideration of potential 

impacts on environmentally sensitive 

resources, and the provisions relating to 

environmental assessments are 

consistent with NEPA and the 

requirements of the CEQ NEPA 

regulations. A comment from Joyce 

Dillard (at page 1) stated that public 

health and safety should be a 

consideration first and foremost; DOE 

notes that public health and safety are 

among the key considerations in all 

NEPA reviews, including the 

establishment and application of 

categorical exclusions. 

DOE received a comment from the 

Chesapeake Bay Foundation (at page 2) 

asking that DOE provide ‘‘a clear 

explanation and evidential support,’’ in 

accordance with the CEQ Categorical 

Exclusion Guidance, when proposing 

categorical exclusions. DOE establishes 

categorical exclusions based on 

Departmental experience, the 

experience of other agencies, completed 

environmental reviews, professional 

and expert opinion, and scientific 

analyses. For example, some of DOE’s 

proposed categorical exclusions are 

supported by existing comparable 

categorical exclusions from other 

Federal agencies and their related 

experience. DOE prepared a Technical 

Support Document to provide analysis 

and identify reference documents 

supporting the revisions described in 

the Notice of Proposed Rulemaking. In 

preparation of this final rule, DOE 

updated and expanded the Technical 

Support Document. The Technical 

Support Document is available at 

http://energy.gov/nepa/downloads/ 

technical-support-documentsupplement-department-energys-noticefinal-rulemaking. 

A comment from the Biotechnology 

Industry Organization (at page 2) 

expressed support for science-based 

regulation that ‘‘focuses on reducing 

and eliminating actual risks to the 

natural and human environment’’ and 

applauded DOE’s goals of removing 

barriers toward the adoption of 

innovative research on renewable 

energy. 

A comment from the Kaibab Band of 

Paiute Indians (at page 1), citing the 

April 2010 Gulf oil spill, expressed 

opposition to the use of categorical 

exclusion determinations for 

experimental and research and 

development projects because of their 

unpredictability, and recommended that 

DOE analyze experimental or unproven 

techniques in environmental 

assessments or environmental impact 

statements. The comment recommends 

a similar approach for proven 

techniques employed in extreme 

situations. In response to this and other 

comments related to research and 

development activities, DOE reviewed 

its categorical exclusions and revised 

some of the listed actions and associated 

limits, such as described for categorical 

exclusions below. Limits on the size, 

scope, and other aspects (such as 

containment), combined with other 

criteria, restrict the application of 

categorical exclusions for research and 

development activities to projects that 

normally would not have a potential for 

significant environmental impacts. For 

proposed projects involving proven 

techniques in extreme situations, DOE 

would evaluate whether extraordinary 

circumstances are present such that 

application of a categorical exclusion is 

not appropriate. 

DOE received a comment from Brian 

Musser (at page 2) regarding the 

regulation of coal combustion residue 

under Resource Conservation and 

Recovery Act Subtitle C. DOE considers 

this comment to be out of scope because 

it does not relate to the DOE NEPA 

regulations. However, DOE would 

consider potential impacts associated 

with coal combustion residue where 

relevant to NEPA review of a specific 

proposal. 

B. Comments on DOE’s NEPA Process 

A comment from the Ocean 

Renewable Power Company (at pages 1– 

2), referring to a pilot project for which 

DOE provides funding and another 

agency has licensing authority, stated 

that the NEPA process involves 

duplicative and unnecessary reviews by 

multiple agencies, which increases costs 

for both the agencies and the applicant 

and imposes delays that can jeopardize 

private financing. This comment does 

not propose specific changes to DOE’s 

NEPA regulations, but suggests that 

coordination with other environmental 

review requirements could be improved. 

DOE’s NEPA regulations state, in 

§ 1021.341, that ‘‘DOE shall integrate the 

NEPA process and coordinate NEPA 

compliance with other environmental 

review requirements to the fullest extent 

possible.’’ DOE appreciates the concern 

expressed by the comment and will 

continue to seek ways to improve 

coordination of environmental review 

requirements. 

A comment from the Chesapeake Bay 

Foundation (at page 2) supported the 

recommendation in the CEQ Categorical 

Exclusion Guidance that an agency such 

as DOE develop a schedule for the 

periodic review of its categorical 

exclusions at least every 7 years. DOE 

also agrees with the recommendation for 

periodic review and considers this 

rulemaking to satisfy the CEQ 

recommendation for the near term. DOE 

intends to review its categorical 

exclusions periodically, consistent with 

CEQ guidance, to ensure that DOE’s 

categorical exclusions ‘‘remain current 

and appropriate,’’ as stated in the CEQ 

guidance. 

C. Comments on Amendments to 

Subpart D 

1. Placement of Categorical Exclusions 

in Appendix A vs. Appendix B 

A comment from Pacific Northwest 

National Laboratory (at page 3) asked 

DOE to evaluate moving several 

categorical exclusions from appendix B, 

for which determinations are 

documented and made publicly 

available, to appendix A, for which 

determinations are not required to be 

documented. For example, the comment 

stated that requiring documentation for 

routine maintenance (categorical 

exclusion B1.3) that is performed many 

times daily is an inefficient use of 

resources and results in gaps in 

compliance. DOE decided not to move 

any categorical exclusion from appendix 

B to appendix A because such a change 

would reduce transparency in the 

Department’s NEPA compliance 

program. To address the potential 

inefficiency identified by the comment, 

DOE is adding a new paragraph (10 CFR 

1021.410(f)) to the final rule that 

describes current practice to address 

proposed recurring activities to be 

undertaken during a specified time 

period, such as routine maintenance 

activities for a year, in a single 

categorical exclusion determination 

after considering the potential 

aggregated impacts. 

Another comment from Sandy 

Beranich (at page 1) stated that many 

categorical exclusions in appendix A are 

for routine activities, and NEPA should 

not be required for routine activities. 

The comment stated that, if some level 


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of scale is not provided to indicate 

when an appendix A review is triggered, 

then DOE should post such appendix A 

categorical exclusion determinations 

online to inform the public how DOE 

uses its resources. DOE responds that 

the application of categorical exclusions 

listed in appendix A normally is a 

simple matter that entails minimal cost. 

DOE has not found use of these 

categorical exclusions to be problematic 

and has not identified any need to 

establish a level of activity below which 

NEPA normally would not apply. Some 

DOE offices choose to post to the Web 

their determinations for categorical 

exclusions listed in appendix A, but 

DOE does not require this practice. 

A comment from Sandy Beranich (at 

page 3) stated that NEPA ‘‘is all about 

ground-disturbing actions—not routine 

activities.’’ DOE disagrees that NEPA is 

limited to ground-disturbing activities 

(for example, activities could also have 

air or water impacts that would be 

appropriate for NEPA review), and is 

not making any change in response to 

this comment. 

Another comment from Sandy 

Beranich (at page 3) provided an 

example of a proposed action, the 

components of which, in her opinion, 

fell within six different appendix A and 

appendix B categorical exclusions. DOE 

agrees that it is possible for a project to 

be covered by more than one categorical 

exclusion. Furthermore, as stated in 

DOE’s NEPA regulations (10 CFR 

1021.410(d)), a class of actions includes 

activities foreseeably necessary to 

proposals encompassed within the class 

of actions (such as associated 

transportation activities and award of 

implementing grants and contracts). 

Where an action might fit within 

multiple categorical exclusions, a NEPA 

Compliance Officer should use the 

categorical exclusion(s) that best fits the 

proposed action. 

2. Previously Disturbed or Developed 

Area 

DOE received comments (e.g., from 

Chesapeake Bay Foundation (at page 4), 

Defenders of Wildlife (at page 2), and 

National Wildlife Federation (at pages 1, 

4–5)) on the use of the phrase 

‘‘previously disturbed or developed,’’ 

which appears in several categorical 

exclusions. In the Notice of Proposed 

Rulemaking, DOE explained that the 

phrase referred to ‘‘land that has been 

changed such that the former state of the 

area and its functioning ecological 

processes have been altered.’’ 

Comments (e.g., from Defenders of 

Wildlife (at page 2), National Wildlife 

Federation (at page 5)) expressed 

concern that the phrase was too vague 

to provide a useful limit and suggested, 

for example, including in the condition 

a requirement for the existence of 

infrastructure; further clarification is 

necessary, comments said. A comment 

from Sandy Beranich (at page 3) pointed 

out that land disturbed or developed in 

the past could, if abandoned, have 

reverted to a natural state and, therefore, 

suggested that ‘‘previously disturbed or 

developed’’ should be bounded by a 

timeframe. Comments (e.g., from 

Defenders of Wildlife (at page 2) and 

National Wildlife Federation (at page 4)) 

also suggested that DOE mention the 

many brownfield, Superfund, and 

abandoned mine locations that have 

been identified through the 

Environmental Protection Agency’s 

Repowering America Program, in 

partnership with DOE. In response, DOE 

clarifies that the phrase ‘‘previously 

disturbed or developed’’ refers to land 

that has been changed such that its 

functioning ecological processes have 

been and remain altered by human 

activity. The phrase encompasses areas 

that have been transformed from natural 

cover to non-native species or a 

managed state, including, but not 

limited to, utility and electric power 

transmission corridors and rights-ofway, and other areas where active 

utilities and currently used roads are 

readily available. This clarification 

applies to all uses of the phrase 

‘‘previously disturbed or developed.’’ 

This clarification has been added to 

§ 1021.410(g). 

In addition, DOE notes that two 

definitions offered in a public comment 

may help readers understand the 

meaning of previously disturbed and 

developed. A comment from the 

Chesapeake Bay Foundation (at page 4) 

suggested that ‘‘previously disturbed’’ 

should refer to land that has largely 

been transformed from natural cover to 

a managed state and that has remained 

in that managed state (rather than 

reverted back to largely natural cover). 

The comment (at page 4) also suggested 

that ‘‘developed area’’ should refer to 

land that is largely covered by manmade land uses and activities 

(residential, commercial, institutional, 

industrial, and transportation). 

A few comments (e.g., from the 

Chesapeake Bay Foundation (at page 4) 

and Defenders of Wildlife (at page 2)) 

pointed out that the interpretation of the 

phrase depends on the context, and that, 

in some contexts, there is a potential for 

significant impacts when a particular 

action is taken, even if it occurs in a 

disturbed area. Although DOE agrees 

with this possibility, the potential for 

such impacts would be unlikely and 

would constitute an ‘‘extraordinary 

circumstance,’’ where application of a 

categorical exclusion would be 

inappropriate. Before applying a 

categorical exclusion, a NEPA 

Compliance Officer will evaluate the 

context of the proposed action to 

determine whether it complies with the 

integral elements of the categorical 

exclusion (listed in appendix B, 

paragraphs (1) through (5)) and whether 

there are any associated extraordinary 

circumstances that would affect the 

significance of impacts. 

3. Small or Small-Scale 

Several comments (e.g., DOI (at page 

3), Ocean Renewable Energy Coalition 

(at page 2)) asserted that DOE’s use of 

‘‘small’’ and ‘‘small-scale’’ was too 

vague to adequately define the scope of 

classes of actions and asked DOE to 

more narrowly define or clarify its use 

of these terms. Comments (e.g., 

Chesapeake Bay Foundation (at page 5), 

Defenders of Wildlife (at page 4), Sandy 

Beranich (at page 2)) requested that DOE 

add a physical limitation such as 

acreage or a megawatt limitation or 

number of turbines (in categorical 

exclusion B5.18) to further define 

‘‘small’’ or ‘‘small-scale.’’ A comment 

from the Chesapeake Bay Foundation (at 

page 5) asked DOE to impose a 5-acre 

or smaller limit for small-scale 

educational facilities in categorical 

exclusion B3.14 and expressed concern 

regarding the potential size (footprint) of 

a facility for nanoscale research in 

categorical exclusion B3.15. A comment 

from the Chesapeake Bay Foundation (at 

page 3) noted that determining what is 

a small size is influenced by the 

location of a proposed action on the 

landscape. In response, DOE provides a 

general discussion of ‘‘small’’ and 

‘‘small-scale’’ below and also discusses 

the use of these terms in the context of 

specific classes of actions (B1.26, B1.29, 

B3.14, B3.15, B5.18, B5.25, B6.1, C8 

(distinguishing small scale and large 

scale)) later in this preamble. 

In determining whether a particular 

proposed action qualifies for a 

categorical exclusion, DOE considers 

terms such as ‘‘small’’ and ‘‘small-scale’’ 

in the context of the particular proposal, 

including its proposed location. In 

assessing whether a proposed action is 

small, in addition to the actual 

magnitude of the proposal, DOE 

considers factors such as industry 

norms, the relationship of the proposed 

action to similar types of development 

in the vicinity of the proposed action, 

and expected outputs of emissions or 

waste. When considering the physical 

size of a proposed facility, for example, 

a DOE NEPA Compliance Officer would 

review the surrounding land uses, the 


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scale of the proposed facility relative to 

existing development, and the capacity 

of existing roads and other 

infrastructure to support the proposed 

action. This clarification has been added 

to § 1021.410(g). 

DOE has reviewed the proposed 

categorical exclusions and classes of 

action on a case-by-case basis to further 

consider size or scale issues in response 

to comments received on the Notice of 

Proposed Rulemaking. Among other 

factors, DOE considered that these terms 

appear in its existing categorical 

exclusions and have been applied by 

NEPA Compliance Officers for more 

than 15 years. As a result of this review, 

DOE concludes that the terms ‘‘small’’ 

and ‘‘small-scale’’ remain appropriate 

for describing the types of activities 

contemplated by categorical exclusions. 

The provisions of the individual 

categorical exclusions using these terms, 

together with the integral elements at 

appendix B, paragraphs (1) through (5), 

the general restrictions on the 

application of categorical exclusions at 

10 CFR 1021.410, and extraordinary 

circumstances, provide the necessary 

safeguards to ensure that categorical 

exclusions are not applied to activities 

that could result in significant 

environmental impacts. Therefore, DOE 

is retaining its proposed use of ‘‘small’’ 

and ‘‘small-scale’’ in its final rule. 

4. Would Not Have the Potential To 

Cause Significant Impacts 

DOE received comments (e.g., from 

Columbia Riverkeeper (at page 6), 

National Wildlife Federation (at page 3)) 

on its proposed use of the phrase 

‘‘would not have the potential for 

significant impact’’ in both the integral 

element provision (at appendix B, 

paragraph (4)) of appendix B categorical 

exclusions and a number of specific 

categorical exclusions (categorical 

exclusions B1.11, B1.18, B1.24, B2.3, 

and B5.18). In response to these 

comments, DOE reviewed each use of 

the phrase in the Notice of Proposed 

Rulemaking. After further consideration, 

DOE is revising related text in several 

categorical exclusions. See discussion of 

categorical exclusions B1.5, B1.11, B3.1, 

B3.8, and B4.6 below. DOE is 

continuing to use the phrase in other 

categorical exclusions and related text. 

A comment from Tri-Valley CAREs (at 

pages 2–3) expressed concern that DOE 

was expanding the categorical 

exclusions ‘‘without providing an 

analysis of whether there was actually a 

potential for significant environmental 

impact.’’ A comment from Sandy 

Beranich (at page 1) stated that use of 

‘‘significant’’ would leave the degree of 

impact open to interpretation, whereas, 

the use of ‘‘adversely affect’’ was 

clearer. DOE’s support for its categorical 

exclusions is provided in this preamble 

and in the Technical Support 

Document. For a description of how 

DOE creates and applies its categorical 

exclusions, please see Section III above. 

To understand why DOE is changing 

some conditions in categorical 

exclusions that previously used the 

phrase ‘‘not adversely affect’’ or that 

required no change in a particular 

parameter, it is helpful to understand 

that it was never DOE’s intent or 

practice that identification of any 

adverse impact or change whatsoever— 

no matter how small—would disqualify 

the use of a categorical exclusion for a 

particular proposed project. Also, the 

changes are consistent with the purpose 

of categorical exclusions, which is to 

define a set of activities that normally 

pose no potential for significant 

environmental impacts, and with the 

CEQ NEPA regulations and its 

Categorical Exclusion Guidance. 

One change DOE is making, for 

example, is in the integral elements 

applicable to all categorical exclusions 

in appendix B. The existing regulation 

states that a proposed action ‘‘must not 

adversely affect environmentally 

sensitive resources.’’ DOE is changing 

this to state that a proposed action must 

not ‘‘have the potential to cause 

significant impacts on environmentally 

sensitive resources.’’ This is consistent 

with the CEQ Categorical Exclusion 

Guidance, which states that an agency 

may define its extraordinary 

circumstances ‘‘so that a particular 

situation, such as the presence of a 

protected resource, is not considered an 

extraordinary circumstance per se, but a 

factor to consider when determining if 

there are extraordinary circumstances, 

such as a significant impact to that 

resource.’’ 

In the case of individual categorical 

exclusions, use of the term ‘‘significant’’ 

helps to highlight a type of potential 

impact that a NEPA Compliance Officer 

must consider when reviewing a 

particular proposed action. This is 

consistent with the CEQ Categorical 

Exclusion Guidance, which suggests 

that it may be useful for agencies to 

‘‘identify additional extraordinary 

circumstances and consider the 

appropriate documentation when using 

certain categorical exclusions.’’ 

5. Definition of ‘‘State’’ 

DOE uses the phrase ‘‘Federal, state, 

or local government’’ (and similar 

phrases) in 10 CFR part 1021. Unless 

otherwise specified, the term ‘‘state’’ 

refers broadly to any of the states that 

comprise the United States, any territory 

or possession of the United States (such 

as Puerto Rico, Guam, and American 

Samoa), and the District of Columbia. 

This definition is a clarification of, not 

a change in, DOE practice because DOE 

always has applied, and continues to 

apply, this meaning to the word ‘‘state’’ 

in 10 CFR part 1021. 

6. Comments on Section 1021.410 

Comments (e.g., from Tri-Valley 

CAREs (at pages 2–4)) asked how DOE 

would meet the CEQ requirement that 

an agency’s categorical exclusion 

procedures ‘‘provide for extraordinary 

circumstances in which a normally 

[categorically] excluded action may 

have a significant environmental effect’’ 

(40 CFR 1508.4). DOE’s regulations 

require that, before a categorical 

exclusion may be applied to a proposed 

action, a determination must be made 

that there are no extraordinary 

circumstances related to a proposal that 

may affect the significance of the 

proposal’s environmental effects (10 

CFR 1021.410(b)(2)). In the final rule, 

DOE describes extraordinary 

circumstances as ‘‘unique situations 

presented by specific proposals, 

including, but not limited to, scientific 

controversy about the environmental 

effects of the proposal; uncertain effects 

or effects involving unique or unknown 

risks; and unresolved conflicts 

concerning alternative uses of available 

resources’’ (10 CFR 1021.410(b)(2)). If 

DOE identifies an extraordinary 

circumstance that would result in a 

potentially significant impact, then it 

would not apply a categorical exclusion 

to that proposed action. Further, under 

DOE’s NEPA regulations, before a 

categorical exclusion from appendix B 

of subpart D may be applied, DOE must 

determine that the proposed action 

satisfies all of the conditions known as 

‘‘integral elements’’ (appendix B, 

paragraphs (1) through (5)). These 

conditions ensure that a categorical 

exclusion is not applied to any 

proposed action that would 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. Together, DOE’s extraordinary 

circumstances and integral elements 

provisions require the Department to 

consider whether there are conditions 

surrounding a proposal that may affect 

the significance of the proposal’s 

environmental effects. 

Another comment (from Columbia 

Riverkeeper (at page 5)) expressed 

concern that DOE’s extraordinary 


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circumstances are not consistent with 

CEQ guidance and asserted that DOE’s 

examples of extraordinary 

circumstances set a ‘‘higher bar’’ than 

CEQ’s examples. The comment 

suggested that, to be consistent with 

CEQ guidance, DOE’s extraordinary 

circumstances be based on the 

‘‘presence of an endangered or 

threatened species or a historic 

resource.’’ DOE based its approach to 

extraordinary circumstances on the 

definitions of categorical exclusion and 

significance in the CEQ regulations. See 

40 CFR 1508.4 and 1508.27. DOE finds 

its approach to be consistent with the 

CEQ Categorical Exclusion Guidance, 

which states (II.C), ‘‘An extraordinary 

circumstance requires the agency to 

determine how to proceed with the 

NEPA review. For example, the 

presence of a factor, such as a 

threatened or endangered species or a 

historic resource, could be an 

extraordinary circumstance, which, 

depending on the structure of the 

agency’s NEPA implementing 

procedures, could either cause the 

agency to prepare an EA or an EIS, or 

cause the agency to consider whether 

the proposed action’s impacts on that 

factor require additional analysis in an 

EA or an EIS. In other situations, the 

extraordinary circumstance could be 

defined to include both the presence of 

the factor and the impact on that factor. 

Either way, agency NEPA implementing 

procedures should clearly describe the 

manner in which an agency applies 

extraordinary circumstances and the 

circumstances under which additional 

analysis in an EA or an EIS is 

warranted’’ (75 FR at 75633). Under 

DOE’s categorical exclusion process, 

therefore, it is an action’s potential for 

significant impacts, for example, on a 

sensitive resource, and not simply the 

presence of a sensitive resource, that is 

the basis for determining the need for an 

environmental assessment or 

environmental impact statement. It is 

the responsibility of the DOE NEPA 

Compliance Officer to consider this 

potential for significant impacts and to 

consult with other agencies as necessary 

when considering a proposed action. 

This is expressly addressed in an 

integral element at appendix B, 

paragraph (4). 

DOE received a comment from 

Columbia Riverkeeper (at page 4) 

referring to CEQ’s guidance that 

agencies: Consider cumulative effects; 

define physical, temporal, and 

environmental factors that would 

constrain the use of a categorical 

exclusion; and consider extraordinary 

circumstances. The comment cited the 

CEQ provisions, but did not recommend 

any particular change to DOE’s 

regulations. DOE considered each of the 

cited issues in formulating its rule, and 

the rule is consistent with the CEQ 

Categorical Exclusion Guidance. 

Further, DOE consulted with CEQ 

throughout the rulemaking process in 

accordance with 40 CFR 1507.3. 

DOE is codifying at 10 CFR 

1021.410(e) its policy to document and 

post online appendix B categorical 

exclusion determinations. As stated in 

the Notice of Proposed Rulemaking, 

such postings will not include 

information that DOE would not 

disclose pursuant to the Freedom of 

Information Act (FOIA). A comment 

from Tri-Valley CAREs (at page 2) 

expressed concern that the public 

would be deprived of a right to 

challenge such withholdings under 

FOIA. Further, the comment asked DOE 

to explain the process by which the 

public can challenge potentially 

improper withholdings related to an 

online posting of a categorical exclusion 

determination. DOE is committed to 

openness, as is evidenced by its 

decision to post appendix B categorical 

exclusion determinations online. The 

procedures for requesting information 

related to a categorical exclusion 

determination are the same as for any 

other DOE document. If applicable, DOE 

will apply FOIA exemptions to a 

categorical exclusion determination—as 

it would with any document—to 

appropriately limit the release of 

particular types of information (e.g., 

classified or confidential business 

information). To the fullest extent 

possible, DOE will segregate 

information that is exempt from release 

under FOIA to allow public review of 

the remainder of the document. See 10 

CFR 1021.340. For further information 

on FOIA processes at DOE, see DOE’s 

FOIA resources posted at http:// 

energy.gov/management/officemanagement/operational-management/ 

freedom-information-act, including a 

handbook on procedures for filing a 

request at http://energy.gov/sites/prod/ 

files/maprod/documents/Handbook.pdf. 

The addition of paragraphs (f) and (g) 

to 10 CFR 1021.410 is discussed in 

section IV.C.1–3, above. 

7. Integral Elements 

Federally Recognized Indian Tribe 

In its Notice of Proposed Rulemaking, 

DOE proposed adding ‘‘Federally 

recognized Indian tribe’’ to its list of 

entities that designate property as 

historically, archeologically, or 

architecturally significant in appendix 

B, paragraph (4)(i). In addition, in the 

final rule, to be consistent with the 

Advisory Council on Historic 

Preservation implementing regulations 

(36 CFR part 800) for the National 

Historic Preservation Act, DOE has 

added ‘‘Native Hawaiian organization’’ 

to the list of entities that may designate 

such properties. The Advisory Council 

on Historic Preservation regulations 

provide consultative roles to both 

Indian tribes and Native Hawaiian 

organizations in the Section 106 process 

under the National Historic Preservation 

Act. The Advisory Council’s regulations 

define a Native Hawaiian organization 

as ‘‘any organization which serves and 

represents the interests of Native 

Hawaiians; has as a primary and stated 

purpose the provision of services to 

Native Hawaiians; and has 

demonstrated expertise in aspects of 

historic preservation that are significant 

to Native Hawaiians’’; and the 

regulations define Native Hawaiian as 

‘‘any individual who is a descendent of 

the aboriginal people who, prior to 

1778, occupied and exercised 

sovereignty in the area that now 

constitutes the State of Hawaii’’ (36 CFR 

800.16(s)). 

Further, DOE clarifies that use of 

‘‘Federally recognized Indian tribe’’ in 

subpart D, appendix B of 10 CFR part 

1021, is intended to include Indian and 

Alaska Native tribes that the Secretary 

of the Interior recognizes as eligible for 

programs and services provided by the 

United States to Indians because of their 

status as Indians. (25 U.S.C. 479a–1). 

Each year, the Bureau of Indian Affairs 

(BIA) publishes a list in the Federal 

Register of the recognized tribal entities. 

For purposes of appendix B to subpart 

D of 10 CFR part 1021, Federally 

recognized Indian tribes are those 

entities included on the BIA list. (A link 

to the list and a supplement, current at 

the time of this final rule’s publication, 

can be found on the BIA Web site at 

http://www.bia.gov/DocumentLibrary/ 

index.htm.) DOE would refer to the most 

current BIA list when considering the 

integral element. 

Environmentally Sensitive Resources 

DOE received comments (e.g., from 

the Chesapeake Bay Foundation (at page 

3), the Ocean Renewable Energy 

Coalition (at page 5), and Pacific 

Northwest National Laboratory (at page 

1)) suggesting further modifications or 

clarifications to the list of 

environmentally sensitive resources that 

are part of the integral elements 

applicable to appendix B categorical 

exclusions (appendix B, paragraph (4)). 

DOE does not intend the examples in 

B(4) to be an exhaustive list of 

environmentally sensitive resources, but 


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agrees that additional examples would 

be helpful. DOE is adding the Bald and 

Golden Eagle Protection Act and the 

Migratory Bird Treaty Act to B(4)(ii). In 

addition, DOE is correcting a 

typographical error in the reference to 

the Marine Mammal Protection Act in 

B(4)(ii). Another comment (from the 

Chesapeake Bay Foundation (at page 4)) 

asked DOE to expand its listing of 

environmentally sensitive resources to 

‘‘recognize and protect * * * resources 

of high local, state, or federal value and 

concern that may not enjoy, or may not 

yet have received, specific regulatory or 

statutory protection.’’ Specifically, the 

comment (at page 3) asserted that DOE’s 

clarification of environmentally 

sensitive resources was too limited 

because it would not include ‘‘riparian 

stream buffers * * * large forest or 

contiguous woodland assemblages, 

locally specified high value farmland 

* * * ‘candidate’ state or federal 

threatened or endangered species or 

their habitat * * * drinking water 

supply streams or reservoirs * * * or 

* * * headwater streams.’’ In response 

to the comment, DOE is adding ‘‘stateproposed endangered or threatened 

species or their habitat’’ to the 

description of environmentally sensitive 

resources listed in integral element 

B(4)(ii), which already explicitly 

provides for consideration of 

‘‘Federally-proposed or candidate 

species or their habitat.’’ DOE is not 

adding the other resources described in 

the comment because they are not 

generally resources that have been 

identified as needing protection through 

Executive Order, statute, or regulation 

by Federal, state, or local government, 

or a Federally recognized Indian tribe. 

However, DOE acknowledges that the 

resource examples contained in the 

comment may be considered as 

extraordinary circumstances in making 

an individual categorical exclusion 

determination. 

Similarly, another comment (from 

Joyce Dillard (at page 1)) expressed 

general concern regarding destruction of 

wetlands and aquifers and salt water 

intrusion. DOE’s existing integral 

elements B(4)(iii) and (vi) provide for 

consideration of wetlands as well as 

special sources of water (including sole 

source aquifers) as environmentally 

sensitive resources. With respect to salt 

water intrusion, DOE would consider 

the potential for salt water intrusion, 

including whether it constitutes an 

extraordinary circumstance, before 

making a categorical exclusion 

determination. Also, see discussion of 

‘‘would not have the potential to cause 

significant impacts’’ in section IV.C.4 of 

this preamble. 

Genetically Engineered Organisms, 

Synthetic Biology, Governmentally 

Designated Noxious Weeds, and 

Invasive Species 

DOE received several comments (in 

reference to categorical exclusions B3.6, 

B3.8, B3.12, B3.15, B5.15, B5.20, and 

B5.25; e.g., from Center for Food Safety 

on behalf of itself and 3 other 

organizations (at pages 3–5) and 

National Wildlife Federation (at page 2)) 

regarding the use of genetically 

engineered organisms, noxious weeds, 

and invasive non-native species, such as 

non-native algae. These comments 

suggested that the development and use 

of such organisms could affect entire 

ecosystems. The comments expressed 

concern that these organisms could not 

be contained and could escape into the 

environment and potentially cause a 

variety of environmental and human 

health impacts. 

DOE received similar comments (e.g., 

from Center for Food Safety on behalf of 

itself and 3 other organizations (at pages 

2 and 3)) regarding ‘‘synthetic biology,’’ 

suggesting that the impacts of 

developing and releasing genetically 

engineered organisms, using man-made 

DNA sequences, were largely unknown 

and that such organisms could interact 

with native species and adversely affect 

the environment and entire ecosystems. 

In addition, a comment from Center 

for Food Safety on behalf of itself and 

3 other organizations (at page 2) asserted 

that DOE has provided more than $700 

million in funding for synthetic biology 

research since 2006 and that this level 

of funding amounts to a programmatic 

research program that should be 

analyzed in an environmental impact 

statement. The comment also asserted 

that DOE is attempting to segment the 

potential environmental impacts of this 

research by seeking categorical 

‘‘exemptions’’ from NEPA for individual 

research projects. As an initial matter, 

DOE disagrees with the comment’s 

funding estimate. For example, almost 

all the funding is attributed to the 

Genomics Science Program and the Joint 

Genomics Institute, both of which are 

ongoing initiatives (begun in the 1980s 

and 1990s, respectively) that support 

research in several areas, only some of 

which can be referred to as synthetic 

biology. Moreover, DOE disagrees with 

the assertion that an amount of funding 

is sufficient to define a programmatic 

research program for which DOE should 

prepare an environmental impact 

statement. In determining whether an 

environmental impact statement is 

required or would be beneficial to its 

decisionmaking, DOE considers the 

nature of decisions to be made and the 

relationships among proposed actions 

and potential environmental impacts, 

among other factors. DOE has 

determined that, at this time, its 

activities related to synthetic biology do 

not constitute a programmatic research 

program and do not require an 

environmental impact statement. 

DOE received several comments 

regarding research into bioenergy 

technologies, either performed or 

funded by DOE. Some of the comments 

(e.g., from the Biotechnology Industry 

Organization (at page 3)) were 

supportive of this research and 

encouraged the use of categorical 

exclusions to remove barriers to the 

adoption of these technologies. Some 

comments (e.g., from Center for Food 

Safety on behalf of itself and 3 other 

organizations (at page 5), National 

Wildlife Federation (at pages 2 and 4)) 

expressed concern about bioenergy 

research and the harvest of biomass 

involving invasive and non-native 

species, including non-native and 

genetically engineered algal species, 

specifically citing categorical exclusions 

B3.6, B3.8, and B5.25. The comments 

suggested that intentional or inadvertent 

release of invasive or non-native 

species, especially in aquatic 

environments, could have unanticipated 

consequences, including threats to local 

ecosystems, and the National Wildlife 

Federation (at page 2) suggested that 

categorical exclusions were appropriate 

only for plant species that ‘‘successfully 

pass[ed] an established weed risk 

assessment.’’ Another comment (from 

the Biotechnology Industry 

Organization (at page 2)) requested that 

any regulations regarding biotechnology 

reflect the principles laid out in the 

Coordinated Framework for the 

Regulation of Biotechnology (51 FR 

23302; June 26, 1986) and articulated by 

the White House Emerging Technologies 

Interagency Policy Coordination 

Committee. 

To address these comments, DOE 

considered the addition of further 

restrictions to individual categorical 

exclusions, but opted instead to add a 

new integral element that will be 

applicable to all appendix B categorical 

exclusions. This integral element 

requires that, to fit the classes of actions 

in appendix B, a proposal must be one 

that would not ‘‘[i]nvolve genetically 

engineered organisms, synthetic 

biology, governmentally designated 

noxious weeds, or invasive species, 

unless the proposed activity would be 

contained or confined in a manner 

designed and operated to prevent 

unauthorized release [that is, a release 


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not subject to an experimental use 

permit issued by the Environmental 

Protection Agency (EPA), a permit or 

notification issued by the Department of 

Agriculture (USDA), or a granting of 

nonregulated status by the USDA] into 

the environment and conducted in 

accordance with applicable 

requirements, such as those of the 

Department of Agriculture, the 

Environmental Protection Agency, and 

the National Institutes of Health.’’ 

Examples of applicable guidelines and 

requirements include National Institutes 

of Health ‘‘Guidelines for Research 

Involving Recombinant DNA 

Molecules’’ (http://oba.od.nih.gov/rdna/ 

nih_guidelines_oba.html); USDA 

‘‘Noxious Weed Regulations’’ (7 CFR 

part 360) and regulations for the 

‘‘Introduction of Organisms and 

Products Altered or Produced Through 

Genetic Engineering Which Are Plant 

Pests or Which There Is Reason to 

Believe Are Plant Pests’’ (7 CFR part 

340); and EPA Reporting Requirements 

and Review Processes for 

Microorganisms (40 CFR part 725, 

particularly 40 CFR 725.200–470). 

These regulations impose appropriate 

containment and confinement measures 

to address the risk of inadvertent release 

of experimental organisms. In order to 

qualify for a categorical exclusion, a 

proposed action would have to prevent 

unauthorized releases into the 

environment, comply with all 

applicable requirements, and meet other 

conditions of the applicable categorical 

exclusion. 

This new integral element obviates 

the need for the last sentence in 

categorical exclusion B3.8, as proposed, 

and that sentence is removed in the 

final rule. This integral element limits 

the activities that can receive a 

categorical exclusion determination to 

those that will not be released into the 

environment without proper 

authorization and will be conducted in 

accordance with applicable 

requirements, which include 

containment, confinement, or other 

requirements for working with these 

organisms. The new integral element 

takes into account both the principles 

laid out in the Coordinated Framework 

for the Regulation of Biotechnology and 

by the White House Emerging 

Technologies Interagency Policy 

Coordination Committee. 

A comment relating to categorical 

exclusion B3.8 (from the National 

Wildlife Federation (at page 2) and also 

from Center for Food Safety on behalf of 

itself and 3 other organizations (at page 

4)) stated that USDA approval of a 

genetically engineered crop does not 

guarantee environmental safety. DOE 

believes that, in general, it is reasonable 

to consider compliance with applicable 

regulations as a factor in determining 

whether a proposed action would have 

the potential to cause significant 

environmental impacts. In the case of 

genetically engineered plants regulated 

by USDA, its regulations require the 

agency to perform independent NEPA 

analysis before the plants may be grown 

outdoors (7 CFR part 372). When grown 

for research purposes, USDA regulations 

further require that field trials of 

genetically engineered plants are 

conducted with sufficient confinement 

methods in place such that the plants 

will not persist in the environment or 

pose the risk for significant 

environmental impacts (7 CFR part 340). 

DOE is generally limiting categorical 

exclusions involving the activities 

mentioned in the comments to smallscale, as opposed to commercial-scale, 

actions. In DOE’s experience, smallscale research and development 

activities normally do not have the 

potential to cause significant 

environmental impacts (see section 

IV.C.3). 

A few comments (e.g., Center for Food 

Safety on behalf of itself and 3 other 

organizations (at page 4)) suggested that 

genetically engineered crops grown for 

biofuels production might cause 

environmental impacts different from 

genetically engineered plants grown for 

other purposes, but the comments did 

not indicate what those differential 

impacts would be. DOE foresees no 

difference in environmental impacts 

from a small research plot of genetically 

engineered plants grown for the purpose 

of food or fiber as compared to the 

impacts from the same plants grown for 

biomass. 

Another comment from the National 

Wildlife Federation (at page 2) and the 

Center for Food Safety (on behalf of 

itself and 3 other organizations; at page 

4) suggested that, once DOE provided 

funding to a researcher to perform work 

with non-genetically engineered 

organisms under a categorical exclusion, 

the researcher could switch to the use 

of a genetically engineered organism 

without incurring further NEPA review. 

Under the terms of DOE funding 

agreements, the scope of work is 

disclosed by the researcher, and 

fundamental changes such as those 

suggested in the comment would 

require further NEPA analysis. 

8. Powerlines 

In the Notice of Proposed Rulemaking 

DOE proposed to change ‘‘electric 

powerlines’’ to ‘‘electric transmission 

lines’’ in several categorical exclusions 

to update technology-specific 

vocabulary. DOE received a general 

comment from Edison Electric Institute 

(at page 2) requesting that it further 

revise the proposed phrase to include 

distribution lines and related facilities 

to ensure that the relevant categorical 

exclusions are not limited to just 

transmission lines, but apply to energy 

delivery facilities more generally. Upon 

further consideration, DOE is using the 

term ‘‘powerlines’’ to be inclusive of 

both transmission and distribution lines 

(see categorical exclusions B1.3(m), 

B1.9, B4.7, B4.10, B4.12, B4.13, and 

class of actions C4). 

9. Appendix B—Categorical Exclusions 

Categorical Exclusions Applicable to 

Facility Operations (B1) 

B1.3 Routine Maintenance 

DOE received comments (e.g., from 

Pacific Northwest National Laboratory 

(at page 3)) suggesting that categorical 

exclusion B1.3 covers minor types of 

activities that are of a sufficiently small 

scale not to warrant the documentation 

required of an appendix B categorical 

exclusion and, therefore, such actions 

should be listed in appendix A. DOE is 

committed to increasing the 

transparency of its NEPA implementing 

regulations and practices, and DOE 

decided not to move this categorical 

exclusion from appendix B, for which a 

public document is prepared and posted 

on DOE’s NEPA Web site (http:// 

energy.gov/nepa/doe-nepa-documents/ 

categorical-exclusion-determinations), 

to appendix A, for which no 

documentation is required. Further, the 

actions under categorical exclusion B1.3 

include physical activities in contrast to 

the more administrative functions 

covered by categorical exclusions in 

appendix A. Thus, DOE is not making 

any changes based on these comments. 

DOE also received a comment from 

Sandy Beranich (at page 1) regarding 

item (k) in categorical exclusion B1.3. 

The comment suggested DOE insert 

additional examples of erosion control 

and soil stabilization measures, 

specifically ‘‘gabions’’ and ‘‘grading.’’ 

The examples already provided in the 

proposed B1.3(k), reseeding and 

revegetation, were not meant to serve as 

an exhaustive list, and other measures 

could qualify for categorical exclusion 

under B1.3(k). Nonetheless, DOE is 

adding the two examples suggested in 

the comment because they will help 

illustrate the types of erosion control 

and soil stabilization measures that are 

encompassed by B1.3(k). 


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B1.5 Existing Steam Plants and 

Cooling Water Systems 

In its Notice of Proposed Rulemaking, 

DOE proposed modifying the second 

condition of this categorical exclusion 

from would not ‘‘adversely affect water 

withdrawals or the temperature of 

discharged water’’ to would not ‘‘have 

the potential to cause significant 

impacts on water withdrawals or the 

temperature of discharged water.’’ After 

further consideration, DOE is revising 

the language in this categorical 

exclusion to further specify the 

conditions. DOE is changing these 

provisions to: ‘‘Improvements would 

not: * * * (2) have the potential to 

significantly alter water withdrawal 

rates; (3) exceed the permitted 

temperature of discharged water 

* * *.’’ 

B1.11 Fencing 

After further consideration, DOE is 

modifying this categorical exclusion to 

better focus on the types of impacts to 

wildlife that might be caused by 

fencing. DOE is replacing ‘‘would not 

have the potential to cause significant 

impacts on wildlife populations or 

migration * * *’’ with ‘‘would not have 

the potential to significantly impede 

wildlife population movement 

(including migration) * * *.’’ Also, see 

discussion of ‘‘would not have the 

potential to cause significant impacts’’ 

in section IV.C.4 of this preamble. 

B1.14 Refueling of Nuclear Reactors 

DOE received a comment from Sandy 

Beranich (at page 2) asking which 

section of the DOE NEPA regulations 

addresses the disposition of spent 

nuclear fuel. Management and 

disposition of spent nuclear fuel would 

typically be the subject of the NEPA 

review for the facility (e.g., an 

environmental impact statement is 

required under class of action D4, for 

‘‘siting, construction, operation, and 

decommissioning of power reactors, 

nuclear material production reactors, 

and test and research reactors’’). The 

comment does not propose a change to 

this categorical exclusion, and DOE is 

retaining the proposed language in the 

final categorical exclusion. 

B1.18 Water Supply Wells 

For DOE’s response to comments on 

this categorical exclusion, see 

discussion of ‘‘would not have the 

potential to cause significant impacts’’ 

in section IV.C.4 of this preamble. 

B1.19 Microwave, Meteorological, and 

Radio Towers 

In its Notice of Proposed Rulemaking, 

DOE proposed adding ‘‘abandonment’’ 

to the list of activities included in this 

class of actions in order to encompass 

the complete life cycle of the towers 

addressed by the categorical exclusion. 

After further consideration, DOE 

acknowledges that abandonment could 

be misconstrued so as to absolve DOE of 

all responsibility for a tower, including 

for maintenance. This was not DOE’s 

intent. Thus, DOE is removing 

‘‘abandonment’’ from the list of 

activities in this categorical exclusion 

(but is keeping ‘‘modification’’ and 

‘‘removal’’). For towers that are no 

longer used, DOE’s normal practice 

would be to remove the tower or 

transfer responsibility to another party. 

As noted elsewhere in this preamble, 

DOE received public comments related 

to potential impacts on bird populations 

that could be associated with the use of 

categorical exclusions. Though none of 

the public comments was specific to 

categorical exclusion B1.19, DOE 

nonetheless considered the comments 

in the context of the activities addressed 

in this categorical exclusion and 

reviewed current information related to 

the potential impacts of relevant towers 

on bird populations. DOE concluded 

that its existing provisions, including 

for determining whether a proposal 

meets the integral elements of the 

categorical exclusion (particularly 

appendix B, paragraph (4)) and whether 

there are any associated extraordinary 

circumstances that would affect the 

significance of impacts, ensure 

appropriate consideration of proposed 

tower design (height, use of guy wires, 

lighting) and location. Therefore, DOE is 

not further revising categorical 

exclusion B1.19. 

In addition, a comment from Edison 

Electric Institute (at page 2) asked DOE 

to add individual electric transmission 

towers and distribution poles to the 

scope of this categorical exclusion. 

Because electric transmission towers 

and distribution poles are already 

included in the scope of DOE’s existing 

B4 categorical exclusions, DOE is not 

making any changes to categorical 

exclusion B1.19 in response to this 

comment. 

B1.24 Property Transfers 

A comment from Natural Resources 

Defense Council and Committee to 

Bridge the Gap (at page 2) expressed 

concern that the reference to 

contamination was being removed from 

the categorical exclusion. DOE’s existing 

categorical exclusion is limited to 

property that is uncontaminated, which 

is defined to mean that there ‘‘would be 

no potential for release of substances at 

a level, or in a form, that would pose a 

threat to public health or the 

environment.’’ A comment from 

Columbia Riverkeeper (at page 5) stated 

that this categorical exclusion is not 

warranted. DOE is not changing the 

scope of the categorical exclusion but is 

merely re-wording the categorical 

exclusion to incorporate the definition 

of ‘‘uncontaminated’’ in a different way. 

Thus, DOE is making no change to the 

categorical exclusion in response to this 

comment. A separate comment stated 

that a categorical exclusion for the 

transfer, lease, or disposition of 

contaminated property is not warranted. 

DOE agrees, and, as described above, the 

categorical exclusion is limited to 

property for which there would be no 

potential for release of substances at a 

level, or in a form, that would pose a 

threat to public health or the 

environment. Therefore, DOE is not 

making a change to the categorical 

exclusion based on this comment. 

A comment from Columbia 

Riverkeeper (at page 6) stated that DOE’s 

approach does not account for the 

environmental impacts of future 

operations after the transfer. DOE 

responds that the second limitation 

proposed for the categorical exclusion 

states that ‘‘under reasonably 

foreseeable uses * * * the covered 

actions would not have the potential to 

cause a significant change in impacts 

from before the transfer * * *’’ This 

limitation would require the NEPA 

Compliance Officer to consider the 

significance of potential environmental 

impacts of reasonably foreseeable future 

uses (including during operations, as 

indicated by the comment) of the 

transferred property. 

Several comments (e.g., from 

Columbia Riverkeeper (at page 6) and 

Natural Resources Defense Council/ 

Committee to Bridge the Gap (at page 1)) 

questioned how DOE can assess 

whether an action is appropriately 

covered by this categorical exclusion 

without preparing an environmental 

assessment or environmental impact 

statement. The process DOE uses for 

making a categorical exclusion 

determination is described in this notice 

under section III, Overview of 

Categorical Exclusions, above. 

A comment from Columbia 

Riverkeeper (at page 6) stated that there 

would be no pathway for public 

involvement or comment on DOE’s 

review under categorical exclusion 

B1.24. DOE is increasing public 

involvement and comment 

opportunities with regard to categorical 

exclusion A7, transfers of personal 

property, by combining it into 

categorical exclusion B1.24. The result 

is that the scope of B1.24 includes both 

personal and real property, and since it 


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is an appendix B categorical exclusion, 

it is subject to the online posting 

requirement of 10 CFR 1021.410(e). 

Under this new rule, DOE is codifying 

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. This process provides an 

opportunity for public review of the 

categorical exclusion determination. In 

addition, see discussion of ‘‘would not 

have the potential to cause significant 

impacts’’ in section IV.C.4 of this 

preamble. 

B1.25 Real Property Transfers for 

Cultural Protection, Habitat 

Preservation, and Wildlife Management 

A comment from Edison Electric 

Institute (at page 2) encouraged DOE to 

stipulate in the categorical exclusion 

that any permit holders and owners of 

facilities on land involved in the 

transfers must be given advance notice 

so they can protect their rights. This 

comment raises concerns unrelated to 

environmental review under NEPA, 

which is the scope of this regulation. 

For this reason, DOE is retaining the 

proposed language in the final 

categorical exclusion. Separately, DOE 

is adding the word ‘‘Real’’ to the title of 

this categorical exclusion to clarify that 

the scope of the categorical exclusion 

does not include personal property. 

B1.26 Small Water Treatment 

Facilities 

Although DOE did not propose to 

substantively change this categorical 

exclusion, a comment from the 

Chesapeake Bay Foundation (at page 4) 

disagreed with the existing categorical 

exclusion’s characterization that a 

‘‘small’’ surface water or wastewater 

treatment facility is one with ‘‘a total 

capacity less than approximately 

250,000 gallons per day,’’ and stated 

that an environmental assessment might 

be appropriate if the context of a facility 

so warrants. DOE’s experience over 

many years is that a water or wastewater 

treatment facility processing 250,000 

gallons or less per day is of a size that 

normally would not have the potential 

for significant impacts. For further 

information, see discussion of ‘‘small’’ 

and ‘‘small-scale’’ in section IV.C.3 of 

this preamble. A NEPA Compliance 

Officer would consider location and 

context in determining whether a 

proposal meets the integral elements of 

the categorical exclusion (listed in 

appendix B, paragraph (4)) and whether 

there are any associated extraordinary 

circumstances that would affect the 

significance of impacts. In accordance 

with integral element B(1) of the DOE 

NEPA regulations, DOE would ensure 

that water treatment facilities under this 

categorical exclusion would not 

threaten a violation of applicable 

statutory, regulatory, or permit 

requirements. For example, a 

wastewater treatment facility would 

comply with the National Pollutant 

Discharge Elimination System permit 

issued by the cognizant regulatory 

authority, which would ensure that 

pollutant loads are consistent with 

applicable water quality standards. For 

these reasons, DOE is retaining the 

proposed language in the final 

categorical exclusion. 

B1.29 Disposal Facilities for 

Construction and Demolition Waste 

A comment from the Chesapeake Bay 

Foundation (at page 5) recommended 

that the existing limitation of less than 

approximately 10 acres be reduced to 

less than approximately 5 acres; the 

comment did not provide the basis or 

any support for this recommendation. 

DOE is retaining the existing limitation 

of less than 10 acres. The comment also 

referred to consideration of context and 

intensity, including the location, 

landscape setting, and other resources 

present, in determining whether a given 

project is ‘‘small.’’ DOE agrees. For 

further information, see discussion of 

‘‘small’’ and ‘‘small-scale’’ in section 

IV.C.3 of this preamble. Under DOE’s 

NEPA regulations, a NEPA Compliance 

Officer would evaluate the 

considerations cited in determining 

whether a proposal meets the integral 

elements of the categorical exclusion 

(listed in appendix B, paragraphs (1) 

through (5)) and whether there are any 

associated extraordinary circumstances 

that would affect the significance of 

impacts. For these reasons, DOE is 

retaining the proposed language in the 

final categorical exclusion. 

B1.33 Stormwater Runoff Control 

DOE received a comment from Joyce 

Dillard (at page 1) stating that 

stormwater control is another potential 

money maker for local policymakers 

and the danger is high. DOE notes this 

comment and is not making any changes 

to this categorical exclusion in response. 

B1.34 Lead-Based Paint Containment, 

Removal, and Disposal 

DOE is adding ‘‘containment, 

removal, and disposal’’ to the title of 

this categorical exclusion for 

clarification. 

Categorical Exclusions Applicable to 

Safety and Health 

B2.3 Personal Safety and Health 

Equipment 

For DOE’s response to comments on 

this categorical exclusion, see 

discussion of ‘‘would not have the 

potential to cause significant impacts’’ 

in section IV.C.4 of this preamble. 

Categorical Exclusions Applicable to 

Site Characterization, Monitoring and 

General Research (B3) 

B3.1 Site Characterization and 

Environmental Monitoring 

After further consideration, DOE is 

clarifying the means by which to 

address potential impacts from ground 

disturbance. DOE is replacing the 

second sentence of the categorical 

exclusion (as proposed in the Notice of 

Proposed Rulemaking) with the 

following: ‘‘Such activities would be 

designed in conformance with 

applicable requirements and use best 

management practices to limit the 

potential effects of any resultant ground 

disturbance.’’ 

A comment from Sandy Beranich (at 

page 2) requested clarification of the 

size of certain projects covered by this 

categorical exclusion, saying that the 

difference between small and large-scale 

projects is subject to interpretation. 

DOE’s discussion of ‘‘small’’ and 

‘‘small-scale’’ appears in section IV.C.3 

of this preamble. 

In its Notice of Proposed Rulemaking, 

DOE included ‘‘abandonment’’ in the 

list of potential activities included in 

this categorical exclusion and in 

categorical exclusion B1.19 in order to 

encompass the complete life cycle of the 

characterization and monitoring devices 

in B3.1 and the towers in B1.19. As 

described with respect to B1.19, after 

further consideration, DOE 

acknowledges that abandonment could 

be misconstrued so as to absolve DOE of 

all responsibility for such devices or 

facilities, including for maintenance. 

This was not DOE’s intention. 

Therefore, DOE is removing 

‘‘abandonment’’ (and adding ‘‘removal 

or otherwise proper closure (such as of 

a well)’’) in the text describing the life 

cycle of characterization and monitoring 

devices and facilities addressed by the 

categorical exclusion. 

To simplify the categorical exclusion, 

DOE is changing ‘‘salt water and 

freshwater’’ to ‘‘aquatic environments.’’ 

Aquatic, as used herein, may refer to 

salt water, freshwater, or areas with 

shifting delineation between the two; 

this is not a substantive change. 


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B3.6 Small-Scale Research and 

Development, Laboratory Operations, 

and Pilot Projects 

Categorical exclusion B3.6 does not 

include demonstration actions, as stated 

in the Notice of Proposed Rulemaking. 

However, after reviewing public 

comments and further internal 

consideration, DOE is revising the text 

to state this condition more clearly. 

Separately, a comment (e.g., from 

Friends of the Earth and from Center for 

Food Safety on behalf of itself and 3 

other organizations (at page 1)) stated 

that this categorical exclusion should be 

rejected, because its use could cause 

significant impacts; DOE has 

determined that this categorical 

exclusion, by its terms and in light of 

the integral element and extraordinary 

circumstances requirements, is 

appropriate and would not have the 

potential for significant impacts. 

DOE received comments regarding the 

use of genetically engineered organisms, 

synthetic biology, noxious weeds, and 

non-native species, such as non-native 

algae in projects that may be 

categorically excluded under this 

section of the rule. For further 

information, see discussion of 

‘‘Genetically engineered organisms, 

synthetic biology, governmentally 

designated noxious weeds, or invasive 

species’’ in section IV.C.7 of this 

preamble. 

DOE received a comment from Center 

for Food Safety on behalf of itself and 

3 other organizations (at page 3) that the 

difference between a pilot study and a 

demonstration action, which could 

require an environmental assessment or 

environmental impact statement, is 

unclear and suggested that this 

categorical exclusion could be applied 

to large-scale, open-pond projects 

involving genetically engineered algae 

or algae altered through synthetic 

biology without review of 

environmental risks. DOE disagrees. 

This categorical exclusion applies only 

to small-scale projects, such as those 

performed for proof of concept 

purposes. For further information, see 

discussion of ‘‘small’’ and ‘‘small-scale’’ 

in section IV.C.3 of this preamble. 

Further, before a categorical exclusion 

determination can be made, the 

proposed action undergoes review, for 

example, to determine whether it is 

consistent with the integral elements 

and the conditions of the particular 

categorical exclusion. 

B3.7 New Terrestrial Infill Exploratory 

and Experimental Wells 

DOE received a comment from Joyce 

Dillard (at page 1) regarding the risks 

associated with injection wells. 

Categorical exclusion B3.7 requires that 

the well be sited within an existing, 

characterized well field and requires 

that the site characterization has 

verified a low potential for seismicity. 

DOE has experience in the construction 

and operation of exploratory and 

experimental wells and, in DOE’s 

experience, these conditions are 

appropriate. Therefore, DOE is retaining 

the proposed language in the final 

categorical exclusion. (The issue is also 

relevant to categorical exclusions B5.3, 

B5.12, and B5.13.) 

DOE intended this categorical 

exclusion to include both extraction and 

injection wells. After further 

consideration, DOE is adding ‘‘for either 

extraction or injection use’’ to clarify the 

scope of new terrestrial infill 

exploratory and experimental well 

activities under this categorical 

exclusion. 

B3.8 Outdoor Terrestrial Ecological 

and Environmental Research 

After further consideration, DOE is 

clarifying the means by which to 

address potential impacts from ground 

disturbance. DOE is deleting the 

following words from the end of the first 

sentence of the categorical exclusion: 

‘‘provided that such activities would not 

have the potential to cause significant 

impacts on the ecosystem’’ (as proposed 

in the Notice of Proposed Rulemaking). 

The following new second sentence is 

being inserted: ‘‘Such activities would 

be designed in conformance with 

applicable requirements and use best 

management practices to limit the 

potential effects of any resultant ground 

disturbance.’’ 

DOE is deleting the following 

sentence to avoid confusion: ‘‘These 

actions include, but are not limited to, 

small test plots for energy related 

biomass or biofuels research.’’ Although 

this categorical exclusion is appropriate 

for small biomass or biofuels research, 

it is only one example of a variety of 

research projects that could be included 

in the class of actions described by 

categorical exclusion B3.8. Another 

comment (from Friends of the Earth and 

from Center for Food Safety on behalf of 

itself and 3 other organizations (at page 

1)) stated that this categorical exclusion 

should be rejected because its use could 

cause significant impacts; DOE has 

determined that this categorical 

exclusion, by its terms and in light of 

the integral element and extraordinary 

circumstances requirements, is 

appropriate and would not have the 

potential for significant impacts. 

DOE received comments regarding the 

use of genetically engineered organisms, 

synthetic biology, noxious weeds, and 

non-native species, such as non-native 

algae in projects that may be 

categorically excluded under this 

section of the rule. For further 

information, see discussion of 

‘‘Genetically engineered organisms, 

synthetic biology, governmentally 

designated noxious weeds, or invasive 

species’’ in section IV.C.7 of this 

preamble. DOE is deleting the last 

sentence of the categorical exclusion (as 

proposed in the Notice of Proposed 

Rulemaking), because the use of 

genetically engineered organisms is now 

addressed by the new integral element. 

B3.9 Projects To Reduce Emissions 

and Waste 

DOE received a comment from Edison 

Electric Institute (at page 2) expressing 

concern that the list of fuels provided in 

this categorical exclusion did not 

encompass all fuels with the potential to 

reduce emissions and waste. It was 

DOE’s intention that the list be 

illustrative, rather than exhaustive, so 

DOE is replacing the second and third 

sentences of the categorical exclusion 

with the following sentence: ‘‘For this 

category of actions, ‘fuel’ includes, but 

is not limited to, coal, oil, natural gas, 

hydrogen, syngas, and biomass; but 

‘fuel’ does not include nuclear fuel.’’ 

B3.11 Outdoor Tests and Experiments 

on Materials and Equipment 

Components 

DOE received a comment from TriValley CAREs (at page 4) regarding the 

use of encapsulated source, special 

nuclear, or byproduct materials for 

nondestructive tests and experiments. 

The comment expressed concern that 

the encapsulation could be accidentally 

destroyed, releasing the contents into 

the environment. The comment also 

noted that the categorical exclusion did 

not limit the amount of encapsulated 

materials that could be used. DOE 

responds that capsules for source, 

special nuclear, and byproduct material 

are designed using technologies and 

materials to enable their safe transport 

and use. These capsules are tested to 

withstand extremes of temperature and 

pressure and to resist severe impacts, 

puncture, and vibration without 

allowing their contents to escape. Such 

encapsulation can readily withstand the 

types of handling that would occur 

during the nondestructive tests and 

experiments covered by the categorical 

exclusion. Performance requirements for 

such testing are based on factors such as 

the type and amount of radioactive 

material involved and intended use of 

the source. Therefore, there is minimal 

risk that encapsulated materials will be 


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inadvertently released into the 

environment. Because encapsulation 

addresses the risk of environmental 

release, DOE is not including a limit on 

the amount of encapsulated source, 

special nuclear, or byproduct material 

that could be used in the nondestructive 

tests and experiments covered by the 

categorical exclusion. Any such limit 

would be part of the design of a 

nondestructive test or experiment, 

which would include appropriate 

protocols to protect participants and the 

environment. DOE is retaining the 

proposed language and adding a 

reference to applicable standards to the 

categorical exclusion in the final rule. 

B3.12 Microbiological and Biomedical 

Facilities 

Comments (e.g., from Friends of the 

Earth and Center for Food Safety on 

behalf of itself and 3 other organizations 

(at page 1)) stated that this categorical 

exclusion should be rejected, because its 

use could cause significant impacts; 

DOE has determined that this 

categorical exclusion, by its terms and 

in light of the integral element and 

extraordinary circumstances 

requirements, is appropriate and would 

not have the potential for significant 

impacts. DOE received comments from 

Center for Food Safety on behalf of itself 

and 3 other organizations (at page 4) 

raising concerns that the environmental 

release of genetically engineered 

organisms or synthetic organisms 

(including genetically engineered algae 

or synthetic biology) from a 

microbiological or biomedical facility 

(including facilities to house such 

organisms for the production of 

biofuels) could pose risks to local 

ecosystems, during both the operation 

and decommissioning of these facilities. 

In response, DOE points out that 

facilities covered by this categorical 

exclusion must be constructed and 

maintained in accordance with all 

applicable regulations, including 

provisions (e.g., the use of biological 

safety cabinets and chemical fume 

hoods) to ensure the containment of 

organisms that may pose environmental 

risks as well as the destruction of these 

organisms when they are no longer 

needed. Generally, these regulations and 

practices have been effective in 

preventing unintended releases of 

research organisms and thereby 

prevented impacts to the environment 

from these organisms. Further, DOE 

received comments regarding the use of 

genetically engineered organisms, 

synthetic biology, noxious weeds, and 

non-native species, such as non-native 

algae in projects that may be 

categorically excluded under this 

section of the rule. For further 

information, see discussion of 

‘‘Genetically engineered organisms, 

synthetic biology, governmentally 

designated noxious weeds, or invasive 

species’’ in section IV.C.7 of this 

preamble. 

In addition, DOE is updating the 

reference to the manual on Biosafety in 

Microbiological and Biomedical 

Laboratories to the most current version. 

B3.14 Small-Scale Educational 

Facilities 

A comment from the Chesapeake Bay 

Foundation (at page 5) stated that a 

specific small size limitation should be 

added for the facilities under the 

proposed categorical exclusion or the 

categorical exclusion should be 

eliminated from the rulemaking. The 

comment suggested that DOE consider 

including a limit of 5 acres or smaller, 

and be restricted to placement in a 

developed area. When considering the 

physical size and location of a proposed 

educational facility, a DOE NEPA 

Compliance Officer would review the 

surrounding land uses, the scale of the 

proposed facility relative to existing 

development, and the capacity of 

existing roads and other infrastructure. 

The NEPA Compliance Officer would 

have to determine that the size of the 

proposed facility, in the context of its 

location and surroundings, was 

sufficiently small that it would not have 

the potential to cause significant 

environmental impacts. Thus, DOE is 

not proposing any modifications to this 

categorical exclusion. For further 

information, see discussion of ‘‘small’’ 

and ‘‘small-scale’’ in section IV.C.3 of 

this preamble. 

In addition, DOE received a comment 

from Joyce Dillard (at page 1) that states, 

rather than the Federal government, are 

responsible for education and its related 

facilities. DOE acknowledges this 

comment and notes that the categorical 

exclusion is intended to address small 

facilities that are generally educational 

in nature, such as visitor centers, small 

museums, libraries, and similar 

facilities. Such facilities may be part of 

a school or university. Therefore, DOE 

is retaining the proposed language in 

the final categorical exclusion. 

B3.15 Small-Scale Indoor Research 

and Development Projects Using 

Nanoscale Materials 

A comment from Center for Food 

Safety on behalf of itself and 3 other 

organizations (at page 1) stated that this 

categorical exclusion should be rejected, 

because its use could cause significant 

impacts; DOE has determined that this 

categorical exclusion, by its terms and 

in light of the integral element and 

extraordinary circumstances 

requirements, is appropriate and would 

not have the potential for significant 

impacts. Additionally, DOE received 

comments (e.g., from Friends of the 

Earth (in attachment titled 

Nanotechnology, Climate and Energy), 

and Center for Food Safety on behalf of 

itself and 3 other organizations (at page 

4)) expressing a wide range of 

environmental and human health 

concerns regarding a potential release of 

nanoscale materials into the 

environment or commercial-scale use of 

nanoscale materials. DOE reiterates that 

this categorical exclusion may be used 

only for facilities for indoor small-scale 

research activities and not involving the 

environmental release, or commercialscale production, of nanoscale 

materials. For further information, see 

discussion of ‘‘small’’ and ‘‘small-scale’’ 

in section IV.C.3 of this preamble. 

Covered facilities employing nanoscale 

materials would be constructed and 

operated in accordance with applicable 

requirements to ensure worker safety 

and to prevent environmental releases. 

Therefore, DOE is retaining the 

proposed language in the final 

categorical exclusion, with one 

exception. DOE is changing 

‘‘biohazardous materials’’ to ‘‘hazardous 

materials,’’ in the final categorical 

exclusion. Hazardous materials is a 

broader category that includes 

biohazardous materials, and thus better 

reflects the range of materials that 

would need to be safely managed for 

this type of research and development 

work. 

B3.16 Research Activities in Aquatic 

Environments 

To simplify the categorical exclusion, 

DOE is changing ‘‘salt water and 

freshwater’’ to ‘‘aquatic.’’ Aquatic, as 

used herein, may refer to salt water, 

freshwater, or areas with shifting 

delineation between the two; this is not 

a substantive change. In addition, DOE 

is clarifying in the preamble that passive 

seismic techniques in item (c) refers to 

activities (e.g., use of seismometers) that 

do not involve the introduction of 

energy or vibration that would have the 

potential for significant environmental 

impacts. 

A comment from Pacific Northwest 

National Laboratory (at page 2) 

suggested that many of the activities 

described in this categorical exclusion, 

such as sample collection, installation 

of environmental monitoring devices, 

and other ecological research, should be 

allowed within the boundary of a 

marine sanctuary or wildlife refuge, if 

conducted in a manner consistent with 


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sanctuary goals and objectives. DOE 

agrees that, if the listed activities are 

authorized by the government agency 

responsible for the management of the 

sanctuary or refuge, or after consultation 

with such responsible agency when 

authorization is not applicable, then the 

activity may be categorically excluded 

under B3.16. Therefore, DOE is 

modifying categorical exclusion B3.16 

(and B5.25) to now allow covered 

actions within, or having effects on, 

existing or proposed marine sanctuaries, 

wildlife refuges, or governmentally 

recognized areas of high biological 

sensitivity, if the action receives 

authorization from, or after consultation 

with, the responsible agency. The DOE 

NEPA Compliance Officer would take 

concerns from the responsible agency 

into account when considering whether 

to apply this categorical exclusion. 

DOE also received a comment from 

DOI (at page 1) stating that it has 

initiated the process of reviewing and 

potentially revising or deleting some of 

its own categorical exclusions. DOE had 

relied on some of these DOI categorical 

exclusions, as well as categorical 

exclusions from the Department of the 

Navy and the National Oceanic and 

Atmospheric Administration, when 

developing this categorical exclusion. In 

response to the DOI comment, DOE is 

revising categorical exclusion B3.16 in 

the final rule to remove certain research 

activities adapted from DOI’s categorical 

exclusions. The remaining activities are 

consistent with other Federal agencies’ 

existing categorical exclusions, as well 

as activities included in other DOE 

categorical exclusions, such as flow 

measurements (see categorical exclusion 

B3.1). 

DOE received a comment from DOI (at 

page 2) expressing concern that DOE 

would categorically exclude proposed 

actions located in unsurveyed areas of 

the seafloor under categorical 

exclusions B3.16 and B5.25. The 

comment suggested that DOE should 

perform an assessment of survey data 

within the area of potential effect or 

complete an assessment of potential 

seafloor impacts from the proposed 

activities before DOE makes a 

categorical exclusion determination. In 

response, DOE notes that a NEPA 

Compliance Officer, when considering a 

proposed action in an unsurveyed area, 

would gather additional information 

about the proposed project site needed 

to support a categorical exclusion 

determination under B3.16 and B5.25. It 

is the responsibility of the DOE NEPA 

Compliance Officer to consider the 

potential for significant impacts and to 

consult with other agencies as necessary 

when considering a proposed action. 

DOE received comments regarding the 

use of genetically engineered organisms, 

synthetic biology, noxious weeds, and 

non-native species, such as non-native 

algae, in projects that may be 

categorically excluded under this 

section of the rule. For further 

information, see discussion of 

‘‘Genetically engineered organisms, 

synthetic biology, governmentally 

designated noxious weeds, or invasive 

species’’ in section IV.C.7 of this 

preamble. 

DOE received a comment from 

National Wildlife Federation (at page 4) 

expressing strong support for ‘‘removing 

unnecessary barriers to the 

commercialization of deepwater 

offshore wind technology,’’ and stating 

that ‘‘[w]ith siting screens, research and 

demonstration projects in these 

technologies will not have significant 

impacts.’’ DOE does not currently have 

the experience to support expanding the 

categorical exclusion to include such 

projects, but this may change as DOE 

gains experience over time. 

Categorical Exclusions Applicable to 

Electrical Power and Transmission (B4) 

DOE is changing the title of this group 

of categorical exclusions to state that 

they are applicable to ‘‘electrical power 

and transmission,’’ rather than to 

‘‘power resources,’’ as used in the 

existing regulations and the Notice of 

Proposed Rulemaking. This change 

better identifies the subject of this group 

of categorical exclusions. 

B4.1 Contracts, Policies, and 

Marketing and Allocation Plans for 

Electric Power 

In the Notice of Proposed 

Rulemaking, DOE proposed to clarify 

the scope of this categorical exclusion 

by stating that the contracts, policies, 

and marketing and allocation plans are 

‘‘related to electric power acquisition or 

transmission.’’ After further 

consideration, DOE will not explicitly 

refer to transmission in this categorical 

exclusion; transmission activities are 

included in the contracts, policies, and 

marketing plans, or are covered 

primarily in other classes of actions, 

such as categorical exclusion B4.11. 

B4.4 Power Marketing Services and 

Activities 

Upon further consideration, DOE is 

changing the example of ‘‘load shaping’’ 

to ‘‘load shaping and balancing.’’ Load 

balancing helps ensure system 

reliability by managing energy resources 

to be equal with load. 

B4.6 Additions and Modifications to 

Transmission Facilities 

After further consideration, DOE will 

not adopt its proposal to apply this 

categorical exclusion to facilities that 

‘‘would not have the potential to cause 

significant impacts beyond the 

previously disturbed or developed 

facility area’’ and instead this 

categorical exclusion will be limited to 

actions ‘‘within a previously disturbed 

or developed facility area.’’ DOE is 

making this change to conform the 

categorical exclusion to others that 

relate to proposed actions in a 

previously disturbed or developed area. 

In addition, after further consideration, 

DOE is making a clarifying 

improvement by moving the activity 

examples to a separate sentence. For 

further information, see discussion of 

‘‘Previously disturbed or developed 

area’’ in section IV.C.2 of this preamble. 

B4.9 Multiple Uses of Transmission 

Line Rights-of-Way 

A comment from Edison Electric 

Institute (at page 3) on this categorical 

exclusion, for granting or denying 

requests for multiple uses of a 

transmission facility’s rights-of-way, 

requested that DOE specify that 

multiple uses need to accommodate 

technical and other concerns that may 

be raised by the owners of the 

transmission facilities involved. This 

categorical exclusion is used by DOE 

entities, for example Power Marketing 

Administrations, in responding to a 

request regarding their own 

transmission facility rights-of-way, not 

those owned by other parties. Therefore, 

DOE is retaining the proposed language 

in the categorical exclusion in the final 

rule. 

B4.10 Removal of Electric 

Transmission Facilities 

A comment from Edison Electric 

Institute (at page 3) expressed agreement 

with the proposed changes to the 

categorical exclusion, but requested that 

DOE stipulate that any permit holders 

and owners of facilities affected by the 

abandonment must be given advance 

notice so they can protect their rights. 

This comment raises concerns unrelated 

to environmental review under NEPA, 

which is the scope of this regulation. 

For this reason, DOE is retaining its 

proposed categorical exclusion as the 

final categorical exclusion. 

DOE is changing the title of this 

categorical exclusion to more closely 

reflect the wording of the categorical 

exclusion. 


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B4.11 Electric Power Substations and 

Interconnection Facilities 

DOE is simplifying the wording of 

this categorical exclusion. In the Notice 

of Proposed Rulemaking, DOE proposed 

that actions under this categorical 

exclusion be restricted to 

interconnecting new generation 

resources that meet two conditions— 

that the new generation resource would 

be eligible for a categorical exclusion 

and that it would be equal to or less 

than 50 average megawatts. DOE 

determined that these limitations on the 

generation resource were more limiting 

than necessary to ensure appropriate 

application of this categorical exclusion. 

The appropriate limit is that the 

generation resource not pose the 

potential for significant environmental 

impacts. This limit already is addressed 

in DOE’s existing NEPA regulations, 

which state, in part, that before applying 

a categorical exclusion, DOE must 

determine that the proposed action is 

not ‘‘connected’’ (40 CFR 1508.25(a)(1)) 

to other actions with potentially 

significant impacts (10 CFR 

1021.410(b)(3)). 

DOE received a comment from the 

Chesapeake Bay Foundation (at page 5) 

stating that ‘‘a categorical exclusion 

without any limitations or conditions on 

what can be fairly substantial 

development is inappropriate’’ and that 

DOE should consider context and size to 

ensure that actions with significant 

impacts are not categorically excluded. 

In applying this categorical exclusion, a 

NEPA Compliance Officer considers 

context and size, along with other 

factors associated with potential for 

significant impacts, and DOE prepares 

an environmental assessment or 

environmental impact statement if a 

categorical exclusion determination is 

not appropriate. 

B4.12 Construction of Powerlines 

DOE is simplifying the wording of 

this categorical exclusion with respect 

to activities not in previously disturbed 

or developed rights-of-way. Upon 

further consideration, DOE is removing 

the limitation on interconnection of new 

generation resources proposed for this 

categorical exclusion for the same 

reason described above for categorical 

exclusion B4.11. 

B4.13 Upgrading and Rebuilding 

Existing Powerlines 

DOE is simplifying the wording of 

this categorical exclusion by removing 

the limitation on interconnection of new 

generation resources. The existing 

categorical exclusion B4.13 does not 

include a condition regarding 

interconnections, and DOE has 

determined that it is not necessary to 

add one. Also, any proposed upgrade or 

rebuild of existing powerlines would be 

subject to the same consideration 

regarding connected actions as 

described above for categorical 

exclusion B4.11. 

Categorical Exclusions Applicable to 

Conservation, Fossil, and Renewable 

Energy Activities (B5) 

B5.3 Modification or Abandonment of 

Wells 

DOE received a comment from the 

Chesapeake Bay Foundation (at page 6) 

that well abandonment should be 

accompanied by revegetation and 

rehabilitation of the area. In response, 

DOE notes that abandonment of a well 

normally includes actions such as 

plugging, welding, or crimping and 

backfilling to ensure safety and prevent 

contamination from entering the well. 

DOE’s proposed language adds new 

conditions, including that this 

categorical exclusion could only apply 

if the well abandonment were to be 

conducted ‘‘consistent with best 

practices and DOE protocols,’’ such as 

those to address revegetation and 

rehabilitation, among other issues. 

Therefore, DOE is retaining the 

proposed language in the categorical 

exclusion in the final rule. DOE notes, 

however, that revegetation and 

rehabilitation may not always be part of 

a proposed abandonment, where, for 

example, continued maintenance of 

cleared areas may be necessary because 

of ongoing operations near the 

abandoned well. 

B5.4 Repair or Replacement of 

Pipelines, B5.5 Short Pipeline 

Segments, and B5.8 Import or Export 

Natural Gas, With New Cogeneration 

Powerplant 

A comment from an anonymous 

individual (at page 2) objected to the 

categorical exclusions for pipelines 

because ‘‘major pipelines blow up’’ and 

asserted that DOE has allowed major oil 

firms to fail to maintain pipelines and 

has failed to adequately punish these 

companies for oil spills. DOE’s 

experience is that the types of pipeline 

projects addressed by these categorical 

exclusions do not pose significant risk 

of accident and, indeed, repair, 

replacement, and similar activities can 

reduce such risks. DOE is retaining the 

proposed language in the categorical 

exclusions in the final rule. 

B5.13 Experimental Wells for the 

Injection of Small Quantities of Carbon 

Dioxide 

A comment from Sandy Beranich (at 

page 2) expressed concern that the 

injection of carbon dioxide into 

experimental wells should be allowed 

only after completing an environmental 

assessment. The comment also inquired 

as to DOE experience with these wells 

and their potential impacts. DOE has 

identified, in the Technical Support 

Document, multiple environmental 

assessments and findings of no 

significant impact and the results of 

field projects that demonstrate DOE 

experience with wells of a scale covered 

by this categorical exclusion. These 

environmental assessments and findings 

of no significant impact demonstrate 

that the operation of such wells 

normally does not result in significant 

environmental impacts. 

To simplify the categorical exclusion, 

DOE is changing ‘‘salt water and 

freshwater’’ to ‘‘aquatic 

environments.’’Aquatic, as used herein, 

may refer to salt water, freshwater, or 

areas with shifting delineation between 

the two; this is not a substantive change. 

B5.15, B5.16, B5.17, B5.18, and B5.25

Renewable Energy 

Certain of DOE’s proposed categorical 

exclusions for small-scale renewable 

energy projects include a condition that 

a proposed project ‘‘would incorporate 

appropriate control technologies and 

best management practices.’’ DOE 

received a comment from Defenders of 

Wildlife (at pages 2–5) recommending 

that the control technologies and best 

management practices for five 

categorical exclusions (B5.15, B5.16, 

B5.17, B5.18, and B5.25) include predevelopment surveys, mitigation 

measures, continued monitoring, and 

decommissioning/reclamation. In 

response, DOE notes that it normally 

would consider these and other 

practices during its NEPA review, 

including when determining whether to 

apply one of the categorical exclusions 

referenced by the comment. 

The comment first recommended 

inclusion of pre-development surveys 

for endangered and threatened species 

and other sensitive resources. DOE 

already evaluates the likelihood of 

potential impacts to threatened and 

endangered species and sensitive 

ecological resources through the integral 

elements applicable to all appendix B 

categorical exclusions, as well as the 

consideration of extraordinary 

circumstances. Furthermore, 

predevelopment surveys may be 

required as part of compliance with 


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other regulations (e.g., those pertaining 

to the Endangered Species Act, Bald and 

Golden Eagle Protection Act) and would 

be considered by DOE in its decision 

whether to apply a categorical exclusion 

to a particular proposed action. 

The second recommendation in the 

comment was to include mitigation 

measures to compensate for impacts to 

ecological resources. In response, 

compensating for impacts to biological 

resources is not required by NEPA for 

application of a categorical exclusion, 

and DOE declines to adopt such a 

requirement. However, DOE considers 

all mitigation measures and best 

management practices that are 

incorporated into a proposed action as 

part of its decision whether to apply any 

categorical exclusion. This approach is 

supported by the CEQ final guidance on 

the ‘‘Appropriate Use of Mitigation and 

Monitoring and Clarifying the 

Appropriate Use of Mitigated Findings 

of No Significant Impact’’ (CEQ 

Mitigation and Monitoring Guidance) 

(76 FR 3843; January 14, 2011). In its 

guidance, CEQ noted that ‘‘[m]any 

Federal agencies rely on mitigation to 

reduce adverse environmental impacts 

as part of the planning process for a 

project, incorporating mitigation as 

integral components of a proposed 

project design before making a 

determination about the significance of 

the project’s environmental impacts. 

Such mitigation can lead to an 

environmentally preferred outcome and 

in some cases reduce the projected 

impacts of agency actions to below a 

threshold of significance. An example of 

mitigation measures that are typically 

included as part of the proposed action 

are agency standardized best 

management practices such as those 

developed to prevent storm water runoff 

or fugitive dust emissions at a 

construction site’’ (CEQ Mitigation and 

Monitoring Guidance). 

The comment also recommended 

continued monitoring of environmental 

impacts resulting from categorically 

excluded actions. In response, ongoing 

monitoring is a part of many DOE 

programs, often in conjunction with an 

environmental management system, and 

private project proponents may include 

such monitoring (e.g., for compliance 

with environmental protection 

requirements). However, when DOE is 

providing funding, its ability to require 

or oversee ongoing monitoring may be 

limited. In sum, DOE supports the 

objective of monitoring, but is not able 

to ensure that monitoring occurs in all 

circumstances. 

The fourth recommendation in the 

comment was to include 

decommissioning/reclamation plans 

that restore impacted areas. DOE 

considers available information on 

decommissioning/reclamation plans as 

part of its decision whether to apply a 

categorical exclusion. Decommissioning 

and reclamation plans are not 

prerequisites for application of a 

categorical exclusion and, while they 

may be appropriate in some instances, 

DOE does not elect to require them in 

every situation. 

DOE is not making any changes to 

categorical exclusions B5.15, B5.16, 

B5.17, B5.18, and B5.25 in response to 

the comments discussed above. 

B5.15 Small-Scale Renewable Energy 

Research and Development and Pilot 

Projects 

A comment from DOI (at page 3) 

asked for clarification regarding whether 

actions covered under the proposed 

categorical exclusion included both 

research and development projects and 

pilot projects located in previously 

disturbed or developed areas. DOE is 

modifying the categorical exclusion to 

more clearly state that both types of 

projects must be located in a previously 

disturbed or developed area. Therefore, 

DOE is changing the first sentence to 

read: ‘‘Small-scale renewable energy 

research and development projects and 

small-scale pilot projects, provided that 

the projects are located within a 

previously disturbed or developed 

area.’’ For further information, see 

discussion of ‘‘Previously disturbed or 

developed area’’ in section IV.C.2. of 

this preamble. Another comment 

requested that the term ‘‘small-scale’’ be 

defined. For further information, see 

discussion of ‘‘small’’ and ‘‘small-scale’’ 

in section IV.C.3 of this preamble. 

DOE received comments regarding the 

use of genetically engineered organisms, 

synthetic biology, noxious weeds, and 

non-native species, such as non-native 

algae, in projects that may be 

categorically excluded under this 

section of the rules. For further 

information, see discussion of 

‘‘Genetically engineered organisms, 

synthetic biology, governmentally 

designated noxious weeds, or invasive 

species’’ in section IV.C.7 of this 

preamble. 

For discussion of additional 

comments on this categorical exclusion, 

see ‘‘B5.15, B5.16, B5.17, B5.18, and 

B5.25—Renewable energy’’ above in this 

preamble. 

B5.16 Solar Photovoltaic Systems 

DOE received a comment from 

William Kirk Williams (at page 1) 

objecting to DOE’s proposed categorical 

exclusion for solar photovoltaic projects 

because of the potentially large amount 

of land involved, associated impacts on 

ecosystems, and the economic interests 

of local communities who might be 

restricted from existing economic uses 

of Federal lands. The comment said that 

such projects should not be built 

without preparation of an 

environmental impact statement to 

consider alternatives. DOE agrees that 

some solar projects are large and 

appropriately analyzed in an 

environmental assessment or 

environmental impact statement. 

However, DOE is not making any 

changes in response to this comment 

because the categorical exclusion could 

only be applied to projects ‘‘on a 

building or other structure’’ or on land 

‘‘generally less than 10 acres within a 

previously disturbed or developed 

area.’’ At this scale, solar photovoltaic 

projects normally would not have the 

potential to cause significant impacts. 

For further information, see discussion 

of ‘‘Previously disturbed or developed 

area’’ in section IV.C.2 of this preamble. 

Two comments (from Granite 

Construction Company (at pages 1–2) 

and Amonix (at pages 1–2)) asked DOE 

to increase the allowable footprint 

(acreage) for actions under this 

categorical exclusion to 100 acres when 

the projects would be located on heavily 

developed land such as mine or quarry 

sites. However, DOE does not have an 

adequate record to support a conclusion 

that larger photovoltaic systems, 

including up to 100 acres, normally 

would not have the potential for 

significant environmental impacts. For 

all proposed projects, including those at 

the mine and quarry locations, DOE 

would need to consider numerous sitespecific factors, including the current 

state of animal and plant systems, 

reclamation, and alternative uses (e.g., 

grazing). The scale of construction 

activities and the potential impacts for 

systems on 100 acres of land could be 

significantly different than those for a 

project located on 10 acres or less. DOE 

will continue to collect and review data 

and could revise or add a new 

categorical exclusion at a future time, if 

warranted. At a minimum, DOE would 

consider this during the next periodic 

review of its categorical exclusions. 

A comment from William Kirk 

Williams (at page 1) also expressed 

concerns regarding negative impacts to 

species such as the sage grouse from 

activities under this categorical 

exclusion. Under integral element 

B(4)(ii), a provision applicable to all 

categorical exclusions in appendix B, 

DOE would not categorically exclude an 

action with the potential for significant 

impacts on threatened and endangered 

species, including Federal and stateVerDate Mar<15>2010 16:00 Oct 12, 2011 Jkt 226001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\13OCR2.SGM 13OCR2

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listed and proposed species and 

otherwise Federally protected species. 

For discussion of additional 

comments on this categorical exclusion, 

see ‘‘B5.15, B5.16, B5.17, B5.18, and 

B5.25—Renewable energy’’ above in this 

preamble. 

B5.17 Solar Thermal Systems 

For DOE’s response to comments on 

this categorical exclusion, see 

discussion of ‘‘B5.15, B5.16, B5.17, 

B5.18, and B5.25 Renewable energy’’ 

above in this preamble. 

B5.18 Wind Turbines 

In response to comments, DOE is 

making three changes to the categorical 

exclusion. A comment from Pacific 

Northwest National Laboratory (at page 

2) asked for exclusionary wording 

stating that wind turbines would not be 

located in an established marine 

sanctuary or wildlife refuge. In response 

to the comment, DOE is limiting the 

categorical exclusion to land activities 

by adding the following sentence to the 

end of the categorical exclusion: 

‘‘Covered actions include only those 

related to wind turbines to be installed 

on land.’’ DOE also received a comment 

supporting the use of categorical 

exclusions for deepwater floating 

offshore wind energy projects. DOE does 

not currently have the experience to 

support expanding the categorical 

exclusion to include such projects, but 

this may change as DOE gains 

experience over time. Second, DOE 

received comments (e.g., from Defenders 

of Wildlife (at page 4), Sandy Beranich 

(at page 2)) expressing uncertainty or 

concern as to the scope or size of a 

proposed action to which this 

categorical exclusion may apply, asking 

whether this categorical exclusion could 

cover the establishment of a wind farm. 

In order to clarify that DOE intends the 

categorical exclusion to apply to 

proposals for a limited number of wind 

turbines, DOE is changing the first 

sentence of the categorical exclusion to 

refer to a small number of wind turbines 

(generally not more than 2), which is the 

number of turbines generally analyzed 

in the environmental assessments and 

findings of no significant impact 

identified in the Technical Support 

Document. Third, DOE identified 

distances for siting turbines from air 

safety and navigational devices in 

nautical miles in its Notice of Proposed 

Rulemaking. DOE is adding the 

conversion to miles to ensure the 

limitation is readily understood by both 

experts and the general public. 

In addition, upon further 

consideration, DOE is clarifying the 

examples of significant impacts to 

persons, so that the examples now read 

‘‘(such as from shadow flicker and other 

visual effects, and noise).’’ DOE also is 

changing a condition that a proposed 

action ‘‘would not have the potential to 

cause significant impacts on bird or bat 

species’’ to ‘‘would not have the 

potential to cause significant impacts on 

bird or bat populations.’’ The 

appropriate context for considering 

potential impacts is the local 

populations of birds and bats (including 

those nesting or foraging in, or flying 

through, the vicinity of the proposed 

project site). 

DOE also received several other 

comments in response to which DOE is 

not making changes to the categorical 

exclusion. As noted previously (section 

IV.C.4), DOE received comments on its 

proposed use of ‘‘would not have the 

potential for significant impact’’ in a 

number of its categorical exclusions, 

including B5.18. In the context of 

categorical exclusion B5.18, comments 

asserted that the phrase would be open 

to interpretation or was too vague. DOE 

is including the limitations ‘‘would not 

have the potential to cause significant 

impacts on bird or bat populations’’ and 

‘‘would not have the potential to cause 

significant impacts to persons (such as 

from shadow flicker and other visual 

effects, and noise)’’ in categorical 

exclusion B5.18 to highlight the types of 

potential impacts that a NEPA 

Compliance Officer must consider when 

reviewing a proposed action specific to 

wind turbines. As explained in section 

IV.C.4, this is consistent with CEQ’s 

NEPA regulations and its Categorical 

Exclusion Guidance. 

DOE received comments that 

expressed concern that the phrase 

‘‘previously disturbed or developed 

area’’ was too vague and prone to 

interpretation. As indicated in its Notice 

of Proposed Rulemaking, DOE is 

limiting categorical exclusion B5.18 to 

actions located within previously 

disturbed or developed areas to avoid 

potential impacts to resources. For 

further information, see discussion of 

‘‘Previously disturbed or developed 

area’’ in section IV.C.2 of this preamble. 

DOE received a comment from 

William Kirk Williams (at page 1) that 

expressed concern over the scale of 

wind farms as too large and consuming 

too much land. Other comments (e.g., 

from DOI (at page 3), Defenders of 

Wildlife (at page 4), Sandy Beranich (at 

page 2)) suggested limiting this 

categorical exclusion to a single turbine 

or specifying the scale in terms of acres. 

DOE is changing the categorical 

exclusion to limit covered actions to 

those that involve only ‘‘a small number 

of (generally not more than 2) * * *.’’ 

This restriction, along with the 

condition that wind turbines must have 

a total height generally less than 200 

feet and be sited within a previously 

disturbed or developed area, limits the 

potential scale of actions under this 

categorical exclusion to those that 

would not require large parcels of land. 

DOE has identified, in the Technical 

Support Document, multiple 

environmental assessments and findings 

of no significant impact that 

demonstrate DOE experience with wind 

turbine projects of the scale covered by 

this categorical exclusion. These 

environmental assessments and findings 

of no significant impact demonstrate 

that the construction of a small number 

of wind turbines normally does not 

result in large parcels of land being 

affected or significant environmental 

impacts. For further information, see 

discussion of ‘‘small’’ and ‘‘small-scale’’ 

in section IV.C.3 of this preamble. 

Another comment (from National 

Wildlife Federation (at page 3)) 

suggested that DOE had not taken into 

consideration the ‘‘non-footprint’’ and 

potential cumulative impacts of wind 

turbines on bird, bat and wildlife 

behavior, migration pathways or habitat. 

A DOE NEPA Compliance Officer would 

consider potential direct, indirect, and 

cumulative impacts, as well as 

extraordinary circumstances when 

reviewing a proposed action and making 

a NEPA determination. 

DOE received a comment from DOI (at 

page 3) asking for the basis for the 

limitation, as stated in the Notice of 

Proposed Rulemaking, that covered 

actions would be for commercially 

available wind turbines ‘‘with a total 

height generally less than 200 feet.’’ 

This limitation is based on several 

considerations. DOE is choosing to limit 

this categorical exclusion to actions that 

are small-scale (i.e., a small number of 

small turbines). The ‘‘generally less than 

200 feet’’ limitation is intended to avoid 

potential conflicts with airports and 

aviation navigation aids, and to avoid 

potential commercial and military air 

safety issues. 

The nature of potential impacts 

related to turbine height on visual or 

biological resources for any proposed 

action will vary depending on the 

nature of the site. DOE is including 

other limitations in B5.18 (e.g., ‘‘would 

not have the potential to cause 

significant impacts on bird or bat 

populations’’) that better address issues 

related to visual, biological, and other 

resources in order to highlight the types 

of potential impacts that a NEPA 

Compliance Officer must consider when 

reviewing a proposed action specific to 

wind turbines. 


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DOE also received a comment from 

Defenders of Wildlife (at page 4) focused 

on best management practices and 

monitoring measures associated with 

categorical exclusion B5.18. A comment 

from William Kirk Williams (at page 1) 

expressed concern that B5.18 lacks a 

mechanism for requiring that actions 

covered under this categorical exclusion 

would incorporate best management 

practices. Both of these comments were 

related to using best management 

practices to reduce impacts to birds and 

bats under categorical exclusion B5.18. 

DOE considers all mitigation measures 

and best management practices that are 

incorporated into a proposed action as 

part of its decision whether to apply any 

categorical exclusion. This approach is 

supported by the CEQ Mitigation and 

Monitoring Guidance. DOE supports the 

objective of better design and planning 

to limit impacts to birds and bats and 

has therefore included a limitation in 

B5.18 that covered actions would 

‘‘incorporate appropriate control 

technologies and best management 

practices.’’ Whether or not such 

practices are included in the design of 

a wind turbine proposed action would 

be evident at the time that a DOE NEPA 

Compliance Officer considers the 

specific details of a proposed action. 

The comment from Defenders of 

Wildlife (at page 5) also recommended 

continued monitoring of environmental 

impacts resulting from categorically 

excluded actions. In response, ongoing 

monitoring is a part of many DOE 

programs, often in conjunction with an 

environmental management system, and 

private project proponents may include 

such monitoring (e.g., for compliance 

with environmental protection 

requirements). However, when DOE is 

providing funding, its ability to require 

or oversee ongoing monitoring may be 

limited, due to factors such as the terms 

of the financial award and the extent of 

Federal control over the lifetime of the 

project. In sum, DOE supports the 

objective of monitoring but is not able 

to ensure that monitoring occurs in all 

circumstances. 

Several comments (e.g., from DOI (at 

page 3), William Kirk Williams (at page 

1)) raised issues related to impacts to 

biological resources, namely on impacts 

to bird and bat species. A comment from 

DOI (at page 3) asked DOE to describe 

‘‘how the determination [would be] 

made that a significant number of birds 

or bats would not be affected.’’ Because 

a determination of significance under 

NEPA depends on the context and 

intensity of an individual proposal, 

potential significance of the impacts 

from wind turbines on birds and bats is 

site-specific. At the time that a NEPA 

Compliance Officer considers applying 

this categorical exclusion to a proposed 

action, DOE would determine 

significance of impacts on birds and 

bats based on the specific site 

conditions of the proposed wind 

turbine(s). 

A second comment (from William 

Kirk Williams (at page 1)) pointed out 

that wind turbines kill birds, and 

therefore, constitute a violation of the 

Migratory Bird Treaty Act. DOE agrees 

that impacts to birds are an important 

concern associated with this renewable 

technology, and DOE is modifying the 

integral elements applicable to 

appendix B categorical exclusions by 

adding that a proposal must be in 

compliance with the Bald and Golden 

Eagle Protection Act and the Migratory 

Bird Treaty Act. As indicated in its 

Notice of Proposed Rulemaking, DOE is 

also including a limitation that the 

action not have the potential to cause 

significant impacts on bird or bat 

populations, so that a NEPA 

Compliance Officer must consider the 

impact on these populations specifically 

when reviewing a proposed action to 

determine whether it fits this categorical 

exclusion. 

Another comment (from Sandy 

Beranich (at page 2)) requested that DOE 

include a requirement that a covered 

action under categorical exclusion B5.18 

would require agreement from the U.S. 

Fish and Wildlife Service for the size 

and location. Under integral element 

B(4)(ii), applicable to all categorical 

exclusions in appendix B, DOE would 

not categorically exclude an action with 

the potential for significant impacts on 

threatened and endangered species, 

including Federal and state-listed and 

proposed species and otherwise 

Federally protected species. Further, 

DOE consults with other agencies, as 

required. While the U.S. Fish and 

Wildlife Service has some authority 

related to the protection of such species, 

it does not have statutory or regulatory 

authority for siting wind turbines 

generally. The authority for siting wind 

turbines typically rests with state and/ 

or local governments that make 

decisions with regard to land use, 

zoning, or other natural resource uses. 

Thus, DOE is not making any changes 

to categorical exclusion B5.18 based on 

this comment. 

A comment from National Wildlife 

Federation (at page 3) requested that 

DOE include a specific requirement that 

wind turbines must not be sited in 

migration corridors or pathways, habitat 

areas, or areas where birds concentrate, 

such as wetlands or lakes. As indicated 

in its Notice of Proposed Rulemaking, 

DOE is including a limitation that 

covered actions ‘‘would be in 

accordance with applicable 

requirements (such as local land use 

and zoning requirements) in the 

proposed project area.’’ DOE clarifies 

that this could include, but is not 

limited to, State, local or other 

requirements regarding the protection of 

special or sensitive species, migration 

pathways, and habitats. Therefore, DOE 

is not making a change based on this 

comment. 

Another comment from National 

Wildlife Federation (at page 3) 

suggested that DOE include a 

requirement that the actions covered be 

in accordance with a municipal, state, 

or Federal wind turbine siting guideline 

such as the U.S. Fish and Wildlife 

Service, Draft Land-Based Wind Energy 

Guidelines (April 2011). The U.S. Fish 

and Wildlife Service has since issued 

revised draft guidelines (July 2011) and 

continues related discussions with the 

interested public and other Federal 

agencies. DOE will continue following 

the development of these guidelines and 

considering how to most appropriately 

apply them to its activities. However, 

DOE does not find it appropriate to 

make conformance to the guidelines a 

condition of applying a categorical 

exclusion. The guidelines are still being 

developed, and the U.S. Fish and 

Wildlife Service does not consider them 

mandatory at this time. Thus, DOE is 

not making any changes to categorical 

exclusion B5.18 based on this comment. 

For discussion of additional 

comments on this categorical exclusion, 

see ‘‘B5.15, B5.16, B5.17, B5.18, and 

B5.25—Renewable energy’’ above in this 

preamble. 

B5.19 Ground Source Heat Pumps 

After further consideration, DOE is 

making two changes to the categorical 

exclusion. The first is to address the 

potential for a ground source heat pump 

system to allow cross-contamination 

between aquifers, during the 

construction or operation of the heat 

pump system. The second is to correct 

a typographical error; DOE intended to 

say ‘‘school or community center’’ 

rather than ‘‘school and community 

center.’’ Therefore, DOE is changing the 

first sentence of the categorical 

exclusion to read: ‘‘The installation, 

modification, operation, and removal of 

commercially available small-scale 

ground source heat pumps to support 

operations in single facilities (such as a 

school or community center) or 

contiguous facilities (such as an office 

complex) (1) only where (a) major 

associated activities (such as drilling 

and discharge) are regulated, and (b) 

appropriate leakage and contaminant 


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control measures would be in place 

(including for cross-contamination 

between aquifers) * * *.’’ 

B5.20 Biomass Power Plants 

DOE received comments (e.g., from 

National Wildlife Federation (at page 4) 

and Center for Food Safety on behalf of 

itself and 3 other organizations (at page 

5)) expressing concern about the 

impacts of biomass used in energy 

production. These concerns included 

impacts to wildlife habitat from the 

conversion of natural forests to 

monocultures for biomass production 

and the use of experimental biomass 

technologies employing genetically 

engineered organisms. DOE received a 

comment from Center for Food Safety 

on behalf of itself and 3 other 

organizations (at page 5) stating that 

biomass harvesting (or sourcing) could 

result in widespread forest destruction 

and soil degradation. Another comment 

(from National Wildlife Federation (at 

page 4)) suggested that biomass be 

certified by the Forest Stewardship 

Council or the Council for Sustainable 

Biomass Production to address the 

impact of biomass sourcing on forest 

stewardship and sustainability. 

Comments from Center for Food Safety 

on behalf of itself and 3 other 

organizations (at page 5) expressed 

concern about significant air pollution 

that could result from biomass 

combustion, when compared to other 

fuels. Another comment (from Friends 

of the Earth (at pages 1–2) and Center 

for Food Safety on behalf of itself and 

3 other organizations (at page 1)) stated 

that this categorical exclusion should be 

rejected, because its use could cause 

significant impacts; DOE has 

determined that this categorical 

exclusion is appropriate, in part, 

because of the requirement to consider 

extraordinary circumstances. 

A DOE NEPA Compliance Officer 

would evaluate the size and output of 

proposed biomass power plants to 

determine whether the proposals meet 

the integral elements of the categorical 

exclusion (listed in appendix B, 

paragraph (4)) and whether there are 

any associated extraordinary 

circumstances that would affect the 

significance of impacts, including 

impacts to wildlife and habitat. In 

DOE’s experience, the limitations on the 

size and energy output of covered 

biomass power plants ensure that any 

covered action would not consume 

quantities of biomass that could 

foreseeably impact soil quality or forest 

sustainability, nor would such smallscale projects result in the conversion of 

natural forests to monocultures of 

biomass crops. Therefore, DOE is not 

adding specific restrictions on biomass 

sourcing, although an applicant’s use of 

biomass certified as sustainable could 

be considered by the NEPA Compliance 

Officer in determining whether a 

categorical exclusion is appropriate. 

Regarding pollution that could result 

from biomass combustion, the 

categorical exclusion requires that any 

covered biomass power plant not affect 

the air quality attainment status of the 

area, not have the potential to cause a 

significant increase in the quantity or 

rate of air emissions, and not have the 

potential to cause significant impacts to 

water resources. For these reasons, DOE 

is retaining the proposed language in 

the categorical exclusion in the final 

rule. 

A comment from Center for Food 

Safety on behalf of itself and 3 other 

organizations (at page 5) expressed 

concern about potential impacts on 

global climate change, stating that 

burning biomass can emit almost 1.5 

times as much global warming pollution 

per unit of energy as coal, and that 

harvesting and transporting biomass 

would add to greenhouse gas emissions. 

A comment from the Blue Ridge 

Environmental Defense League (at page 

1) stated that biomass energy source 

impacts are large, and that labeling such 

projects as ‘‘carbon neutral’’ is a 

mistaken concept without scientific 

basis. DOE considered these issues 

when developing the categorical 

exclusion. For example, DOE reviewed 

the Environmental Protection Agency’s 

Call for Information regarding 

greenhouse gas emissions from 

bioenergy and other biogenic sources 

(75 FR 4117; July 15, 2010), which 

noted that the issue is complex and 

requested comments on analytical 

approaches that would apply to biomass 

facilities. Partly because of these issues, 

the categorical exclusion explicitly 

limits covered actions to those that 

would not have the potential to cause a 

significant increase in the quantity or 

rate of air emissions. DOE intends that 

‘‘emissions’’ includes greenhouse gas 

emissions. Further, the small-scale 

biomass plants under this categorical 

exclusion would have correspondingly 

small-scale greenhouse gas emissions, 

and would produce power that may 

offset energy that otherwise might have 

been produced by fossil energy 

facilities, resulting in a potential for net 

beneficial impacts on climate change. 

Impacts from harvesting fuel would be 

limited by the size of the facility (and 

thus the total fuel needs) and 

consideration of factors such as existing 

land use plans. 

DOE received comments regarding the 

use of genetically engineered organisms, 

synthetic biology, noxious weeds, and 

non-native species, such as non-native 

algae, in projects that may be 

categorically excluded under this 

section of the rules. For further 

information, see discussion of 

‘‘Genetically engineered organisms, 

synthetic biology, governmentally 

designated noxious weeds, or invasive 

species’’ in section IV.C.7 of this 

preamble. 

B5.21 Methane Gas Recovery and 

Utilization System 

DOE received a comment from the 

Blue Ridge Environmental Defense 

League (at page 1) stating that methane 

gas recovery and utilization systems are 

either negative or associated with 

negative impacts. A DOE NEPA 

Compliance Officer would evaluate the 

size and output of proposed methane 

gas systems to determine whether the 

proposals meet the integral elements of 

the categorical exclusion (listed in 

appendix B, paragraph (4)) and whether 

there are any associated extraordinary 

circumstances that would affect the 

significance of impacts, including 

impacts to wildlife and habitat. The 

categorical exclusion also requires that 

any covered methane gas system not 

have the potential to cause a significant 

increase in the quantity or rate of air 

emissions, be in accordance with 

applicable requirements, and 

incorporate appropriate control 

technologies and best management 

practices. Because these measures 

would address potential significant 

impacts from these facilities, DOE is 

retaining the proposed language in the 

final categorical exclusion. 

B5.24 Drop-in Hydroelectric Systems 

A comment from Pacific Northwest 

National Laboratory (at page 2) 

suggested that limiting this categorical 

exclusion to stream and river areas 

upgradient of ‘‘natural’’ fish barriers is 

unduly restrictive because it excludes, 

for example, a small-scale hydroelectric 

system in an irrigation canal that uses 

existing fish screens or in a river system 

above an existing dam. DOE agrees that 

it is the effectiveness of the fish 

barrier—not whether the barrier is 

natural or man-made—that is relevant to 

the potential environmental impacts. 

Two important indicators of future 

effectiveness of an existing fish barrier 

are whether it is planned for removal (as 

are man-made barriers in several river 

systems) and whether it is to be 

modified to facilitate fish moving 

upstream past the barrier. Thus, DOE is 

revising the categorical exclusion to 

remove the word ‘‘natural’’ and to 

include a condition that the system ‘‘be 


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located up-gradient of an existing 

anadromous fish barrier that is not 

planned for removal and where fish 

passage retrofit is not planned. * * *’’ 

Another comment from Pacific 

Northwest National Laboratory (at page 

2) asked DOE to restrict this categorical 

exclusion to activities that would ‘‘not 

have the potential to cause impacts to 

threatened or endangered species’’ or 

significant impacts to fish or wildlife. 

Before making a categorical exclusion 

determination, a NEPA Compliance 

Officer must assess whether the 

proposed action will have the potential 

to cause significant impacts to listed or 

proposed threatened and endangered 

species. See integral element B(4)(ii). 

Thus, potential significant impacts to 

threatened and endangered species and 

fish and wildlife will be considered. 

The comment seeks inclusion of a 

higher standard—any potential impact 

to threatened and endangered species— 

which is not the correct standard 

required under NEPA. However, in 

response DOE is adding a reference to 

the integral element listed at B(4)(ii), 

which requires consideration of the 

impacts on threatened and endangered 

species, including Federal and statelisted and proposed species and 

otherwise Federally protected species. 

DOE also received a comment from 

the Blue Ridge Environmental Defense 

League (at page 1) expressing concern 

with the proposed categorical exclusion 

for drop-in hydroelectric systems. DOE 

has concluded that such systems 

meeting the requirements of the 

categorical exclusion (i.e., they would 

involve no storage or diversion of 

stream or river water, they would be 

located up-gradient of an existing 

anadromous fish barrier, and 

installation would be accomplished 

without use of heavy equipment and 

would involve no major construction or 

modification of stream or river 

channels) normally would not have the 

potential to cause significant impacts. 

B5.25 Small-Scale Renewable Energy 

Research and Development and Pilot 

Projects in Aquatic Environments 

To simplify the categorical exclusion, 

DOE is changing ‘‘salt water and 

freshwater’’ to ‘‘aquatic.’’ Aquatic, as 

used herein, may refer to salt water, 

freshwater, or areas with shifting 

delineation between the two; this is not 

a substantive change. A comment from 

Pacific Northwest National Laboratory 

(at page 2) asked that additional 

restrictions be added to the categorical 

exclusion to preclude the installation of 

a small-scale renewable energy research 

and development or pilot project device, 

if the installation of the device would 

require significant dredging or if the 

device itself could interfere with 

shipping navigation. Under integral 

element B(1) (appendix B, paragraph 

(1)) to 10 CFR part 1021, to fit within 

the classes of actions under appendix B 

categorical exclusions, the proposed 

action must be one that would not 

‘‘threaten a violation of applicable, 

statutory, or permit requirements for 

environment, safety, and health.’’ 

Actions covered by this categorical 

exclusion would be subject to, and 

would often require permits under, 

Section 10 of the Rivers and Harbors 

Act, which regulates structures placed 

in ‘‘navigable waters of the United 

States,’’ and Section 404 of the Clean 

Water Act, which regulates the 

discharge of dredged or fill material into 

waters of the United States. These 

regulations and statutes are expected to 

address the comment; therefore, DOE is 

not making any changes based on this 

comment. 

A comment from the Ocean 

Renewable Energy Coalition (at page 4) 

asked if a transmission line connecting 

the proposed generation device to the 

grid would be covered under this 

categorical exclusion. Any action 

subject to a NEPA determination, 

whether an environmental impact 

statement, environmental assessment, or 

categorical exclusion, must include all 

necessary components of that action. In 

this case, the inclusion of one or more 

transmission lines connecting the 

generation device to the electrical grid 

as part of the proposed action would not 

prevent the application of the 

categorical exclusion, unless some 

aspect of the installation, character, or 

path of the line was inconsistent with 

one or more of the limitations described 

in the categorical exclusion or the 

integral elements, or if extraordinary 

circumstances were present. 

Several comments (e.g., from DOI (at 

page 3) and the Ocean Renewable 

Energy Coalition (at page 4)) asked that 

the term ‘‘small-scale’’ be defined, and 

one comment (from the Ocean 

Renewable Energy Coalition (at page 4)) 

suggested that a power limit of 5 

megawatts be added to the categorical 

exclusion. Whether a proposal is smallscale would be determined by the NEPA 

Compliance Officer based on the context 

and intensity of the proposed action, 

which would be determined by the site 

conditions and nature of the proposal. 

Such limitations are more meaningful 

than a megawatt limit, as there is not 

necessarily a direct correlation between 

generation capacity and potential 

environmental impacts for the various 

technologies that could be addressed 

under this categorical exclusion. For 

additional discussion on the term 

‘‘small-scale,’’ see DOE’s discussion of 

‘‘small’’ and ‘‘small-scale’’ that appears 

in section IV.C.3 of this preamble. 

A comment from the Ocean 

Renewable Energy Coalition (at page 5) 

suggested that DOE provide guidance as 

to the meaning of ‘‘biologically 

sensitive.’’ Areas of high biological 

sensitivity are defined in the categorical 

exclusion to include ‘‘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.’’ Information regarding areas 

of high biological sensitivity is available 

from local, state, and Federal regulatory 

and natural resource management 

agencies. It is not uncommon for a 

categorical exclusion determination to 

require some analysis to determine 

whether any extraordinary 

circumstances exist that would render 

the categorical inapplicable to a 

particular proposal. Determining the 

presence of conditions that would 

constitute an area of high biological 

sensitivity would be the responsibility 

of the DOE NEPA Compliance Officer, 

in consultation with the project 

proponent, and would necessarily occur 

before a categorical exclusion was 

granted. 

A comment from Sandy Beranich (at 

page 2) noted that marine areas are too 

fragile for a variety of projects that could 

include the use of chemicals or invasive 

work and suggested that actions under 

this categorical exclusion warrant an 

environmental assessment level of 

analysis. Further, the comment 

requested that DOE limit the scale of 

projects under this categorical exclusion 

to allow only small projects in very 

specific areas. As indicated in its Notice 

of Proposed Rulemaking, DOE is 

limiting the scope and location of 

activities under this categorical 

exclusion to ensure that renewable 

energy research is conducted in a 

manner that would not have the 

potential to cause significant impacts. 

DOE received a comment from the 

Ocean Renewable Energy Coalition (at 

page 5) noting that an offshore wave 

pilot project identified in a document 

cited in DOE’s Technical Support 

Document for the Notice of Proposed 

Rulemaking was located in a marine 

sanctuary, yet was still deemed to have 

minimal impacts. In addition, a 

comment from Pacific Northwest 

National Laboratory (at page 2) 

suggested that many of the activities 


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described in categorical exclusion 

B3.16—a related categorical exclusion 

for activities in aquatic environments— 

should be allowed within the boundary 

of a marine sanctuary or wildlife refuge 

if conducted in a manner consistent 

with sanctuary goals and objectives. 

Therefore, DOE is modifying categorical 

exclusion B5.25 (and B3.16) to now 

allow covered actions within, or having 

effects on, existing or proposed marine 

sanctuaries, wildlife refuges, or 

governmentally recognized areas of high 

biological sensitivity, if the action 

receives authorization from, or after 

consultation with, the responsible 

agency. The DOE NEPA Compliance 

Officer would take concerns from the 

responsible agency into account when 

considering whether to apply this 

categorical exclusion. For further 

discussion, see discussion of categorical 

exclusion B3.16, above. 

DOE received a comment from 

National Wildlife Federation (at page 4) 

expressing strong support for ‘‘removing 

unnecessary barriers to the 

commercialization of deepwater 

offshore wind technology,’’ and stating 

that ‘‘with siting screens, research and 

demonstration projects in these 

technologies will not have significant 

impacts.’’ DOE does not currently have 

the experience to support expanding the 

categorical exclusion to include such 

projects, but this may change as DOE 

gains experience over time and will be 

considered when DOE conducts its next 

periodic review of its categorical 

exclusions. Another comment (from 

Friends of the Earth (at page 2) and 

Center for Food Safety on behalf of itself 

and 3 other organizations (at page 1)) 

stated that this categorical exclusion 

should be rejected, because its use could 

cause significant impacts; DOE has 

determined that this categorical 

exclusion is appropriate, in part, 

because of the requirement to consider 

extraordinary circumstances. 

DOE received a comment from DOI (at 

page 2) suggesting that it discuss or 

consider impacts related to 

decommissioning of authorized 

temporary structures or devices under 

categorical exclusion B5.25. The 

comment expressed concern regarding 

impacts from both planned 

decommissioning and unplanned 

‘‘cessation of operation’’ or failure. DOE 

agrees that potential impacts associated 

with decommissioning and similar 

activities would be appropriate to 

consider when determining whether a 

particular proposed action qualifies for 

a categorical exclusion. Another 

comment (from DOI (at page 3)) asked 

for clarification on what happens if a 

proposed action does not meet the 

conditions outlined in categorical 

exclusion B5.25. In response, if a 

condition is not met, then the DOE 

NEPA Compliance Officer would not 

apply this categorical exclusion and 

would prepare an environmental 

assessment or environmental impact 

statement, as appropriate. Another 

comment (from DOI (at page 3)) 

requested that DOE clarify the meaning 

of ‘‘the construction of permanent 

devices.’’ DOE also received a comment 

from DOI (at page 2) expressing concern 

that it would categorically exclude 

proposed actions located in unsurveyed 

areas of the seafloor under categorical 

exclusions B3.16 and B5.25. See 

explanation under categorical exclusion 

B3.16, above. 

DOE received comments regarding the 

use of genetically engineered organisms, 

synthetic biology, noxious weeds, and 

non-native species, such as non-native 

algae, in projects that may be 

categorically excluded under this 

section of the rules. For further 

information, see discussion of 

‘‘Genetically engineered organisms, 

synthetic biology, governmentally 

designated noxious weeds, or invasive 

species’’ in section IV.C.7 of this 

preamble. 

For discussion of additional 

comments on this categorical exclusion, 

see ‘‘B5.15, B5.16, B5.17, B5.18, and 

B5.25—Renewable energy’’ above in this 

preamble. 

Categorical Exclusions Applicable to 

Environmental Restoration and Waste 

Management Activities (B6) 

B6.1 Cleanup Actions 

DOE received a comment from TriValley CAREs (at page 4) that 

questioned the basis for finding that the 

proposed increase in the cost limitation 

(from approximately $5 million to 

approximately $10 million) and the 

proposed removal of the time limitation 

(5 years) from this categorical exclusion 

will not result in potentially significant 

impacts to the environment. In DOE’s 

experience, in light of other limitations 

on the scope of this categorical 

exclusion and the integral elements, 

increasing the cost limit would not add 

greatly to the types of projects that 

would be covered by this categorical 

exclusion. The time for project 

implementation is indirectly affected by 

the cost limit; e.g., a container removal 

operation would be limited by its total 

cost even without an explicit time limit. 

Further, based on DOE’s experience, the 

amount of time that a cleanup action 

requires is not a reliable indicator of its 

potential environmental impacts. 

DOE received a comment from Sandy 

Beranich (at page 2) that acknowledged 

that cleanup costs have increased since 

the categorical exclusion was first 

established, but questioned whether a 

$10 million cleanup could appropriately 

be considered ‘‘small-scale.’’ The size of 

typical small-scale cleanup actions with 

which DOE has experience has not 

changed, nor have the environmental 

impacts resulting from these actions 

increased. However, the costs of 

completing these actions have increased 

due to inflation. Projects meeting the 

$10 million limit, along with the other 

limitations on the scope of the 

categorical exclusion, normally would 

not have the potential for significant 

impacts. For further information, see 

discussion of ‘‘small’’ and ‘‘small-scale’’ 

in section IV.C.3 of this preamble. 

After further consideration, to clarify 

the cost limitation by accounting for 

inflation over time, DOE is inserting 

‘‘(in 2011 dollars)’’ after ‘‘10 million 

dollars.’’ 

10. Appendix C and Appendix D 

C7 Contracts, Policies, and Marketing 

and Allocation Plans for Electric Power 

After further consideration, DOE will 

not explicitly refer to transmission in 

this class of actions; transmission 

activities are included in the contracts, 

policies, and marketing plans, or are 

covered primarily in other classes of 

actions, such as the group of categorical 

exclusions under B4. In addition, to 

improve clarity, DOE is removing the 

previously proposed condition that the 

new generation resource ‘‘would not be 

eligible for categorical exclusion under 

this part.’’ DOE normally would not 

prepare an environmental assessment 

when a categorical exclusion would 

apply. Therefore, the condition is 

unnecessary and potentially confusing. 

C8 Protection of Cultural Resources 

and Fish and Wildlife Habitat 

DOE received a comment from Sandy 

Beranich (at page 2) asking what DOE 

means by ‘‘large-scale,’’ a term that 

distinguishes this environmental 

assessment category from categorical 

exclusion B1.20 for ‘‘small-scale’’ 

proposals of this type. DOE NEPA 

Compliance Officers use their 

professional expertise and judgment to 

determine whether a proposal meets a 

categorical exclusion for ‘‘small-scale’’ 

activities when no additional limitation 

is specified. A proposal that a NEPA 

Compliance Officer does not consider 

small-scale under such an evaluation 

would fit within this environmental 

assessment category. For further 

information, see discussion of ‘‘small’’ 


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and ‘‘small-scale’’ in section IV.C.3 of 

this preamble. In addition, under the 

DOE NEPA regulations (10 CFR 

1021.321), DOE may prepare an 

environmental assessment on any action 

at any time in order to assist agency 

planning and decisionmaking. DOE is 

retaining the proposed language in this 

class of action in the final rule. 

C12 Energy System Demonstration 

Actions 

DOE received a comment from the 

Chesapeake Bay Foundation (at page 6) 

that the scale of the project should be 

specified to clarify whether a project is 

covered in this ‘‘limited exclusion.’’ The 

comment is noted, but classes of actions 

in appendix C are not categorical 

exclusions; they are categories for which 

an environmental assessment is 

normally prepared to provide a basis for 

determining whether to prepare an 

environmental impact statement or 

issue a finding of no significant impact. 

DOE is retaining the proposed language 

in this class of actions in the final rule. 

Upon further consideration, DOE is 

adding decommissioning to the list of 

actions. For proposed new facilities, 

DOE normally would address siting 

construction, operation, and 

decommissioning in the same review 

under NEPA. 

In addition, DOE has determined that 

the final sentence of C12 is unnecessary 

and, thus, is deleting the sentence. This 

deletion does not change the meaning or 

scope of the paragraph. 

C15 Research and Development 

Incinerators and Nonhazardous Waste 

Incinerators 

Upon further consideration, DOE is 

adding decommissioning to the list of 

actions. For proposed new facilities, 

DOE normally would address siting 

construction, operation, and 

decommissioning in the same review 

under NEPA. 

D1 [Reserved: Strategic Systems] 

After further consideration, DOE is 

removing this class of actions because 

the term ‘‘strategic systems’’ is no longer 

in use and the referenced Order no 

longer defines it. The term previously 

referred to ‘‘a single, stand-alone effort 

within a program mission area that is a 

primary means to advance the 

Department’s strategic goals.’’ 

D7 Contracts, Policies, and Marketing 

and Allocation Plans for Electric Power 

After further consideration, DOE will 

not explicitly refer to transmission in 

this class of actions; transmission 

activities are included in the contracts, 

policies, and marketing plans, or are 

covered primarily in other classes of 

actions, such as the group of categorical 

exclusions under B4. 

V. Procedural Requirements 

Review Under Executive Order 12866 

Today’s final rule has been 

determined not to be a significant 

regulatory action under Executive Order 

12866, ‘‘Regulatory Planning and 

Review,’’ 58 FR 51735 (October 4, 1993). 

Accordingly, this action was not subject 

to review under that Executive Order by 

the Office of Information and Regulatory 

Affairs of the Office of Management and 

Budget (OMB). 

Review Under National Environmental 

Policy Act 

In this rule, DOE establishes, 

modifies, and clarifies procedures for 

considering the environmental effects of 

DOE actions within DOE’s 

decisionmaking process, thereby 

enhancing compliance with the letter 

and spirit of NEPA. The Council on 

Environmental Quality regulations do 

not direct agencies to prepare a NEPA 

analysis or document before 

establishing Agency procedures that 

supplement the CEQ regulations for 

implementing NEPA. Agencies are 

required to adopt NEPA procedures that 

establish specific criteria for, and 

identification of, three classes of 

actions: those that normally require 

preparation of an environmental impact 

statement; those that normally require 

preparation of an environmental 

assessment; and those that are 

categorically excluded from further 

NEPA review (40 CFR 1507.3(b)). 

Categorical exclusions are one part of 

those agency procedures, and therefore 

establishing categorical exclusions does 

not require preparation of a NEPA 

analysis or document. Agency NEPA 

procedures are procedural guidance to 

assist agencies in the fulfillment of 

agency responsibilities under NEPA, but 

are not the agency’s final determination 

of what level of NEPA analysis is 

required for a particular proposed 

action. The requirements for 

establishing agency NEPA procedures 

are set forth at 40 CFR 1505.1 and 

1507.3. The determination that 

establishing categorical exclusions does 

not require NEPA analysis and 

documentation has been upheld in 

Heartwood, Inc. v. U.S. Forest Service, 

73 F. Supp. 2d 962, 972–73 (S.D. Ill. 

1999), aff’d, 230 F.3d 947, 954–55 (7th 

Cir. 2000). 

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 the General 

Counsel’s Web site: http://energy.gov/gc 

under GC Guidance/Opinions, 

Rulemaking Policy. 

DOE reviewed today’s final rule under 

the provisions of the Regulatory 

Flexibility Act and the procedures and 

policies published on February 19, 

2003. This final rule revises DOE’s 

categorical exclusions, and makes 

certain other changes, that will help 

reduce the cost and time associated with 

completing the environmental review 

for certain proposed actions. 

In the Notice of Proposed 

Rulemaking, DOE tentatively certified 

that this rule would not have a 

significant economic impact on a 

substantial number of small entities and 

did not prepare a regulatory flexibility 

analysis for this rulemaking. DOE 

received no comments on the 

certification, and the factual basis for 

DOE’s certification is unchanged. Thus, 

DOE maintains its certification that this 

rule would not have a significant 

economic impact on a substantial 

number of small entities. DOE 

transmitted the certification and 

supporting statement of factual basis to 

the Chief Counsel for Advocacy of the 

Small Business Administration 

pursuant to 5 U.S.C. 605(b). 

Review Under Paperwork Reduction Act 

This rulemaking will impose no new 

information or record-keeping 

requirements. Accordingly, OMB 

clearance is not required under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). 

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 


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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). 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. 

This 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. This 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. 

Review Under Treasury and General 

Government Appropriations Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any 

proposed rule that may affect family 

well being. This rule would not have 

any impact on the autonomy or integrity 

of the family as an institution. 

Accordingly, DOE has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

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 

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. 

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 if 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 rule meets 

the relevant standards of Executive 

Order 12988. 

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 this rule under the OMB and 

DOE guidelines and has concluded that 

it is consistent with applicable policies 

in those guidelines. 

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 the Office of 

Information and Regulatory Affairs 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 for energy supply, 

distribution, and use. This rule 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. 

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 rule would not result in any 

takings which might require 

compensation under the Fifth 

Amendment to the United States 

Constitution. 

Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of this rule prior to its effective date. 

The report will state that it has been 

determined that the rule is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

Approval of the Office of the Secretary 

The Secretary of Energy has approved 

publication of today’s final rule. 


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Federal Register / Vol. 76, No. 198 / Thursday, October 13, 2011 / Rules and Regulations 63787 

List of Subjects in 10 CFR Part 1021 

Environmental impact statements. 

Issued in Washington, DC, September 27, 

2011. 

Sean A. Lev, 

Acting General Counsel. 

For the reasons stated in the 

Preamble, DOE amends 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 1021.215 is amended by 

revising the fourth sentence in 

paragraph (d) to read as follows: 

§ 1021.215 Applicant process. 

* * * * * 

(d) * * * The contractor shall provide 

a disclosure statement in accordance 

with 40 CFR 1506.5(c). * * * 

■ 3. Section 1021.311 is amended by 

revising the first sentence in paragraph 

(d) and paragraph (f) to read as follows: 

§ 1021.311 Notice of intent and scoping. 

* * * * * 

(d) 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. 

■ 4. 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. 

■ 5. Section 1021.331 is amended by 

revising the first sentence in 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. * * * 

* * * * * 

■ 6. Subpart D of part 1021 is revised to 

read as follows: 

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 

Subpart D—Typical Classes of Actions 

§ 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). 


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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.) 

(f) Proposed recurring activities to be 

undertaken during a specified time 

period, such as routine maintenance 

activities for a year, may be addressed 

in a single categorical exclusion 

determination after considering the 

potential aggregated impacts. 

(g) The following clarifications are 

provided to assist in the appropriate 

application of categorical exclusions 

that employ the terms or phrases: 

(1) ‘‘Previously disturbed or 

developed’’ refers to land that has been 

changed such that its functioning 

ecological processes have been and 

remain altered by human activity. The 

phrase encompasses areas that have 

been transformed from natural cover to 

non-native species or a managed state, 

including, but not limited to, utility and 

electric power transmission corridors 

and rights-of-way, and other areas 

where active utilities and currently used 

roads are readily available. 

(2) DOE considers terms such as 

‘‘small’’ and ‘‘small-scale’’ in the 

context of the particular proposal, 

including its proposed location. In 

assessing whether a proposed action is 

small, in addition to the actual 

magnitude of the proposal, DOE 

considers factors such as industry 

norms, the relationship of the proposed 

action to similar types of development 

in the vicinity of the proposed action, 

and expected outputs of emissions or 

waste. When considering the physical 

size of a proposed facility, for example, 

DOE would review the surrounding 

land uses, the scale of the proposed 

facility relative to existing development, 

and the capacity of existing roads and 

other infrastructure to support the 

proposed action. 

Appendix A to Subpart D of Part 

1021—Categorical Exclusions 

Applicable to General Agency Actions 

Table of Contents 

A1 Routine DOE business actions 

A2 Clarifying or administrative contract 

actions 

A3 Certain actions by Office of Hearings 

and Appeals 

A4 Interpretations and rulings for existing 

regulations 

A5 Interpretive rulemakings with no change 

in environmental effect 

A6 Procedural rulemakings 

A7 [Reserved] 

A8 Awards of certain contracts 

A9 Information gathering, analysis, and 

dissemination 

A10 Reports and recommendations on nonDOE legislation 

A11 Technical advice and assistance to 

organizations 

A12 Emergency preparedness planning 

A13 Procedural documents 

A14 Approval of technical exchange 

arrangements 

A15 International agreements for energy 

research and development 

A1 Routine DOE business actions 

Routine actions necessary to support the 

normal conduct of DOE business limited to 

administrative, financial, and personnel 

actions. 

A2 Clarifying or administrative contract 

actions 

Contract interpretations, amendments, and 

modifications that are clarifying or 

administrative in nature. 

A3 Certain actions by Office of Hearings 

and Appeals 

Adjustments, exceptions, exemptions, 

appeals and stays, modifications, or 

rescissions of orders issued by the Office of 

Hearings and Appeals. 

A4 Interpretations and rulings for existing 

regulations 

Interpretations and rulings with respect to 

existing regulations, or modifications or 

rescissions of such interpretations and 

rulings. 

A5 Interpretive rulemakings with no 

change in environmental effect 

Rulemakings interpreting or amending an 

existing rule or regulation that does not 

change the environmental effect of the rule 

or regulation being amended. 

A6 Procedural rulemakings 

Rulemakings that are strictly procedural, 

including, but not limited to, rulemaking 

(under 48 CFR chapter 9) establishing 

procedures for technical and pricing 

proposals and establishing contract clauses 

and contracting practices for the purchase of 

goods and services, and rulemaking (under 

10 CFR part 600) establishing application and 

review procedures for, and administration, 

audit, and closeout of, grants and cooperative 

agreements. 

A7 [Reserved] 

A8 Awards of certain contracts 

Awards of contracts for technical support 

services, management and operation of a 

government-owned facility, and personal 

services. 

A9 Information gathering, analysis, and 

dissemination 

Information gathering (including, but not 

limited to, literature surveys, inventories, site 

visits, and audits), data analysis (including, 

but not limited to, computer modeling), 

document preparation (including, but not 

limited to, conceptual design, feasibility 

studies, and analytical energy supply and 

demand studies), and information 

dissemination (including, but not limited to, 

document publication and distribution, and 

classroom training and informational 

programs), but not including site 

characterization or environmental 

monitoring. (See also B3.1 of appendix B to 

this subpart.) 

A10 Reports and recommendations on nonDOE 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 

Table of Contents 

B. Conditions that Are Integral Elements of 

the Classes of Actions in Appendix B 

B1. Categorical Exclusions Applicable to 

Facility Operation 

B1.1 Changing rates and prices 

B1.2 Training exercises and simulations 

B1.3 Routine maintenance 

B1.4 Air conditioning systems for existing 

equipment 

B1.5 Existing steam plants and cooling 

water systems 

B1.6 Tanks and equipment to control runoff 

and spills 

B1.7 Electronic equipment 

B1.8 Screened water intake and outflow 

structures 

B1.9 Airway safety markings and painting 

B1.10 Onsite storage of activated material 

B1.11 Fencing 

B1.12 Detonation or burning of explosives 

or propellants after testing 

B1.13 Pathways, short access roads, and rail 

lines 

B1.14 Refueling of nuclear reactors 

B1.15 Support buildings 


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B1.16 Asbestos removal 

B1.17 Polychlorinated biphenyl removal 

B1.18 Water supply wells 

B1.19 Microwave, meteorological, and radio 

towers 

B1.20 Protection of cultural resources, fish 

and wildlife habitat 

B1.21 Noise abatement 

B1.22 Relocation of buildings 

B1.23 Demolition and disposal of buildings 

B1.24 Property transfers 

B1.25 Real property transfers for cultural 

resources protection, habitat 

preservation, and wildlife management 

B1.26 Small water treatment facilities 

B1.27 Disconnection of utilities 

B1.28 Placing a facility in an 

environmentally safe condition 

B1.29 Disposal facilities for construction 

and demolition waste 

B1.30 Transfer actions 

B1.31 Installation or relocation of 

machinery and equipment 

B1.32 Traffic flow adjustments 

B1.33 Stormwater runoff control 

B1.34 Lead-based paint containment, 

removal, and disposal 

B1.35 Drop-off, collection, and transfer 

facilities for recyclable materials 

B1.36 Determinations of excess real 

property 

B2. Categorical Exclusions Applicable to 

Safety and Health 

B2.1 Workplace enhancements 

B2.2 Building and equipment 

instrumentation 

B2.3 Personnel safety and health equipment 

B2.4 Equipment qualification 

B2.5 Facility safety and environmental 

improvements 

B2.6 Recovery of radioactive sealed sources 

B3. Categorical Exclusions Applicable to Site 

Characterization, Monitoring, and General 

Research 

B3.1 Site characterization and 

environmental monitoring 

B3.2 Aviation activities 

B3.3 Research related to conservation of 

fish, wildlife, and cultural resources 

B3.4 Transport packaging tests for 

radioactive or hazardous material 

B3.5 Tank car tests 

B3.6 Small-scale research and development, 

laboratory operations, and pilot projects 

B3.7 New terrestrial infill exploratory and 

experimental wells 

B3.8 Outdoor terrestrial ecological and 

environmental research 

B3.9 Projects to reduce emissions and waste 

generation 

B3.10 Particle accelerators 

B3.11 Outdoor tests and experiments on 

materials and equipment components 

B3.12 Microbiological and biomedical 

facilities 

B3.13 Magnetic fusion experiments 

B3.14 Small-scale educational facilities 

B3.15 Small-scale indoor research and 

development projects using nanoscale 

materials 

B3.16 Research activities in aquatic 

environments 

B4. Categorical Exclusions Applicable to 

Electric Power and Transmission 

B4.1 Contracts, policies, and marketing and 

allocation plans for electric power 

B4.2 Export of electric energy 

B4.3 Electric power marketing rate changes 

B4.4 Power marketing services and 

activities 

B4.5 Temporary adjustments to river 

operations 

B4.6 Additions and modifications to 

transmission facilities 

B4.7 Fiber optic cable 

B4.8 Electricity transmission agreements 

B4.9 Multiple use of powerline rights-ofway 

B4.10 Removal of electric transmission 

facilities 

B4.11 Electric power substations and 

interconnection facilities 

B4.12 Construction of powerlines 

B4.13 Upgrading and rebuilding existing 

powerlines 

B5. Categorical Exclusions Applicable to 

Conservation, Fossil, and Renewable Energy 

Activities 

B5.1 Actions to conserve energy or water 

B5.2 Modifications to pumps and piping 

B5.3 Modification or abandonment of wells 

B5.4 Repair or replacement of pipelines 

B5.5 Short pipeline segments 

B5.6 Oil spill cleanup 

B5.7 Import or export natural gas, with 

operational changes 

B5.8 Import or export natural gas, with new 

cogeneration powerplant 

B5.9 Temporary exemptions for electric 

powerplants 

B5.10 Certain permanent exemptions for 

existing electric powerplants 

B5.11 Permanent exemptions allowing 

mixed natural gas and petroleum 

B5.12 Workover of existing wells 

B5.13 Experimental wells for injection of 

small quantities of carbon dioxide 

B5.14 Combined heat and power or 

cogeneration systems 

B5.15 Small-scale renewable energy 

research and development and pilot 

projects 

B5.16 Solar photovoltaic systems 

B5.17 Solar thermal systems 

B5.18 Wind turbines 

B5.19 Ground source heat pumps 

B5.20 Biomass power plants 

B5.21 Methane gas recovery and utilization 

systems 

B5.22 Alternative fuel vehicle fueling 

stations 

B5.23 Electric vehicle charging stations 

B5.24 Drop-in hydroelectric systems 

B5.25 Small-scale renewable energy 

research and development and pilot 

projects in aquatic environments 

B6. Categorical Exclusions Applicable to 

Environmental Restoration and Waste 

Management Activities 

B6.1 Cleanup actions 

B6.2 Waste collection, treatment, 

stabilization, and containment facilities 

B6.3 Improvements to environmental 

control systems 

B6.4 Facilities for storing packaged 

hazardous waste for 90 days or less 

B6.5 Facilities for characterizing and 

sorting packaged waste and overpacking 

waste 

B6.6 Modification of facilities for storing, 

packaging, and repacking waste 

B6.7 [Reserved] 

B6.8 Modifications for waste minimization 

and reuse of materials 

B6.9 Measures to reduce migration of 

contaminated groundwater 

B6.10 Upgraded or replacement waste 

storage facilities 

B7. Categorical Exclusions Applicable to 

International Activities 

B7.1 Emergency measures under the 

International Energy Program 

B7.2 Import and export of special nuclear or 

isotopic materials 

B. Conditions That Are Integral Elements of 

the Classes of Actions in Appendix B 

The classes of actions listed below include 

the following conditions as integral elements 

of the classes of actions. To fit within the 

classes of actions listed below, a proposal 

must be one that would not: 

(1) Threaten a violation of applicable 

statutory, regulatory, or permit requirements 

for environment, safety, and health, or 

similar requirements of DOE or Executive 

Orders; 

(2) Require siting and construction or 

major expansion of waste storage, disposal, 

recovery, or treatment facilities (including 

incinerators), but the proposal may include 

categorically excluded waste storage, 

disposal, recovery, or treatment actions or 

facilities; 

(3) Disturb hazardous substances, 

pollutants, contaminants, or CERCLAexcluded petroleum and natural gas products 

that preexist in the environment such that 

there would be uncontrolled or unpermitted 

releases; 

(4) Have the potential to cause significant 

impacts on environmentally sensitive 

resources. An environmentally sensitive 

resource is typically a resource that has been 

identified as needing protection through 

Executive Order, statute, or regulation by 

Federal, state, or local government, or a 

Federally recognized Indian tribe. An action 

may be categorically excluded if, although 

sensitive resources are present, the action 

would not have the potential to cause 

significant impacts on those resources (such 

as construction of a building with its 

foundation well above a sole-source aquifer 

or upland surface soil removal on a site that 

has wetlands). Environmentally sensitive 

resources include, but are not limited to: 

(i) Property (such as sites, buildings, 

structures, and objects) of historic, 

archeological, or architectural significance 

designated by a Federal, state, or local 

government, Federally recognized Indian 

tribe, or Native Hawaiian organization, or 

property determined to be eligible for listing 

on the National Register of Historic Places; 

(ii) Federally-listed threatened or 

endangered species or their habitat 

(including critical habitat) or Federallyproposed or candidate species or their habitat 

(Endangered Species Act); state-listed or 

state-proposed endangered or threatened 


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species or their habitat; Federally-protected 

marine mammals and Essential Fish Habitat 

(Marine Mammal Protection Act; MagnusonStevens Fishery Conservation and 

Management Act); and otherwise Federallyprotected species (such as the Bald and 

Golden Eagle Protection Act or the Migratory 

Bird Treaty Act); 

(iii) Floodplains and wetlands (as defined 

in 10 CFR 1022.4, ‘‘Compliance with 

Floodplain and Wetland Environmental 

Review Requirements: Definitions,’’ or its 

successor); 

(iv) Areas having a special designation 

such as Federally- and state-designated 

wilderness areas, national parks, national 

monuments, national natural landmarks, 

wild and scenic rivers, state and Federal 

wildlife refuges, scenic areas (such as 

National Scenic and Historic Trails or 

National Scenic Areas), and marine 

sanctuaries; 

(v) Prime or unique farmland, or other 

farmland of statewide or local importance, as 

defined at 7 CFR 658.2(a), ‘‘Farmland 

Protection Policy Act: Definitions,’’ or its 

successor; 

(vi) Special sources of water (such as solesource aquifers, wellhead protection areas, 

and other water sources that are vital in a 

region); and 

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

(5) Involve genetically engineered 

organisms, synthetic biology, governmentally 

designated noxious weeds, or invasive 

species, unless the proposed activity would 

be contained or confined in a manner 

designed and operated to prevent 

unauthorized release into the environment 

and conducted in accordance with applicable 

requirements, such as those of the 

Department of Agriculture, the 

Environmental Protection Agency, and the 

National Institutes of Health. 

B1. Categorical Exclusions Applicable to 

Facility Operation 

B1.1 Changing rates and prices 

Changing rates for services or prices for 

products marketed by parts of DOE other 

than Power Marketing Administrations, and 

approval of rate or price changes for 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, gabions, 

grading, and revegetation); 

(l) Surveillance and maintenance of 

surplus facilities in accordance with DOE 

Order 435.1, ‘‘Radioactive Waste 

Management,’’ or its successor; 

(m) Repair and maintenance of 

transmission facilities, such as replacement 

of conductors of the same nominal voltage, 

poles, circuit breakers, transformers, 

capacitors, crossarms, insulators, and 

downed powerlines, in accordance, where 

appropriate, with 40 CFR part 761 

(Polychlorinated Biphenyls Manufacturing, 

Processing, Distribution in Commerce, and 

Use Prohibitions) or its successor; 

(n) Routine testing and calibration of 

facility components, subsystems, or portable 

equipment (such as control valves, in-core 

monitoring devices, transformers, capacitors, 

monitoring wells, lysimeters, weather 

stations, and flumes); 

(o) Routine decontamination of the 

surfaces of equipment, rooms, hot cells, or 

other interior surfaces of buildings (by such 

activities as wiping with rags, using 

strippable latex, and minor vacuuming), and 

removal of contaminated intact equipment 

and other material (not including spent 

nuclear fuel or special nuclear material in 

nuclear reactors); and 

(p) Removal of debris. 

B1.4 Air conditioning systems for existing 

equipment 

Installation or modification of air 

conditioning systems required for 

temperature control for operation of existing 

equipment. 

B1.5 Existing steam plants and cooling 

water systems 

Minor improvements to existing steam 

plants and cooling water systems (including, 

but not limited to, modifications of existing 

cooling towers and ponds), provided that the 

improvements would not: (1) Create new 

sources of water or involve new receiving 

waters; (2) have the potential to significantly 

alter water withdrawal rates; (3) exceed the 

permitted temperature of discharged water; 

or (4) increase introductions of, or involve 

new introductions of, hazardous substances, 

pollutants, contaminants, or 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 powerlines and 

antenna structures, wind turbines, and 

similar structures in accordance with 

applicable requirements (such as Federal 

Aviation Administration standards). 

B1.10 Onsite storage of activated material 

Routine, onsite storage at an existing 

facility of activated equipment and material 


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(including, but not limited to, lead) used at 

that facility, to allow reuse after decay of 

radioisotopes with short half-lives. 

B1.11 Fencing 

Installation of fencing, including, but not 

limited to border marking, that would not 

have the potential to significantly impede 

wildlife population movement (including 

migration) or surface water flow. 

B1.12 Detonation or burning of explosives 

or propellants after testing 

Outdoor detonation or burning of 

explosives or propellants that failed (duds), 

were damaged (such as by fracturing), or 

were otherwise not consumed in testing. 

Outdoor detonation or burning would be in 

areas designated and routinely used for those 

purposes under existing applicable permits 

issued by Federal, state, and local authorities 

(such as a permit for a RCRA miscellaneous 

unit (40 CFR part 264, subpart X)). 

B1.13 Pathways, short access roads, and 

rail lines 

Construction, acquisition, and relocation, 

consistent with applicable right-of-way 

conditions and approved land use or 

transportation improvement plans, of 

pedestrian walkways and trails, bicycle 

paths, small outdoor fitness areas, and short 

access roads and rail lines (such as branch 

and spur lines). 

B1.14 Refueling of nuclear reactors 

Refueling of operating nuclear reactors, 

during which operations may be suspended 

and then resumed. 

B1.15 Support buildings 

Siting, construction or modification, and 

operation of support buildings and support 

structures (including, but not limited to, 

trailers and prefabricated and modular 

buildings) within or contiguous to an already 

developed area (where active utilities and 

currently used roads are readily accessible). 

Covered support buildings and structures 

include, but are not limited to, those for 

office purposes; parking; cafeteria services; 

education and training; visitor reception; 

computer and data processing services; 

health services or recreation activities; 

routine maintenance activities; storage of 

supplies and equipment for administrative 

services and routine maintenance activities; 

security (such as security posts); fire 

protection; small-scale fabrication (such as 

machine shop activities), assembly, and 

testing of non-nuclear equipment or 

components; and similar support purposes, 

but exclude facilities for nuclear weapons 

activities and waste storage activities, such as 

activities covered in B1.10, B1.29, B1.35, 

B2.6, B6.2, B6.4, B6.5, B6.6, and B6.10 of this 

appendix. 

B1.16 Asbestos removal 

Removal of asbestos-containing materials 

from buildings in accordance with applicable 

requirements (such as 40 CFR part 61, 

‘‘National Emission Standards for Hazardous 

Air Pollutants’’; 40 CFR part 763, ‘‘Asbestos’’; 

29 CFR part 1910, subpart I, ‘‘Personal 

Protective Equipment’’; and 29 CFR part 

1926, ‘‘Safety and Health Regulations for 

Construction’’; and appropriate state and 

local requirements, including certification of 

removal contractors and technicians). 

B1.17 Polychlorinated biphenyl removal 

Removal of polychlorinated biphenyl 

(PCB)-containing items (including, but not 

limited to, transformers and capacitors), 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, and removal of microwave, radio 

communication, and meteorological towers 

and associated facilities, provided that the 

towers and associated facilities would not be 

in a governmentally designated scenic area 

(see B(4)(iv) of this appendix) unless 

otherwise authorized by the appropriate 

governmental entity. 

B1.20 Protection of cultural resources, fish 

and wildlife habitat 

Small-scale activities undertaken to protect 

cultural resources (such as fencing, labeling, 

and flagging) or to protect, restore, or 

improve fish and wildlife habitat, fish 

passage facilities (such as fish ladders and 

minor diversion channels), or fisheries. Such 

activities would be conducted in accordance 

with an existing natural or cultural resource 

plan, if any. 

B1.21 Noise abatement 

Noise abatement measures (including, but 

not limited to, construction of noise barriers 

and installation of noise control materials). 

B1.22 Relocation of buildings 

Relocation of buildings (including, but not 

limited to, trailers and prefabricated 

buildings) to an already developed area 

(where active utilities and currently used 

roads are readily accessible). 

B1.23 Demolition and disposal of buildings 

Demolition and subsequent disposal of 

buildings, equipment, and support structures 

(including, but not limited to, smoke stacks 

and parking lot surfaces), provided that there 

would be no potential for release of 

substances at a level, or in a form, that could 

pose a threat to public health or the 

environment. 

B1.24 Property transfers 

Transfer, lease, disposition, or acquisition 

of interests in personal property (including, 

but not limited to, equipment and materials) 

or real property (including, but not limited 

to, permanent structures and land), provided 

that under reasonably foreseeable uses (1) 

there would be no potential for release of 

substances at a level, or in a form, that could 

pose a threat to public health or the 

environment and (2) the covered actions 

would not have the potential to cause a 

significant change in impacts from before the 

transfer, lease, disposition, or acquisition of 

interests. 

B1.25 Real property transfers for cultural 

resources protection, habitat preservation, 

and wildlife management 

Transfer, lease, disposition, or acquisition 

of interests in land and associated buildings 

for cultural resources protection, habitat 

preservation, or fish and wildlife 

management, provided that there would be 

no potential for release of substances at a 

level, or in a form, that could pose a threat 

to public health or the environment. 

B1.26 Small water treatment facilities 

Siting, construction, expansion, 

modification, replacement, operation, and 

decommissioning of small (total capacity less 

than approximately 250,000 gallons per day) 

wastewater and surface water treatment 

facilities whose liquid discharges are 

externally regulated, and small potable water 

and sewage treatment facilities. 

B1.27 Disconnection of utilities 

Activities that are required for the 

disconnection of utility services (including, 

but not limited to, water, steam, 

telecommunications, and electrical power) 

after it has been determined that the 

continued operation of these systems is not 

needed for safety. 

B1.28 Placing a facility in an 

environmentally safe condition 

Minor activities that are required to place 

a facility in an environmentally safe 

condition where there is no proposed use for 

the facility. These activities would include, 

but are not limited to, reducing surface 

contamination, and removing materials, 

equipment or waste (such as final defueling 

of a reactor, where there are adequate 

existing facilities for the treatment, storage, 

or disposal of the materials, equipment or 

waste). These activities would not include 

conditioning, treatment, or processing of 

spent nuclear fuel, high-level waste, or 

special nuclear materials. 

B1.29 Disposal facilities for construction 

and demolition waste 

Siting, construction, expansion, 

modification, operation, and 

decommissioning of small (less than 

approximately 10 acres) solid waste disposal 

facilities for construction and demolition 

waste, in accordance with applicable 

requirements (such as 40 CFR part 257, 

‘‘Criteria for Classification of Solid Waste 

Disposal Facilities and Practices,’’ and 40 

CFR part 61, ‘‘National Emission Standards 


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for Hazardous Air Pollutants’’) that would 

not release substances at a level, or in a form, 

that could pose a threat to public health or 

the environment. 

B1.30 Transfer actions 

Transfer actions, in which the predominant 

activity is transportation, provided that (1) 

the receipt and storage capacity and 

management capability for the amount and 

type of materials, equipment, or waste to be 

moved already exists at the receiving site and 

(2) all necessary facilities and operations at 

the receiving site are already permitted, 

licensed, or approved, as appropriate. Such 

transfers are not regularly scheduled as part 

of ongoing routine operations. 

B1.31 Installation or relocation of 

machinery and equipment 

Installation or relocation and operation of 

machinery and equipment (including, but not 

limited to, laboratory equipment, electronic 

hardware, manufacturing machinery, 

maintenance equipment, and health and 

safety equipment), provided that uses of the 

installed or relocated items are consistent 

with the general missions of the receiving 

structure. Covered actions include 

modifications to an existing building, within 

or contiguous to a previously disturbed or 

developed area, that are necessary for 

equipment installation and relocation. Such 

modifications would not appreciably 

increase the footprint or height of the existing 

building or have the potential to cause 

significant changes to the type and 

magnitude of environmental impacts. 

B1.32 Traffic flow adjustments 

Traffic flow adjustments to existing roads 

(including, but not limited to, stop sign or 

traffic light installation, adjusting direction of 

traffic flow, and adding turning lanes), and 

road adjustments (including, but not limited 

to, widening and realignment) that are within 

an existing right-of-way and consistent with 

approved land use or transportation 

improvement plans. 

B1.33 Stormwater runoff control 

Design, construction, and operation of 

control practices to reduce stormwater runoff 

and maintain natural hydrology. Activities 

include, but are not limited to, those that 

reduce impervious surfaces (such as 

vegetative practices and use of porous 

pavements), best management practices (such 

as silt fences, straw wattles, and fiber rolls), 

and use of green infrastructure or other low 

impact development practices (such as 

cisterns and green roofs). 

B1.34 Lead-based paint containment, 

removal, and disposal 

Containment, removal, and disposal of 

lead-based paint in accordance with 

applicable requirements (such as provisions 

relating to the certification of removal 

contractors and technicians at 40 CFR part 

745, ‘‘Lead-Based Paint Poisoning Prevention 

In Certain Residential Structures’’). 

B1.35 Drop-off, collection, and transfer 

facilities for recyclable materials 

Siting, construction, modification, and 

operation of recycling or compostable 

material drop-off, collection, and transfer 

stations on or contiguous to a previously 

disturbed or developed area and in an area 

where such a facility would be consistent 

with existing zoning requirements. The 

stations would have appropriate facilities 

and procedures established in accordance 

with applicable requirements for the 

handling of recyclable or compostable 

materials and household hazardous waste 

(such as paint and pesticides). Except as 

specified above, the collection of hazardous 

waste for disposal and the processing of 

recyclable or compostable materials are not 

included in this class of actions. 

B1.36 Determinations of excess real 

property 

Determinations that real property is excess 

to the needs of DOE and, in the case of 

acquired real property, the subsequent 

reporting of such determinations to the 

General Services Administration or, in the 

case of lands withdrawn or otherwise 

reserved from the public domain, the 

subsequent filing of a notice of intent to 

relinquish with the Bureau of Land 

Management, Department of the Interior. 

Covered actions would not include disposal 

of real property. 

B2. Categorical Exclusions Applicable to 

Safety and Health 

B2.1 Workplace enhancements 

Modifications within or contiguous to an 

existing structure, in a previously disturbed 

or developed area, to enhance workplace 

habitability (including, but not limited to, 

installation or improvements to lighting, 

radiation shielding, or heating/ventilating/air 

conditioning and its instrumentation, and 

noise reduction). 

B2.2 Building and equipment 

instrumentation 

Installation of, or improvements to, 

building and equipment instrumentation 

(including, but not limited to, remote control 

panels, remote monitoring capability, alarm 

and surveillance systems, control systems to 

provide automatic shutdown, fire detection 

and protection systems, water consumption 

monitors and flow control systems, 

announcement and emergency warning 

systems, criticality and radiation monitors 

and alarms, and safeguards and security 

equipment). 

B2.3 Personnel safety and health equipment 

Installation of, or improvements to, 

equipment for personnel safety and health 

(including, but not limited to, eye washes, 

safety showers, radiation monitoring devices, 

fumehoods, and associated collection and 

exhaust systems), provided that the covered 

actions would not have the potential to cause 

a significant increase in emissions. 

B2.4 Equipment qualification 

Activities undertaken to (1) qualify 

equipment for use or improve systems 

reliability or (2) augment information on 

safety-related system components. These 

activities include, but are not limited to, 

transportation container qualification testing, 

crane and lift-gear certification or 

recertification testing, high efficiency 

particulate air filter testing and certification, 

stress tests (such as ‘‘burn-in’’ testing of 

electrical components and leak testing), and 

calibration of sensors or diagnostic 

equipment. 

B2.5 Facility safety and environmental 

improvements 

Safety and environmental improvements of 

a facility (including, but not limited to, 

replacement and upgrade of facility 

components) that do not result in a 

significant change in the expected useful life, 

design capacity, or function of the facility 

and during which operations may be 

suspended and then resumed. Improvements 

include, but are not limited to, replacement/ 

upgrade of control valves, in-core monitoring 

devices, facility air filtration systems, or 

substation transformers or capacitors; 

addition of structural bracing to meet 

earthquake standards and/or sustain high 

wind loading; and replacement of 

aboveground or belowground tanks and 

related piping, provided that there is no 

evidence of leakage, based on testing in 

accordance with applicable requirements 

(such as 40 CFR part 265, ‘‘Interim Status 

Standards for Owners and Operators of 

Hazardous Waste Treatment, Storage, and 

Disposal Facilities’’ and 40 CFR part 280, 

‘‘Technical Standards and Corrective Action 

Requirements for Owners and Operators of 

Underground Storage Tanks’’). These actions 

do not include rebuilding or modifying 

substantial portions of a facility (such as 

replacing a reactor vessel). 

B2.6 Recovery of radioactive sealed sources 

Recovery of radioactive sealed sources and 

sealed source-containing devices from 

domestic or foreign locations provided that 

(1) the recovered items are transported and 

stored in compliant containers, and (2) the 

receiving site has sufficient existing storage 

capacity and all required licenses, permits, 

and approvals. 

B3. Categorical Exclusions Applicable to Site 

Characterization, Monitoring, and General 

Research 

B3.1 Site characterization and 

environmental monitoring 

Site characterization and environmental 

monitoring (including, but not limited to, 

siting, construction, modification, operation, 

and dismantlement and removal or otherwise 

proper closure (such as of a well) of 

characterization and monitoring devices, and 

siting, construction, and associated operation 

of a small-scale laboratory building or 

renovation of a room in an existing building 

for sample analysis). Such activities would 

be designed in conformance with applicable 

requirements and use best management 

practices to limit the potential effects of any 

resultant ground disturbance. Covered 

activities include, but are not limited to, site 

characterization and environmental 

monitoring under CERCLA and RCRA. (This 

class of actions excludes activities in aquatic 

environments. See B3.16 of this appendix for 

such activities.) Specific activities include, 

but are not limited to: 

(a) Geological, geophysical (such as gravity, 

magnetic, electrical, seismic, radar, and 


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temperature gradient), geochemical, and 

engineering surveys and mapping, and the 

establishment of survey marks. Seismic 

techniques would not include large-scale 

reflection or refraction testing; 

(b) Installation and operation of field 

instruments (such as stream-gauging stations 

or flow-measuring devices, telemetry 

systems, geochemical monitoring tools, and 

geophysical exploration tools); 

(c) Drilling of wells for sampling or 

monitoring of groundwater or the vadose 

(unsaturated) zone, well logging, and 

installation of water-level recording devices 

in wells; 

(d) Aquifer and underground reservoir 

response testing; 

(e) Installation and operation of ambient air 

monitoring equipment; 

(f) Sampling and characterization of water, 

soil, rock, or contaminants (such as drilling 

using truck- or mobile-scale equipment, and 

modification, use, and plugging of 

boreholes); 

(g) Sampling and characterization of water 

effluents, air emissions, or solid waste 

streams; 

(h) Installation and operation of 

meteorological towers and associated 

activities (such as assessment of potential 

wind energy resources); 

(i) Sampling of flora or fauna; and 

(j) Archeological, historic, and cultural 

resource identification in compliance with 36 

CFR part 800 and 43 CFR part 7. 

B3.2 Aviation activities 

Aviation activities for survey, monitoring, 

or security purposes that comply with 

Federal Aviation Administration regulations. 

B3.3 Research related to conservation of 

fish, wildlife, and cultural resources 

Field and laboratory research, inventory, 

and information collection activities that are 

directly related to the conservation of fish 

and wildlife resources or to the protection of 

cultural resources, provided that such 

activities would not have the potential to 

cause significant impacts on fish and wildlife 

habitat or populations or to cultural 

resources. 

B3.4 Transport packaging tests for 

radioactive or hazardous material 

Drop, puncture, water-immersion, thermal, 

and fire tests of transport packaging for 

radioactive or hazardous materials to certify 

that designs meet the applicable 

requirements (such as 49 CFR 173.411 and 

173.412 and 10 CFR 71.73). 

B3.5 Tank car tests 

Tank car tests under 49 CFR part 179 

(including, but not limited to, tests of safety 

relief devices, pressure regulators, and 

thermal protection systems). 

B3.6 Small-scale research and 

development, laboratory operations, and 

pilot projects 

Siting, construction, modification, 

operation, and decommissioning of facilities 

for small-scale research and development 

projects; conventional laboratory operations 

(such as preparation of chemical standards 

and sample analysis); and small-scale pilot 

projects (generally less than 2 years) 

frequently conducted to verify a concept 

before demonstration actions, provided that 

construction or modification would be 

within or contiguous to a previously 

disturbed or developed area (where active 

utilities and currently used roads are readily 

accessible). Not included in this category are 

demonstration actions, meaning actions that 

are undertaken at a scale to show whether a 

technology would be viable on a larger scale 

and suitable for commercial deployment. 

B3.7 New terrestrial infill exploratory and 

experimental wells 

Siting, construction, and operation of new 

terrestrial infill exploratory and experimental 

(test) wells, for either extraction or injection 

use, in a locally characterized geological 

formation in a field that contains existing 

operating wells, properly abandoned wells, 

or unminable coal seams containing natural 

gas, provided that the site characterization 

has verified a low potential for seismicity, 

subsidence, and contamination of freshwater 

aquifers, and the actions are otherwise 

consistent with applicable best practices and 

DOE protocols, including those that protect 

against uncontrolled releases of harmful 

materials. Such wells may include those for 

brine, carbon dioxide, coalbed methane, gas 

hydrate, geothermal, natural gas, and oil. 

Uses for carbon sequestration wells include, 

but are not limited to, the study of saline 

formations, enhanced oil recovery, and 

enhanced coalbed methane extraction. 

B3.8 Outdoor terrestrial ecological and 

environmental research 

Outdoor terrestrial ecological and 

environmental research in a small area 

(generally less than 5 acres), including, but 

not limited to, siting, construction, and 

operation of a small-scale laboratory building 

or renovation of a room in an existing 

building for associated analysis. Such 

activities would be designed in conformance 

with applicable requirements and use best 

management practices to limit the potential 

effects of any resultant ground disturbance. 

B3.9 Projects to reduce emissions and waste 

generation 

Projects to reduce emissions and waste 

generation at existing fossil or alternative fuel 

combustion or utilization facilities, provided 

that these projects would not have the 

potential to cause a significant increase in the 

quantity or rate of air emissions. For this 

category of actions, ‘‘fuel’’ includes, but is 

not limited to, coal, oil, natural gas, 

hydrogen, syngas, and biomass; but ‘‘fuel’’ 

does not include nuclear fuel. Covered 

actions include, but are not limited to: 

(a) Test treatment of the throughput 

product (solid, liquid, or gas) generated at an 

existing and fully operational fuel 

combustion or utilization facility; 

(b) Addition or replacement of equipment 

for reduction or control of sulfur dioxide, 

oxides of nitrogen, or other regulated 

substances that requires only minor 

modification to the existing structures at an 

existing fuel combustion or utilization 

facility, for which the existing use remains 

essentially unchanged; 

(c) Addition or replacement of equipment 

for reduction or control of sulfur dioxide, 

oxides of nitrogen, or other regulated 

substances that involves no permanent 

change in the quantity or quality of fuel 

burned or used and involves no permanent 

change in the capacity factor of the fuel 

combustion or utilization facility; and 

(d) Addition or modification of equipment 

for capture and control of carbon dioxide or 

other regulated substances, provided that 

adequate infrastructure is in place to manage 

such substances. 

B3.10 Particle accelerators 

Siting, construction, modification, 

operation, and decommissioning of particle 

accelerators, including electron beam 

accelerators, with primary beam energy less 

than approximately 100 million electron 

volts (MeV) and average beam power less 

than approximately 250 kilowatts (kW), and 

associated beamlines, storage rings, colliders, 

and detectors, for research and medical 

purposes (such as proton therapy), and 

isotope production, within or contiguous to 

a previously disturbed or developed area 

(where active utilities and currently used 

roads are readily accessible), or internal 

modification of any accelerator facility 

regardless of energy, that does not increase 

primary beam energy or current. In cases 

where the beam energy exceeds 100 MeV, the 

average beam power must be less than 250 

kW, so as not to exceed an average current 

of 2.5 milliamperes (mA). 

B3.11 Outdoor tests and experiments on 

materials and equipment components 

Outdoor tests and experiments for the 

development, quality assurance, or reliability 

of materials and equipment (including, but 

not limited to, weapon system components) 

under controlled conditions. Covered actions 

include, but are not limited to, burn tests 

(such as tests of electric cable fire resistance 

or the combustion characteristics of fuels), 

impact tests (such as pneumatic ejector tests 

using earthen embankments or concrete slabs 

designated and routinely used for that 

purpose), or drop, puncture, waterimmersion, or thermal tests. Covered actions 

would not involve source, special nuclear, or 

byproduct materials, except encapsulated 

sources manufactured to applicable 

standards that contain source, special 

nuclear, or byproduct materials may be used 

for nondestructive actions such as detector/ 

sensor development and testing and first 

responder field training. 

B3.12 Microbiological and biomedical 

facilities 

Siting, construction, modification, 

operation, and decommissioning of 

microbiological and biomedical diagnostic, 

treatment and research facilities (excluding 

Biosafety Level-3 and Biosafety Level-4), in 

accordance with applicable requirements and 

best practices (such as Biosafety in 

Microbiological and Biomedical Laboratories, 

5th Edition, Dec. 2009, U.S. Department of 

Health and Human Services) including, but 

not limited to, laboratories, treatment areas, 

offices, and storage areas, within or 

contiguous to a previously disturbed or 

developed area (where active utilities and 


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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 

hazardous materials. Construction and 

modification activities would be within or 

contiguous to a previously disturbed or 

developed area (where active utilities and 

currently used roads are readily accessible). 

B3.16 Research activities in aquatic 

environments 

Small-scale, temporary surveying, site 

characterization, and research activities in 

aquatic environments, limited to: 

(a) Acquisition of rights-of-way, easements, 

and temporary use permits; 

(b) Installation, operation, and removal of 

passive scientific measurement devices, 

including, but not limited to, antennae, tide 

gauges, flow testing equipment for existing 

wells, weighted hydrophones, salinity 

measurement devices, and water quality 

measurement devices; 

(c) Natural resource inventories, data and 

sample collection, environmental 

monitoring, and basic and applied research, 

excluding (1) large-scale vibratory coring 

techniques and (2) seismic activities other 

than passive techniques; and 

(d) Surveying and mapping. 

These activities would be conducted in 

accordance with, where applicable, an 

approved spill prevention, control, and 

response plan and would incorporate 

appropriate control technologies and best 

management practices. None of the activities 

listed above would occur within the 

boundary of an established marine sanctuary 

or wildlife refuge, a governmentally proposed 

marine sanctuary or wildlife refuge, or a 

governmentally recognized area of high 

biological sensitivity, unless authorized by 

the agency responsible for such refuge, 

sanctuary, or area (or after consultation with 

the responsible agency, if no authorization is 

required). If the proposed activities would 

occur outside such refuge, sanctuary, or area 

and if the activities would have the potential 

to cause impacts within such refuge, 

sanctuary, or area, then the responsible 

agency shall be consulted in order to 

determine whether authorization is required 

and whether such activities would have the 

potential to cause significant impacts on such 

refuge, sanctuary, or area. Areas of high 

biological sensitivity include, but are not 

limited to, areas of known ecological 

importance, whale and marine mammal 

mating and calving/pupping areas, and fish 

and invertebrate spawning and nursery areas 

recognized as being limited or unique and 

vulnerable to perturbation; these areas can 

occur in bays, estuaries, near shore, and far 

offshore, and may vary seasonally. No 

permanent facilities or devices would be 

constructed or installed. Covered actions do 

not include drilling of resource exploration 

or extraction wells. 

B4. Categorical Exclusions Applicable to 

Electrical Power and Transmission 

B4.1 Contracts, policies, and marketing and 

allocation plans for electric power 

Establishment and implementation of 

contracts, policies, and marketing and 

allocation plans related to electric power 

acquisition that involve only the use of the 

existing transmission system and existing 

generation resources operating within their 

normal operating limits. 

B4.2 Export of electric energy 

Export of electric energy as provided by 

Section 202(e) of the Federal Power Act over 

existing transmission systems or using 

transmission system changes that are 

themselves categorically excluded. 

B4.3 Electric power marketing rate changes 

Rate changes for electric power, power 

transmission, and other products or services 

provided by a Power Marketing 

Administration that are based on a change in 

revenue requirements if the operations of 

generation projects would remain within 

normal operating limits. 

B4.4 Power marketing services and 

activities 

Power marketing services and power 

management activities (including, but not 

limited to, storage, load shaping and 

balancing, seasonal exchanges, and other 

similar activities), provided that the 

operations of generating projects would 

remain within normal operating limits. 

B4.5 Temporary adjustments to river 

operations 

Temporary adjustments to river operations 

to accommodate day-to-day river 

fluctuations, power demand changes, fish 

and wildlife conservation program 

requirements, and other external events, 

provided that the adjustments would occur 

within the existing operating constraints of 

the particular hydrosystem operation. 

B4.6 Additions and modifications to 

transmission facilities 

Additions or modifications to electric 

power transmission facilities within a 

previously disturbed or developed facility 

area. Covered activities include, but are not 

limited to, switchyard rock grounding 

upgrades, secondary containment projects, 

paving projects, seismic upgrading, tower 

modifications, load shaping projects (such as 

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 in 

existing powerline or pipeline rights-of-way. 

Covered actions may include associated 

vaults and pulling and tensioning sites 

outside of rights-of-way in nearby previously 

disturbed or developed areas. 

B4.8 Electricity transmission agreements 

New electricity transmission agreements, 

and modifications to existing transmission 

arrangements, to use a transmission facility 

of one system to transfer power of and for 

another system, provided that no new 

generation projects would be involved and 

no physical changes in the transmission 

system would be made beyond the 

previously disturbed or developed facility 

area. 

B4.9 Multiple use of powerline rights-of-way 

Granting or denying requests for multiple 

uses of a transmission facility’s rights-of-way 

(including, but not limited to, grazing 

permits and crossing agreements for electric 

lines, water lines, natural gas pipelines, 

communications cables, roads, and drainage 

culverts). 

B4.10 Removal of electric transmission 

facilities 

Deactivation, dismantling, and removal of 

electric transmission facilities (including, but 

not limited to, electric powerlines, 

substations, and switching stations) and 

abandonment and restoration of rights-of-way 

(including, but not limited to, associated 

access roads). 

B4.11 Electric power substations and 

interconnection facilities 

Construction or modification of electric 

power substations or interconnection 

facilities (including, but not limited to, 

switching stations and support facilities). 

B4.12 Construction of powerlines 

Construction of electric powerlines 

approximately 10 miles in length or less, or 

approximately 20 miles in length or less 

within previously disturbed or developed 

powerline or pipeline rights-of-way. 


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B4.13 Upgrading and rebuilding existing 

powerlines 

Upgrading or rebuilding approximately 20 

miles in length or less of existing electric 

powerlines, which may involve minor 

relocations of small segments of the 

powerlines. 

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, lowflow 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 

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 within 

previously 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 


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contamination of freshwater aquifers; (2) the 

wells are otherwise in accordance with 

applicable requirements, best practices, and 

DOE protocols, including those that protect 

against uncontrolled releases of harmful 

materials; and (3) the wells and associated 

drilling activities are sufficiently remote so 

that they would not have the potential to 

cause significant impacts related to noise and 

other vibrations. Wells may be used for 

enhanced oil or natural gas recovery or for 

secure storage of carbon dioxide in saline 

formations or other secure formations. Over 

the duration of a project, the wells would be 

used to inject, in aggregate, less than 500,000 

tons of carbon dioxide into the geologic 

formation. Covered actions exclude activities 

in aquatic environments. (See B3.16 of this 

appendix for activities in aquatic 

environments.) 

B5.14 Combined heat and power or 

cogeneration systems 

Conversion to, replacement of, or 

modification of combined heat and power or 

cogeneration systems (the sequential or 

simultaneous production of multiple forms of 

energy, such as thermal and electrical energy, 

in a single integrated system) at existing 

facilities, provided that the conversion, 

replacement, or modification would not have 

the potential to cause a significant increase 

in the quantity or rate of air emissions and 

would not have the potential to cause 

significant impacts to water resources. 

B5.15 Small-scale renewable energy 

research and development and pilot projects 

Small-scale renewable energy research and 

development projects and small-scale pilot 

projects, provided that the projects are 

located within a previously disturbed or 

developed area. Covered actions would be in 

accordance with applicable requirements 

(such as local land use and zoning 

requirements) in the proposed project area 

and would incorporate appropriate control 

technologies and best management practices. 

B5.16 Solar photovoltaic systems 

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 a small number (generally not 

more than 2) of commercially available wind 

turbines, with a total height generally less 

than 200 feet (measured from the ground to 

the maximum height of blade rotation) that 

(1) Are located within a previously disturbed 

or developed area; (2) are located more than 

10 nautical miles (about 11.5 miles) from an 

airport or aviation navigation aid; (3) are 

located more than 1.5 nautical miles (about 

1.7 miles) from National Weather Service or 

Federal Aviation Administration Doppler 

weather radar; (4) would not have the 

potential to cause significant impacts on bird 

or bat populations; and (5) are sited or 

designed such that the project would not 

have the potential to cause significant 

impacts to persons (such as from shadow 

flicker and other visual effects, and noise). 

Covered actions would be in accordance with 

applicable requirements (such as local land 

use and zoning requirements) in the 

proposed project area and would incorporate 

appropriate control technologies and best 

management practices. Covered actions 

include only those related to wind turbines 

to be installed on land. 

B5.19 Ground source heat pumps 

The installation, modification, operation, 

and removal of commercially available smallscale ground source heat pumps to support 

operations in single facilities (such as a 

school or community center) or contiguous 

facilities (such as an office complex) (1) Only 

where (a) major associated activities (such as 

drilling and discharge) are regulated, and (b) 

appropriate leakage and contaminant control 

measures would be in place (including for 

cross-contamination between aquifers); (2) 

that would not have the potential to cause 

significant changes in subsurface 

temperature; and (3) would be located within 

a previously disturbed or developed area. 

Covered actions would be in accordance with 

applicable requirements (such as local land 

use and zoning requirements) in the 

proposed project area and would incorporate 

appropriate control technologies and best 

management practices. 

B5.20 Biomass power plants 

The installation, modification, operation, 

and removal of small-scale biomass power 

plants (generally less than 10 megawatts), 

using commercially available technology (1) 

Intended primarily to support operations in 

single facilities (such as a school and 

community center) or contiguous facilities 

(such as an office complex); (2) that would 

not affect the air quality attainment status of 

the area and would not have the potential to 

cause a significant increase in the quantity or 

rate of air emissions and would not have the 

potential to cause significant impacts to 

water resources; and (3) would be located 

within a previously disturbed or developed 

area. Covered actions would be in accordance 

with applicable requirements (such as local 

land use and zoning requirements) in the 

proposed project area and would incorporate 

appropriate control technologies and best 

management practices. 

B5.21 Methane gas recovery and utilization 

systems 

The installation, modification, operation, 

and removal of commercially available 

methane gas recovery and utilization systems 

installed within a previously disturbed or 

developed area on or contiguous to an 

existing landfill or wastewater treatment 

plant that would not have the potential to 

cause a significant increase in the quantity or 

rate of air emissions. Covered actions would 

be in accordance with applicable 

requirements (such as local land use and 

zoning requirements) in the proposed project 

area and would incorporate appropriate 

control technologies and best management 

practices. 

B5.22 Alternative fuel vehicle fueling 

stations 

The installation, modification, operation, 

and removal of alternative fuel vehicle 

fueling stations (such as for compressed 

natural gas, hydrogen, ethanol and other 

commercially available biofuels) on the site 

of a current or former fueling station, or 

within a previously disturbed or developed 

area within the boundaries of a facility 

managed by the owners of a vehicle fleet. 

Covered actions would be in accordance with 

applicable requirements (such as local land 

use and zoning requirements) in the 

proposed project area and would incorporate 

appropriate control technologies and best 

management practices. 

B5.23 Electric vehicle charging stations 

The installation, modification, operation, 

and removal of electric vehicle charging 

stations, using commercially available 

technology, within a previously disturbed or 

developed area. Covered actions are limited 

to areas where access and parking are in 

accordance with applicable requirements 

(such as local land use and zoning 

requirements) in the proposed project area 

and would incorporate appropriate control 

technologies and best management practices. 

B5.24 Drop-in hydroelectric systems 

The installation, modification, operation, 

and removal of commercially available 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 an 

existing anadromous fish barrier that is not 

planned for removal and where fish passage 

retrofit is not planned and where there would 

not be the potential for significant impacts to 

threatened or endangered species or other 

species of concern (as identified in B(4)(ii) of 

this appendix). Covered actions would 

involve no major construction or 

modification of stream or river channels, and 

the hydroelectric systems would be placed 

and secured in the channel without the use 

of heavy equipment. Covered actions would 

be in accordance with applicable 

requirements (such as local land use and 


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zoning requirements) in the proposed project 

area and would incorporate appropriate 

control technologies and best management 

practices. 

B5.25 Small-scale renewable energy 

research and development and pilot projects 

in aquatic environments 

Small-scale renewable energy research and 

development projects and small-scale pilot 

projects located in aquatic environments. 

Activities would be in accordance with, 

where applicable, an approved spill 

prevention, control, and response plan, and 

would incorporate appropriate control 

technologies and best management practices. 

Covered actions would not occur (1) Within 

areas of hazardous natural bottom conditions 

or (2) within the boundary of an established 

marine sanctuary or wildlife refuge, a 

governmentally proposed marine sanctuary 

or wildlife refuge, or a governmentally 

recognized area of high biological sensitivity, 

unless authorized by the agency responsible 

for such refuge, sanctuary, or area (or after 

consultation with the responsible agency, if 

no authorization is required). If the proposed 

activities would occur outside such refuge, 

sanctuary, or area and if the activities would 

have the potential to cause impacts within 

such refuge, sanctuary, or area, then the 

responsible agency shall be consulted in 

order to determine whether authorization is 

required and whether such activities would 

have the potential to cause significant 

impacts on such refuge, sanctuary, or area. 

Areas of high biological sensitivity include, 

but are not limited to, areas of known 

ecological importance, whale and marine 

mammal mating and calving/pupping areas, 

and fish and invertebrate spawning and 

nursery areas recognized as being limited or 

unique and vulnerable to perturbation; these 

areas can occur in bays, estuaries, near shore, 

and far offshore, and may vary seasonally. No 

permanent facilities or devices would be 

constructed or installed. Covered actions do 

not include drilling of resource exploration 

or extraction wells, use of large-scale 

vibratory coring techniques, or seismic 

activities other than passive techniques. 

B6. Categorical Exclusions Applicable to 

Environmental Restoration and Waste 

Management Activities 

B6.1 Cleanup actions 

Small-scale, short-term cleanup actions, 

under RCRA, Atomic Energy Act, or other 

authorities, less than approximately 10 

million dollars in cost (in 2011 dollars), to 

reduce risk to human health or the 

environment from the release or threat of 

release of a hazardous substance other than 

high-level radioactive waste and spent 

nuclear fuel, including treatment (such as 

incineration, encapsulation, physical or 

chemical separation, and compaction), 

recovery, storage, or disposal of wastes at 

existing facilities currently handling the type 

of waste involved in the action. These actions 

include, but are not limited to: 

(a) Excavation or consolidation of 

contaminated soils or materials from 

drainage channels, retention basins, ponds, 

and spill areas that are not receiving 

contaminated surface water or wastewater, if 

surface water or groundwater would not 

collect and if such actions would reduce the 

spread of, or direct contact with, the 

contamination; 

(b) Removal of bulk containers (such as 

drums and barrels) that contain or may 

contain hazardous substances, pollutants, 

contaminants, CERCLA-excluded petroleum 

or natural gas products, or hazardous wastes 

(designated in 40 CFR part 261 or applicable 

state requirements), if such actions would 

reduce the likelihood of spillage, leakage, 

fire, explosion, or exposure to humans, 

animals, or the food chain; 

(c) Removal of an underground storage 

tank including its associated piping and 

underlying containment systems in 

accordance with applicable requirements 

(such as RCRA, subtitle I; 40 CFR part 265, 

subpart J; and 40 CFR part 280, subparts F 

and G) if such action would reduce the 

likelihood of spillage, leakage, or the spread 

of, or direct contact with, contamination; 

(d) Repair or replacement of leaking 

containers; 

(e) Capping or other containment of 

contaminated soils or sludges if the capping 

or containment would not unduly limit 

future groundwater remediation and if 

needed to reduce migration of hazardous 

substances, pollutants, contaminants, or 

CERCLA-excluded petroleum and natural gas 

products into soil, groundwater, surface 

water, or air; 

(f) Drainage or closing of man-made surface 

impoundments if needed to maintain the 

integrity of the structures; 

(g) Confinement or perimeter protection 

using dikes, trenches, ditches, or diversions, 

or installing underground barriers, if needed 

to reduce the spread of, or direct contact 

with, the contamination; 

(h) Stabilization, but not expansion, of 

berms, dikes, impoundments, or caps if 

needed to maintain integrity of the 

structures; 

(i) Drainage controls (such as run-off or 

run-on diversion) if needed to reduce offsite 

migration of hazardous substances, 

pollutants, contaminants, or 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 of 

temporary (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. 


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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 

Table of Contents 

C1 [Reserved] 

C2 [Reserved] 

C3 Electric Power Marketing Rate Changes, 

Not Within Normal Operating Limits 

C4 Upgrading, Rebuilding, or Construction 

of Powerlines 

C5 Vegetation Management Program 

C6 Erosion Control Program 

C7 Contracts, Policies, and Marketing and 

Allocation Plans for Electric Power 

C8 Protection of Cultural Resources and 

Fish and Wildlife Habitat 

C9 Wetlands Demonstration Projects 

C10 [Reserved] 

C11 Particle Acceleration Facilities 

C12 Energy System Demonstration Actions 

C13 Import or Export Natural Gas Involving 

Minor New Construction 

C14 Water Treatment Facilities 

C15 Research and Development 

Incinerators and Nonhazardous Waste 

Incinerators 

C16 Large Waste Packaging and Storage 

Facilities 

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 Powerlines 

Upgrading or rebuilding more than 

approximately 20 miles in length of existing 

powerlines; or construction of powerlines (1) 

More than approximately 10 miles in length 

outside previously disturbed or developed 

powerline or pipeline rights-of-way or (2) 

more than approximately 20 miles in length 

within previously disturbed or developed 

powerline or pipeline rights-of-way. 

C5 Vegetation Management Program 

Implementation of a Power Marketing 

Administration system-wide vegetation 

management program. 

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 that involve (1) The 

interconnection of, or acquisition of power 

from, new generation resources that are equal 

to or less than 50 average megawatts; (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, operation, and 

decommissioning 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. 

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), 

operation, and decommissioning of research 


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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 

Table of Contents 

D1 [Reserved] 

D2 Nuclear fuel reprocessing facilities 

D3 Uranium enrichment facilities 

D4 Reactors 

D5 [Reserved] 

D6 [Reserved] 

D7 Contracts, policies, and marketing and 

allocation plans for electric power 

D8 Import or export of natural gas involving 

major new facilities 

D9 Import or export of natural gas involving 

major operational change 

D10 Treatment, storage, and disposal 

facilities for high-level waste and spent 

nuclear fuel 

D11 Waste disposal facilities for transuranic 

waste 

D12 Incinerators 

D1 [Reserved] 

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 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. 2011–25413 Filed 10–12–11; 8:45 am] 

BILLING CODE 6450–01–P 


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