```

[Federal Register Volume 76, Number 198 (Thursday, October 13, 2011)]
[Rules and Regulations]
[Pages 63764-63799]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25413]

[[Page 63763]]

Vol. 76

Thursday,

No. 198

October 13, 2011

Part III

Department of Energy

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 10 CFR Part 1021

 National Environmental Policy Act Implementing Procedures; Final Rule

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

[[Page 63764]]

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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.

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SUMMARY: The U.S. Department of Energy (DOE or the Department) is 
revising its National Environmental Policy Act (NEPA) Implementing 
Procedures. 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/FR-2009-12-29/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.

[[Page 63765]]

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; lead-based paint 
containment, removal, and disposal; drop-off, collection, and transfer 
facilities for recyclable material; determinations of excess real 
property; small-scale educational facilities; small-scale 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 Sec.  1021.312. In the DOE NEPA regulations 
promulgated in 1992, Sec.  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 Sec.  1021.312 from Sec.  1021.215. Second, in the Notice 
of Proposed Rulemaking, DOE proposed two changes to correct cross-
references within Sec.  1021.311. After further consideration, DOE is 
modifying the proposed change to Sec.  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 Sec.  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

[[Page 63767]]

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-document-supplement-department-energys-notice-final-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 Sec.  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

[[Page 63768]]

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-of-way, 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 Sec.  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 man-
made 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

[[Page 63769]]

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 Sec.  
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

[[Page 63770]]

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/office-management/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

[[Page 63771]]

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 
``state-proposed 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

[[Page 63772]]

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 small-scale, as opposed to 
commercial-scale, actions. In DOE's experience, small-scale 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).

[[Page 63773]]

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

[[Page 63774]]

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.

[[Page 63775]]

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 Tri-Valley 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

[[Page 63776]]

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 commercial-scale 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

[[Page 63777]]

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.

[[Page 63778]]

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 pre-development 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

[[Page 63779]]

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 
site-specific 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 state-

[[Page 63780]]

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.

[[Page 63781]]

    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

[[Page 63782]]

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 small-scale 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

[[Page 63783]]

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 state-listed 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 small-scale 
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

[[Page 63784]]

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 Tri-Valley 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''

[[Page 63785]]

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

[[Page 63786]]

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.

[[Page 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

0
1. The authority citation for part 1021 continues to read as follows:

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

0
2. Section 1021.215 is amended by revising the fourth sentence in 
paragraph (d) to read as follows:

Sec.  1021.215  Applicant process.

* * * * *
    (d) * * * The contractor shall provide a disclosure statement in 
accordance with 40 CFR 1506.5(c). * * *

0
3. Section 1021.311 is amended by revising the first sentence in 
paragraph (d) and paragraph (f) to read as follows:

Sec.  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.

0
4. Section 1021.322 is amended by revising the last sentence of 
paragraph (f) to read as follows:

Sec.  1021.322  Findings of no significant impact.

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

0
5. Section 1021.331 is amended by revising the first sentence in 
paragraph (b) to read as follows:

Sec.  1021.331  Mitigation action plans.

* * * * *
    (b) In certain circumstances, as specified in Sec.  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. * * *
* * * * *

0
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

Sec.  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 Sec.  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.

Sec.  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 Sec.  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).

[[Page 63788]]

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 non-DOE legislation
A11 Technical advice and assistance to organizations
A12 Emergency preparedness planning
A13 Procedural documents
A14 Approval of technical exchange arrangements
A15 International agreements for energy research and development

A1 Routine DOE business actions

    Routine actions necessary to support the normal conduct of DOE 
business limited to administrative, financial, and personnel 
actions.

A2 Clarifying or administrative contract actions

    Contract interpretations, amendments, and modifications that are 
clarifying or administrative in nature.

A3 Certain actions by Office of Hearings and Appeals

    Adjustments, exceptions, exemptions, appeals and stays, 
modifications, or rescissions of orders issued by the Office of 
Hearings and Appeals.

A4 Interpretations and rulings for existing regulations

    Interpretations and rulings with respect to existing 
regulations, or modifications or rescissions of such interpretations 
and rulings.

A5 Interpretive rulemakings with no change in environmental effect

    Rulemakings interpreting or amending an existing rule or 
regulation that does not change the environmental effect of the rule 
or regulation being amended.

A6 Procedural rulemakings

    Rulemakings that are strictly procedural, including, but not 
limited to, rulemaking (under 48 CFR chapter 9) establishing 
procedures for technical and pricing proposals and establishing 
contract clauses and contracting practices for the purchase of goods 
and services, and rulemaking (under 10 CFR part 600) establishing 
application and review procedures for, and administration, audit, 
and closeout of, grants and cooperative agreements.

A7 [Reserved]

A8 Awards of certain contracts

    Awards of contracts for technical support services, management 
and operation of a government-owned facility, and personal services.

A9 Information gathering, analysis, and dissemination

    Information gathering (including, but not limited to, literature 
surveys, inventories, site visits, and audits), data analysis 
(including, but not limited to, computer modeling), document 
preparation (including, but not limited to, conceptual design, 
feasibility studies, and analytical energy supply and demand 
studies), and information dissemination (including, but not limited 
to, document publication and distribution, and classroom training 
and informational programs), but not including site characterization 
or environmental monitoring. (See also B3.1 of appendix B to this 
subpart.)

A10 Reports and recommendations on non-DOE legislation

    Reports and recommendations on legislation or rulemaking that 
are not proposed by DOE.

A11 Technical advice and assistance to organizations

    Technical advice and planning assistance to international, 
national, state, and local organizations.

A12 Emergency preparedness planning

    Emergency preparedness planning activities, including, but not 
limited to, the designation of onsite evacuation routes.

A13 Procedural documents

    Administrative, organizational, or procedural Policies, Orders, 
Notices, Manuals, and Guides.

A14 Approval of technical exchange arrangements

    Approval of technical exchange arrangements for information, 
data, or personnel with other countries or international 
organizations (including, but not limited to, assistance in 
identifying and analyzing another country's energy resources, needs 
and options).

A15 International agreements for energy research and development

    Approval of DOE participation in international ``umbrella'' 
agreements for cooperation in energy research and development 
activities that would not commit the U.S. to any specific projects 
or activities.

Appendix B to Subpart D of Part 1021--Categorical Exclusions Applicable 
to Specific Agency Actions

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

[[Page 63789]]

B1.16 Asbestos removal
B1.17 Polychlorinated biphenyl removal
B1.18 Water supply wells
B1.19 Microwave, meteorological, and radio towers
B1.20 Protection of cultural resources, fish and wildlife habitat
B1.21 Noise abatement
B1.22 Relocation of buildings
B1.23 Demolition and disposal of buildings
B1.24 Property transfers
B1.25 Real property transfers for cultural resources protection, 
habitat preservation, and wildlife management
B1.26 Small water treatment facilities
B1.27 Disconnection of utilities
B1.28 Placing a facility in an environmentally safe condition
B1.29 Disposal facilities for construction and demolition waste
B1.30 Transfer actions
B1.31 Installation or relocation of machinery and equipment
B1.32 Traffic flow adjustments
B1.33 Stormwater runoff control
B1.34 Lead-based paint containment, removal, and disposal
B1.35 Drop-off, collection, and transfer facilities for recyclable 
materials
B1.36 Determinations of excess real property

B2. Categorical Exclusions Applicable to Safety and Health

B2.1 Workplace enhancements
B2.2 Building and equipment instrumentation
B2.3 Personnel safety and health equipment
B2.4 Equipment qualification
B2.5 Facility safety and environmental improvements
B2.6 Recovery of radioactive sealed sources

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

B3.1 Site characterization and environmental monitoring
B3.2 Aviation activities
B3.3 Research related to conservation of fish, wildlife, and 
cultural resources
B3.4 Transport packaging tests for radioactive or hazardous material
B3.5 Tank car tests
B3.6 Small-scale research and development, laboratory operations, 
and pilot projects
B3.7 New terrestrial infill exploratory and experimental wells
B3.8 Outdoor terrestrial ecological and environmental research
B3.9 Projects to reduce emissions and waste generation
B3.10 Particle accelerators
B3.11 Outdoor tests and experiments on materials and equipment 
components
B3.12 Microbiological and biomedical facilities
B3.13 Magnetic fusion experiments
B3.14 Small-scale educational facilities
B3.15 Small-scale indoor research and development projects using 
nanoscale materials
B3.16 Research activities in aquatic environments

B4. Categorical Exclusions Applicable to Electric Power and 
Transmission

B4.1 Contracts, policies, and marketing and allocation plans for 
electric power
B4.2 Export of electric energy
B4.3 Electric power marketing rate changes
B4.4 Power marketing services and activities
B4.5 Temporary adjustments to river operations
B4.6 Additions and modifications to transmission facilities
B4.7 Fiber optic cable
B4.8 Electricity transmission agreements
B4.9 Multiple use of powerline rights-of-way
B4.10 Removal of electric transmission facilities
B4.11 Electric power substations and interconnection facilities
B4.12 Construction of powerlines
B4.13 Upgrading and rebuilding existing powerlines

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 
CERCLA-excluded petroleum and natural gas products that preexist in 
the environment such that there would be uncontrolled or unpermitted 
releases;
    (4) Have the potential to cause significant impacts on 
environmentally sensitive resources. An environmentally sensitive 
resource is typically a resource that has been identified as needing 
protection through Executive Order, statute, or regulation by 
Federal, state, or local government, or a Federally recognized 
Indian tribe. An action may be categorically excluded if, although 
sensitive resources are present, the action would not have the 
potential to cause significant impacts on those resources (such as 
construction of a building with its foundation well above a sole-
source aquifer or upland surface soil removal on a site that has 
wetlands). Environmentally sensitive resources include, but are not 
limited to:
    (i) Property (such as sites, buildings, structures, and objects) 
of historic, archeological, or architectural significance designated 
by a Federal, state, or local government, Federally recognized 
Indian tribe, or Native Hawaiian organization, or property 
determined to be eligible for listing on the National Register of 
Historic Places;
    (ii) Federally-listed threatened or endangered species or their 
habitat (including critical habitat) or Federally-proposed or 
candidate species or their habitat (Endangered Species Act); state-
listed or state-proposed endangered or threatened

[[Page 63790]]

species or their habitat; Federally-protected marine mammals and 
Essential Fish Habitat (Marine Mammal Protection Act; Magnuson-
Stevens Fishery Conservation and Management Act); and otherwise 
Federally-protected species (such as the Bald and Golden Eagle 
Protection Act or the Migratory Bird Treaty Act);
    (iii) Floodplains and wetlands (as defined in 10 CFR 1022.4, 
``Compliance with Floodplain and Wetland Environmental Review 
Requirements: Definitions,'' or its successor);
    (iv) Areas having a special designation such as Federally- and 
state-designated wilderness areas, national parks, national 
monuments, national natural landmarks, wild and scenic rivers, state 
and Federal wildlife refuges, scenic areas (such as National Scenic 
and Historic Trails or National Scenic Areas), and marine 
sanctuaries;
    (v) Prime or unique farmland, or other farmland of statewide or 
local importance, as defined at 7 CFR 658.2(a), ``Farmland 
Protection Policy Act: Definitions,'' or its successor;
    (vi) Special sources of water (such as sole-source aquifers, 
wellhead protection areas, and other water sources that are vital in 
a region); and
    (vii) Tundra, coral reefs, or rain forests; or
    (5) Involve genetically engineered organisms, synthetic biology, 
governmentally designated noxious weeds, or invasive species, unless 
the proposed activity would be contained or confined in a manner 
designed and operated to prevent unauthorized release into the 
environment and conducted in accordance with applicable 
requirements, such as those of the Department of Agriculture, the 
Environmental Protection Agency, and the National Institutes of 
Health.

B1. Categorical Exclusions Applicable to Facility Operation

B1.1 Changing rates and prices

    Changing rates for services or prices for products marketed by 
parts of DOE other than Power Marketing Administrations, and 
approval of rate or price changes for non-DOE entities, that are 
consistent with the change in the implicit price deflator for the 
Gross Domestic Product published by the Department of Commerce, 
during the period since the last rate or price change.

B1.2 Training exercises and simulations

    Training exercises and simulations (including, but not limited 
to, firing-range training, small-scale and short-duration force-on-
force exercises, emergency response training, fire fighter and 
rescue training, and decontamination and spill cleanup training) 
conducted under appropriately controlled conditions and in 
accordance with applicable requirements.

B1.3 Routine maintenance

    Routine maintenance activities and custodial services for 
buildings, structures, rights-of-way, infrastructures (including, 
but not limited to, pathways, roads, and railroads), vehicles and 
equipment, and localized vegetation and pest control, during which 
operations may be suspended and resumed, provided that the 
activities would be conducted in a manner in accordance with 
applicable requirements. Custodial services are activities to 
preserve facility appearance, working conditions, and sanitation 
(such as cleaning, window washing, lawn mowing, trash collection, 
painting, and snow removal). Routine maintenance activities, 
corrective (that is, repair), preventive, and predictive, are 
required to maintain and preserve buildings, structures, 
infrastructures, and equipment in a condition suitable for a 
facility to be used for its designated purpose. Such maintenance may 
occur as a result of severe weather (such as hurricanes, floods, and 
tornados), wildfires, and other such events. Routine maintenance may 
result in replacement to the extent that replacement is in-kind and 
is not a substantial upgrade or improvement. In-kind replacement 
includes installation of new components to replace outmoded 
components, provided that the replacement does not result in a 
significant change in the expected useful life, design capacity, or 
function of the facility. Routine maintenance does not include 
replacement of a major component that significantly extends the 
originally intended useful life of a facility (for example, it does 
not include the replacement of a reactor vessel near the end of its 
useful life). Routine maintenance activities include, but are not 
limited to:
    (a) Repair or replacement of facility equipment, such as lathes, 
mills, pumps, and presses;
    (b) Door and window repair or replacement;
    (c) Wall, ceiling, or floor repair or replacement;
    (d) Reroofing;
    (e) Plumbing, electrical utility, lighting, and telephone 
service repair or replacement;
    (f) Routine replacement of high-efficiency particulate air 
filters;
    (g) Inspection and/or treatment of currently installed utility 
poles;
    (h) Repair of road embankments;
    (i) Repair or replacement of fire protection sprinkler systems;
    (j) Road and parking area resurfacing, including construction of 
temporary access to facilitate resurfacing, and scraping and grading 
of unpaved surfaces;
    (k) Erosion control and soil stabilization measures (such as 
reseeding, gabions, grading, and revegetation);
    (l) Surveillance and maintenance of surplus facilities in 
accordance with DOE Order 435.1, ``Radioactive Waste Management,'' 
or its successor;
    (m) Repair and maintenance of transmission facilities, such as 
replacement of conductors of the same nominal voltage, poles, 
circuit breakers, transformers, capacitors, crossarms, insulators, 
and downed powerlines, in accordance, where appropriate, with 40 CFR 
part 761 (Polychlorinated Biphenyls Manufacturing, Processing, 
Distribution in Commerce, and Use Prohibitions) or its successor;
    (n) Routine testing and calibration of facility components, 
subsystems, or portable equipment (such as control valves, in-core 
monitoring devices, transformers, capacitors, monitoring wells, 
lysimeters, weather stations, and flumes);
    (o) Routine decontamination of the surfaces of equipment, rooms, 
hot cells, or other interior surfaces of buildings (by such 
activities as wiping with rags, using strippable latex, and minor 
vacuuming), and removal of contaminated intact equipment and other 
material (not including spent nuclear fuel or special nuclear 
material in nuclear reactors); and
    (p) Removal of debris.

B1.4 Air conditioning systems for existing equipment

    Installation or modification of air conditioning systems 
required for temperature control for operation of existing 
equipment.

B1.5 Existing steam plants and cooling water systems

    Minor improvements to existing steam plants and cooling water 
systems (including, but not limited to, modifications of existing 
cooling towers and ponds), provided that the improvements would not: 
(1) Create new sources of water or involve new receiving waters; (2) 
have the potential to significantly alter water withdrawal rates; 
(3) exceed the permitted temperature of discharged water; or (4) 
increase introductions of, or involve new introductions of, 
hazardous substances, pollutants, contaminants, or CERCLA-excluded 
petroleum and natural gas products.

B1.6 Tanks and equipment to control runoff and spills

    Installation or modification of retention tanks or small 
(normally under one acre) basins and associated piping and pumps for 
existing operations to control runoff or spills (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

[[Page 63791]]

(including, but not limited to, lead) used at that facility, to 
allow reuse after decay of radioisotopes with short half-lives.

B1.11 Fencing

    Installation of fencing, including, but not limited to border 
marking, that would not have the potential to significantly impede 
wildlife population movement (including migration) or surface water 
flow.

B1.12 Detonation or burning of explosives or propellants after 
testing

    Outdoor detonation or burning of explosives or propellants that 
failed (duds), were damaged (such as by fracturing), or were 
otherwise not consumed in testing. Outdoor detonation or burning 
would be in areas designated and routinely used for those purposes 
under existing applicable permits issued by Federal, state, and 
local authorities (such as a permit for a RCRA miscellaneous unit 
(40 CFR part 264, subpart X)).

B1.13 Pathways, short access roads, and rail lines

    Construction, acquisition, and relocation, consistent with 
applicable right-of-way conditions and approved land use or 
transportation improvement plans, of pedestrian walkways and trails, 
bicycle paths, small outdoor fitness areas, and short access roads 
and rail lines (such as branch and spur lines).

B1.14 Refueling of nuclear reactors

    Refueling of operating nuclear reactors, during which operations 
may be suspended and then resumed.

B1.15 Support buildings

    Siting, construction or modification, and operation of support 
buildings and support structures (including, but not limited to, 
trailers and prefabricated and modular buildings) within or 
contiguous to an already developed area (where active utilities and 
currently used roads are readily accessible). Covered support 
buildings and structures include, but are not limited to, those for 
office purposes; parking; cafeteria services; education and 
training; visitor reception; computer and data processing services; 
health services or recreation activities; routine maintenance 
activities; storage of supplies and equipment for administrative 
services and routine maintenance activities; security (such as 
security posts); fire protection; small-scale fabrication (such as 
machine shop activities), assembly, and testing of non-nuclear 
equipment or components; and similar support purposes, but exclude 
facilities for nuclear weapons activities and waste storage 
activities, such as activities covered in B1.10, B1.29, B1.35, B2.6, 
B6.2, B6.4, B6.5, B6.6, and B6.10 of this appendix.

B1.16 Asbestos removal

    Removal of asbestos-containing materials from buildings in 
accordance with applicable requirements (such as 40 CFR part 61, 
``National Emission Standards for Hazardous Air Pollutants''; 40 CFR 
part 763, ``Asbestos''; 29 CFR part 1910, subpart I, ``Personal 
Protective Equipment''; and 29 CFR part 1926, ``Safety and Health 
Regulations for Construction''; and appropriate state and local 
requirements, including certification of removal contractors and 
technicians).

B1.17 Polychlorinated biphenyl removal

    Removal of polychlorinated biphenyl (PCB)-containing items 
(including, but not limited to, transformers and capacitors), PCB-
containing oils flushed from transformers, PCB-flushing solutions, 
and PCB-containing spill materials from buildings or other 
aboveground locations in accordance with applicable requirements 
(such as 40 CFR part 761).

B1.18 Water supply wells

    Siting, construction, and operation of additional water supply 
wells (or replacement wells) within an existing well field, or 
modification of an existing water supply well to restore production, 
provided that there would be no drawdown other than in the immediate 
vicinity of the pumping well, and the covered actions would not have 
the potential to cause significant long-term decline of the water 
table, and would not have the potential to cause significant 
degradation of the aquifer from the new or replacement well.

B1.19 Microwave, meteorological, and radio towers

    Siting, construction, modification, operation, and removal of 
microwave, radio communication, and meteorological towers and 
associated facilities, provided that the towers and associated 
facilities would not be in a governmentally designated scenic area 
(see B(4)(iv) of this appendix) unless otherwise authorized by the 
appropriate governmental entity.

B1.20 Protection of cultural resources, fish and wildlife habitat

    Small-scale activities undertaken to protect cultural resources 
(such as fencing, labeling, and flagging) or to protect, restore, or 
improve fish and wildlife habitat, fish passage facilities (such as 
fish ladders and minor diversion channels), or fisheries. Such 
activities would be conducted in accordance with an existing natural 
or cultural resource plan, if any.

B1.21 Noise abatement

    Noise abatement measures (including, but not limited to, 
construction of noise barriers and installation of noise control 
materials).

B1.22 Relocation of buildings

    Relocation of buildings (including, but not limited to, trailers 
and prefabricated buildings) to an already developed area (where 
active utilities and currently used roads are readily accessible).

B1.23 Demolition and disposal of buildings

    Demolition and subsequent disposal of buildings, equipment, and 
support structures (including, but not limited to, smoke stacks and 
parking lot surfaces), provided that there would be no potential for 
release of substances at a level, or in a form, that could pose a 
threat to public health or the environment.

B1.24 Property transfers

    Transfer, lease, disposition, or acquisition of interests in 
personal property (including, but not limited to, equipment and 
materials) or real property (including, but not limited to, 
permanent structures and land), provided that under reasonably 
foreseeable uses (1) there would be no potential for release of 
substances at a level, or in a form, that could pose a threat to 
public health or the environment and (2) the covered actions would 
not have the potential to cause a significant change in impacts from 
before the transfer, lease, disposition, or acquisition of 
interests.

B1.25 Real property transfers for cultural resources protection, 
habitat preservation, and wildlife management

    Transfer, lease, disposition, or acquisition of interests in 
land and associated buildings for cultural resources protection, 
habitat preservation, or fish and wildlife management, provided that 
there would be no potential for release of substances at a level, or 
in a form, that could pose a threat to public health or the 
environment.

B1.26 Small water treatment facilities

    Siting, construction, expansion, modification, replacement, 
operation, and decommissioning of small (total capacity less than 
approximately 250,000 gallons per day) wastewater and surface water 
treatment facilities whose liquid discharges are externally 
regulated, and small potable water and sewage treatment facilities.

B1.27 Disconnection of utilities

    Activities that are required for the disconnection of utility 
services (including, but not limited to, water, steam, 
telecommunications, and electrical power) after it has been 
determined that the 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

[[Page 63792]]

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

[[Page 63793]]

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, 
water-immersion, or thermal tests. Covered actions would not involve 
source, special nuclear, or byproduct materials, except encapsulated 
sources manufactured to applicable standards that contain source, 
special nuclear, or byproduct materials may be used for 
nondestructive actions such as detector/sensor development and 
testing and first responder field training.

B3.12 Microbiological and biomedical facilities

    Siting, construction, modification, operation, and 
decommissioning of microbiological and biomedical diagnostic, 
treatment and research facilities (excluding Biosafety Level-3 and 
Biosafety Level-4), in accordance with applicable requirements and 
best practices (such as Biosafety in Microbiological and Biomedical 
Laboratories, 5th Edition, Dec. 2009, U.S. Department of Health and 
Human Services) including, but not limited to, laboratories, 
treatment areas, offices, and storage areas, within or contiguous to 
a previously disturbed or developed area (where active utilities and

[[Page 63794]]

currently used roads are readily accessible). Operation may include 
the purchase, installation, and operation of biomedical equipment 
(such as commercially available cyclotrons that are used to generate 
radioisotopes and radiopharmaceuticals, and commercially available 
biomedical imaging and spectroscopy instrumentation).

B3.13 Magnetic fusion experiments

    Performing magnetic fusion experiments that do not use tritium 
as fuel, within existing facilities (including, but not limited to, 
necessary modifications).

B3.14 Small-scale educational facilities

    Siting, construction, modification, operation, and 
decommissioning of small-scale educational facilities (including, 
but not limited to, conventional teaching laboratories, libraries, 
classroom facilities, auditoriums, museums, visitor centers, 
exhibits, and associated offices) within or contiguous to a 
previously disturbed or developed area (where active utilities and 
currently used roads are readily accessible). Operation may include, 
but is not limited to, purchase, installation, and operation of 
equipment (such as audio/visual and laboratory equipment) 
commensurate with the educational purpose of the facility.

B3.15 Small-scale indoor research and development projects using 
nanoscale materials

    Siting, construction, modification, operation, and 
decommissioning of facilities for indoor small-scale research and 
development projects and small-scale pilot projects using nanoscale 
materials in accordance with applicable requirements (such as 
engineering, worker safety, procedural, and administrative 
regulations) necessary to ensure the containment of any hazardous 
materials. Construction and modification activities would be within 
or contiguous to a previously disturbed or developed area (where 
active utilities and currently used roads are readily accessible).

B3.16 Research activities in aquatic environments

    Small-scale, temporary surveying, site characterization, and 
research activities in aquatic environments, limited to:
    (a) Acquisition of rights-of-way, easements, and temporary use 
permits;
    (b) Installation, operation, and removal of passive scientific 
measurement devices, including, but not limited to, antennae, tide 
gauges, flow testing equipment for existing wells, weighted 
hydrophones, salinity measurement devices, and water quality 
measurement devices;
    (c) Natural resource inventories, data and sample collection, 
environmental monitoring, and basic and applied research, excluding 
(1) large-scale vibratory coring techniques and (2) seismic 
activities other than passive techniques; and
    (d) Surveying and mapping.
    These activities would be conducted in accordance with, where 
applicable, an approved spill prevention, control, and response plan 
and would incorporate appropriate control technologies and best 
management practices. None of the activities listed above would 
occur within the boundary of an established marine sanctuary or 
wildlife refuge, a governmentally proposed marine sanctuary or 
wildlife refuge, or a governmentally recognized area of high 
biological sensitivity, unless authorized by the agency responsible 
for such refuge, sanctuary, or area (or after consultation with the 
responsible agency, if no authorization is required). If the 
proposed activities would occur outside such refuge, sanctuary, or 
area and if the activities would have the potential to cause impacts 
within such refuge, sanctuary, or area, then the responsible agency 
shall be consulted in order to determine whether authorization is 
required and whether such activities would have the potential to 
cause significant impacts on such refuge, sanctuary, or area. Areas 
of high biological sensitivity include, but are not limited to, 
areas of known ecological importance, whale and marine mammal mating 
and calving/pupping areas, and fish and invertebrate spawning and 
nursery areas recognized as being limited or unique and vulnerable 
to perturbation; these areas can occur in bays, estuaries, near 
shore, and far offshore, and may vary seasonally. No permanent 
facilities or devices would be constructed or installed. Covered 
actions do not include drilling of resource exploration or 
extraction wells.

B4. Categorical Exclusions Applicable to Electrical Power and 
Transmission

B4.1 Contracts, policies, and marketing and allocation plans for 
electric power

    Establishment and implementation of contracts, policies, and 
marketing and allocation plans related to electric power acquisition 
that involve only the use of the existing transmission system and 
existing generation resources operating within their normal 
operating limits.

B4.2 Export of electric energy

    Export of electric energy as provided by Section 202(e) of the 
Federal Power Act over existing transmission systems or using 
transmission system changes that are themselves categorically 
excluded.

B4.3 Electric power marketing rate changes

    Rate changes for electric power, power transmission, and other 
products or services provided by a Power Marketing Administration 
that are based on a change in revenue requirements if the operations 
of generation projects would remain within normal operating limits.

B4.4 Power marketing services and activities

    Power marketing services and power management activities 
(including, but not limited to, storage, load shaping and balancing, 
seasonal exchanges, and other similar activities), provided that the 
operations of generating projects would remain within normal 
operating limits.

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.

[[Page 63795]]

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, low-flow plumbing fixtures 
(such as faucets, toilets, and showerheads), heating, ventilation, 
and air conditioning systems, and appliances; installation of drip-
irrigation systems; improvements in generator efficiency and 
appliance efficiency ratings; efficiency improvements for vehicles 
and transportation (such as fleet changeout); power storage (such as 
flywheels and batteries, generally less than 10 megawatt 
equivalent); transportation management systems (such as traffic 
signal control systems, car navigation, speed cameras, and automatic 
plate number recognition); development of energy-efficient 
manufacturing, industrial, or building practices; and small-scale 
energy efficiency and conservation research and development and 
small-scale pilot projects. Covered actions include building 
renovations or new structures, provided that they occur in a 
previously disturbed or developed area. Covered actions could 
involve commercial, residential, agricultural, academic, 
institutional, or industrial sectors. Covered actions do not include 
rulemakings, standard-settings, or proposed DOE legislation, except 
for those actions listed in B5.1(b) of this appendix.
    (b) Covered actions include rulemakings that establish energy 
conservation standards for consumer products and industrial 
equipment, provided that the actions would not: (1) Have the 
potential to cause a significant change in manufacturing 
infrastructure (such as construction of new manufacturing plants 
with considerable associated ground disturbance); (2) involve 
significant unresolved conflicts concerning alternative uses of 
available resources (such as rare or limited raw materials); (3) 
have the potential to result in a significant increase in the 
disposal of materials posing significant risks to human health and 
the environment (such as RCRA hazardous wastes); or (4) have the 
potential to cause a significant increase in energy consumption in a 
state or region.

B5.2 Modifications to pumps and piping

    Modifications to existing pump and piping configurations 
(including, but not limited to, manifolds, metering systems, and 
other instrumentation on such configurations conveying materials 
such as air, brine, carbon dioxide, geothermal system fluids, 
hydrogen gas, natural gas, nitrogen gas, oil, produced water, steam, 
and water). Covered modifications would not have the potential to 
cause significant changes to design process flow rates or permitted 
air emissions.

B5.3 Modification or abandonment of wells

    Modification (but not expansion) or plugging and abandonment of 
wells, provided that site characterization has verified a low 
potential for seismicity, subsidence, and contamination of 
freshwater aquifers, and the actions are otherwise consistent with 
best practices and DOE 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-of-way.

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

[[Page 63796]]

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 small-scale solar thermal systems (including, 
but not limited to, solar hot water systems) located on or 
contiguous to a building, and if located on land, generally 
comprising less than 10 acres within a previously disturbed or 
developed area. Covered actions would be in accordance with 
applicable requirements (such as local land use and zoning 
requirements) in the proposed project area and would incorporate 
appropriate control technologies and best management practices.

B5.18 Wind turbines

    The installation, modification, operation, and removal of a 
small number (generally not more than 2) of commercially available 
wind turbines, with a total height generally less than 200 feet 
(measured from the ground to the maximum height of blade rotation) 
that (1) Are located within a previously disturbed or developed 
area; (2) are located more than 10 nautical miles (about 11.5 miles) 
from an airport or aviation navigation aid; (3) are located more 
than 1.5 nautical miles (about 1.7 miles) from National Weather 
Service or Federal Aviation Administration Doppler weather radar; 
(4) would not have the potential to cause significant impacts on 
bird or bat populations; and (5) are sited or designed such that the 
project would not have the potential to cause significant impacts to 
persons (such as from shadow flicker and other visual effects, and 
noise). Covered actions would be in accordance with applicable 
requirements (such as local land use and zoning requirements) in the 
proposed project area and would incorporate appropriate control 
technologies and best management practices. Covered actions include 
only those related to wind turbines to be installed on land.

B5.19 Ground source heat pumps

    The installation, modification, operation, and removal of 
commercially available small-scale ground source heat pumps to 
support operations in single facilities (such as a school or 
community center) or contiguous facilities (such as an office 
complex) (1) Only where (a) major associated activities (such as 
drilling and discharge) are regulated, and (b) appropriate leakage 
and contaminant control measures would be in place (including for 
cross-contamination between aquifers); (2) that would not have the 
potential to cause significant changes in subsurface temperature; 
and (3) would be located within a previously disturbed or developed 
area. Covered actions would be in accordance with applicable 
requirements (such as local land use and zoning requirements) in the 
proposed project area and would incorporate appropriate control 
technologies and best management practices.

B5.20 Biomass power plants

    The installation, modification, operation, and removal of small-
scale biomass power plants (generally less than 10 megawatts), using 
commercially available technology (1) Intended primarily to support 
operations in single facilities (such as a school and community 
center) or contiguous facilities (such as an office complex); (2) 
that would not affect the air quality attainment status of the area 
and would not have the potential to cause a significant increase in 
the quantity or rate of air emissions and would not have the 
potential to cause significant impacts to water resources; and (3) 
would be located within a previously disturbed or developed area. 
Covered actions would be in accordance with applicable requirements 
(such as local land use and zoning requirements) in the proposed 
project area and would incorporate appropriate control technologies 
and best management practices.

B5.21 Methane gas recovery and utilization systems

    The installation, modification, operation, and removal of 
commercially available methane gas recovery and utilization systems 
installed within a previously disturbed or developed area on or 
contiguous to an existing landfill or wastewater treatment plant 
that would not have the potential to cause a significant increase in 
the quantity or rate of air emissions. Covered actions would be in 
accordance with applicable requirements (such as local land use and 
zoning requirements) in the proposed project area and would 
incorporate appropriate control technologies and best management 
practices.

B5.22 Alternative fuel vehicle fueling stations

    The installation, modification, operation, and removal of 
alternative fuel vehicle fueling stations (such as for compressed 
natural gas, hydrogen, ethanol and other commercially available 
biofuels) on the site of a current or former fueling station, or 
within a previously disturbed or developed area within the 
boundaries of a facility managed by the owners of a vehicle fleet. 
Covered actions would be in accordance with applicable requirements 
(such as local land use and zoning requirements) in the proposed 
project area and would incorporate appropriate control technologies 
and best management practices.

B5.23 Electric vehicle charging stations

    The installation, modification, operation, and removal of 
electric vehicle charging stations, using commercially available 
technology, within a previously disturbed or developed area. Covered 
actions are limited to areas where access and parking are in 
accordance with applicable requirements (such as local land use and 
zoning requirements) in the proposed project area and would 
incorporate appropriate control technologies and best management 
practices.

B5.24 Drop-in hydroelectric systems

    The installation, modification, operation, and removal of 
commercially available small-scale, drop-in, run-of-the-river 
hydroelectric systems that would (1) Involve no water storage or 
water diversion from the stream or river channel where the system is 
installed and (2) not have the potential to cause significant 
impacts on water quality, temperature, flow, or volume. Covered 
systems would be located up-gradient of an existing anadromous fish 
barrier that is not planned for removal and where fish passage 
retrofit is not planned and where there would not be the potential 
for significant impacts to threatened or endangered species or other 
species of concern (as identified in B(4)(ii) of this appendix). 
Covered actions would involve no major construction or modification 
of stream or river channels, and the hydroelectric systems would be 
placed and secured in the channel without the use of heavy 
equipment. Covered actions would be in accordance with applicable 
requirements (such as local land use and

[[Page 63797]]

zoning requirements) in the proposed project area and would 
incorporate appropriate control technologies and best management 
practices.

B5.25 Small-scale renewable energy research and development and 
pilot projects in aquatic environments

    Small-scale renewable energy research and development projects 
and small-scale pilot projects located in aquatic environments. 
Activities would be in accordance with, where applicable, an 
approved spill prevention, control, and response plan, and would 
incorporate appropriate control technologies and best management 
practices. Covered actions would not occur (1) Within areas of 
hazardous natural bottom conditions or (2) within the boundary of an 
established marine sanctuary or wildlife refuge, a governmentally 
proposed marine sanctuary or wildlife refuge, or a governmentally 
recognized area of high biological sensitivity, unless authorized by 
the agency responsible for such refuge, sanctuary, or area (or after 
consultation with the responsible agency, if no authorization is 
required). If the proposed activities would occur outside such 
refuge, sanctuary, or area and if the activities would have the 
potential to cause impacts within such refuge, sanctuary, or area, 
then the responsible agency shall be consulted in order to determine 
whether authorization is required and whether such activities would 
have the potential to cause significant impacts on such refuge, 
sanctuary, or area. Areas of high biological sensitivity include, 
but are not limited to, areas of known ecological importance, whale 
and marine mammal mating and calving/pupping areas, and fish and 
invertebrate spawning and nursery areas recognized as being limited 
or unique and vulnerable to perturbation; these areas can occur in 
bays, estuaries, near shore, and far offshore, and may vary 
seasonally. No permanent facilities or devices would be constructed 
or installed. Covered actions do not include drilling of resource 
exploration or extraction wells, use of large-scale vibratory coring 
techniques, or seismic activities other than passive techniques.

B6. Categorical Exclusions Applicable to Environmental Restoration and 
Waste Management Activities

B6.1 Cleanup actions

    Small-scale, short-term cleanup actions, under RCRA, Atomic 
Energy Act, or other authorities, less than approximately 10 million 
dollars in cost (in 2011 dollars), to reduce risk to human health or 
the environment from the release or threat of release of a hazardous 
substance other than high-level radioactive waste and spent nuclear 
fuel, including treatment (such as incineration, encapsulation, 
physical or chemical separation, and compaction), recovery, storage, 
or disposal of wastes at existing facilities currently handling the 
type of waste involved in the action. These actions include, but are 
not limited to:
    (a) Excavation or consolidation of contaminated soils or 
materials from drainage channels, retention basins, ponds, and spill 
areas that are not receiving contaminated surface water or 
wastewater, if surface water or groundwater would not collect and if 
such actions would reduce the spread of, or direct contact with, the 
contamination;
    (b) Removal of bulk containers (such as drums and barrels) that 
contain or may contain hazardous substances, pollutants, 
contaminants, CERCLA-excluded petroleum or natural gas products, or 
hazardous wastes (designated in 40 CFR part 261 or applicable state 
requirements), if such actions would reduce the likelihood of 
spillage, leakage, fire, explosion, or exposure to humans, animals, 
or the food chain;
    (c) Removal of an underground storage tank including its 
associated piping and underlying containment systems in accordance 
with applicable requirements (such as RCRA, subtitle I; 40 CFR part 
265, subpart J; and 40 CFR part 280, subparts F and G) if such 
action would reduce the likelihood of spillage, leakage, or the 
spread of, or direct contact with, contamination;
    (d) Repair or replacement of leaking containers;
    (e) Capping or other containment of contaminated soils or 
sludges if the capping or containment would not unduly limit future 
groundwater remediation and if needed to reduce migration of 
hazardous substances, pollutants, contaminants, or CERCLA-excluded 
petroleum and natural gas products into soil, groundwater, surface 
water, or air;
    (f) Drainage or closing of man-made surface impoundments if 
needed to maintain the integrity of the structures;
    (g) Confinement or perimeter protection using dikes, trenches, 
ditches, or diversions, or installing underground barriers, if 
needed to reduce the spread of, or direct contact with, the 
contamination;
    (h) Stabilization, but not expansion, of berms, dikes, 
impoundments, or caps if needed to maintain integrity of the 
structures;
    (i) Drainage controls (such as run-off or run-on diversion) if 
needed to reduce offsite migration of hazardous substances, 
pollutants, contaminants, or CERCLA-excluded petroleum or natural 
gas products or to prevent precipitation or run-off from other 
sources from entering the release area from other areas;
    (j) Segregation of wastes that may react with one another or 
form a mixture that could result in adverse environmental impacts;
    (k) Use of chemicals and other materials to neutralize the pH of 
wastes;
    (l) Use of chemicals and other materials to retard the spread of 
the release or to mitigate its effects if the use of such chemicals 
would reduce the spread of, or direct contact with, the 
contamination;
    (m) Installation and operation of gas ventilation systems in 
soil to remove methane or petroleum vapors without any toxic or 
radioactive co-contaminants if appropriate filtration or gas 
treatment is in place;
    (n) Installation of fences, warning signs, or other security or 
site control precautions if humans or animals have access to the 
release; and
    (o) Provision of an alternative water supply that would not 
create new water sources if necessary immediately to reduce exposure 
to contaminated household or industrial use water and continuing 
until such time as local authorities can satisfy the need for a 
permanent remedy.

B6.2 Waste collection, treatment, stabilization, and containment 
facilities

    The siting, construction, and operation of temporary (generally 
less than 2 years) pilot-scale waste collection and treatment 
facilities, and pilot-scale (generally less than 1 acre) waste 
stabilization and containment facilities (including siting, 
construction, and operation of a small-scale laboratory building or 
renovation of a room in an existing building for sample analysis), 
provided that the action (1) Supports remedial investigations/
feasibility studies under CERCLA, or similar studies under RCRA 
(such as RCRA facility investigations/corrective measure studies) or 
other authorities and (2) would not unduly limit the choice of 
reasonable remedial alternatives (such as by permanently altering 
substantial site area or by committing large amounts of funds 
relative to the scope of the remedial alternatives).

B6.3 Improvements to environmental control systems

    Improvements to environmental monitoring and control systems of 
an existing building or structure (such as changes to scrubbers in 
air quality control systems or ion-exchange devices and other 
filtration processes in water treatment systems), provided that 
during subsequent operations (1) Any substance collected by the 
environmental control systems would be recycled, released, or 
disposed of within existing permitted facilities and (2) there are 
applicable statutory or regulatory requirements or permit conditions 
for disposal, release, or recycling of any hazardous substance or 
CERCLA-excluded petroleum or natural gas products that are collected 
or released in increased quantity or that were not previously 
collected or released.

B6.4 Facilities for storing packaged hazardous waste for 90 days or 
less

    Siting, construction, modification, expansion, operation, and 
decommissioning of an onsite facility for storing packaged hazardous 
waste (as designated in 40 CFR part 261) for 90 days or less or for 
longer periods as provided in 40 CFR 262.34(d), (e), or (f) (such as 
accumulation or satellite areas).

B6.5 Facilities for characterizing and sorting packaged waste and 
overpacking waste

    Siting, construction, modification, expansion, operation, and 
decommissioning of an onsite facility for characterizing and sorting 
previously packaged waste or for overpacking waste, other than high-
level radioactive waste, provided that operations do not involve 
unpacking waste. These actions do not include waste storage (covered 
under B6.4, B6.6, B6.10 of this appendix, and C16 of appendix C) or 
the handling of spent nuclear fuel.

[[Page 63798]]

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

[[Page 63799]]

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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