[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 36222-36243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17285]



[[Page 36221]]


_______________________________________________________________________

Part IV





Department of Energy





_______________________________________________________________________



10 CFR Part 1021



National Environmental Policy Act Implementing Procedures; Final Rule

Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules 
and Regulations

[[Page 36222]]



DEPARTMENT OF ENERGY

10 CFR Part 1021

RIN 1901-AA67


National Environmental Policy Act Implementing Procedures

AGENCY: Department of Energy.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Energy (DOE) is amending its existing 
regulations governing compliance with the National Environmental Policy 
Act (NEPA). The amendments incorporate changes that improve DOE's 
efficiency in implementing NEPA requirements by reducing costs and 
preparation time while maintaining quality, consistent with the DOE 
Secretarial Policy Statement on NEPA issued in June 1994. These 
amendments also incorporate changes necessary to conform to recent 
changes in DOE's missions, programs, and policies that have evolved in 
response to changing national priorities since the current regulations 
were issued in 1992.

EFFECTIVE DATE: These amendments to the rule will become effective 
August 8, 1996.

FOR FURTHER INFORMATION CONTACT: Carol Borgstrom, Director, Office of 
NEPA Policy and Assistance, EH-42, U.S. Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20585-0119, (202) 586-4600 or 
leave a message at (800) 472-2756.

SUPPLEMENTARY INFORMATION:

I. Background

    The National Environmental Policy Act of 1969 (42 USC 4321 et seq.) 
requires that Federal agencies prepare environmental impact statements 
for major Federal actions that may ``significantly affect the quality 
of the human environment.'' NEPA also created the President's Council 
on Environmental Quality (CEQ), which issued regulations in 1978 
implementing the procedural provisions of NEPA. Among other 
requirements, the CEQ NEPA regulations (40 CFR parts 1500-1508) require 
Federal agencies to adopt their own implementing procedures to 
supplement the Council's regulations. DOE's current NEPA implementing 
regulations were promulgated in 1992 (57 FR 15122, April 24, 1992) and 
are codified at 10 CFR part 1021.
    On February 20, 1996, DOE published a proposed rulemaking that 
would revise its existing NEPA implementing regulations (61 FR 6414). 
Publication of the Notice of Proposed Rulemaking began a 45-day public 
comment period that originally ended on April 5, 1996. In response to 
requests, the comment period was subsequently reopened on April 19, 
1996 (61 FR 17257), and extended until May 10, 1996. As part of the 
notice and comment process and also in response to requests, DOE held a 
public hearing on the proposed amendments on May 6, 1996. Comments were 
received from approximately 39 sources, including Federal and state 
agencies, public interest groups, other organizations, and individuals. 
Seven commenters also spoke at the public hearing. Copies of all 
written comments and the transcript of the public hearing have been 
provided to CEQ and are available for public inspection at the DOE 
Freedom of Information Reading Room, Room 1E-190, Forrestal Building, 
1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-6020.
    The amendments revise subparts A, C and D of the existing 
regulations. Among the changes are various revisions to the lists of 
``typical classes of actions'' (appendices A, B, C, and D to subpart 
D), including the addition of new categorical exclusions, modifications 
that expand or remove existing categorical exclusions, and 
clarifications. Other changes pertain to the DOE requirement for an 
implementation plan for each environmental impact statement and DOE's 
required content for findings of no significant impact. DOE is also 
clarifying its public notification requirements for records of 
decisions.
    DOE is continuing to consider its proposed amendments to subpart D 
that relate to the Federal power marketing administrations. 
Accordingly, as described in a separate Notice published elsewhere in 
this issue, DOE will reopen the public comment period on the proposed 
amendments to subpart D that apply primarily to power marketing 
activities (B4.1, B4.2, B4.3, B4.6, B4.10, B4.11, B4.12, B4.13, C4, C7, 
and D7). This final rule addresses the remainder of the proposed 
amendments.
    This Notice adopts the amendments proposed in the Notice of 
Proposed Rulemaking (except for the power marketing classes of actions 
listed above), with certain changes discussed below, and amends the 
existing regulations at 10 CFR Part 1021. Copies of the final 
amendments to the rule are available upon request from the information 
contact listed above.
    In accordance with the CEQ NEPA regulations, 40 CFR 1507.3, DOE has 
consulted with CEQ regarding these final amendments to the DOE NEPA 
rule. CEQ has found that the amendments conform with NEPA and the CEQ 
regulations and has no objection to their promulgation.

II. Statement of Purpose

    The amendments to the DOE NEPA regulations are intended to improve 
the efficiency of DOE's implementation of NEPA by clarifying and 
streamlining certain DOE requirements, thereby reducing implementation 
costs and time. This goal is consistent with the DOE Secretarial Policy 
Statement on NEPA (June 1994), which encourages actions to streamline 
the NEPA process without sacrificing quality and to make the process 
more useful to decision makers and the public. Full compliance with the 
letter and spirit of NEPA is an essential priority for DOE. In 
addition, DOE's missions, programs, and policies have evolved in 
response to changing national priorities since the current DOE NEPA 
regulations were issued in 1992, and DOE needs to make conforming 
changes in its NEPA regulations, e.g., to provide efficient NEPA 
procedures for waste management and property transfer actions, which 
are occurring with increasing frequency.

III. Comments Received and DOE's Responses

    DOE has considered and evaluated the comments received during the 
public comment period. Many revisions suggested in these comments have 
been incorporated into the final amendments to the rule. The following 
discussion describes the comments received, provides DOE's responses to 
the comments, and describes any resulting changes to the proposed 
amendments. As a result of changes made in response to comments, 
several number designations of classes of actions have been changed in 
the final rule; section references, unless otherwise indicated, are to 
those in the proposed amendments.
    Several commenters expressed overall support for DOE's efforts to 
increase efficiency and reduce NEPA compliance costs. One Federal 
agency (the Food and Drug Administration) and one state agency (the 
Virginia Department of Environmental Quality) stated that they had no 
objections to DOE's proposed amendments. No comments or only positive 
comments were received on the following proposed amendments to subpart 
D of the rule: Integral element B(1), B1.8, B1.18, B1.21, B1.31, B3.3, 
and D1. These proposed amendments, therefore, remain unchanged in the 
final rulemaking, and are not discussed further.

[[Page 36223]]

A. Procedural Comments

    A few commenters addressed procedural aspects of this rulemaking. 
Specifically, one commenter stated that public Notice of Proposed 
Rulemaking was inadequate. DOE notes that the Notice of Proposed 
Rulemaking was published in the Federal Register on February 20, 1996. 
In addition, the Notice was mailed to more than 400 stakeholders and 
was made available for review and comment through the World Wide Web at 
DOE's NEPA Web Site. DOE believes that its effort to notify the public 
of its proposed rulemaking was sufficient.
    In addition, two commenters requested that DOE hold public hearings 
on the proposed rulemaking at locations in close proximity to various 
DOE facilities and a reopening of the comment period until 90 days 
after publication of the schedule for public hearings. Other commenters 
also asked that the comment period be reopened.
    In response, DOE reopened the comment period from April 19, 1996, 
through May 10, 1996. Further, as described in a separate Notice 
published elsewhere in this issue, DOE will again reopen the comment 
period, but only on the proposals to modify the typical classes of 
actions pertaining primarily to power marketing activities. DOE also 
held a public hearing in Washington, DC., on May 6, 1996, with 
accommodations for commenters who wished to present their views by 
conference telephone call from DOE regional offices throughout the 
United States.
    DOE has fully considered all oral and written comments received 
through May 10, 1996. DOE believes that it has provided sufficient and 
appropriate public participation opportunities in its proposed 
rulemaking, and does not believe that additional hearings or an 
additional 90-day comment period on the entire proposed rulemaking is 
necessary.
    Two commenters questioned the procedures DOE followed in 
determining that the proposed new and modified categorical exclusions 
would result in no significant impact, and indicated the need for 
documentation of this finding for each categorical exclusion in 
addition to the statement that appears in the preamble to the proposed 
rulemaking. In accordance with the CEQ regulations (40 CFR 1508.4), DOE 
initiated this rulemaking, in part, to define those classes of actions 
that DOE has found to have no significant effect on the human 
environment, either individually or cumulatively. DOE is not required 
by the CEQ regulations to set forth in the preamble a detailed, 
individualized explanation for its finding of no significant impact for 
each of the classes of actions in appendices A and B, but provides an 
overall finding in Section III.F, below.
    One commenter requested that DOE prepare an environmental impact 
statement addressing the cumulative impacts of the proposed amendments. 
Two other commenters stated that an environmental assessment was 
necessary to determine whether the proposed amendments constituted a 
major Federal action.
    DOE believes that its proposal to amend its NEPA implementing 
regulations falls within the categorical exclusion for procedural 
rulemaking (10 CFR part 1021, appendix A to subpart D, categorical 
exclusion A6). DOE's NEPA regulations prescribe the process under which 
the Department examines the environmental impacts of its proposed 
actions. The regulations do not set out substantive criteria for 
reaching a decision on a particular action, and thus are procedural 
only. For this reason, these amendments to the DOE NEPA regulations are 
properly excluded from NEPA documentation requirements. See also 
Section IV.A.
    One commenter requested that DOE impose a moratorium on 
privatization pending completion of public hearings and an 
environmental impact statement on the proposed amendments. This request 
is outside the scope of this rulemaking, and DOE does not believe that 
the scope, which is restricted to DOE's proposed changes to 10 CFR part 
1021, should be expanded. Any moratorium on privatization activities 
should be determined on the basis of the particular facts and 
circumstances and not in this rulemaking.
    A commenter disagreed with DOE's statement in the preamble to the 
proposed rule that a review under the Unfunded Mandates Reform Act was 
not required because the DOE NEPA regulations affect only DOE. The 
commenter stated that many DOE facilities and actions have profound 
effects on other government agencies and the private sector. While DOE 
recognizes that its activities do affect other government agencies and 
the private sector, its regulations to implement the procedural 
provisions of NEPA impose obligations only on DOE, not on any state, 
local, or tribal government or on the private sector. Thus, further 
review by DOE under the Unfunded Mandates Reform Act is not required, 
and DOE is reiterating in this final rule its previous finding in the 
proposed rule. See Section IV.G.

B. General Comments on Proposed Amendments

Comments on Public Involvement Opportunities
    Many commenters stated that the proposals regarding implementation 
plans, records of decision, and additions and modifications to the list 
of categorical exclusions would have the effect of reducing the 
public's knowledge of, and opportunities to participate in, DOE's 
decision making process. One commenter expressed concern that new and 
modified categorical exclusions would reduce the range of DOE actions 
subject to meaningful environmental review.
    In proposing certain streamlining amendments to subpart C, DOE 
carefully weighed the benefits of improved efficiency against the 
acknowledged reduction in public information. DOE has reconsidered each 
such proposal in light of public comments and made some adjustments, as 
described below in Section III.D.
    However, with regard to categorical exclusions, while the CEQ 
regulations encourage public participation in the NEPA process, they 
also direct agencies to use categorical exclusions (which, by 
definition, have no significant impact on the environment, either 
individually or cumulatively) to reduce paperwork (40 CFR 1500.4(p)) 
and delays (40 CFR 1500.5(k)). Consistent with this streamlining 
approach, the CEQ regulations do not provide for public participation 
in an agency's determination that a particular proposed action is 
categorically excluded.
    DOE is amending its list of categorical exclusions by adding 
certain DOE classes of actions and modifying or clarifying other 
classes of actions currently on its list of categorical exclusions. In 
doing so, DOE has determined that these classes of actions do not have 
significant impacts on the environment, either individually or 
cumulatively. See Section III.F below. Thus, for these particular 
classes of actions, the environmental review that the commenter 
requested would not be meaningful in terms of evaluating significant 
impacts to the environment. DOE believes that it will serve 
environmental concerns and the public's interest best by focusing its 
efforts on the careful analysis of those actions that actually have the 
potential for significant impact.
    DOE has considered comments on the merits of each proposed 
categorical exclusion amendment as discussed in Section III.F, but has 
decided generally to proceed with listing and modifying categorical 
exclusions, with the

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knowledge that in some respects doing so would diminish opportunities 
for public involvement or information sharing.
Comments Outside the Scope of Proposed Rulemaking
    DOE proposed changes to specific sections of its NEPA implementing 
procedures. DOE considers any comments received regarding the proposed 
changes to be within the scope of this rulemaking and has addressed 
such comments in this final rulemaking.
    DOE received several comments that it considers to be outside the 
scope of this rulemaking. These include suggested modifications to 
provisions of the existing DOE NEPA regulations other than those DOE is 
proposing to modify or expand, suggestions for additional categorical 
exclusions, suggestions for broad changes to the DOE NEPA process, and 
comments on particular DOE proposed actions and DOE policies or 
procedures not related to DOE's NEPA regulations. Such comments are 
briefly discussed below.
Suggested Changes to Other Provisions of Existing DOE NEPA Regulations
    Some commenters suggested changes to provisions of existing DOE 
NEPA regulations in addition to provisions that DOE proposed to modify 
or expand. These commenters sought changes to Secs. 1021.216 
(Procurement, financial assistance, and joint ventures), 1021.301 
(Agency review and public participation), 1021.410 (Application of 
categorical exclusions (classes of actions that normally do not require 
EAs or EISs)), and B3.11 (Outdoor tests and experiments on materials 
and equipment components). While DOE is not considering such changes to 
its NEPA regulations at this time, DOE is taking these suggestions 
under advisement and may address them in a future rulemaking.
Suggestions for Additional Categorical Exclusions
    A few commenters offered suggestions for additional categorical 
exclusions to cover facility deactivation activities; onsite 
transportation of packaged spent nuclear fuel or transuranic waste; 
onsite transportation of hazardous, mixed, and radioactive waste; 
relocation or reconfiguration of existing facilities, buildings, and 
operations within and between DOE sites; replacement of existing 
facilities in kind and in place; and treatment or disposal of hazardous 
waste at an existing offsite permitted facility. To the extent that 
these suggestions were not addressed in DOE's proposed additions and 
modifications to its list of typical classes of action, DOE considers 
them to be outside the scope of this rulemaking. DOE is taking these 
suggestions under advisement and may address them in a future 
rulemaking.
Suggested Changes to DOE's NEPA Process
    Other commenters offered general suggestions for what they 
considered to be improvements to the DOE NEPA process; topics included 
the codification of DOE's enhanced public involvement procedures, 
improvement of DOE's notification procedures, the timing of NEPA 
actions, page limits for DOE environmental impact statements, 
coordination with state historic preservation officers, actions taken 
under consent orders, defining when the choice of reasonable 
alternatives becomes limited, use of ``worst case'' scenarios in NEPA 
documents, and delegation of decision making authority. One commenter 
requested that DOE ensure that its implementing rules and related 
policies, orders, and procedures are not applied unnecessarily to 
actions that are not ``major Federal actions.'' Although these comments 
are outside the scope of DOE's proposed rulemaking, DOE may consider 
these suggestions in a future rulemaking.
Comments Not Related to NEPA Regulations
    A few commenters offered comments that are related to particular 
DOE proposed actions or other DOE policies and procedures. These 
include comments regarding whistleblower protection, privatization of 
DOE facilities, hearings on the Multi-Purpose Canister Environmental 
Impact Statement, management of spent nuclear fuel, cleanup of 
contaminated sites, Federal Acquisition Regulations, the Waste 
Management Programmatic Environmental Impact Statement, and contractor 
oversight. Because these comments relate to specific DOE actions and 
not to DOE's procedures for NEPA compliance, DOE finds these comments 
to be outside the scope of this rulemaking. Accordingly, they were not 
considered in developing the final rule.

Other Comments

    One commenter stated that DOE should provide language in the rule 
that requires all DOE NEPA documents to substantiate compliance with 
all applicable environmental laws, Executive Orders, and other similar 
requirements. DOE notes that it must comply with all applicable 
environmental laws, Executive Orders, and similar requirements. With 
respect to the application of the categorical exclusions in appendix B 
to subpart D, DOE's NEPA regulations currently require that a proposed 
action must be one that would not ``[t]hreaten a violation of 
applicable statutory, regulatory, or permit requirements for 
environment, safety, and health'' in order to fit within a categorical 
exclusion (appendix B to subpart D, integral element B(1)).
    One commenter objected to documenting the application of 
categorical exclusions to each and every activity that DOE undertakes; 
on the other hand, several commenters suggested the need for 
documentation to ensure that the integral elements (appendix B, B (1) 
through B(4) to subpart D of DOE's NEPA regulations) were properly 
considered and cumulative impacts would not result. DOE notes that 
neither the CEQ nor DOE NEPA regulations, nor DOE's internal NEPA 
procedures, require documenting the application of categorical 
exclusions (DOE Order 451.1, Section 5(d)(2)). The appropriate NEPA 
Compliance Officer is responsible for the proper application of 
categorical exclusions.
    Another commenter stated that DOE should regularly prepare a list 
of the actions to which categorical exclusions were applied and make 
that list available to the public. DOE recognizes the value in 
informing the interested and affected public around DOE sites of its 
activities at those sites. However, a requirement for the periodic 
publication of a list of activities that have been categorically 
excluded would tend to undermine CEQ's strategy of using categorical 
exclusions to streamline the NEPA process.
    One commenter stated that DOE's environmental review processes for 
compliance with NEPA and the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) should be integrated. Another 
commenter expressed concern that the proposed amendments did not 
adequately address DOE's current policy on compliance with NEPA for 
CERCLA actions, as set forth in the Secretarial Policy Statement on 
NEPA (June 1994).
    Under the current policy, DOE will rely on the CERCLA process for 
review of actions to be taken under CERCLA and will address NEPA values 
and public involvement procedures in its CERCLA processes to the extent 
practicable. DOE may choose, however, after consultation with 
stakeholders and as a matter of policy, to integrate the NEPA and 
CERCLA processes for specific proposed actions. The CERCLA/NEPA policy 
is applied on a case-by-

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case basis, and DOE is satisfied that the new approach is clear and 
working adequately as a matter of policy that does not warrant 
codification in the regulations.
    One commenter asked whether DOE should consider NEPA to be 
sufficiently specific and detailed to warrant the commitment to the 
``letter'' of NEPA that DOE stated in its preamble to the proposed 
amendments. The commenter stated that such a commitment can create 
unnecessary concerns about the degree to which the responsibility for 
decision making can be delegated and justify unnecessarily restrictive 
and arbitrary decisions. While DOE agrees that the statute itself 
imposes few specific requirements, DOE believes that it is important to 
stress its commitment to complying with the express requirements, as 
well as with the intent of the statute to preserve, protect, and 
enhance the environment.

C. Comments on Amendments to Subpart A--General

Section 1021.105  Oversight of Agency NEPA Activities
    One commenter expressed concern that the Office of NEPA Policy and 
Assistance was being eliminated and that the amendment proposed that 
oversight of DOE NEPA activities would be assumed by the Assistant 
Secretary for Environment, Safety and Health.
    The oversight of DOE's NEPA activities has been and continues to be 
conducted by the Assistant Secretary for Environment, Safety and 
Health. On December 18, 1994, the office under the Assistant Secretary 
with specific responsibility for NEPA activities was renamed the Office 
of NEPA Policy and Assistance (formerly the Office of NEPA Oversight). 
The only modification to this section is a conforming change to 
incorporate the new name for the office.

D. Comments on Amendments to Subpart C--Implementing Procedures

Section 1021.312  EIS Implementation Plan
    DOE received several comments supporting and several comments 
opposing the proposal to eliminate the requirement to prepare an 
implementation plan for every environmental impact statement.
    Several commenters expressed concern that the public's opportunity 
for involvement would be reduced if an implementation plan were not 
prepared for every environmental impact statement. They stated that 
implementation plans provide an opportunity for the public to see how 
scoping comments will be addressed in the environmental impact 
statement, to formulate options and comments, to review contractor 
disclosure statements, and to keep the environmental impact statement 
on track. One commenter stated that the public has valuable insight to 
provide. Another commenter suggested that implementation plans are 
useful educational tools and an excellent introduction to the DOE NEPA 
process.
    As discussed above in Section III.B, DOE weighed the benefits of 
improved efficiency from eliminating the implementation plan 
requirement against the acknowledged reduction in publicly available 
information. After considering all the comments received, DOE 
determined that because the public has the opportunity to provide 
comments on the scope of an environmental impact statement and can see 
how scoping comments were addressed and considered in the draft 
environmental impact statement, the value to the public and DOE of 
continuing the requirement for an implementation plan does not justify 
the cost, time, and resources required in preparing an implementation 
plan for every environmental impact statement.
    With respect to contractor disclosure statements, DOE stated in the 
preamble to the proposed amendments that it would continue to prepare 
and require the execution of such statements by contractors, as 
required by 40 CFR 1506.5(c) of the CEQ regulations. In response to 
comments, however, DOE will include the contractor disclosure 
statements in draft and final environmental impact statements, and has 
modified 10 CFR 1021.310 accordingly.
    One commenter stated that eliminating the implementation plan 
requirement will preclude requests from interested parties for 
environmental assessments and environmental impact statements before 
the agency proceeds with actions. Because an implementation plan is 
prepared after a decision has been made to prepare an environmental 
impact statement, and is not prepared at all for environmental 
assessments, DOE believes that eliminating the implementation plan 
requirement will not have any effect on the public's ability to request 
an environmental impact statement or an environmental assessment.
    While some commenters supported eliminating the implementation plan 
requirement, they requested that notes from public scoping meetings be 
made available in public reading rooms or that DOE prepare a detailed 
administrative record of the disposition of public scoping comments and 
make it available to the public upon request. Another commenter, 
although supportive of the proposed amendment, suggested that DOE 
include a response to public scoping comments in the draft 
environmental impact statement.
    DOE believes that the purpose in eliminating the implementation 
plan requirement (i.e., to achieve cost and time savings without 
meaningfully reducing public involvement in the DOE environmental 
impact statement process) would not be served by adopting the 
alternative suggestions (preparing a detailed administrative record or 
including a response to public scoping comments in a draft 
environmental impact statement) in place of the implementation plan 
requirement. The public scoping process under DOE's amended rule fully 
complies with the CEQ NEPA regulations, which require only that draft 
environmental impact statements be prepared in accordance with the 
scope decided upon in the scoping process (40 CFR 1502.9(a)).
    One commenter stated that the environmental impact statement 
implementation plan should be optional. DOE agrees and intends for the 
elimination of the implementation plan requirement to have the effect 
of making such plans optional.
    Finally, in its proposal to eliminate the requirement to prepare an 
implementation plan for an environmental impact statement, DOE 
inadvertently omitted making a corresponding change to 
Sec. 1021.311(f), which included a reference to the EIS implementation 
plan. Section 1021.311(f) has now been removed from the final rule; 
paragraph (g) has been redesignated accordingly.
Section 1021.315  Records of Decision
    Section 1021.315(c). Commenters opposed two aspects of this 
proposed amendment. First, some commenters expressed concern that DOE's 
proposal to allow publication in the Federal Register of a brief 
summary and notice of availability of a record of decision, rather than 
the full text, would shift to the public the cost of obtaining copies 
of a record of decision, and would not assure timely availability of 
the record of decision. Another commenter suggested that any savings 
achieved from not publishing the full text of a record of decision in 
the Federal Register would not be sufficient to justify the public's 
increased burden in seeking a record of decision. DOE has reconsidered 
the proposal in light of the commenters' concerns, and has decided that 
the cost-savings do not justify the burden associated with the proposed

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change. Therefore, DOE will continue to publish the full text of 
records of decision in the Federal Register.
    Second, commenters also expressed concern about the proposed 
clarification to Sec. 1021.315(c) that, if a decision has been 
publicized by other means (e.g., press release or announcement in local 
media), DOE need not defer taking action until its record of decision 
has been published in the Federal Register. The commenters suggested 
that these other means of communication were not as reliable, accurate, 
easily available, or effective as the Federal Register.
    This amendment is a clarification, not a substantive change, to 
DOE's regulations. Section 1021.315(b) currently states that ``No 
action shall be taken until the decision has been made public.'' One 
way to make a decision public is to publish the record of decision in 
the Federal Register, but decisions can be made public in other ways, 
such as through press releases or announcements in local media. DOE's 
proposed amendment merely clarifies the practice that DOE has followed 
previously under which DOE may proceed with an action after its 
decision has been made public but before that decision is published in 
the Federal Register. DOE needs to retain the ability to implement an 
action after making the record of decision public, but before 
publication of that decision in the Federal Register, in those 
instances when timing is critical.
    One commenter questioned whether DOE was proposing to implement an 
action before the decision is articulated in writing and signed. DOE is 
not making such a proposal. To clarify this point, DOE has modified the 
final language in a new Sec. 1021.315(d) by indicating that DOE may 
implement a decision if the record of decision has been signed and the 
decision and the availability of the record of decision have been made 
public.
    Another commenter indicated confusion over DOE's proposal to modify 
Sec. 1021.315(c) rather than Sec. 1021.315(b). In response, and to 
provide further clarification, DOE has moved the second sentence from 
current Sec. 1021.315(b) to begin a new Sec. 1021.315(d), and added to 
the new subsection (d) the language previously proposed for 
Sec. 1021.315(c), as modified above. Section 1021.315(c) remains as in 
the current regulation, and current Sec. 1021.315(d) is now 
Sec. 1021.315(e). Pertinent sections of Sec. 1021.315 are now changed 
as follows:
    (a) (no change)
    (b) If DOE decides to take action on a proposal covered by an EIS, 
a ROD shall be prepared as provided at 40 CFR 1505.2 (except as 
provided at 40 CFR 1506.1 and Sec. 1021.211 of this part).
    (c) (no change)
    (d) No action shall be taken until the decision has been made 
public. DOE may implement the decision before the ROD is published in 
the Federal Register if the ROD has been signed and the decision and 
the availability of the ROD have been made public by other means (e.g., 
press release, announcement in local media).
    (e) DOE may revise a ROD at any time, so long as the revised 
decision is adequately supported by an existing EIS. A revised ROD is 
subject to the provisions of paragraphs (b), (c), and (d) of this 
section.
Section 1021.322  Findings of No Significant Impact
    Section 1021.322(b)(1). Under the proposed amendment, and in 
accordance with 40 CFR 1508.13, DOE would either incorporate the 
environmental assessment by reference in a finding of no significant 
impact and attach the environmental assessment, or summarize the 
environmental assessment in the finding. A few commenters supported the 
proposal to remove the requirement to summarize the environmental 
assessment in the finding of no significant impact in all cases. Others 
expressed concern that DOE was proposing to eliminate information that 
is currently being provided to the public.
    This proposal is intended to eliminate redundancy by requiring 
either the attachment of an environmental assessment to the related 
finding of no significant impact or the inclusion of a summary of an 
environmental assessment in the related finding of no significant 
impact, but not both. This would change DOE's current practice of 
summarizing the environmental assessment in each finding of no 
significant impact and also attaching the environmental assessment to 
the finding of no significant impact. For a finding of no significant 
impact published in the Federal Register, it would be necessary to 
summarize the environmental assessment in the finding of no significant 
impact, because the environmental assessment would not be published in 
the Federal Register.

E. General Comments on Subpart D--Typical Classes of Actions

    Many of the commenters suggested, both generally and with regard to 
specific proposed amendments to classes of actions in subpart D, that 
DOE's terminology was too vague or subjective to adequately define 
classes of actions. For example, commenters objected to DOE's use of 
such terms as ``small-scale,'' ``short-term,'' ``minor,'' and 
``generally,'' among others, as being too imprecise. On the other hand, 
where DOE had proposed using specific quantities to aid in defining a 
class of actions (e.g., 50,000 square feet of area and 100 MeV (million 
electron-volts) of energy), commenters asked why DOE had picked the 
proposed value rather than any other, and how DOE could justify such 
apparent precision.
    DOE has considered all such comments in the context of the 
individual proposed amendments to subpart D classes of actions 
presented in Section III.F, below. To provide additional information 
and to simplify the more specific discussions, DOE is providing the 
following general response.
    DOE formulates subpart D classes of actions based on DOE's 
experience, other agencies' experience as reflected in their NEPA 
procedures, technical judgments regarding impacts from actions, and 
public comments on a proposed rule. To minimize subjectivity in 
interpretation, DOE uses both numerical values of quantities (which 
have clear meaning) and descriptive words such as ``minor'' and 
``small-scale,'' which suggest the smaller actions in a class, not the 
larger. DOE also uses examples, both to clarify that the class of 
actions includes the specific examples cited, and to suggest the nature 
of actions that may be included.
    With regard to DOE's use of specific quantities in several of the 
proposed classes of actions, commenters had two general objections. 
First, they noted correctly that using ``generally'' in defining a 
class of actions (e.g., proposed B1.26 and B3.10) could allow the class 
to be applied to proposed actions that would otherwise not even 
approximately fit the definition. Second, commenters questioned the 
justification for the specific quantity values chosen and even whether 
any specific value could be justified.
    DOE's intention with respect to both issues is better expressed by 
the concept of ``approximately'' rather than ``generally,'' and the 
classes of actions in the final rule have been changed accordingly. By 
using ``approximately,'' DOE is indicating that the numerical values 
used in defining classes of actions are to be interpreted flexibly 
rather than with unwarranted precision. For example, DOE proposed to 
categorically exclude construction of small accelerators and decided 
that it could express the class of actions as including accelerators 
less than 100 MeV in energy. DOE acknowledges that judgment is involved 
and that it could

[[Page 36227]]

have chosen numbers somewhat greater than 100 MeV to limit the 
categorical exclusion. DOE believes, however, that the phrase ``less 
than approximately 100 MeV in energy'' provides appropriate flexibility 
and represents the best overall resolution of the matter.
    One commenter expressed concern that DOE had not taken the 
opportunity to decrease the level of prescription and detail in the DOE 
NEPA regulations. The commenter expressed particular concern that DOE 
had proposed 17 new classes of actions, many of which the commenter 
believed would add little or no value to DOE's NEPA process. Similarly, 
another commenter stated that DOE should make existing categorical 
exclusions more comprehensive whenever possible, rather than simply 
expand the list of categorical exclusions.
    In proposing amendments to the DOE NEPA rule, DOE considered making 
the list of categorical exclusions shorter by combining certain actions 
and making the list more comprehensive by broadening the categories. 
DOE declined to pursue such a course of action generally in this 
rulemaking, although it proposed to combine two classes of actions. 
DOE's extensive list of categorical exclusions results primarily from 
the fact that DOE is engaged in many different types of activities.
    One commenter requested that DOE define the phrase ``already 
developed area'' that is used in several proposed new or amended 
categorical exclusions (e.g., B1.15, B1.22, B3.6, B3.10, B3.12, and 
B6.4). The commenter expressed concern that DOE may consider portions 
of wildlife management areas surrounding DOE facilities to be 
``developed'' merely because of DOE ownership or because of the 
existence of abandoned DOE facilities. In the existing and proposed 
regulations, DOE used the parenthetical phrase ``where site utilities 
and roads are available'' to help define ``an already developed area'' 
in the classes of actions in the final rule. For further clarity, DOE 
has modified the parenthetical phrase to read ``where active utilities 
and currently used roads are readily accessible.'' DOE does not intend 
to include wildlife areas and abandoned facilities in its definition of 
``an already developed area.''
    Finally, several commenters noted that DOE defined categorical 
exclusions as classes of actions that ``normally'' do not require 
environmental assessments or environmental impact statements. One of 
these commenters suggested that ``normally'' should mean 99 percent of 
the time, and this commenter and others stated that there should be 
provisions for extraordinary circumstances under which a proposed 
action listed in appendices A or B should not be categorically 
excluded.
    DOE's use of the term ``normally'' in the context of categorical 
exclusions is consistent with the use of this term in the CEQ 
regulations, which state that an agency's NEPA implementing procedures 
for categorical exclusions ``shall provide for extraordinary 
circumstances in which a normally excluded action may have a 
significant environmental effect'' (40 CFR 1508.4). See also 40 CFR 
1507.3(b)(2)(ii), in which CEQ directs agencies to identify classes of 
actions ``which normally do not require either an environmental impact 
statement or an environmental assessment.'' DOE believes that its 
categorical exclusions comply with CEQ's regulations, i.e., to be 
eligible for categorical exclusion, a class of actions must not have 
significant effects on the human environment except in extraordinary 
circumstances that may affect the significance of the environmental 
effects of a specific proposed action. DOE's existing regulations (10 
CFR 1021.410(b)(2)) describe the nature of extraordinary circumstances 
under which a categorical exclusion should not be applied, and 
explicitly require (Sec. 1021.400(d)) an environmental assessment or 
environmental impact statement for a proposed action that presents such 
circumstances. Therefore, DOE does not believe any changes are needed 
to address the use or interpretation of the word ``normally'' in DOE's 
description of categorical exclusions or the manner in which DOE 
provides for extraordinary circumstances.

F. Comments on Appendices of Subpart D--Typical Classes of Actions

    Several commenters objected to many categorical exclusions on the 
grounds of cumulative effects, connected actions, or extraordinary 
circumstances, but without explanation as to their specific objection. 
A categorical exclusion is a class of actions that, individually or 
cumulatively, do not have significant environmental impacts. If there 
are extraordinary circumstances associated with a proposed action, or 
if the proposal is connected to other actions with potentially 
significant impacts or related to other proposed actions with 
cumulatively significant impacts, then a categorical exclusion would 
not apply under Sec. 1021.410(b).
    Another commenter noted that several of the proposed categorical 
exclusions referred to ``siting, construction, operation, and 
decommissioning'' of various DOE activities and questioned whether such 
activities would also need state permits. DOE notes that while new 
construction could require state or local permits, one of the integral 
elements for all appendix B categorical exclusions is that the proposed 
action ``does not threaten a violation of applicable statutory, 
regulatory, or permit requirements for environment, safety, and 
health.'' Any DOE action would be required to comply with applicable 
state and local requirements, independent of the level of NEPA review 
appropriate under DOE's NEPA regulations.
    In general, the following responses to comments regarding specific 
categorical exclusions should be read in the full context of the DOE 
regulations for categorical exclusions. Under the current regulations, 
before a proposed action may be categorically excluded, DOE must 
determine in accordance with Sec. 1021.410(b) that (1) the proposed 
action fits within a class of actions listed in appendix A or B to 
subpart D, (2) there are no extraordinary circumstances related to the 
proposal that may affect the significance of the environmental effects 
of the action, and (3) there are no connected or related actions with 
cumulatively significant impacts and, where appropriate, the proposed 
action is a permissible interim action. In addition, to fit within a 
class of actions that is normally categorically excluded under appendix 
B, a proposed action must include certain integral elements (appendix 
B, paragraphs B (1) through (4)). These conditions ensure that an 
excluded action will not threaten a violation of applicable 
requirements, require siting and construction of waste management 
facilities, disturb hazardous substances such that there would be 
uncontrolled or unpermitted releases, or adversely affect 
environmentally sensitive resources.
    The headings below are those used in the table of contents of the 
appendices in the proposed amendments. The conversion table below shows 
which classes of actions have been included in the final amendments to 
the rule. There were a few numbering changes between the proposed and 
final amendments because some classes of actions were added or removed. 
Specifically, the proposed B1.32 was removed, and the proposed B1.33 
was renumbered as B1.32; existing B6.4, which had been proposed for 
revision, was retained without change, and a new B6.10 was added to 
incorporate some of the changes proposed for B6.4; and the proposed 
modification to C9 was withdrawn. These changes are explained more 
fully in the following discussion.

[[Page 36228]]



                            Conversion Table                            
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
          Existing rule                                                 
(1)Final amendments                                                     
------------------------------------------------------------------------
A.7.............................  A.7................  Clarified.       
B(1)............................  B(1)...............  Modified.        
B(2)............................  B(2)...............      Do.          
B1.3............................  B1.3...............  Clarified.       
B1.8............................  B1.8...............  Modified.        
B1.13...........................  B1.13..............      Do.          
B1.15...........................  B1.15..............      Do.          
B1.18...........................  B1.18..............      Do.          
B1.21...........................  B1.21..............      Do.          
B1.22...........................  B1.22 & B1.23......  Clarified.       
                                  B1.24--B1.32.......  Added.           
                                  B2.6...............      Do.          
B3.1............................  B3.1...............  Clarified.       
B3.3............................  B3.3...............      Do.          
B3.6............................  B3.6...............  Modified.        
B3.10...........................  B3.6...............      Do.          
                                  B3.10..............  Added.           
                                  B3.12-B3.13........      Do.          
B5.3............................  B5.3...............  Modified.        
B5.5............................  B5.5...............      Do.          
B5.9-B5.11......................  B5.9-B5.11.........  Clarified.       
B5.12-B5.16.....................  Removed............                   
                                  B5.12..............  Added.           
B6.1............................  B6.1...............  Modified.        
B6.5............................  B6.5...............  Clarified.       
                                  B6.9-B6.10.........  Added.           
C1..............................  C1.................  Reserved.        
C10.............................  C10................      Do.          
C11.............................  C11................  Modified.        
C14.............................  C14................      Do.          
C16.............................  C16................      Do.          
D1..............................  D1.................      Do.          
D10.............................  D10................      Do.          
------------------------------------------------------------------------

    Finally, after considering all public comments on the proposed 
amendments, DOE has determined that the final amendments to appendices 
A and B constitute classes of actions that do not individually or 
cumulatively have a significant effect on the human environment, and 
are covered by a finding to that effect in Sec. 1021.410(a). In making 
this finding, DOE has considered, among other things, its own 
experience with these classes of actions, other agencies' experience as 
reflected in their NEPA procedures, DOE's technical judgment, and the 
comments received on the proposed amendments.
    <bullet> Proposed Clarification A7  Transfer of property, use 
unchanged.
    One commenter stated that DOE cannot assume that transfer of 
property will not result in short- and long-term changes in impacts. 
DOE proposed to amend paragraph A7 only to clarify the meaning of 
property by explicitly including both personal property (e.g., 
equipment and material) and real property (e.g., permanent structures 
and land). DOE did not propose to amend the requirement regarding 
property use remaining unchanged. The categorical exclusion may only be 
applied when the impacts would remain essentially the same after the 
transfer as before. See also the discussion of B1.24 and B1.25.

Classes of Actions Listed in Appendix B

    <bullet> Proposed Modification to Integral Element B(2).
    DOE proposed to modify integral element B(2)--which sets the 
condition that a categorically excluded action may not require siting, 
construction, or major expansion of waste storage, disposal, recovery, 
or treatment facilities--to provide an exception for such actions that 
are themselves categorically excluded. DOE proposed this change to 
conform to simultaneously proposed changes (B1.26, B1.29, B6.4, and 
B6.9) that would categorically exclude certain water treatment and 
waste storage facilities.
    Two commenters objected to the change, apparently as an extension 
of their objections to the proposed categorical exclusion amendments 
that prompted DOE's proposal to modify B(2). Another commenter 
expressed concern that the proposed B(2) would imply that ``major'' 
expansion of waste facilities might be categorically excluded. This 
interpretation was unintended and the language has been modified. In 
other respects, however, DOE has retained the B(2) amendment as 
necessary to conform to certain final categorical exclusions (B1.26, 
B1.29, B6.9, and B6.10). As finally revised, B(2) reads as follows: 
``To fit within the classes of actions (in appendix B), a proposal must 
be one that would not . . . 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.''
    <bullet> Proposed Modification to Integral Element B(4)(iii).
    DOE intended to modify this integral element to allow the 
categorical exclusion of actions listed in appendix B despite their 
having an adverse impact on small, low quality wetlands. DOE 
anticipated that activities in such areas would not have a significant 
environmental impact, either individually or cumulatively. While 
several commenters supported the proposed change, others expressed 
concern about the potential cumulative impacts, the institution of a 
threshold size, the meaning of ``covered'' by a general permit, and the 
difference between a ``general'' permit and a ``Nationwide'' permit.
    In consideration of the comments and after consultation with staff 
of the U.S. Army Corps of Engineers (Corps), DOE has revised B(4)(iii) 
to allow the categorical exclusion of actions in wetland areas not 
considered waters of the United States and thus not regulated under the 
Clean Water Act. This includes certain drainage and irrigation ditches, 
artificial lakes and ponds, and borrow pits, as discussed below.
    The Corps generally does not consider the following areas to be 
waters of the United States: (a) Non-tidal drainage and irrigation 
ditches excavated on dry land; (b) artificially irrigated areas which 
would revert to upland if the irrigation ceased (for DOE this would 
include areas ``irrigated'' by leaking pipes, tanks, or ditches); (c) 
artificial lakes or ponds created by excavating and/or diking dry land 
to collect and retain water and which are used exclusively for such 
purposes as stock watering, irrigation, settling basins, or rice 
growing; (d) artificial reflecting or swimming pools or other small 
ornamental bodies of water created by excavating and/or diking dry land 
to retain water for primarily aesthetic reasons; (e) waterfilled 
depressions created in dry land incidental to construction activity and 
pits excavated in dry land for the purpose of obtaining fill, sand, or 
gravel unless and until the construction or excavation operation is 
abandoned and the resulting body of water meets the definition of 
waters of the United States under 33 CFR 328.3(a). See 51 FR 41206, 
41217 (November 13, 1986). The Corps reserves the right, however, on a 
case-by-case basis to determine that a particular water body within 
these categories fits within the definition of waters of the United 
States. The U.S. Environmental Protection Agency (EPA) also has the 
right to determine on a case-by-case basis if any of these areas are 
waters of the United States. Note that some of these areas could become 
waters of the United States and subject to regulation. This may occur 
if the area no longer meets the above criteria, e.g., the area is no 
longer used for the purpose for which it was constructed or is 
abandoned. In such cases, a categorical exclusion could not be applied.
    The wording of B(4)(iii) has been modified from the proposed rule 
as follows: ``Wetlands regulated under the Clean Water Act (33 USC 
1344) and floodplains.''
    <bullet> Proposed Clarification B1.3  Routine maintenance/custodial 
services for buildings, structures, infrastructures, equipment.
    One commenter asked for clarification of ``in kind replacement.'' 
The commenter stated that, with regard to older facilities, certain 
equipment used in the facilities is no longer made or its installation 
at this time would be

[[Page 36229]]

contrary to code or good management practices. The commenter asked if 
replacing equipment in older facilities with modern components is 
considered ``in kind replacement.''
    DOE recognizes that the equipment used in many of its facilities 
cannot be replaced literally ``in kind'' for the reasons the commenter 
states. DOE believes, however, that the description of ``in kind 
replacement'' presented in the proposed clarification for B1.3 (i.e., 
in kind replacement includes installation of new components to replace 
outmoded components if the replacement does not result in a significant 
change in the expected useful life, design capacity, or function of the 
facility) adequately addresses the commenter's request.
    B1.3(n). One commenter suggested that instead of adding additional 
examples of testing and calibration of facility components to B1.3, 
that the word ``maintenance'' be added to B3.1. DOE has chosen to 
address routine maintenance under a separate categorical exclusion 
rather than adding it to other categorical exclusions where it might 
apply.
    B1.3(o). One commenter thought that the term ``routine 
decontamination'' needed additional clarification. DOE uses ``routine'' 
to mean a recurring action that is done easily and is well understood, 
such as wiping with rags, using strippable latex, and minor vacuuming. 
B1.3(o) is intended to categorically exclude contamination-cleanup 
activities of a routine nature.
    <bullet> Proposed Modification B1.13  Construction/acquisition/
relocation of onsite pathways, spur or access roads/railroads.
    DOE proposed to expand existing B1.13 (Acquisition or minor 
relocation of existing access roads serving existing facilities if the 
traffic they are to carry will not change substantially) by adding 
construction and spur roads, pathways and railroads, and by deleting 
the phrase ``serving existing facilities if the traffic they will carry 
will not change substantially.'' One commenter questioned the 
definition of ``spur'' and ``access'' roads. Another commenter 
suggested more restrictive language for B1.13 so that it would be 
applied only in instances to improve safety, and only if the total 
traffic volume would not substantially change. A third commenter 
expressed concern that applying the categorical exclusion could 
eliminate valuable input from natural resource agencies and cause 
potential significant impacts to wildlife, including loss of habitat, 
habitat fragmentation, and degradation of adjacent habitat. Another 
commenter stated that the actions proposed to be categorically excluded 
should be subject to public review.
    In response to the concerns raised by these commenters, DOE has 
made two changes to the proposed modification to B1.13. First, DOE has 
deleted the reference to ``spur roads'' because the term ``access 
roads'' adequately encompasses the intended purpose. Second, DOE has 
revised the categorical exclusion to apply only to the construction of 
``short'' access roads and access railroads. DOE acknowledges that the 
construction of onsite access roads could result in adverse 
environmental impacts. DOE believes, however, that the general 
restrictions on the application of categorical exclusions, particularly 
at Sec. 1021.410 and the integral elements at appendix B, B(1)-B(4), 
will provide adequate safeguards to ensure that this class of actions 
is not applied to activities that could result in significant effects. 
Also, it is DOE's intention that the inclusion of the term ``short'' 
will further clarify the length of access roads and railroads that DOE 
intended to be constructed under this categorical exclusion (i.e., no 
more than a few miles in length). The categorical exclusion B1.13 now 
reads: ``Construction, acquisition, and relocation of onsite pathways 
and short onsite access roads and railroads.'' DOE does not believe 
that actions qualifying under this categorical exclusion warrant public 
review. See Section III.B, above.
    <bullet> Proposed Modification B1.15  Siting/construction/operation 
of support buildings/support structures.
    One commenter suggested that the categorical exclusion be expanded 
to include deactivation and demolition of the same structures. Such 
expansion is not necessary because these activities are included under 
proposed categorical exclusion B1.23.
    Two commenters suggested that the phrase ``but not limited to'' be 
inserted between ``including'' and ``prefabricated buildings and 
trailers.'' DOE has incorporated the suggestion, as well as reversing 
the order of ``prefabricated buildings'' and ``trailers,'' to be 
consistent with B1.22.
    One commenter stated that actions covered by this categorical 
exclusion should be subject to public review. For the reasons stated in 
Section III.B, DOE believes that public review is not appropriate.
    One commenter asked for a definition of an ``already developed 
area,'' a phrase used in the existing regulations. The phrase in the 
proposed B1.15, ``where site utilities and roads are available,'' was 
intended to define the term. For clarification, DOE has modified this 
phrase to read ``where active utilities and currently used roads are 
readily accessible.'' See the discussion of ``already developed area'' 
in Section III.E.
    <bullet> Proposed Clarification B1.23  Demolition/disposal of 
buildings.
    DOE proposed to divide the existing categorical exclusion B1.22 
into two categorical exclusions to clarify that the two actions 
included in the existing class of actions--relocation of buildings 
(proposed B1.22) and demolition and subsequent disposal of buildings, 
equipment, and support structures (proposed B1.23)--are not connected 
actions (i.e., actions that are closely related and therefore needed to 
be considered in the same NEPA review).
    DOE received three comments on B1.23, none of which directly 
related to the proposed clarification. One commenter suggested that the 
categorical exclusion should be applicable to contaminated buildings 
that, after demolition, could be entombed in place. Another commenter 
questioned whether DOE was mandating disposal of construction debris in 
landfills. Apparently, this commenter's concern is based on DOE's 
intended clarification that building relocation actions are separate 
from building demolition and disposal. In any event, DOE is not 
mandating the disposal of construction debris in landfills. The third 
commenter objected to the categorical exclusion on the grounds of 
cumulative effects, connected actions, or extraordinary circumstances. 
DOE has responded to this objection, which was also expressed by other 
commenters in regard to other categorical exclusions, in Section III.F.
    DOE does not intend for proposed categorical exclusion B1.23 to 
apply to in-place entombment of demolished structures. However, this 
categorical exclusion could be applied to the demolition and disposal 
of contaminated structures if releases are controlled or permitted and 
other conditions for application of the categorical exclusion are met.
    <bullet> Proposed B1.24  Transfer of property/residential, 
commercial, industrial use; and
    <bullet> Proposed B1.25  Transfer of property/habitat preservation, 
wildlife management.
    DOE received several comments on these two proposed categorical 
exclusions. One commenter, noting that proposed B1.24 and B1.25 were 
similar, suggested combining them. Based on this comment and other 
comments that expressed concern about the broad scope of the 
categorical exclusions as proposed, DOE has retained both

[[Page 36230]]

categorical exclusions, but changed their wording to clarify DOE's 
intentions for their scopes and the differences between them. 
Categorical exclusion B1.24 as now revised refers to transfer, lease, 
disposition, or acquisition of interests in structures and equipment, 
and only land that is necessary for use of the transferred structures 
and equipment. Proposed B1.25 as revised refers to transfer of 
interests in land for purposes of habitat preservation or wildlife 
management, and only buildings that support those purposes.
    One commenter questioned the meaning of ``uncontaminated.'' DOE has 
added a definition to each of these two proposed categorical exclusions 
that states that ``uncontaminated means 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.'' This 
definition is based on the definition of contaminant in CERCLA 
Sec. 101(33). DOE already has defined ``contaminant'' in Sec. 1021.104 
of its existing NEPA regulations as ``a substance identified within the 
definition of contaminant in Section 101(33) of CERCLA (42 USC 
9601.101(33)).''
    Several commenters questioned the feasibility of making a 
determination about potential releases and impacts that could occur 
after the transfer, as required by the categorical exclusions, without 
some formal environmental analysis (e.g., an environmental assessment). 
With regard to proposed B1.24, one of the commenters questioned how DOE 
would know if contaminant releases increase after transfer, stating 
that private operators, unlike DOE, are under no obligation to provide 
records of types, volumes, and pathways of contaminants released into 
the environment. In applying these two categorical exclusions (as in 
applying any other categorical exclusion), DOE will consider reasonably 
foreseeable circumstances, but will not attempt to speculate on all 
possible circumstances that the future could present. DOE believes that 
it will be able to determine whether a proposed post-transfer use is 
similar enough to the existing use to meet the conditions of the 
categorical exclusion, i.e., no decrease in environmental quality, no 
increased discharges, and generally similar environmental impacts. If 
DOE cannot make these judgments without environmental analysis, DOE 
will prepare at least an environmental assessment.
    One commenter stated that the proposed categorical exclusion B1.24 
was a positive step, but thought DOE had unduly limited its 
application. Another commenter stated that proposed categorical 
exclusion B1.24 was an improvement in that property transfers that 
could be categorically excluded would not be limited to those where use 
remains the same. This commenter wanted to expand the proposed 
categorical exclusion B1.24 to include transfers to other Federal 
agencies without restrictions on environmental parameters, because 
other Federal agencies must conduct their own NEPA review for future 
uses of the property. DOE believes that it must conduct the proper 
level of NEPA review for its actions, and that a NEPA review for the 
transfer, lease, disposition, or acquisition of property must consider 
reasonably foreseeable uses and conditions of those uses, regardless of 
whether the transfer would be to another Federal agency.
    Two commenters expressed concern about eliminating community 
involvement in DOE's decisions about future land use. One commenter 
stated that the transfer of potentially contaminated land without 
environmental analysis would be inconsistent with DOE's openness 
policy. DOE does not intend to categorically exclude the transfer of 
contaminated property. However, DOE recognizes that in listing these 
classes of actions as categorical exclusions, the sharing of public 
information will be diminished in some instances, as discussed in 
Section III.B.
    One commenter questioned whether categorical exclusion B1.24 would 
apply to a facility that had been idle (and thus not discharging any 
pollutants into the environment), allowing the facility to resume 
operations and resulting in pollutant discharges. If the facility to be 
transferred has not been in operation and transfer of the facility 
would result in the resumption of operation, then greater environmental 
discharges would result, making this proposed activity ineligible for 
this categorical exclusion.
    With regard to proposed B1.25, one commenter suggested that the 
preamble was unclear because the categorical exclusion deals with the 
transfer, lease, and disposition of habitat lands and not a change to 
the habitat. The commenter also stated that a habitat improvement that 
supported the existing species of plants and animals, although a 
change, would not have the potential for significant impact and 
therefore could be categorically excluded.
    There are three categorical exclusions related to the transfer of 
property: A7, where the use will remain the same; B1.24, where the use 
may change but the environmental impacts are similar; and B1.25, where 
the use will be habitat preservation or wildlife management. Small-
scale improvements to fish and wildlife habitat are included under 
existing categorical exclusion B1.20. A large-scale habitat improvement 
project may have significant environmental effects, albeit beneficial, 
and would not be categorically excluded.
    A commenter suggested that DOE should not assume that significant 
environmental and socioeconomic impacts will not result from the 
transfer of uncontaminated lands for habitat preservation and wildlife 
management, because DOE cannot reasonably predict the types of uses 
that private interests, conservation groups, or local and state 
agencies might allow for these lands. DOE agrees that it cannot project 
with certainty all future activities that might be allowed on any land 
that it transfers, leases, or disposes. However, categorical exclusion 
B1.25 is intended for application in those cases where the 
circumstances of the property transaction create a reasonable 
expectation that the property will be used for habitat preservation and 
wildlife management for the reasonably foreseeable future.
    <bullet> Proposed B1.26 Siting/construction/operation/
decommissioning of small water treatment facilities, generally less 
than 250,000 gallons per day capacity.
    Several commenters recommended that DOE not categorically exclude 
water treatment facilities that would involve highly toxic substances, 
regardless of the limited rate at which water could be processed. Some 
commenters stated that the 250,000 gallon criterion was not necessarily 
the relevant factor regarding environmental impacts. The commenters 
also expressed concern that cumulatively significant effects would 
occur from repeated applications of this proposed categorical 
exclusion. DOE believes that the adverse environmental effects of 
concern to many of the commenters are highly unlikely. DOE chose to 
categorically exclude treatment facilities with less than about 250,000 
gallons capacity because such small plants have little potential for 
significant impacts, especially in light of the safeguards afforded by 
the integral elements. For example, a DOE categorical exclusion may not 
be applied where the proposed action could adversely affect an 
environmentally sensitive resource (10 CFR part 1021, subpart D, 
appendix B, B(4)). Regarding cumulative effects, appendix B listings 
are not applicable to a proposed action that is connected to other 
actions with potentially significant impacts or related to other

[[Page 36231]]

proposed actions with cumulatively significant impacts (10 CFR 
1021.410(b)(3)). Nevertheless, DOE has modified the proposal as one 
commenter suggested, so that, in addition to small potable water and 
sewer facilities, only those small wastewater and surface water 
treatment facilities whose liquid discharges are subject to external 
regulation would be categorically excluded. See also the discussion 
regarding the use of the word ``generally'' and numerical values in 
Section III.B.
    <bullet> Proposed B1.27  Facility deactivation.
    One commenter expressed concern that the categorical exclusion 
would apply to any facility and that deactivation is not clearly 
defined. The commenter suggested that if DOE intended the categorical 
exclusion to apply only to the disconnection of utilities, then it 
should be rewritten as: ``The disconnection of utilities such as water, 
steam, telecommunications, and electrical power after it has been 
determined that the continued operation of these systems is not needed 
for safety.'' DOE agrees and has rewritten the categorical exclusion as 
suggested. The term deactivation is no longer included in the 
categorical exclusion.
    Another commenter suggested that the categorical exclusion be 
clarified to include provisions for partial disconnections and utility 
modifications where equipment may be required to remain operational at 
a reduced level. DOE believes that this categorical exclusion 
encompasses such disconnections and modifications.
    One commenter stated that the risk posed by surplus facilities 
varies greatly and that DOE should be cautious in presuming NEPA 
documentation is not required. DOE agrees that the risks posed by 
particular facilities can vary, but believes that merely disconnecting 
the utilities of such facilities will not cause significant 
environmental impacts.
    Another commenter questioned whether DOE intended to deactivate 
nuclear electrical utility facilities under this categorical exclusion, 
and suggested that such activities would require consultation and 
cooperation with other state and federal agencies and full public 
notice and participation. The proposed categorical exclusion would 
apply only to DOE facilities and not to the commercial nuclear power 
industry or other commercial powerplants.
    <bullet> Proposed B1.28  Minor activities to place a facility in an 
environmentally safe condition, no proposed uses.
    Several commenters questioned the scope of the categorical 
exclusion and generally expressed concern with the use of the word 
``minor.'' Several commenters suggested that DOE more narrowly define 
what it intended to cover in this categorical exclusion (e.g., the 
meaning of ``adequate treatment, storage, or disposal facilities'' and 
``no proposed use''). Other commenters stated that such activities 
could be carried out on a large scale at a particular site and that 
there could be cumulative impacts associated with waste management 
activities.
    As discussed in Section III.E, DOE believes that the word ``minor'' 
is useful in describing the types of activities contemplated by the 
categorical exclusion, particularly when combined with examples and 
exclusions. DOE intends this categorical exclusion to apply to 
activities needed to place a surplus facility (one that will no longer 
be used by DOE for any purpose, including storage) in an 
environmentally safe condition, where there are existing treatment, 
storage, or disposal facilities with existing capacity to manage the 
resulting waste (including low-level radioactive waste). These 
activities include the final defueling of a reactor, as stated in the 
example in the proposed rule. DOE emphasizes that this categorical 
exclusion, like all other categorical exclusions, may not be applied in 
situations involving extraordinary circumstances (such as uncertain 
effects or effects involving unique or unknown risks) or where the 
proposal is connected to other actions with potentially significant 
impacts (see Sec. 1021.410(b) (2) and (3)). Thus, if a proposal 
involved a mode of decontamination with potentially significant 
environmental effects or if it posed serious potential risks to 
workers, the public, or the environment, then the proposed activity 
would not be eligible for a categorical exclusion. DOE believes that 
the language of the proposed categorical exclusion, together with the 
general restrictions on the application of categorical exclusions, 
particularly at Sec. 1021.410 and the integral elements at appendix B, 
B(1)-B(4), provide adequate safeguards to ensure that this categorical 
exclusion is not applied to activities that could result in significant 
environmental effects.
    One commenter asked that the relationship of this categorical 
exclusion to CERCLA and the Resource Conservation and Recovery Act 
(RCRA) procedures be clarified. DOE's CERCLA/NEPA policy is discussed 
in Section III.B. Although DOE's RCRA procedures are outside the scope 
of this rulemaking, DOE notes that its application of this categorical 
exclusion would have no effect on its compliance with RCRA.
    Another commenter recommended that the categorical exclusion be 
broadened to include removal of contaminated equipment, material, and 
waste and include activities such as size reduction and placement of 
wastes in storage containers if done in the same building. DOE intends 
the categorical exclusion, as proposed, to include these activities.
    <bullet> Proposed B1.29  Siting/construction/operation/
decommissioning of onsite disposal facility for construction and 
demolition waste.
    Several commenters objected to this categorical exclusion. One 
commenter expressed concern that new disposal facilities for 
construction and demolition waste could be sited and constructed in 
environmentally sensitive areas, such as priority shrub steppe habitat, 
with adverse impacts on wildlife. This commenter also expressed concern 
about cumulative impacts from multiple facilities. DOE believes that 
integral element B(4), which states that an action proposed for 
categorical exclusion must not adversely affect environmentally 
sensitive areas, would preclude use of the proposed categorical 
exclusion for construction of disposal facilities in priority shrub 
steppe habitat. Also, under Sec. 1021.410(b)(3) of its NEPA 
implementing regulations, DOE may not categorically exclude a proposed 
action that may be connected to other actions with potentially 
significant impacts, or related to other proposed actions with 
cumulatively significant impacts.
    Another commenter expressed concern that a 10-acre disposal 
facility could pose major health and safety risks to workers and 
members of the public in adjacent communities, noting in particular the 
potential for adverse impacts on air quality. By limiting this 
categorical exclusion to disposal of uncontaminated materials, DOE 
believes there would be no harmful releases of contaminants and no 
increased health impact to workers or the nearby public. DOE has 
revised the language in this categorical exclusion in the final 
amendments by inserting the phrase ``which would not release substances 
at a level, or in a form, that would pose a threat to public health or 
the environment'' to explain the term ``uncontaminated.'' This new 
language corresponds to the definition of ``contaminant'' in DOE's NEPA 
regulations, which in turn is based on CERCLA Sec. 101(33). In 
addition, DOE employs standard industrial practices, such as water 
spraying to control dust, in operating any of its facilities, and DOE 
believes that any particulate

[[Page 36232]]

emissions would be adequately controlled to protect workers and the 
public. To correspond to other changes in the final amendments, DOE has 
changed the phrase ``generally less than 10 acres in area,'' to ``less 
than approximately 10 acres.'' See also the discussion in Section 
III.E.
    Another commenter stated that the scope of the categorical 
exclusion was so broad that the host community, state and local 
officials, and interested citizens could be excluded from participating 
in decisions that may have significant environmental and socioeconomic 
impacts. DOE believes that this class of actions normally does not have 
potential for significant impacts and has decided to list it as a 
categorical exclusion in the final amendments. See also the discussion 
of public involvement and information sharing opportunities in Section 
III.B.
    One commenter requested that the proposed categorical exclusion be 
expanded to include on-site disposal facilities for all uncontaminated 
waste, including office and cafeteria waste. This comment is outside 
the scope of this rulemaking, but DOE may consider the suggestion in a 
future rulemaking.
    <bullet> Proposed B1.30  Transfer actions.
    Several commenters objected to this proposed categorical exclusion 
as too broad and open ended, some noting potential for adverse impacts. 
Some commenters requested that it be deleted; others requested that 
limits be provided on the quantity and types of materials and wastes 
that could be transported. Other commenters sought additional 
clarification.
    In contrast, two commenters stated that the proposed categorical 
exclusion was too limited in scope and suggested broadening the 
categorical exclusion to include routine transportation of materials, 
equipment, and wastes that are managed in accordance with regulatory 
requirements. One of these commenters noted DOE's statement in the 
preamble to the proposed rulemaking that ``transportation activities 
under DOE's standard practices pose no potential for significant 
impacts.''
    All DOE proposed actions must comply with applicable regulatory 
requirements, although some actions nevertheless may have significant 
impacts. DOE will continue to include analysis of transportation 
impacts in environmental assessments and environmental impact 
statements where the scope of the proposed actions presents potential 
for significant impact.
    DOE has revised the language of the categorical exclusion to 
characterize the amount of materials, equipment, or waste to be 
transferred as ``small'' in addition to being incidental to the amount 
at the receiving site. This revision addresses the concerns expressed 
by several commenters that DOE had proposed to limit the amount of 
material or waste that could be transported, not by the impacts that 
might occur by transport of the material or waste, but by the amount of 
material or waste at the receiving site.
    One of these commenters stated that the proposed categorical 
exclusion could be applied to the transport of thousands of containers 
of materials or waste to a site that had yet larger amounts. Another 
commenter stated that the baseline for determining the amount of waste 
or material that could be received at a site, under the proposed 
categorical exclusion, would continually increase as waste or materials 
were transferred to the site. The revision reinforces DOE's intention 
that use of the categorical exclusion should not add significantly to 
what may already be significant amounts of waste or materials at a 
site.
    Several commenters stated that transportation of radioactive 
materials and waste is likely to be a key or controversial issue to 
local communities. One commenter stated that unscheduled transportation 
of waste would generate considerable community interest, and another 
expressed concern that the host community, state and local officials, 
and interested citizens could be excluded from participating in 
decisions that may result in significant environmental and 
socioeconomic impacts. DOE believes that this class of actions normally 
does not have potential for significant impacts and has decided to list 
it, as revised, as a categorical exclusion in the final amendment. See 
also the discussion of public involvement opportunities in Section 
III.B.
    One commenter suggested that the proposed categorical exclusion 
would be more appropriately placed as a clarifying statement elsewhere 
in the regulations, to note that transportation may be an implicit part 
of any action that is eligible for a categorical exclusion or to 
require, as an integral element of any categorical exclusion, that 
transportation be conducted in accordance with applicable regulatory 
requirements. Other commenters stated that transportation is a 
connected activity and should not be considered independently.
    DOE's NEPA regulations currently state that a categorically 
excluded class of actions includes activities foreseeably necessary to 
proposals encompassed within the class of actions and provides 
``associated transportation activities'' as one of two examples 
(Sec. 1021.410(d)). Categorical exclusion B1.30, however, applies to 
transfer actions where the predominant activity is transportation.
    DOE's existing NEPA regulations (appendix B(1)) also contain an 
integral element for categorical exclusions requiring that, in order to 
be categorically excluded, an action not threaten a violation of 
applicable statutory, regulatory, or permit requirements for 
environment, safety, and health, including requirements of DOE orders.
    One commenter asked DOE to clarify whether this categorical 
exclusion could be applied to the transfer of waste from a DOE site to 
an offsite, non-DOE facility that treats that type of waste. DOE 
believes that B1.30 does cover these types of transfer actions, as long 
as all the conditions of the categorical exclusion, including the 
integral elements, are satisfied and there are no extraordinary 
circumstances.
    <bullet> Proposed B1.32  Restoration, creation, or enhancement of 
small wetlands.
    One commenter supported DOE's strategy, stated in the preamble to 
the proposed rule, to coordinate activities in wetlands with state and 
federal agencies to assure compliance with other land use plans. The 
commenter suggested that wetland creation should address the impacts of 
attracting migratory wildlife, especially types of wildlife that are 
likely to be hunted for human consumption. Other commenters questioned 
how the terms ``small'' and ``large'' were defined and how size would 
be used to determine whether wetland restoration, creation, or 
enhancement would have significant impacts. Other commenters stated 
that this categorical exclusion should include compliance with all 
appropriate Federal environmental laws and regulations and that DOE 
should consider limiting the number of such projects to reduce the 
potential for cumulative adverse impacts.
    DOE has reconsidered its proposal to categorically exclude 
restoration, creation, or enhancement of a small wetland. Actions 
typically taken by DOE to restore, enhance, or create a wetland 
normally would be performed as mitigation to compensate for loss or 
degradation of other wetlands as a result of a DOE proposed action. As 
such, wetland mitigation is not a separate or distinct action and 
should be considered as an integral part of the proposed action. 
Further, in those rare situations where DOE would undertake specific 
actions to restore, enhance, or create wetlands (e.g., development of

[[Page 36233]]

wetlands as part of wetland banking), the existing class of actions C9, 
which normally requires preparation of an environmental assessment, 
provides opportunity for other agency and public review and input into 
decisions regarding how the action should be undertaken. Accordingly, 
DOE is withdrawing its proposal to categorically exclude restoration, 
creation, or enhancement of a small wetland, as well as its proposal to 
make a conforming language change in C9.
    <bullet> Proposed B1.33 (Final B1.32).  Traffic flow adjustments, 
existing roads.
    One commenter questioned whether DOE would extend the categorical 
exclusion to include road adjustments. This categorical exclusion is 
limited to DOE sites and applies only to adjustments of traffic flow, 
such as installation of traffic signs, signal lights, and turning 
lanes. It does not apply to general road adjustments, such as road 
widening and realignment. In order to clarify this point, DOE has 
modified this categorical exclusion to include turning lanes as an 
example of a categorically excluded action, and to specifically exclude 
general road adjustments.
    The commenter also stated that increased traffic flow could result 
in increased risk of exposure to the public. DOE believes traffic flow 
adjustments could not, by their nature, alter traffic patterns in such 
a manner as to produce significantly increased public exposures. In 
response to a comment that commercial trucking terminals should be 
excluded, DOE notes that it does not operate commercial trucking 
terminals.
    One commenter suggested adding this activity to B1.3 on routine 
maintenance. DOE does not consider traffic flow adjustments to 
constitute routine maintenance.
    <bullet> Proposed B2.6  Packaging/transportation/storage of 
radioactive sources upon request by the Nuclear Regulatory Commission 
or other cognizant agency.
    In response to several comments, DOE has clarified that ``other 
cognizant agency'' would include a state that regulates radioactive 
materials under an agreement with the Nuclear Regulatory Commission 
(Commission). In addition, DOE intends to include other agencies that 
may, under perhaps unusual circumstances, have responsibilities 
regarding the materials that are included in the categorical exclusion.
    One commenter expressed concern that this categorical exclusion 
could apply to a wide variety of actions that private parties might 
conduct. DOE's NEPA implementing procedures, however, apply only to 
actions that DOE would conduct.
    Another commenter expressed concern about cumulative effects from 
applying this categorical exclusion repeatedly. Because DOE is 
requested to perform the actions covered under B2.6 only occasionally--
e.g., when a Commission licensee cannot or will not safely manage the 
material--DOE does not expect these activities to have significant 
cumulative effects. This commenter also stated that the justification 
for one of the examples cited in the proposed categorical exclusion--
``packaged radioactive waste not exceeding 50 curies''--was not 
apparent and undefined as to impact. DOE possesses all the skills and 
equipment required to handle, transport, and store such materials 
safely, and would be involved in such activities only occasionally. 
Moreover, the Commission has found that its licensees normally possess 
and manage such materials without significant impacts. For these 
reasons, DOE believes it is appropriate to categorically exclude its 
activities regarding all of the materials the Commission has listed in 
10 CFR 51.22(14).
    Finally, a commenter suggested that DOE should apply the 
categorical exclusion to packaging, transportation, and storage of 
DOE's own radioactive materials that are the same kind as listed in the 
Commission's categorical exclusion. DOE is taking this suggestion under 
advisement and may consider it in a future rulemaking.
    <bullet> Proposed Modification B3.6  Siting/construction/operation/
decommissioning of facilities for bench-scale research, conventional 
laboratory operations, small-scale research and development and pilot 
projects.
    DOE proposed to modify B3.6 (indoor bench-scale research projects) 
by combining it with B3.10 (small-scale research and development 
projects and small-scale pilot projects) and to include the siting, 
construction, operation, and decommissioning of facilities to house 
such projects. DOE also proposed to delete the descriptive phrase ``for 
generally less than two years'' in reference to the length of time a 
categorically excluded pilot project typically could be conducted.
    One commenter stated that this categorical exclusion as proposed 
may be susceptible to abuse, e.g., by permitting a pilot project to 
evolve into a full-scale operation without public environmental review. 
DOE believes that this example would be a misapplication of the 
categorical exclusion. To clarify the meaning of ``pilot project,'' DOE 
is inserting the descriptive phrase ``generally less than two years.'' 
Thus, as revised, the only modification DOE is making to the existing 
categorical exclusions is combining B3.6 and B3.10, and expanding the 
combined categorical exclusion to include the siting, construction, 
operation, and decommissioning of facilities that would house the 
indoor bench-scale research, conventional laboratory operations, small-
scale research and development, and small-scale pilot projects. DOE 
received no comments on these aspects of the proposed modification.
    Several commenters questioned the definition of ``small-scale'' and 
``pilot projects.'' One commenter questioned whether ``bench-scale'' 
includes the use of large pieces of equipment. The meaning of these 
terms is not changing from the existing regulations. DOE notes, 
however, that scale refers to the magnitude of the activity, e.g., the 
amount of materials consumed, waste produced, air emissions, and 
effluents. Further, the size of the equipment would be relevant in this 
context only if it affected the input of material and output of waste, 
so as to produce potentially significant physical impacts. See also the 
discussion of ``small-scale'' in Section III.E.
    Another commenter expressed concern that the nature of research 
activities could involve new and untried processes. If a proposed 
research action had the potential to involve unique or unknown risks, 
then it would trigger the ``extraordinary circumstances'' provision in 
Sec. 1021.410(b)(2), and thus would not be eligible for a categorical 
exclusion.
    One commenter stated that there is an apparent conflict between 
B3.6 and C12. DOE notes that B3.6 specifically covers ``small-scale 
pilot projects (generally less than two years),'' constructed in an 
already developed area. C12, however, refers to larger scale, longer 
term projects that are not restricted to an already developed area. DOE 
is adding a specific reference to C12 in B3.6 to call attention to the 
differences between them.
    <bullet> Proposed B3.10  Siting/construction/operation/ 
decommissioning of particle accelerators, including electron beam 
accelerators, primary beam energy generally less than 100 MeV.
    Two commenters recommended that DOE remove the word ``generally'' 
from the phrase ``generally less than 100 MeV,'' stating that the 
proposed language would permit categorically excluding much higher 
energy machines than 100 MeV (million electron-volts).

[[Page 36234]]

DOE has restated the condition to read ``less than approximately 100 
MeV,'' which better reflects DOE's intention and addresses the 
commenters' concerns. See also the discussion in Section III.E.
    Another commenter welcomed the proposed amendment and recommended 
adding to this proposed categorical exclusion ``maintenance and 
remedial actions [involving particle and electron beam accelerators] 
which have the incidental effect of improving machine performance 
within design criteria.'' DOE intends that the language of B3.10, as 
proposed, covers such actions as long as there is no increase in 
primary beam energy or current.
    Finally, a commenter requested that the proposed categorical 
exclusion be restated in terms that relate to impacts such as land 
requirements and radioactive emissions rather than beam energy (i.e., 
100 MeV) as proposed, stating that the proposed formulation would not 
be very meaningful to the public. Accelerators fitting this class of 
actions typically are room-size and often are installed in existing 
buildings at hospitals and universities. On the basis of its 
experience, the language of this proposed amendment, and the general 
restrictions on the application for categorical exclusions, 
particularly at Sec. 1021.410 and the integral elements at appendix B, 
B(1)-B(4), DOE believes that the covered actions will not present any 
significant land use or radiation effects issues.
    <bullet> Proposed B3.12  Siting/construction/operation/
decommissioning of microbiological and biomedical facilities.
    Several commenters expressed concern about the potential 
environmental, health, and socioeconomic impacts of microbiological and 
biomedical facilities and the lack of opportunity for public 
involvement. One commenter sought clarification regarding DOE's 
statement in the preamble to the proposed rulemaking that these 
facilities generally do not handle ``extremely dangerous materials.'' 
Another commenter urged DOE not to categorically exclude laboratories 
that are rated Biosafety Level 1 through 4.
    All microbiological laboratories are rated Biosafety Level 1 
through 4. Level 1 handles the least dangerous agents. To clarify what 
is intended by Biosafety Levels 1 and 2, the following definitions were 
extracted from Biosafety in Microbiological and Biomedical 
Laboratories, 3rd Edition, May 1993, U.S. Department of Health and 
Human Services Public Health Service, Centers for Disease Control and 
Prevention, and the National Institutes of Health: Publication No. 
(CDC) 93-8395. Biosafety Level 1 is assigned to facilities in which 
work is done with defined and characterized strains of viable 
microorganisms not known to cause disease in healthy adult humans 
(e.g., Bacillus subtilis, Naeleria gruberi, and infectious canine 
hepatitis). This designation represents a basic level of containment 
that relies on standard microbiological practices with no special 
primary or secondary barriers recommended, other than a sink for 
handwashing. Biosafety Level 2 is assigned to facilities in which work 
is done with the broad spectrum of indigenous moderate-risk agents 
present in the community and associated with human disease of varying 
severity (e.g., Hepatitis B virus, salmonellae and Toxoplasma spp.). 
This designation requires the use of splash shields, face protection, 
gowns and gloves, as appropriate, and the availability of secondary 
barriers such as handwashing facilities and laboratory waste 
decontamination facilities. Given these controls, DOE believes that it 
is appropriate to categorically exclude Biosafety Level 1 and 2 
laboratories from further NEPA review, provided that all of the 
integral elements of a categorical exclusion (appendix B, B(1)-B(4)) 
are met.
    Another commenter asked for a clarification of ``an already 
developed area.'' In particular, this commenter asked if it referred to 
a metropolitan area, residential area, commercially developed area, or 
existing biomedical facility. As discussed previously, ``an already 
developed area'' refers to an area ``where active utilities and 
currently used roads are readily accessible.'' DOE has clarified the 
categorical exclusion accordingly. Facilities that would be eligible 
for this categorical exclusion could be sited in a metropolitan, 
residential, or commercially developed area or in an existing 
biomedical facility, as long as the area is already developed.
    <bullet> Proposed B3.13  Magnetic fusion experiments, no tritium 
fuel use.
    A commenter asked whether DOE intends to conduct new magnetic 
fusion experiments at existing facilities under this proposed 
categorical exclusion, and indicated that an environmental assessment 
or environmental impact statement is required to protect the public and 
worker health and safety in light of impacts from exposure to 
electromagnetic fields. DOE intends to categorically exclude such 
experiments at existing facilities. Based on its experience with such 
activities, DOE believes that magnetic fusion experiments do not pose 
an electromagnetic field or other hazard to the public. DOE routinely 
provides workers with adequate training and controlled conditions to 
conduct such work safely.
    <bullet> Proposed Modification B5.3  Modification (not expansion)/ 
abandonment of oil storage access/brine injection/gas/geothermal wells, 
not part of site closure.
    DOE proposed to add gas wells to this categorical exclusion, and 
one commenter stated that DOE should consider possible risks to public 
health and safety before doing so. This categorical exclusion applies 
only to the modification (e.g., installation of different chokes and 
other wellhead equipment) or abandonment of existing wells and does not 
include workover (see proposed B5.12) or expansion. Therefore, the 
inclusion of gas will not result in any significant impacts.
    <bullet> Proposed Modification B5.5  Construction/operation of 
short crude oil/gas/steam/geothermal pipeline segments.
    DOE proposed to add natural gas and steam pipelines and to remove 
references to the specific existing facilities to which the pipelines 
would be connected. One commenter expressed concern about the end point 
facilities of the pipeline segments and how such facilities would 
affect the impacts. The commenter stated that connecting pipeline 
segments without regard to the impacts of the end point facilities is 
comparable to approval of a sewer pipe without knowledge of the 
discharge point. DOE notes that this categorical exclusion applies to 
the construction and operation of short segments of pipelines between 
existing DOE facilities and existing transportation, storage, or 
refining facilities within a single industrial complex and within 
existing rights-of-way. Because both end points must be existing 
facilities, DOE believes that the potential impacts of constructing and 
operating short pipeline segments between such facilities do not depend 
on the type of facility and will not cause significant environmental 
impacts. There would be no discharges to the environment from these 
pipelines.
    <bullet> Proposed Clarification B5.9.  Temporary exemption for any 
electric powerplant;
    <bullet> Proposed Clarification B5.10  Certain permanent exemptions 
for any existing electric powerplant;
    <bullet> Proposed Clarification B5.11  Permanent exemption for 
mixed natural gas and petroleum;

[[Page 36235]]

    <bullet> Proposed Modification (Removal) B5.12  Permanent exemption 
for new peakload powerplant;
    <bullet> Proposed Modification (Removal) B5.13  Permanent exemption 
for emergency operations;
    <bullet> Proposed Modification (Removal) B5.14  Permanent exemption 
for meeting scheduled equipment outages;
    <bullet> Proposed Modification (Removal) B5.15  Permanent exemption 
due to lack of alternative fuel supply; and
    <bullet> Proposed Modification (Removal) B5.16  Permanent exemption 
for new cogeneration powerplant.
    DOE proposed to clarify or modify (i.e., remove) these categorical 
exclusions because they involve the grant or denial by DOE of certain 
exemptions under the Power Plant and Industrial Fuel Use Act of 1978 
(PIFUA), which was amended by Congress and now applies only to base 
load power plants. It no longer applies to other types of power plants 
or to major fuel-burning installations. Some commenters opposed the 
retention of B5.9, B5.10, and B5.11 in their modified state on the 
basis that they appear to exempt multiple actions from an environmental 
assessment or environmental impact statement under the guise of energy 
conservation or expressed concerns about cumulative impacts, connected 
actions, or extraordinary circumstances. DOE believes that the original 
rationale for these categorical exclusions, based on experience with 
actual cases, remains valid and thus believes that they should be 
retained for situations where the law provides for exemptions (i.e., 
base load power plants). Another commenter expressed concern regarding 
the proposed removal of existing B5.12 through B5.16. While DOE 
acknowledges this concern, it is nonetheless appropriate for DOE to 
conform its NEPA regulations to changes in the law. These categorical 
exclusions are being clarified or removed from appendix B because under 
PIFUA, as amended, DOE no longer has authority to grant or deny PIFUA 
exemptions except in cases involving base load power plants.
    <bullet> Proposed B5.12  Workover of existing oil/gas/geothermal 
well.
    DOE proposed a new categorical exclusion covering the workover of 
existing oil, gas, or geothermal wells on existing wellpads where the 
work ``would not disturb adjacent habitat.'' One commenter requested 
that the word ``endanger'' be included in the proposed categorical 
exclusion. DOE believes that the words ``disturb'' and ``endanger'' are 
both subject to various interpretations. DOE is therefore modifying the 
categorical exclusion to use instead ``adversely affect,'' which 
reflects DOE's original intent and is consistent with language 
elsewhere in the DOE NEPA rule.
    <bullet> Proposed Modification B6.1  Small-scale, short-term 
cleanup actions under RCRA, Atomic Energy Act, or other authorities.
    DOE proposed to change the way in which it defines the scope of the 
categorical exclusion from ``removal actions under CERCLA * * * and 
removal-type actions similar in scope'' to ``small-scale, short-term 
cleanup actions under RCRA, the Atomic Energy Act, or other 
authorities'' without naming CERCLA. This proposal reflects DOE's 
policy (see Section III.B) of relying on the CERCLA process for review 
of actions to be taken under CERCLA. DOE believes that the reference in 
the current regulations to CERCLA removal actions is confusing in the 
context of this policy. DOE also proposed to expand the limits of the 
categorical exclusion to actions generally costing up to $5 million 
over as many as 5 years.
    One commenter supported the modification to clarify application to 
RCRA cleanup actions and to increase the cost and time limitations. 
Another commenter stated that DOE should integrate the CERCLA and NEPA 
processes. As discussed in Section III.B, DOE's CERCLA/NEPA policy 
allows for case-by-case integration of the CERCLA and NEPA processes. 
Therefore, although CERCLA is not referenced in the new categorical 
exclusion, DOE may apply categorical exclusion B6.1 to certain CERCLA 
actions. DOE has not changed its proposed modification to the 
categorical exclusion based on this comment.
    This commenter also requested that DOE retain the time and cost 
limits in the existing categorical exclusion (i.e., the CERCLA 
regulatory cost and time limits of $2 million and 12 months), but 
requested that if DOE does expand the limits to $5 million and 5 years 
as proposed, the language of the categorical exclusion should read 
``expand the limits to'' and that the categorical exclusion's limits be 
stated as maximum cut off points. As discussed in Section III.E, DOE's 
use of numerical quantities are intended to provide a reasonable degree 
of flexibility and should not be applied as absolute limits. DOE has 
retained the proposed cost and time factors in the final categorical 
exclusion.
    Another commenter stated that the applicability of a categorical 
exclusion to an action should be based on the site-specific conditions 
of the action, not on its cost or duration. The cost and time 
descriptions in the proposed categorical exclusion are simply 
indicators of the size and type of actions DOE intends to categorically 
exclude, not definitions of the actions themselves. Categorical 
exclusions listed in appendix B include integral elements that are site 
specific, and categorical exclusions will be applied based on site-
specific factors, such as the existence of any extraordinary 
circumstances, rather than on the cost or duration of the action.
    One commenter expressed concern that the use of terms ``small-
scale,'' ``short-term,'' and ``generally'' are too subjective. The use 
of such descriptive terms is discussed in Section III.E.
    One commenter requested that DOE state in example B6.1(b) that it 
would use the definition of hazardous waste from whichever regulatory 
agency (e.g., EPA or a state agency) provided the more protective 
definition for purposes of protecting public health and safety, or had 
greater authority to regulate hazardous waste. DOE proposed to revise 
the example to reflect the fact that hazardous waste is defined under 
one of two possible regulatory authorities, either 40 CFR Part 261 or 
applicable state requirements, depending on whether EPA or a state 
exercises primary regulatory authority. DOE does not have a choice as 
to which definition it must abide by. DOE is retaining the proposed 
language in the final categorical exclusion.
    This commenter also stated that DOE did not specifically exempt 
high-level radioactive waste, transuranic waste, spent nuclear fuel, 
waste from reprocessing spent nuclear fuel, and uranium mill tailings 
in its language pertaining to waste cleanup and storage and requested 
clarification on the scope of the categorical exclusions in this 
regard. DOE agrees that it should clarify the scope of the categorical 
exclusion and has added the phrase ``other than high-level radioactive 
waste and spent nuclear fuel'' to the categorical exclusion. DOE 
believes that it can appropriately apply the categorical exclusion to 
cleanup activities involving transuranic waste and uranium mill 
tailings.
    This commenter also expressed concern that this categorical 
exclusion allowed more discretionary authority to DOE for its waste 
management actions with less public notification, involvement, and 
accountability. DOE's response to comments relating to the reduction of 
public involvement opportunities is in Section III.B.
    See also the discussion of categorical exclusion B6.9 for a 
modification of example B6.1(g).

[[Page 36236]]

    <bullet> Proposed Modification (Removal) B6.4  Siting/construction/
operation/ decommissioning of facility for storing packaged hazardous 
waste for 90 days or less.
    DOE proposed to replace the existing B6.4, which covers a very 
narrow class of waste storage actions, with a new and broader B6.4 that 
would have encompassed the activities to which the existing B6.4 
applies. In response to comments on the proposed new B6.4, however, DOE 
has decided to narrow its scope in such a manner that retaining the 
existing B6.4 is necessary. Therefore, DOE is retaining the existing 
B6.4, and will list a new class of actions covering waste storage 
facilities (i.e., a ``reduced-scope'' version of the proposed B6.4) as 
B6.10. See the further discussion below.
    <bullet> Proposed B6.4 (FinalB6.10)  Siting/construction/operation/
decommissioning of small waste storage facilities (not high-level 
radioactive waste, spent nuclear fuel).
    Several commenters expressed concern that this proposed categorical 
exclusion could apply to actions that individually may have significant 
impacts and especially would have significant cumulative impacts if a 
number of such facilities were built. Commenters also expressed concern 
regarding the location of the facility, type of waste, and the nature 
of the surrounding environment. On the other hand, a commenter who 
supported the proposal suggested that DOE clarify that an unlimited 
number of 50,000 square-foot facilities could be built under the 
categorical exclusion.
    DOE generally agrees with the commenters who stated that the 
proposal was too broad. However, DOE notes that significant new waste-
producing activities and significant transfers of waste among sites are 
subject to NEPA analysis and would not be categorically excluded. 
Provisions for storing such waste would be within the scope of such 
analyses (or reviewed under CERCLA, if the waste would result from 
CERCLA environmental restoration activities), and storage impacts and 
alternatives would be appropriately assessed.
    In light of the comments, DOE has decided to limit the 
applicability of proposed categorical exclusion B6.4 (final B6.10) to 
upgrades or replacement of storage facilities for waste that is already 
present at a DOE site at the time the storage capacity is to be 
provided. Providing new or upgraded storage facilities for existing 
wastes under this categorical exclusion would only improve upon 
previous storage conditions. Further, because the storage changes would 
not be associated with changes in waste type or waste quantity, 
providing new storage facilities or upgrades would not likely have 
cumulatively significant impacts. Storage facilities for newly 
generated waste from ongoing operations would not be categorically 
excluded, and any associated cumulative impacts would be considered in 
an appropriate NEPA analysis.
    Several commenters questioned the basis for DOE's proposal to 
categorically exclude a particular size of storage facility, namely 
approximately 50,000 square feet or less. In recent years DOE has 
evaluated and constructed a variety of new waste storage facilities. 
These are typically uncomplicated light-weight buildings on a concrete 
pad floor that provide open floor storage space for waste packages. 
They are designed, and waste is emplaced, with safety as a priority. 
DOE chose 50,000 square feet as a representative size of such 
facilities, intending not to categorically exclude facilities that 
might be unusually large.
    In response to commenters' objections regarding the word 
``generally'' in the proposed phrase ``generally not to exceed an area 
of 50,000 square feet,'' DOE has changed the phrase to read ``less than 
approximately 50,000 square feet in area,'' which more accurately 
conveys DOE's original intent. See also the discussion in Section 
III.E.
    As proposed, the categorical exclusion would not apply to storage 
of high-level radioactive waste or spent nuclear fuel. Several 
commenters questioned whether the categorical exclusion would apply to 
other types of waste. One commenter suggested that DOE not apply this 
categorical exclusion to transuranic wastes, fissile materials, and all 
other materials for which DOE is largely self-regulating. The commenter 
did not explain why self-regulation would be important to the 
determination at issue, and DOE believes that it is not. DOE has 
concluded, however, that storage facilities for wastes that require 
special precautions to prevent nuclear criticality should not be 
categorically excluded, and DOE is modifying the proposed categorical 
exclusion accordingly. For example, certain transuranic wastes that 
contain fissile materials may pose such concerns.
    Finally, DOE has clarified its original intent to include under 
this categorical exclusion only storage facilities located at DOE 
sites, and also has deleted reference to ``activities connected to site 
operations,'' as commenters requested.
    <bullet> Proposed Clarification B6.5  Siting/construction/
operation/decommissioning of facility for characterizing/sorting 
packaged waste, overpacking waste (not high-level radioactive waste, 
spent nuclear fuel).
    DOE proposed to clarify the existing B6.5 merely by adding cross-
references to B6.4 and B6.6, not to change it substantively. A 
commenter, however, suggested that B6.5 should be expanded to include 
activities in which waste would be unpacked for purposes of 
characterization. DOE considers the comment to be outside the scope of 
this rulemaking, but may consider the suggestion in an appropriate 
future rulemaking.
    <bullet> Proposed B6.9  Small-scale temporary measures to reduce 
migration of contaminated groundwater.
    Several commenters expressed concern that, in effect, this 
categorical exclusion would reduce opportunities for review by other 
agencies and the public, and that it might be applied to actions that 
could have adverse effects on public health and the environment. One 
commenter stated that contamination of groundwater is a potentially 
significant risk to public health and that DOE should not exclude such 
contamination issues from public participation opportunities and NEPA 
documentation requirements. One commenter expressed concern that 
application of this categorical exclusion would eliminate valuable 
input from natural resource agencies regarding effects from actions of 
this type on state-designated priority habitats. A related comment 
expressed concern that actions categorically excluded under B6.9 could 
be detrimental to valuable habitat or cultural resources.
    As noted in the preamble to the proposed rulemaking, DOE has found 
that these actions normally have very local and environmentally 
beneficial effects and pose no potential for significant environmental 
impacts. With regard to potential impacts to sensitive environmental 
resources (such as priority habitat and cultural resources), DOE 
believes that integral condition B(4) in appendix B, which states that 
an action proposed for categorical exclusion must not adversely affect 
environmentally sensitive areas, would preclude use of this categorical 
exclusion when priority habitat and cultural resources may be adversely 
affected. Public involvement opportunities are discussed in Section 
III.B.
    One commenter stated that it was unclear why the proposed 
categorical exclusion was not within the scope of B6.1, an existing 
categorical exclusion for small-scale cleanup actions (see modification 
of B6.1 above). DOE believes that certain groundwater

[[Page 36237]]

cleanup actions could indeed be categorically excluded under B6.1, if 
the proposed actions met the conditions of that categorical exclusion, 
i.e., there were existing facilities to treat the water and the 
proposed activities were to be completed in about 5 years or less. DOE 
believes it is also appropriate, however, to categorically exclude the 
siting, construction, and longer term operation of groundwater 
treatment and containment facilities and therefore proposed a separate 
categorical exclusion (i.e., B6.9) to define and cover those 
activities. DOE intends that the categorical exclusion would include 
mobile pumping and treatment facilities or pumping and treatment 
facilities that might be built and then removed when the action was 
stopped, and DOE used the phrase ``small-scale temporary measure'' to 
characterize these possibilities. DOE has added these facility 
descriptions to the examples in the final categorical exclusion. DOE 
agrees that the example of ``installing underground barriers'' in the 
proposed categorical exclusion is more appropriately considered as an 
action under B6.1. For this reason, DOE is adding ``underground 
barriers'' to the existing example B6.1(g) and is deleting it from 
proposed B6.9.
    Another commenter stated that the meaning of ``small-scale 
temporary measure'' was vague. DOE's use of terms such as ``small-
scale'' is discussed in Section III.E.

Classes of Actions Listed in Appendix C

    <bullet> Proposed Modification (Removal) C1  Major projects.
    One commenter expressed concern that DOE's proposal to remove 
``Major Projects, as designated by DOE Order 4240.1'' from appendix C 
would result in the categorical exclusion of proposed actions currently 
requiring an environmental assessment or environmental impact 
statement.
    The term ``Major Project'' was defined in DOE Order 4240.1, based 
primarily on cost characteristics. DOE no longer uses the term ``Major 
Project,'' and thus the existing C1 is no longer meaningful. 
Accordingly, DOE is removing C1. DOE will continue to prepare 
environmental impact statements, however, for ``major Federal actions 
significantly affecting the quality of the human environment'' as 
required under NEPA Sec. 102(2)(C). Also, although DOE has eliminated 
the designation of ``Major Projects'' from the proposed actions for 
which an environmental assessment would normally be prepared, DOE will 
continue to prepare environmental assessments for the types of proposed 
actions formerly included within the definition of ``Major Projects.''
    <bullet> Proposed Modification C9  Restoration, creation, or 
enhancement of large wetlands.
    DOE originally proposed to amend this category to conform to 
proposed B1.32, i.e., to distinguish NEPA review for large versus small 
wetlands. As noted in the discussion on B1.32, DOE is withdrawing its 
proposal to categorically exclude restoration, creation, or enhancement 
of a small wetland. Similarly, DOE is also withdrawing its proposal to 
make a conforming language change in C9.
    <bullet> Proposed Modification (Removal) C10  Siting/construction/
operation/ decommissioning of synchrotron radiation accelerator 
facility; and
    <bullet> Proposed Modification C11  Siting/construction/operation/
decommissioning of low- or medium-energy particle acceleration facility 
with primary beam energy generally greater than 100 MeV.
    DOE proposed to consolidate the existing C10 and C11 into C11 
(reserving C10), and make the resulting C11 applicable for low to 
medium energy particle accelerators, consistent with the proposed 
categorical exclusion B3.10 for accelerators with energy less than 
approximately 100 MeV. One commenter stated that the existing 
regulations would have required an environmental impact statement under 
existing C1, which covers ``Major Projects,'' and DOE proposed to 
eliminate C1. The commenter is mistaken because ``Major Projects'' 
would normally have required an environmental assessment under C1, not 
an environmental impact statement. As noted above, DOE is removing C1. 
See previous discussion under C1.
    <bullet> Proposed Modification C14  Siting/construction/operation 
of water treatment facilities generally greater than 250,000 gallons 
per day capacity.
    DOE proposed to modify C14 to conform to proposed B1.26. A 
commenter objected to use of the word ``generally'' in both listings. 
DOE has replaced the phrase ``generally exceeding'' with ``greater than 
approximately,'' which reduces the agency's discretion, as the 
commenter requested, conforms with changes to proposed B1.26 discussed 
above, and better expresses DOE's original intent. DOE also revised C14 
to include small wastewater and surface water treatment facilities, 
whose liquid discharges are not subject to external regulation, to 
conform with changes to proposed B1.26 made in response to comments. 
See also the discussion in Section III.E.
    <bullet> Proposed Modification C16  Siting/construction/operation/
decommissioning of large waste storage facilities (not high-level 
radioactive waste, spent nuclear fuel).
    DOE's proposed amendments were intended to clarify the meaning of 
``onsite'' in the existing C16, and to make C16 consistent with 
proposed B6.4 (now final B6.10), under which a subset of small-scale 
actions included in existing C16 would be categorically excluded. DOE 
does not agree with a commenter's statements to the effect that this 
proposal would eliminate public participation for the siting of 
centralized and regional treatment and storage facilities and protect 
its contractors and itself at the expense of the public. DOE provides 
for appropriate public involvement in its environmental assessment 
process. In accordance with another commenter's suggestion, DOE is 
providing clearer direction by replacing the phrase ``generally greater 
than'' with ``greater than approximately,'' which also better expresses 
DOE's original intent. See also the discussion in Section III.E.

Classes of Actions Listed in Appendix D

    <bullet> Proposed Modification D10  Siting/construction/operation/
decommissioning of major treatment, storage, and disposal facilities 
for high-level waste and spent nuclear fuel.
    DOE proposed to amend D10 so that there would be no presumption 
that an EIS would be prepared for siting, constructing, operating, and 
decommissioning of onsite replacement storage facilities or upgrading 
storage facilities for spent nuclear fuel. DOE proposals for these 
types of facilities have varied too widely to support a general 
conclusion that such proposed actions normally require the preparation 
of an environmental impact statement. Thus, under DOE's proposal, 
onsite replacement or upgrade of storage facilities for spent nuclear 
fuel would no longer require the preparation of an environmental impact 
statement; rather, DOE would decide on a case-by-case basis (i.e., 
based on the particular project, site, and circumstances) whether to 
prepare an environmental assessment or an environmental impact 
statement. Contrary to one commenter's presumption, DOE's decision not 
to assign a particular level of NEPA documentation to onsite 
replacement or upgrading of storage facilities for spent nuclear fuel 
would never result in such activities being categorically excluded.
    While one commenter supported the proposed modification, several 
others opposed it. Some commenters stated

[[Page 36238]]

that the use of the term ``major'' in D10 already provided DOE with the 
flexibility to prepare an environmental assessment in certain 
circumstances. In response, DOE notes that the term ``major'' refers to 
the size and/or cost of a particular project, not to whether its 
impacts will be significant. Thus, it is possible to have a large, 
costly DOE project that, because of its location or technical 
characteristics, is not likely to have significant environmental 
effects. In that case (such as replacement or upgrade of a spent 
nuclear fuel storage facility), DOE believes it is more appropriate to 
prepare an environmental assessment. Two commenters expressed concern 
that replacement or upgrade of spent nuclear fuel storage facilities 
could result in expanded spent nuclear fuel storage capacity and that 
existing storage sites may become long-term storage sites in the 
absence of a permanent repository. DOE did not intend to permit 
expanded storage under this exclusion and has modified its proposal to 
add ``where such replacement or upgrade will not result in increased 
storage capacity.'' Whether the storage of spent nuclear fuel may in 
fact become long-term storage is outside the scope of this rulemaking.
    Another commenter stated that D10 must not be replaced by any less 
stringent process for public input and involvement. DOE will prepare 
either an environmental assessment or an environmental impact statement 
for replacement or upgrades of spent nuclear fuel storage facilities, 
depending on the circumstances. DOE provides for public involvement in 
both its environmental assessment and environmental impact statement 
processes.
    Other commenters contended that DOE had proposed that an 
environmental assessment would be applicable for handling high-level 
waste. DOE's proposed modification deals with replacement and upgrades 
of storage facilities for spent nuclear fuel, not high-level waste. 
Under the original D10 and as amended, DOE would normally prepare an 
environmental impact statement for the siting, construction, operation, 
and decommissioning of major treatment, storage, and disposal 
facilities for high-level waste.
    One commenter questioned why replacement or upgrades of high-level 
waste storage facilities are not treated the same as similar facilities 
for spent nuclear fuel, and whether DOE's proposed modification was 
designed to justify the preparation of an environmental assessment for 
a particular spent nuclear fuel facility at the Idaho National 
Engineering Laboratory, rather than an environmental impact statement. 
DOE's approach to formulating typical classes of actions for listing in 
subpart D is described in Section III.E, above. DOE does not formulate 
such classes of actions, or proposed additions and modifications, with 
the intention of securing coverage for a specific future or past action 
under a particular class of actions.

IV. Procedural Review Requirements

A. Environmental Review Under the National Environmental Policy Act

    These amendments to the DOE NEPA rule establish, modify, and 
clarify procedures for considering the environmental effects of DOE 
actions within the Department's decision making process. Implementation 
of this rule will not affect the substantive requirements imposed on 
DOE or on applicants for DOE licenses, permits, and financial 
assistance, and this rule will not result in environmental impacts. 
Therefore, DOE has determined that this rule is covered by the 
categorical exclusion found at paragraph A6 of appendix A to subpart D, 
10 CFR part 1021, which applies to procedural rulemaking. Accordingly, 
neither an environmental impact statement nor an environmental 
assessment is required.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 USC 601 et seq.) requires that an 
agency prepare an initial regulatory flexibility analysis to be 
published at the time the proposed rule is published. This requirement 
does not apply if the agency ``certifies that the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities'' (5 USC 603). The rule modifies existing policies 
and procedural requirements for DOE compliance with NEPA. The rule 
makes no substantive changes to requirements imposed on applicants for 
DOE licenses, permits, financial assistance, and similar actions as 
related to NEPA compliance. Therefore, DOE certifies that the rule will 
not have a ``significant economic impact on a substantial number of 
small entities.''

C. Review Under the Paperwork Reduction Act

    No new information collection or recordkeeping requirements are 
imposed by these amendments. Accordingly, no Office of Management and 
Budget clearance is required under the Paperwork Reduction Act of 1980 
(44 USC 3501 et seq.).

D. Review Under Executive Order 12612

    Executive Order 12612, ``Federalism,'' 52 FR 41685 (October 30, 
1987) requires that regulations be reviewed for Federalism effects on 
the institutional interest of states and local governments, and, if the 
effects are sufficiently substantial, preparation of a Federalism 
assessment is required to assist senior policymakers. These amendments 
will affect Federal NEPA compliance procedures, which are not subject 
to state regulation. The amendments will not have any substantial 
direct effects on states and local governments within the meaning of 
the Executive Order. Therefore, no Federalism assessment is required.

E. Review Under Executive Order 12988

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

F. Review Under Executive Order 12866

    The final amendments were reviewed in accordance with Executive 
Order

[[Page 36239]]

12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 
1993), which requires a Federal agency to prepare a regulatory 
assessment, including the potential costs and benefits, of any 
``significant regulatory action.'' The order defines ``significant 
regulatory action'' as any regulatory action that may have an annual 
effect on the economy of $100 million or more and may adversely affect 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments in a material 
way; create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency; materially alter the 
budgetary impact of entitlements, grants, user fees, or loan programs; 
or raise novel legal or policy issues arising out of legal mandates 
(section 3(f)).
    These amendments will modify already existing policies and 
procedures for compliance with NEPA. The amendments contain no 
substantive changes in the requirements imposed on applicants for a DOE 
license, financial assistance, permit, or similar actions. Therefore, 
DOE has determined that the incremental effect of these amendments to 
the DOE NEPA regulations will not have the magnitude of effects on the 
economy, or any other adverse effects, to bring this proposal within 
the definition of a ``significant regulatory action.''

G. Review Under the Unfunded Mandates Reform Act

    Under section 205 of the Unfunded Mandates Reform Act of 1995 (2 
USC 1533), Federal agencies are required to prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may 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. Because the DOE NEPA regulations 
affect only DOE and do not create obligations on the part of any other 
person or government agency, neither state, local or tribal governments 
nor the private sector will be affected by amendments to these 
regulations. Therefore, DOE has determined that further review under 
the Unfunded Mandates Reform Act is not required.

H. Congressional Notification

    The final regulations published today are subject to the 
Congressional notification requirements of Small Business Regulatory 
Enforcement Fairness Act of 1996 (Act) (5 USC 801). The Office of 
Management and Budget has determined that the final regulations do not 
constitute a ``major rule'' under the Act (5 USC 804). DOE will report 
to Congress on the promulgation of the final regulations prior to the 
effective date set forth at the beginning of this notice.

List of Subjects in 10 CFR Part 1021

    Environmental impact statement.

    Issued in Washington, DC, June 28, 1996.
Tara O'Toole,
Assistant Secretary, Environment, Safety and Health.

    For reasons set out in the preamble, 10 CFR part 1021 is amended as 
follows:

PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING 
PROCEDURES

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

    Authority: 42 U.S.C. 7254; 42 U.S.C. 4321 et seq.


Sec. 1021.104  [Amended]

    2. In Sec. 1021.104(b), the definition for EIS Implementation Plan 
is removed.
    3. Section 1021.105 is revised to read as follows:


Sec. 1021.105  Oversight of Agency NEPA activities.

    The Assistant Secretary for Environment, Safety and Health, or his/
her designee, is responsible for overall review of DOE NEPA compliance. 
Further information on DOE's NEPA process and the status of individual 
NEPA reviews may be obtained upon request from the Office of NEPA 
Policy and Assistance, U.S. Department of Energy, 1000 Independence 
Avenue, SW, Washington, DC 20585-0119.
    4. Section 1021.310 is revised to read as follows:


Sec. 1021.310  Environmental impact statements.

    DOE shall prepare and circulate EISs and related RODs in accordance 
with the requirements of the CEQ Regulations, as supplemented by this 
subpart. DOE shall include in draft and final EISs a disclosure 
statement executed by any contractor (or subcontractor) under contract 
with DOE to prepare the EIS document, in accordance with 40 CFR 
1506.5(c).


Sec. 1021.311  [Amended]

    5. Section 1021.311 is amended by removing paragraph (f) and 
redesignating paragraph (g) as paragraph (f).
* * * * *


Sec. 1021.312  [Removed and reserved]

    6. Section 1021.312 is removed and reserved.
    7. In Sec. 1021.315 paragraphs (b) and (d) are revised and (e) is 
added to read as follows:


Sec. 1021.315  Records of decision.

* * * * *
    (b) If DOE decides to take action on a proposal covered by an EIS, 
a ROD shall be prepared as provided at 40 CFR 1505.2 (except as 
provided at 40 CFR 1506.1 and Sec. 1021.211 of this part).
* * * * *
    (d) No action shall be taken until the decision has been made 
public. DOE may implement the decision before the ROD is published in 
the Federal Register if the ROD has been signed and the decision and 
the availability of the ROD have been made public by other means (e.g., 
press release, announcement in local media).
    (e) DOE may revise a ROD at any time, so long as the revised 
decision is adequately supported by an existing EIS. A revised ROD is 
subject to the provisions of paragraphs (b), (c), and (d) of this 
section.


Sec. 1021.322  [Amended]

    8. Section 1021.322 is amended by removing paragraph (b)(1), and 
redesignating paragraphs (b)(2) through (b)(5) as paragraphs (b)(1) 
through (b)(4).
    9. Appendix A to Subpart D, paragraph A7, is revised to read as 
follows:

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

* * * * *
    A7  Transfer, lease, disposition, or acquisition of interests in 
personal property (e.g., equipment and materials) or real property 
(e.g., permanent structures and land), if property use is to remain 
unchanged; i.e., the type and magnitude of impacts would remain 
essentially the same.
* * * * *
    10. Appendix B to Subpart D, is amended to revise the Table of 
Contents entries for B1.8, B1.13, B1.22, B3.6, B3.10, B5.3, B5.5, B5.9, 
B5.10, B5.12, B6.1, and B6.5; add B1.23 through B1.32, B2.6, B3.12, 
B3.13, B6.9, and B6.10; and remove B5.13 through B5.16, to read as 
follows:

[[Page 36240]]

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

Table of Contents

* * * * *
B1.8  Modifications to screened water intake/outflow structures
* * * * *
B1.13  Construction/acquisition/relocation of onsite pathways, short 
onsite access roads/railroads
* * * * *
B1.22  Relocation of buildings
B1.23  Demolition/disposal of buildings
B1.24  Transfer of structures/residential, commercial, industrial 
use
B1.25  Transfer of land/habitat preservation, wildlife management
B1.26  Siting/construction/operation/decommissioning of small water 
treatment facilities, less than approximately 250,000 gallons per 
day capacity
B1.27  Disconnection of utilities
B1.28  Minor activities to place a facility in an environmentally 
safe condition, no proposed uses
B1.29  Siting/construction/operation/decommissioning of small onsite 
disposal facility for construction and demolition waste
B1.30  Transfer actions
B1.31  Relocation/operation of machinery and equipment
B1.32  Traffic flow adjustments, existing roads
* * * * *
B2.6  Packaging/transportation/storage of radioactive sources upon 
request by the Nuclear Regulatory Commission or other cognizant 
agency
* * * * *
B3.6  Siting/construction/operation/decommissioning of facilities 
for bench-scale research, conventional laboratory operations, small-
scale research and development and pilot projects
* * * * *
B3.10  Siting/construction/operation/decommissioning of particle 
accelerators, including electron beam accelerators, primary beam 
energy less than approximately 100 MeV
* * * * *
B3.12  Siting/construction/operation/decommissioning of 
microbiological and biomedical facilities
B3.13  Magnetic fusion experiments, no tritium fuel use
* * * * *
B5.3  Modification (not expansion)/abandonment of oil storage 
access/brine injection/gas/geothermal wells, not part of site 
closure
* * * * *
B5.5  Construction/operation of short crude oil/gas/steam/geothermal 
pipeline segments
* * * * *
B5.9  Temporary exemption for any electric powerplant
B5.10  Certain permanent exemptions for any existing electric 
powerplant
* * * * *
B5.12  Workover of existing oil/gas/geothermal well
* * * * *
B6.1  Small-scale, short-term cleanup actions under RCRA, Atomic 
Energy Act, or other authorities
* * * * *
B6.5  Siting/construction/operation/decommissioning of facility for 
characterizing/sorting packaged waste, overpacking waste
* * * * *
B6.9  Small-scale temporary measures to reduce migration of 
contaminated groundwater
B6.10  Siting/construction/operation/decommissioning of small 
upgraded or replacement waste storage facilities
* * * * *
    11. Appendix B to Subpart D, section B is amended by revising 
paragraphs B(1), B(2), and B(4)(iii) to read as follows:

B. Conditions That are Integral Elements of the Classes of Actions 
in Appendix B

* * * * *
    (1) Threaten a violation of applicable statutory, regulatory, or 
permit requirements for environment, safety, and health, including 
requirements of DOE and/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.
* * * * *
    (4) * * *
    (iii) Wetlands regulated under the Clean Water Act (33 U.S.C. 
1344) and floodplains;
* * * * *
    12. Appendix B to Subpart D, section B1, is amended by revising the 
introductory text to paragraph B1.3, paragraphs B1.3(n) and (o), B1.8, 
B1.13, B1.15, B1.18, B1.21, and B1.22, and adding paragraphs B1.23 
through B1.32, to read as follows:

B1. Categorical Exclusions Applicable to Facility Operation

* * * * *
    B1.3  Routine maintenance activities and custodial services for 
buildings, structures, rights-of-way, infrastructures (e.g., 
pathways, roads, and railroads), vehicles and equipment, and 
localized vegetation and pest control, during which operations may 
be suspended and resumed. 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. 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 if 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:
* * * * *
    (n) Routine testing and calibration of facility components, 
subsystems, or portable equipment (including but not limited to, 
control valves, in-core monitoring devices, transformers, 
capacitors, monitoring wells, lysimeters, weather stations, and 
flumes); and
    (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), including removal of contaminated intact equipment and 
other materials (other than spent nuclear fuel or special nuclear 
material in nuclear reactors).
* * * * *
    B1.8  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.
* * * * *
    B1.13  Construction, acquisition, and relocation of onsite 
pathways and short onsite access roads and railroads.
* * * * *
    B1.15  Siting, construction (or modification), and operation of 
support buildings and support structures (including, but not limited 
to, trailers and prefabricated 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 those for office purposes; parking; cafeteria 
services; education and training; visitor reception; computer and 
data processing services; employee health services or recreation 
activities; routine maintenance activities; storage of supplies and 
equipment for administrative services and routine maintenance 
activities; security (including security posts); fire protection; 
and similar support purposes, but excluding facilities for waste 
storage activities, except as provided in other parts of this 
appendix.
* * * * *
    B1.18  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, if there would be no drawdown other than in the 
immediate vicinity of the pumping well, no

[[Page 36241]]

resulting long-term decline of the water table, and no degradation 
of the aquifer from the new or replacement well.
* * * * *
    B1.21  Noise abatement measures, such as construction of noise 
barriers and installation of noise control materials.
    B1.22  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 subsequent disposal of buildings, 
equipment, and support structures (including, but not limited to, 
smoke stacks and parking lot surfaces).
    B1.24  Transfer, lease, disposition or acquisition of interests 
in uncontaminated permanent or temporary structures, equipment 
therein, and only land that is necessary for use of the transferred 
structures and equipment, for residential, commercial, or industrial 
uses (including, but not limited to, office space, warehouses, 
equipment storage facilities) where, under reasonably foreseeable 
uses, there would not be any lessening in quality, or increases in 
volumes, concentrations, or discharge rates, of wastes, air 
emissions, or water effluents, and environmental impacts would 
generally be similar to those before the transfer, lease, 
disposition, or acquisition of interests. Uncontaminated means 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.
    B1.25  Transfer, lease, disposition or acquisition of interests 
in uncontaminated land for habitat preservation or wildlife 
management, and only associated buildings that support these 
purposes. Uncontaminated means 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.
    B1.26  Siting, construction (or expansion, modification, or 
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  Activities that are required for the disconnection of 
utility services such as 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  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  Siting, construction, operation, and decommissioning of a 
small (less than approximately 10 acres) onsite disposal facility 
for construction and demolition waste which would not release 
substances at a level, or in a form, that would pose a threat to 
public health or the environment. These wastes, as defined in the 
Environmental Protection Agency's regulations under the Resource 
Conservation and Recovery Act, specifically 40 CFR 243.101, include 
building materials, packaging, and rubble.
    B1.30  Transfer actions, in which the predominant activity is 
transportation, and in which the amount and type of materials, 
equipment or waste to be moved is small and incidental to the amount 
of such materials, equipment, or waste that is already a part of 
ongoing operations at the receiving site. Such transfers are not 
regularly scheduled as part of ongoing routine operations.
    B1.31  Relocation of machinery and equipment, such as analytical 
laboratory apparatus, electronic hardware, maintenance equipment, 
and health and safety equipment, including minor construction 
necessary for removal and installation, where uses of the relocated 
items will be similar to their former uses and consistent with the 
general missions of the receiving structure.
    B1.32  Traffic flow adjustments to existing roads at DOE sites 
(including, but not limited to, stop sign or traffic light 
installation, adjusting direction of traffic flow, and adding 
turning lanes). Road adjustments such as widening or realignment are 
not included.

    13. Appendix B to Subpart D, section B2, is amended by adding B2.6, 
to read as follows:

B2. Categorical Exclusions Applicable to Safety and Health

* * * * *
    B2.6  Packaging, transportation, and storage of radioactive 
materials from the public domain, in accordance with the Atomic 
Energy Act upon a request by the Nuclear Regulatory Commission or 
other cognizant agency, which would include a State that regulates 
radioactive materials under an agreement with the Nuclear Regulatory 
Commission or other agencies that may, under unusual circumstances, 
have responsibilities regarding the materials that are included in 
the categorical exclusion. Covered materials are those for which 
possession and use by Nuclear Regulatory Commission licensees has 
been categorically excluded under 10 CFR 51.22(14) or its 
successors. Examples of these radioactive materials (which may 
contain source, byproduct or special nuclear materials) are density 
gauges, therapeutic medical devices, generators, reagent kits, 
irradiators, analytical instruments, well monitoring equipment, 
uranium shielding material, depleted uranium military munitions, and 
packaged radioactive waste not exceeding 50 curies.

    14. Appendix B to Subpart D, section B3, is amended by revising the 
introductory text to paragraph B3.1, B3.3, B3.6, and B3.10, and adding 
new paragraphs B3.12 and B3.13, to read as follows:

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

    B3.1  Onsite and offsite site characterization and environmental 
monitoring, including siting, construction (or modification), 
operation, and dismantlement or closing (abandonment) of 
characterization and monitoring devices and siting, construction, 
and associated operation of a small-scale laboratory building or 
renovation of a room in an existing building for sample analysis. 
Activities covered include, but are not limited to, site 
characterization and environmental monitoring under CERCLA and RCRA. 
Specific activities include, but are not limited to:
* * * * *
    B3.3  Field and laboratory research, inventory, and information 
collection activities that are directly related to the conservation 
of fish or wildlife resources and that involve only negligible 
habitat destruction or population reduction.
* * * * *
    B3.6  Siting, construction (or modification), operation, and 
decommissioning of facilities for indoor bench-scale research 
projects and conventional laboratory operations (for example, 
preparation of chemical standards and sample analysis); small-scale 
research and development projects; and small-scale pilot projects 
(generally less than two years) conducted to verify a concept before 
demonstration actions. Construction (or modification) will be within 
or contiguous to an already developed area (where active utilities 
and currently used roads are readily accessible). See also C12.
* * * * *
    B3.10  Siting, construction, operation, and decommissioning of a 
particle accelerator, including electron beam accelerator with 
primary beam energy less than approximately 100 MeV, and associated 
beamlines, storage rings, colliders, and detectors for research and 
medical purposes, within or contiguous to an already 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.
* * * * *
    B3.12  Siting, construction (or modification), operation, and 
decommissioning of microbiological and biomedical diagnostic, 
treatment and research facilities (excluding Biosafety Level-3 and 
Biosafety Level-4; reference: Biosafety in Microbiological and 
Biomedical Laboratories, 3rd Edition, May 1993, U.S. Department of 
Health and Human Services Public Health Service, Centers of Disease 
Control and Prevention, and the National Institutes of Health (HHS 
Publication No. (CDC) 93-8395)) including, but not limited to, 
laboratories, treatment areas, offices, and storage areas, within or 
contiguous to an already developed area (where active utilities and 
currently used roads are readily accessible). Operation may include 
the purchase, installation, and operation of biomedical equipment, 
such as commercially

[[Page 36242]]

available cyclotrons that are used to generate radioisotopes and 
radiopharmaceuticals, and commercially available biomedical imaging 
and spectroscopy instrumentation.
    B3.13  Performing magnetic fusion experiments that do not use 
tritium as fuel, with existing facilities (including necessary 
modifications).

    15. Appendix B to Subpart D, section B5, is amended by revising 
paragraphs B5.3, B5.5 and B5.9 through B5.12 and removing B5.13 through 
B5.16, to read as follows:

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

* * * * *
    B5.3  Modification (but not expansion) or abandonment (including 
plugging), which is not part of site closure, of crude oil storage 
access wells, brine injection wells, geothermal wells, and gas 
wells.
* * * * *
    B5.5  Construction and subsequent operation of short crude oil, 
steam, geothermal, or natural gas pipeline segments between DOE 
facilities and existing transportation, storage, or refining 
facilities within a single industrial complex, if the pipeline 
segments are within existing rights-of-way.
* * * * *
    B5.9  The grant or denial of any temporary exemption under the 
Powerplant and Industrial Fuel Use Act of 1978 for any electric 
powerplant.
    B5.10  The grant or denial of any permanent exemption under the 
Powerplant and Industrial Fuel Use Act of 1978 of any existing 
electric powerplant other than an exemption under (1) section 312(c) 
relating to cogeneration, (2) section 312(l) relating to scheduled 
equipment outages, (3) section 312(b) relating to certain state or 
local requirements, and (4) section 312(g) relating to certain 
intermediate load powerplants.
    B5.11  The grant or denial of a permanent exemption from the 
prohibitions of Title II of the Powerplant and Industrial Fuel Use 
Act of 1978 for any new electric powerplant to permit the use of 
certain fuel mixtures containing natural gas or petroleum.
    B5.12  Workover (operations to restore production, such as 
deepening, plugging back, pulling and resetting lines, and squeeze 
cementing) of an existing oil, gas, or geothermal well to restore 
production when workover operations will be restricted to the 
existing wellpad and not involve any new site preparation or earth 
work that would adversely affect adjacent habitat.

    16. Appendix B to Subpart D, section B6, is amended by revising the 
introductory text to paragraph B6.1, paragraph B6.1 (b), (g), and (j), 
B6.5, and adding paragraphs B6.9 and B6.10, to read as follows:

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

    B6.1  Small-scale, short-term cleanup actions, under RCRA, 
Atomic Energy Act, or other authorities, less than approximately 5 
million dollars in cost and 5 years duration, 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 (e.g., 
incineration), 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:
* * * * *
    (b) Removal of bulk containers (for example, drums, 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;
* * * * *
    (g) Confinement or perimeter protection using dikes, trenches, 
ditches, diversions, or installing underground barriers, if needed 
to reduce the spread of, or direct contact with, the contamination;
* * * * *
    (j) Segregation of wastes that may react with one another or 
form a mixture that could result in adverse environmental impacts;
* * * * *
    B6.5  Siting, construction (or modification or 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, if 
operations do not involve unpacking waste. These actions do not 
include waste storage (covered under B6.4, B6.6, B6.10, and C16) or 
the handling of spent nuclear fuel.
* * * * *
    B6.9  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  Siting, construction (or modification), operation, and 
decommissioning of a small upgraded or replacement facility (less 
than approximately 50,000 square feet in area) at a DOE site within 
or contiguous to an already 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, and C16.

    17. Appendix C to Subpart D is amended in the Table of Contents by 
removing and reserving the entries for C1 and C10 and by revising the 
entries for C11, C14 and C16 to read as follows:

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

Table of Contents

C1  [Removed and Reserved]
* * * * *
C10  [Removed and Reserved]
C11  Siting/construction/operation/decommissioning of low- or 
medium-energy particle acceleration facility with primary beam 
energy greater than approximately 100 MeV
* * * * *
C14  Siting/construction/operation of water treatment facilities 
greater than approximately 250,000 gallons per day capacity
* * * * *
C16  Siting/construction/operation/decommissioning of large waste 
storage facilities

    18. Appendix C to Subpart D to Part 1021 is amended by removing and 
reserving paragraphs C1 and C10 and by revising C11, C14 and C16, to 
read as follows:

    C1  [Removed and reserved].
* * * * *
    C10  [Removed and reserved].
    C11  Siting, construction (or modification), operation, and 
decommissioning of a low- or medium-energy (but greater than 
approximately 100 MeV primary beam energy) particle acceleration 
facility, including electron beam acceleration facilities, and 
associated beamlines, storage rings, colliders, and detectors for 
research and medical purposes, within or contiguous to an already 
developed area (where active utilities and currently used roads are 
readily accessible).
* * * * *
    C14  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.
* * * * *
    C16  Siting, construction (or modification to increase 
capacity), operation, and decommissioning of packaging and unpacking 
facilities (that may include 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.

    19. Appendix D to Subpart D is amended to revise the Table of 
Contents

[[Page 36243]]

entries for D1 and D10 to read as follows:

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

Table of Contents

D1  Strategic Systems
* * * * *
D10  Siting/construction/operation/decommissioning of major 
treatment, storage, and disposal facilities for high-level waste and 
spent nuclear fuel
* * * * *
    20. Appendix D to subpart D to part 1021 is amended by revising 
paragraphs D1 and D10, to read as follows:

    D1  Strategic Systems, as defined in DOE Order 430.1, ``Life-
Cycle Asset Management,'' and designated by the Secretary.
* * * * *
    D10  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 will not result in increased storage capacity.
* * * * *
[FR Doc. 96-17285 Filed 7-8-96; 8:45 am]
BILLING CODE 6450-01-P