36222 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations

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.
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations 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
36224 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations

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

§§ 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-
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations 36225

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 § 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
36226 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations

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 § 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 § 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 § 1021.315(c) rather than

§ 1021.315(b). In response, and to

provide further clarification, DOE has

moved the second sentence from current

§ 1021.315(b) to begin a new

§ 1021.315(d), and added to the new

subsection (d) the language previously

proposed for § 1021.315(c), as modified

above. Section 1021.315(c) remains as in

the current regulation, and current

§ 1021.315(d) is now § 1021.315(e).

Pertinent sections of § 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 § 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 ‘‘smallscale,’’ 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations 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

(§ 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 § 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

§ 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.
36228 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations

CONVERSION TABLE

Existing rule 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 § 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.

• 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

• 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.’’

• 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 caseby-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.’’

• 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations 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 contaminationcleanup activities of a routine nature.

• 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 § 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.

• 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.

• 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.

• Proposed B1.24 Transfer of

property/residential, commercial,

industrial use; and

• 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
36230 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations

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 § 101(33). DOE already has

defined ‘‘contaminant’’ in § 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.

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

• 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.

• 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

§ 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

§ 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.

• 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 § 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 § 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
36232 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations

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.

• 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 (§ 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.

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

• 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.

• 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.

• Proposed Modification B3.6

Siting/construction/operation/

decommissioning of facilities for benchscale 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 § 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.

• 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).
36234 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations

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

§ 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.

• 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.

• 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.

• 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.

• 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-ofway. 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.

• Proposed Clarification B5.9.

Temporary exemption for any electric

powerplant;

• Proposed Clarification B5.10

Certain permanent exemptions for any

existing electric powerplant;

• Proposed Clarification B5.11

Permanent exemption for mixed natural

gas and petroleum;
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations 36235

• Proposed Modification (Removal)

B5.12 Permanent exemption for new

peakload powerplant;

• Proposed Modification (Removal)

B5.13 Permanent exemption for

emergency operations;

• Proposed Modification (Removal)

B5.14 Permanent exemption for

meeting scheduled equipment outages;

• Proposed Modification (Removal)

B5.15 Permanent exemption due to

lack of alternative fuel supply; and

• 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.

• 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.

• 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 sitespecific 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).
36236 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations

• 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.

• 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 squarefoot 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 wasteproducing 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.

• 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.

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

• 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 § 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.’’

• 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.

• Proposed Modification (Removal)

C10 Siting/construction/operation/

decommissioning of synchrotron

radiation accelerator facility; and

• Proposed Modification C11

Siting/construction/operation/

decommissioning of low- or mediumenergy 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.

• 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.

• 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

• Proposed Modification D10

Siting/construction/operation/

decommissioning of major treatment,

storage, and disposal facilities for highlevel 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
36238 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations

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

§ 1021.104 [Amended]

2. In § 1021.104(b), the definition for

EIS Implementation Plan is removed.

3. Section 1021.105 is revised to read

as follows:

§ 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:

§ 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).

§ 1021.311 [Amended]

5. Section 1021.311 is amended by

removing paragraph (f) and

redesignating paragraph (g) as paragraph

(f).

* * * * *

§ 1021.312 [Removed and reserved]

6. Section 1021.312 is removed and

reserved.

7. In § 1021.315 paragraphs (b) and (d)

are revised and (e) is added to read as

follows:

§ 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 § 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.

§ 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:
36240 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations

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 benchscale 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations 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 Level3 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
36242 Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations

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 rightsof-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 highlevel 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 mediumenergy 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 mediumenergy (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 highlevel 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
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules and Regulations 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 highlevel 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