National Environmental Policy Act Implementing Procedures, 214-249 [2010-32316]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 76, Number 1 (Monday, January 3, 2011)]
[Proposed Rules]
[Pages 214-249]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32316]



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Part II





Department of Energy





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10 CFR Part 1021



National Environmental Policy Act Implementing Procedures; Proposed 
Rule

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

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DEPARTMENT OF ENERGY

[Docket ID: DOE-HQ-2010-0002]

10 CFR Part 1021

RIN 1990-AA34


National Environmental Policy Act Implementing Procedures

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

ACTION: Notice of proposed rulemaking and public hearing.

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

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

ADDRESSES: Documents relevant to this rulemaking are posted at https://www.regulations.gov (Docket ID: DOE-HQ-2010-0002). Documents posted to 
this docket include: This notice of proposed rulemaking, DOE's 
``Technical Support Document'' that provides additional information 
regarding certain proposed changes, and a ``redline/strikeout'' 
(markup) file of affected sections of the DOE NEPA regulations 
indicating the changes proposed in this proposed rule.
    Submit comments, labeled ``DOE NEPA Implementing Procedures, RIN 
1990-AA34,'' by one of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the online instructions for submitting comments electronically. This 
rulemaking is assigned Docket ID: DOE-HQ-2010-0002. Comments may be 
entered directly on the Web site. Electronic files may be submitted to 
this Web site.
    2. Mail: Mail comments to NEPA Rulemaking Comments, Office of NEPA 
Policy and Compliance (GC-54), U.S. Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20585. Because security 
screening may delay mail sent through the U.S. Postal Service, DOE 
encourages electronic submittal of comments.
    3. Public Hearing: A public hearing will be held at the U.S. 
Department of Energy, Forrestal Building, Room 1E-245, 1000 
Independence Avenue, SW., Washington, DC 20585. Oral and written 
comments will be accepted at the public hearing. See DATES, above, and 
Section III, Invitation to Comment, below, for procedures.

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

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

What is NEPA?

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

What is environmental review under NEPA?

    The Council on Environmental Quality's (CEQ's) NEPA implementing 
regulations (40 CFR parts 1500-1508) establish three levels of review 
for proposed actions--EIS, EA, and categorical exclusion 
determinations--each involving different levels of information and 
analysis. An EIS is a detailed analysis of the potential environmental 
impacts of a proposed action (and alternatives) that may have a 
significant impact on the environment. See NEPA Section 102(2)(C), 42 
U.S.C. 4332(2)(C); 40 CFR 1508.11. An EA is a briefer analysis 
conducted to determine whether a proposed action may have a significant 
impact on the environment and thus whether an EIS is required. See 40 
CFR 1508.9. A categorical exclusion is a class of actions that a 
Federal agency has determined do not, absent extraordinary 
circumstances, individually or cumulatively have a significant impact 
on the human environment and for which, therefore, neither an EA nor an 
EIS is required. See 40 CFR 1508.4. A categorical exclusion 
determination is made when an agency finds that a proposed action fits 
within a categorical exclusion and meets other applicable requirements, 
such as the absence of extraordinary circumstances.

How does DOE establish categorical exclusions?

    DOE establishes categorical exclusions pursuant to a rulemaking, 
such as this one, for defined classes of actions that the Department 
determines are supported by a record showing that they normally will 
not have significant environmental impacts, individually or 
cumulatively. DOE establishes categorical exclusions based on its 
experience, the experience of other agencies, and information provided 
by the public.
    A complete list of DOE's current categorical exclusions can be 
found at 10 CFR part 1021, subpart D, appendices A and B. Appendix A 
lists categorical exclusions applicable to general agency actions (for 
example, routine administrative, financial, and personnel actions). 
Appendix B lists categorical exclusions that are applicable to specific 
agency actions.

How does DOE make a categorical exclusion determination?

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

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a class of actions listed in appendix A or B to subpart D, (2) there 
are no extraordinary circumstances related to the proposal that may 
affect the significance of the environmental impacts of the proposed 
action, and (3) there are no connected or related actions with 
cumulatively significant impacts and, as appropriate, the proposed 
action is not precluded as an impermissible interim action (40 CFR 
1506.1 and 10 CFR 1021.211).
    In addition, to fit within a class of actions in appendix B, a 
proposed action must satisfy certain conditions known as ``integral 
elements'' (appendix B, paragraphs (1) through (4)). Briefly, these 
conditions ensure that an excluded action would not have the potential 
to cause significant environmental impacts due to, for example, a 
threatened violation of applicable environmental, safety, and health 
requirements, or by disturbing hazardous substances such that there 
would be uncontrolled or unpermitted releases.

What does DOE propose to change in its NEPA regulations?

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

II. Purpose and Development of the Proposed Changes

Why does DOE propose to amend its NEPA implementing procedures?

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

How did DOE seek input on the proposed changes?

    DOE has sought input from a number of different sources. First, DOE 
issued an internal memorandum on December 7, 2009, soliciting 
suggestions for new categorical exclusions or revisions from DOE 
Program and Field Offices, including DOE's network of NEPA Compliance 
Officers. Second, DOE Office of NEPA Policy and Compliance staff 
identified additional candidates for new or expanded categorical 
exclusions by reviewing the archive of DOE EAs that led to findings of 
no significant impact (FONSIs), researched the existing categorical 
exclusions established by approximately 50 Federal agencies, and 
reviewed existing DOE categorical exclusions to identify potential new 
categorical exclusions or revisions. Third, on December 29, 2009, DOE 
published a Request for Information in the Federal Register (74 FR 
68720) seeking suggestions from interested parties. Eleven entities 
responded to the Request for Information: Endicott Biofuels, LLC; 
Golder Associates, Inc.; INFORM (Information Network for Responsible 
Mining); Johnson Controls, Inc.; Nuclear Watch New Mexico; Presco 
Energy, LLC; Sierra Geothermal Power Corp.; Solar Energy Industries 
Association; State of Oregon's Department of Energy; U.S. Chamber of 
Commerce; and a contractor for DOE's Golden Field Office. The Request 
for Information and these comments are available at https://www.regulations.gov.
    The comments included proposals for new categorical exclusions and 
suggested revisions to limit or expand existing categorical exclusions 
or other related provisions. DOE addresses these comments in its 
discussion of specific classes of actions in Section IV. Comments of a 
more general nature that were not associated with a particular 
provision are addressed below in Section V.

How did DOE develop the proposed changes?

    As described above, DOE reviewed and evaluated each of the proposed 
revisions, reviewed past DOE NEPA analyses and other agencies' NEPA 
analyses and categorical exclusions, and drafted proposed categorical 
exclusions and revisions. DOE created a Technical Support Document that 
presents proposed changes and information that supplements the Preamble 
discussion of the supporting basis for the changes. (See https://www.regulations.gov, Docket ID: DOE-HQ-2010-0002.) The proposed changes 
were developed in consultation with CEQ (see 40 CFR 1507.3), and are 
now, through this notice of proposed rulemaking, published for public 
review and comment. Instructions for how to provide comments are 
provided in Section III. DOE is also scheduling a public hearing to 
accept comments on the proposed rule. Details regarding the public 
hearing are provided in the DATES and ADDRESSES section and in Section 
III.B below. DOE will review the comments received during the public 
comment period, including those presented at the public hearing, and 
revise its proposal as appropriate. The final rule with DOE responses 
to comments would then be published in the Federal Register.

What kinds of changes does DOE propose?

    DOE proposes to amend 10 CFR part 1021, subparts C and D. The 
majority of changes are proposed for the categorical exclusion 
provisions at 10 CFR part 1021, subpart D, appendices A and B, with a 
small number of related changes proposed for other provisions within 
subparts C and D.
    DOE proposes to add 20 new categorical exclusions. These 
categorical exclusions (in the order in which they appear in appendix 
B) address: Stormwater runoff control; lead-based paint removal; 
recycling stations; determinations of excess real property; small-scale 
educational facilities; small-scale indoor research and development 
projects using nanoscale materials; research activities in salt water 
and freshwater environments; experimental wells for injection of small 
quantities of carbon dioxide; combined heat and power or cogeneration 
systems; small-scale renewable energy research and development and 
pilot projects; solar photovoltaic systems; solar thermal systems; wind 
turbines; ground source heat pumps; biomass power plants; methane gas 
recovery and utilization systems; alternative fuel vehicle fueling 
stations; electric vehicle charging

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stations; drop-in hydroelectric systems; and small-scale renewable 
energy research and development and pilot projects in salt water and 
freshwater environments. DOE proposes to remove two categorical 
exclusion categories, one EA category, and two EIS categories.
    DOE also proposes to modify many of the existing categorical 
exclusions. These revisions include substantive changes, as well as 
changes to reflect current regulatory or statutory references and 
requirements, and punctuation and grammatical changes to improve 
readability, clarity, and internal consistency. (By ``substantive'' 
changes DOE means a change that is more than a clarifying or 
consistency change; this term includes changes that alter the scope or 
meaning of a provision or that result in the addition or deletion of a 
provision.)

What would result from DOE's proposed changes?

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

III. Invitation To Comment

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

A. Written Comments

    Comments may be submitted by one of the methods in the ADDRESSES 
section of this proposed rule. Comments received will be included in 
the administrative record and will be made available online at https://www.regulations.gov, including any personal information provided, 
unless the comment includes information specifically identified as 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Information that you consider to 
be CBI or otherwise protected should be submitted by mail, not through 
https://www.regulations.gov. If you submit information that you believe 
to be exempt by law from public disclosure, you should mail one 
complete copy, as well as one copy from which the information claimed 
to be exempt by law from public disclosure has been redacted. Please 
include written justification as to why the redacted information is 
exempt from disclosure. DOE is responsible for the final determination 
with regard to disclosure or nondisclosure of the information and for 
treating it accordingly under the DOE Freedom of Information Act 
regulations at 10 CFR 1004.11.
    The https://www.regulations.gov Web site is an ``anonymous access'' 
system, which means DOE will not know your contact information unless 
you provide it. If you choose not to provide contact information and 
DOE cannot read your comment due to technical difficulties, DOE may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters and any form of encryption, and be free of any 
defects or viruses.

B. Public Hearing

Attendance
    The time, date, and location of the public hearing are listed in 
the DATES and ADDRESSES sections at the beginning of this proposed 
rule. Persons wishing to attend the public hearing must present 
government-issued identification and pass through security screening 
upon entering the building. Foreign nationals are subject to advance 
security screening procedures. Any foreign national wishing to 
participate or attend the public hearing should advise DOE promptly in 
order to initiate the necessary procedures as soon as possible; see FOR 
FURTHER INFORMATION CONTACT, above.
Registering To Speak
    Any person who has an interest in the topics addressed in this 
proposed rule may speak at the public hearing, either as an individual 
or as a representative of a group or organization of interested 
persons. Persons wishing to speak should register in advance, as 
described in FOR FURTHER INFORMATION CONTACT. After registered speakers 
have made their presentations, other persons may speak to the extent 
that time allows.
Conduct of Public Hearing
    DOE will designate an official or facilitator to preside at the 
public hearing. The public hearing will be informal and not a judicial 
or evidentiary-type hearing. DOE reserves the right to schedule the 
order of speakers and to establish the procedures governing the conduct 
of the hearing. To ensure that all persons wishing to make a 
presentation can be heard, DOE may limit each presentation to 10 
minutes or less. The presiding official or facilitator will announce 
any further procedural rules needed for the proper conduct of the 
public hearing. After the public hearing, interested persons may submit 
further comments until the end of the comment period.
    A transcript of the hearing will be made and posted at https://www.regulations.gov.

C. Issues on Which DOE Seeks Comment

    DOE is particularly interested in receiving comments and views of 
interested parties on several topics. As discussed in more detail in 
Section IV.B below, DOE seeks comments on its use of the phrases 
``including, but not limited to,'' and ``such as'' to introduce lists 
of examples. Unless otherwise specified, DOE's lists of examples are 
not intended to be exhaustive of all possible actions that fit within a 
categorical exclusion. DOE also seeks comments on its use of the phrase 
``would not have the potential to cause significant impacts'' (or a 
similar construct) in lieu of the use of terms such as ``adverse'' or 
``substantial'' as modifiers for potential impacts. DOE believes that 
the proposed phrase more accurately reflects NEPA and the CEQ NEPA 
regulations.
    DOE is particularly interested in receiving comments and views of 
interested parties on the proposals relating to the following classes 
of actions:


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B3.7 New Terrestrial Infill Exploratory and Experimental Wells
B3.15 Small-Scale Indoor Research and Development Projects Using 
Nanoscale Materials
B3.16 Research Activities in Salt Water and Freshwater Environments
B4.1 Contracts, Policies, and Marketing and Allocation Plans for 
Electric Power
B4.11 Electric Power Substations and Interconnection Facilities
B4.12 Construction of Transmission Lines
B4.13 Upgrading and Rebuilding Existing Transmission Lines
B5.1(b) Actions To Conserve Energy or Water
B5.13 Experimental Wells for Injection of Small Quantities of Carbon 
Dioxide
B5.15 Small-Scale Renewable Energy Research and Development and 
Pilot Projects
B5.16 Solar Photovoltaic Systems
B5.17 Solar Thermal Systems
B5.18 Wind Turbines
B5.19 Ground Source Heat Pumps
B5.20 Biomass Power Plants
B5.24 Drop-in Hydroelectric Systems
B5.25 Small-Scale Renewable Energy Research and Development and 
Pilot Projects in Salt Water and Freshwater Environments
B6.1 Cleanup Actions
C7 Contracts, Policies, and Marketing and Allocation Plans for 
Electric Power
D5 [Removed and Reserved: Main Transmission System Additions]
D6 [Removed and Reserved: Integrating Transmission Facilities]
D7 Contracts, Policies, and Marketing and Allocation Plans for 
Electric Power

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

IV. Description of Proposed Changes

A. Overview

    This section describes and explains the proposed amendments to the 
existing DOE NEPA regulations at 10 CFR part 1021, subparts C and D.
    In subpart C, Implementing Procedures, the proposed amendments are 
minor technical changes. Specifically, to correct internal references, 
DOE proposes changes to three sections in subpart C: (1) 10 CFR 
1021.311--Notice of intent and scoping; (2) 10 CFR 1021.322--Findings 
of no significant impact; and (3) 10 CFR 1021.331--Mitigation action 
plans. These proposed minor technical changes to subpart C are not 
discussed further below.
    In subpart D, DOE proposes extensive substantive and clarifying 
changes. Recurring proposals for subpart D are described in Section 
IV.B and then unique proposed changes to subpart D are described in 
Sections IV.C through IV.G. Support for the proposed revisions is 
summarized below, and more information regarding the supporting basis 
for certain provisions is provided in the Technical Support Document.
What is subpart D of the DOE NEPA regulations?
    DOE's NEPA regulations at 10 CFR part 1021 include subpart D, which 
lists classes of actions and the typical level of NEPA review required 
for those classes of actions. Subpart D appendices A and B describe 
DOE's categorical exclusions. Appendix C describes classes of actions 
that normally require preparation of an EA, but not necessarily an EIS, 
and appendix D describes classes of actions that normally require 
preparation of an EIS.
    Listing a class of actions in these appendices does not constitute 
a conclusive determination regarding the appropriate level of NEPA 
review for a proposed action. Rather, the listing creates an initial 
assumption that the defined level of review is appropriate for the 
listed actions. As indicated in the existing 10 CFR 1021.400(c) and 
(d), this assumption does not apply when there are extraordinary 
circumstances related to the proposed action that may affect the 
significance of the environmental effects of the action.
What types of changes does DOE propose to subpart D?
    DOE proposes to make several types of changes to its subpart D 
regulations: these revisions include substantive changes, as well as 
changes to reflect current regulatory or statutory references and 
requirements, and punctuation and grammatical changes to improve 
readability, clarity, and internal consistency. A proposed change does 
not imply that any previous application of these regulations was 
inappropriate. See 10 CFR 1021.400(b).
    DOE also proposes to delete the tables of contents for the classes 
of actions in subpart D, and instead to precede each section or 
paragraph with a short title. These short titles are included merely to 
guide the reader and do not have any regulatory effect.
    Some of the proposed changes apply multiple times throughout the 
provisions; others are made in the context of a specific provision. 
Section IV.B of this proposed rule contains an explanation of proposals 
that recur, that is, that affect more than one class of actions, 
instead of duplicating the explanation for multiple individual classes 
of actions. Descriptions of specific individual proposed changes and 
support for such changes begin with Section IV.C. With respect to 
certain proposed changes, a more detailed explanation of the supporting 
basis is provided in the Technical Support Document. (The Technical 
Support Document and the ``redline/strikeout'' markup of DOE's existing 
regulations that show the proposed changes are available at https://www.regulations.gov.)

B. Recurring Proposals, Technology Updates, and Minor Changes

    DOE proposes certain changes to its regulations that recur 
throughout subpart D. Seven recurring proposals are described below and 
are followed by a listing of the existing provisions where the 
recurring proposals occur. Discussion of these recurring proposals is 
not repeated in the discussion of classes of actions in Section IV 
below.
    DOE also proposes to modify certain technology-specific vocabulary 
to reflect current usage, updates to references, and minor changes to 
punctuation and grammar to improve internal consistency. For example, 
to update technology-specific vocabulary, DOE proposes to change 
``electric powerlines'' to ``electric transmission lines'' in several 
categorical exclusions. DOE also proposes to update references, as in 
categorical exclusion B3.12, which would reference the latest edition 
of a Centers for Disease Control manual. DOE is proposing to correct 
typographical errors (for example, changing ``with'' to ``within'' in 
categorical exclusion B1.13). Also, for certain classes of actions, DOE 
is proposing the addition of cross-references to related classes of 
actions. For example, DOE is proposing to add a cross-reference to the 
proposed new categorical exclusion B1.33 into the existing categorical 
exclusion B1.6.
B.1. Adjacent/Contiguous/Nearby
    To clarify use of terms reflecting proximity, and to promote 
consistency in its categorical exclusions, DOE is proposing to delete 
the word ``adjacent'' from its categorical exclusions and use 
``contiguous'' and ``nearby,'' as appropriate. DOE proposes to use the 
word ``contiguous,'' where the intended application is ``touching along 
a boundary or at a point'' or ``being in actual contact.'' In contrast, 
DOE is proposing to use the word ``nearby,'' where the intended 
application is ``not distant'' or ``in proximity, but not necessarily 
touching.'' In order to facilitate consistent understanding and 
application of this concept, DOE, therefore, proposes changes to the 
following provisions: B1.31, B2.1, B4.7, B5.8, B5.12.

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B.2. Including, But Not Limited to/Including/Such as
    DOE proposes to use the phrases ``including, but not limited to,'' 
``including,'' and ``such as'' to introduce lists of examples. DOE 
considers the phrases to be synonymous. Unless otherwise specified, 
DOE's lists of examples are not intended to be exhaustive of all 
possible actions that fit within a class of actions. DOE proposes 
generally to use ``including, but not limited to,'' the first time that 
examples are introduced in a provision and ``such as'' for any needed 
clarification of the examples. In order to facilitate consistent 
understanding and application of this concept, DOE, therefore, proposes 
changes to the following provisions: 1021.410(b)(2), A1, A6, A9, A12, 
B(4), B1.3, B1.5, B1.9, B1.10, B1.11, B1.12, B1.13, B1.15, B1.16, 
B1.17, B1.20, B1.21, B1.24, B1.27, B1.29, B1.31, B1.32, B2.4, B2.5, 
B3.1, B3.4, B3.6, B3.7, B3.8, B3.9, B3.10, B3.11, B3.12, B3.13, B4.4, 
B4.6, B4.7, B4.9, B4.10, B4.11, B5.1, B5.2, B5.3, B5.4, B5.5, B5.6, 
B5.12, B6.1, B6.2, B6.3, B6.4, B7.2, C8, C16.
B.3. In Accordance With Applicable Requirements
    DOE proposes to use the phrase ``in accordance with applicable 
requirements'' in several of its categorical exclusions for emphasis. 
DOE recognizes that all actions must be conducted in accordance with 
all applicable requirements. However, with certain categorical 
exclusions, DOE finds it appropriate to refer specifically to this 
requirement, and, further, in some cases also to provide one or more 
examples of applicable requirements. By referring to a specific 
requirement, DOE does not imply that the requirement is relevant to all 
actions to which the categorical exclusion may apply, or that the 
referenced requirement is the only one that applies to a proposed 
action. DOE's proposed wording is intended to allow for the evolution 
of the requirements over time. In order to facilitate consistent 
understanding and application of this concept, DOE, therefore, proposes 
changes to the following provisions: B1.2, B1.3, B1.9, B1.16, B1.17, 
B1.29, B2.5, B3.8, B3.12, B5.4, B5.6, B6.1, B7.2.
B.4. Would Not Have the Potential To Cause Significant Impacts
    Appendices A and B contain a number of provisions that contain the 
word ``adverse,'' or the use of ``any'' or ``no'' as descriptors of, or 
surrogates for, impacts. Through this proposed rulemaking, DOE proposes 
to replace these terms with ``would not have the potential to cause 
significant impacts'' or a similar construct (for example, describing a 
physical change that serves as a surrogate for impacts, such as in 
categorical exclusions B1.18, B3.4, B3.9, and B5.2). By the proposed 
changes, DOE's implementing regulations are now clearly aligned with 
the regulatory standard in NEPA. See 40 CFR 1508.4. Additionally, by 
this proposed change, DOE seeks to clarify the affected provisions and 
to facilitate consistent application. See also 40 CFR 1508.27 
(addressing the meaning of ``significantly'' as used in NEPA).
    DOE's review of the existing provisions demonstrated the need for 
clarification and consistency. For example, the existing categorical 
exclusion B3.8 requires that the action ``would not result in any 
permanent change to the ecosystem.'' A literal reading of this 
categorical exclusion would bar its use if there were any permanent 
change to the ecosystem, even a change that would not have the 
potential to cause significant impacts. DOE acknowledges that this is 
not what NEPA requires and thus DOE proposes to rephrase the 
categorical exclusion to incorporate the appropriate NEPA standard, 
phrased as ``would not have the potential to cause significant impacts 
on the ecosystem.'' In order to facilitate consistent understanding and 
application of this concept, DOE, therefore, proposes changes to the 
following provisions: B(4), B1.5, B1.11, B1.18, B1.24, B1.31, B2.3, 
B3.1, B3.3, B3.8, B3.9, B4.6, B5.1, B5.2, B5.12, C8.
B.5. On DOE Sites/Onsite/Employee
    In recent years, DOE's proposed actions have included more 
applicant proposals, including those for DOE loan guarantees, grants, 
cooperative agreements, and other forms of financial assistance, 
particularly for programs created under the Energy Policy Act of 2005, 
the Energy Independence and Security Act of 2007, and the American 
Recovery and Reinvestment Act of 2009. In an applicant situation, DOE's 
proposed action normally would not be located on a DOE site, but rather 
on private property or land administered by other agencies (e.g., 
Bureau of Land Management). In recognition of DOE's recently expanded 
activities, DOE is proposing, where appropriate, to delete references 
to ``DOE site,'' ``onsite,'' or ``employee'' from its classes of 
actions. For example, DOE is proposing to amend existing categorical 
exclusion B1.13, Pathways, short access roads, and rail lines, by 
deleting ``onsite'' and instead inserting the condition that the 
construction, acquisition, and relocation of these linear features be 
``consistent with applicable right-of-way conditions and approved land 
use or transportation improvement plans.'' The significance of 
environmental impacts resulting from a class of actions does not depend 
on whether they occur at DOE sites.
    In order to facilitate consistent understanding and application of 
this concept, DOE, therefore, proposes changes to the following 
provisions: B1.13, B1.15, B1.29, B1.32, B3.1, B6.10, C7, D7.
B.6. Previously Disturbed or Developed Area
    In DOE's experience, the potential for certain types of actions to 
have significant impacts on the human environment is generally avoided 
when that action takes place within a previously disturbed or developed 
area, i.e., land that has been changed such that the former state of 
the area and its functioning ecological processes have been altered. 
Thus, DOE includes a requirement in several of its proposed provisions 
that actions be located within previously disturbed or developed areas. 
In other instances, the existing provision contains a similar 
requirement, and DOE proposes to replace the existing language with the 
phrase ``previously disturbed or developed area'' for purposes of 
internal consistency. In order to facilitate consistent understanding 
and application of this concept, DOE, therefore, proposes changes to 
the following provisions: B1.31, B2.1, B3.6, B3.10, B3.12, B4.6, B4.7, 
B4.8, B4.12, B5.1, B5.5, B5.8, B6.10, C4, C11.
B.7. Small/Small-Scale/Minor/Negligible/Short/Short-Term
    DOE uses adjectives (such as ``small,'' ``small-scale,'' ``minor,'' 
``negligible,'' ``short,'' and ``short-term'') as limitations in a 
variety of its existing and proposed provisions and recognizes that 
these descriptors are subjective. In general, DOE did not and does not 
propose to define these terms, and DOE would apply a reasonable 
interpretation to such terms within the context of individual 
proposals. The CEQ regulations state that ``significantly,'' as used in 
NEPA, requires consideration of context and intensity. See 40 CFR 
1508.27. Likewise, consideration of context and intensity is useful 
when interpreting descriptors such as small, small-scale, minor, short, 
and short-term, in making categorical exclusion determinations for 
proposals. (DOE proposes to discontinue the use of the word 
``negligible.'')
    For example, in considering whether the use of 5-10 acres of land 
is ``small''

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for a particular proposal, it is reasonable to conclude that 5-10 acres 
of land at a large DOE site would likely be considered ``small,'' but 
5-10 acres of land might not be considered ``small'' in an urban 
environment. In some instances, however, the Department has quantified 
these descriptors because the size is more directly linked to impacts. 
For example, DOE categorizes a ``small'' area for outdoor ecological 
and other environmental research as generally less than 5 acres in its 
existing categorical exclusion B3.8. Additionally, DOE defines 
``small'' water treatment facilities as those that have a total 
capacity of less than 250,000 gallons/day in existing categorical 
exclusion B1.26.
    In order to facilitate consistent understanding and application of 
this concept, DOE, therefore, proposes changes to the following 
provisions: B1.2, B1.13, B1.15, B3.6, B3.8, B4.13, B5.1, B5.4, B5.7, 
C8.

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

10 CFR 1021.410 Application of Categorical Exclusions (Classes of 
Actions That Normally Do Not Require EAs or EISs)
    DOE proposes to clarify four requirements in 10 CFR 1021.410. 
First, DOE proposes to remove the reference to Section 102(2)(E) of 
NEPA to clarify that DOE's consideration of unresolved conflicts 
concerning alternative uses of available resources is independent of 
the need to evaluate alternatives in an EA as indicated in Section 
102(2)(E) of NEPA.
    Second, in 10 CFR 1021.410(b)(3), DOE proposes to refer explicitly 
to the requirement that a categorically excludable project has not been 
segmented. DOE also proposes to change its references to the CEQ 
regulations to clarify consideration of potential cumulative impacts 
(40 CFR 1508.27(b)(7)), and to clarify that its references to 40 CFR 
1506.1 and 10 CFR 1021.211 concern limitations on actions during EIS 
preparation.
    Third, DOE proposes to add site preparation and purchase and 
installation of equipment to 10 CFR 1021.410(d) as examples of 
activities foreseeably necessary to implement proposals that are 
encompassed within the class of actions.
    Fourth, DOE proposes to codify its policy to document and post 
online appendix B categorical exclusion determinations at 10 CFR 
1021.410(e), consistent with the policy established by the Deputy 
Secretary of Energy's Memorandum to Departmental Elements on NEPA 
Process Transparency and Openness, October 2, 2009.

D. Proposed Changes to Appendix A--General Agency Actions

    For an explanation of recurring proposals applicable to the 
appendix A categorical exclusions, please see Section IV.B, Recurring 
Proposals, above, where these proposed revisions are discussed and 
where the particular provisions affected are listed. The short titles 
listed below for particular categorical exclusions reflect DOE's 
proposed titles.
A1 Routine DOE Business Actions
    DOE proposes to replace ``agency'' with ``DOE'' to clarify that 
this categorical exclusion applies only to DOE business actions. DOE 
also proposes to limit such actions to administrative, financial, and 
personnel actions.
A7 [Removed and Reserved: Transfer of Property, Use Unchanged]
    To increase transparency of DOE's NEPA processes, DOE proposes to 
delete this categorical exclusion and to incorporate its key components 
within B1.24, which also addresses property transfers, so that any 
categorically excluded property transfers are documented and made 
available to the public. (See proposed changes to 10 CFR 1021.410(e) 
concerning documentation and public availability of DOE's appendix B 
categorical exclusion determinations.)
    In response to DOE's December 2009 Request for Information, a 
commentor expressed concern that DOE, in making land transfer decisions 
under existing categorical exclusion A7, would be ``circumventing local 
authority'' and ``normal land use planning and zoning processes.'' See 
the discussion of categorical exclusion B1.24 for DOE's response.
A9 Information Gathering, Analysis, and Dissemination
    DOE proposes to clarify this categorical exclusion by providing 
site visits as an additional example of an action included within the 
category.
A13 Procedural Documents
    DOE proposes to clarify this categorical exclusion by providing 
additional examples of actions included within the class of actions 
(e.g., Policies and Manuals within the DOE Directives System).

E. Proposed Changes to Appendix B

    For an explanation of recurring proposals applicable to the 
appendix B categorical exclusions, please see Section IV.B, Recurring 
Proposals, above, where these proposed revisions are discussed and the 
particular categorical exclusions affected are listed. The short titles 
listed below for particular categorical exclusions reflect DOE's 
proposed titles.
Integral Elements of the Classes of Actions in Appendix B
    In appendix B(4), DOE proposes to clarify its use of 
``environmentally sensitive resource,'' defining it as ``typically a 
resource that has been identified as needing protection through 
Executive Order, statute, or regulation by Federal, State, or local 
government, or a Federally recognized Indian Tribe.'' This definition 
is not intended to, and does not, grant, expand, create, or diminish 
any legally enforceable rights, benefits, or responsibilities, 
substantive or procedural, not otherwise granted or created under 
existing law. Nor shall this language be construed to alter, amend, 
repeal, interpret, or modify Tribal sovereignty, any treaty rights of 
any Indian Tribes, or to preempt, modify, or limit the exercise of any 
such rights.
    In appendix B(4)(i), DOE proposes to add ``Federally recognized 
Indian Tribe'' to its list of entities that designate property as 
historically, archeologically, or architecturally significant. DOE also 
proposes to redefine other environmentally sensitive properties as 
``determined to be eligible'' for listing on the National Register of 
Historic Places (rather than the phrase ``eligible for listing,'' which 
is used in the existing provision, but is not the proper 
characterization of an official listing). In appendix B(4)(iii), DOE 
proposes to apply the same definition of floodplains and wetlands in 
its NEPA regulations as that used in DOE's floodplain and wetland 
environmental review regulations (10 CFR part 1022.4). In appendix 
B(4)(iv), DOE proposes to supplement the list of areas having special 
designation with additional examples (national monuments and scenic 
areas). In appendix B(4)(v), DOE proposes changes to the prime 
agricultural lands listing to conform to the terminology of the 
applicable regulation (7 CFR 658.2(a), ``Farmland Protection Policy 
Act: Definitions'').
    In response to the Department's December 2009 Request for 
Information, one commentor addressed DOE's list of ``environmentally 
sensitive resources'' in appendix B(4). First, the commentor indicated 
that DOE must recognize State and Tribal protected or candidate species 
and habitat as equal to Federally designated or considered species and

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habitats. Currently, appendix B(4)(ii) includes consideration of State-
listed endangered and threatened species and their habitats, and DOE is 
proposing to add Federally-protected marine mammals and Essential Fish 
Habitat to the list of environmentally sensitive resources. DOE is not 
proposing to include Tribal protected or candidate species and habitat 
because it is DOE's understanding that Tribes do not have the authority 
to designate species or habitat for protection outside of Tribal lands.
    Second, the commentor stated that ``groundwater and aquifers are 
State, not Federal resources'' and indicated that DOE's regulations 
must protect and preserve all aquifers, and not just sole-source 
aquifers. The commentor further stated that adverse impacts to rivers, 
lakes, and bays, among other bodies of water, should not be allowed 
``unless they are specifically covered by a State and/or Tribal 
discharge permit under appropriate authority.'' DOE is not proposing a 
change to the existing appendix B(4)(vi), which lists ``special sources 
of water (such as sole source aquifers, wellhead protection areas, and 
other water sources that are vital in a region)'' in its list of 
environmentally sensitive resources, because those resources are listed 
as examples and are not the only water sources to be considered in 
applying a categorical exclusion. Further, the existing appendix B(4) 
includes States and Federally recognized Tribes as entities with 
jurisdiction to identify water sources needing protection.

Categorical Exclusions Applicable to Facility Operation (B1)

B1.1 Changing Rates and Prices
    DOE proposes to change this categorical exclusion to encompass the 
setting of ``prices'' as well as ``rates'' (prices apply to products, 
and rates apply to services) and to consider price and rate changes 
instead of only increases. DOE proposes to change the measure of 
inflation specified in this categorical exclusion from the Gross 
National Product fixed weight price index, which the Department of 
Commerce no longer publishes, to the implicit price deflator for Gross 
Domestic Product. (See the Technical Support Document.)
B1.2 Training Exercises and Simulations
    DOE proposes to provide additional examples of training actions 
(namely, small-scale and short-duration force-on-force exercises, and 
decontamination and spill cleanup training), and has added the 
condition that all training exercises and simulations be conducted 
under appropriately controlled conditions and in accordance with 
applicable requirements. The term ``force-on-force'' as used in this 
categorical exclusion refers to activities such as assault and 
defensive team exercises conducted by security forces or military 
units, often on parcels of DOE property not in use. Exercises that test 
the ability of security forces to defend a facility are one common 
example of this type of training. DOE's experience with these types of 
security force and military training actions and emergency response 
training at its sites indicates that they fit within the class of 
actions. (See the Technical Support Document.)
B1.3 Routine Maintenance
    DOE proposes to clarify that routine maintenance actions may occur 
as a result of nonroutine events (e.g., severe weather, such as 
hurricanes, floods, and tornadoes, and wildfires) by adding a sentence 
to that effect in its description of routine maintenance. Normally, 
maintenance following a nonroutine event would qualify as routine 
maintenance; however, for a nonroutine event, the potential for 
extraordinary circumstances is higher (e.g., increased exposure to 
pesticides due to extreme runoff).
    DOE proposes to clarify the scope of the categorical exclusion by 
providing additional examples of activities. Specifically, DOE is 
proposing to clarify that replacement is included in the categorical 
exclusion's scope under items (a), (c), and (e), as well as the 
existing example of repair; to add ``lighting'' to those items that can 
be repaired or replaced (item (e)); to add ``scraping and grading of 
unpaved surfaces'' to the example of road and parking area resurfacing 
(item (j)); and to add the additional example of ``removal of debris'' 
under item (p). DOE's experience with these activities has demonstrated 
that they properly fit within this class of actions.
    In response to the Department's December 2009 Request for 
Information, one commentor stated that use of pesticides for outdoor or 
aquatic use should not be the subject of a categorical exclusion; 
instead an EA should be prepared. The commentor expressed a specific 
concern about the possibility for environmental impacts beyond the 
intended application. In existing categorical exclusion B1.3, DOE has 
described routine maintenance activities including localized vegetation 
and pest control. DOE now proposes to clarify that any routine 
maintenance activities would be conducted in a manner in accordance 
with applicable requirements. In the case of pesticides and other 
chemicals, for example, the proposed change would provide that the 
application would be in accordance with the registered and approved 
uses established by appropriate authorities to minimize the possibility 
of environmental impacts beyond the product's intended application.
B1.5 Existing Steam Plants and Cooling Water Systems
    DOE proposes to delete the words ``within an existing building or 
structure,'' so as to include modifications to ponds, which may be 
outdoor components of cooling water systems. This proposed expansion of 
the scope of this categorical exclusion would address the need for 
improvements to an entire cooling water system, rather than only those 
parts of a system associated with structures. Based on DOE experience, 
minor improvements would not have the potential to cause significant 
impacts, provided the three limitations placed on the scale and type of 
improvements listed in the categorical exclusion are met.
    DOE also proposes to add minor improvements of existing steam 
plants in the scope of the categorical exclusion. DOE's experience is 
that these actions, when subject to the three limitations placed on the 
scale and type of such improvements, fit appropriately within this 
class of actions and would not have the potential to cause significant 
impacts.
B1.7 Electronic Equipment
    DOE proposes to update the existing categorical exclusion by adding 
examples of current technology and equipment that improve operational 
efficiency and stability of the nation's power grid, commonly referred 
to as ``smart grid'' technologies. Based on DOE's experience, such 
technology and equipment (i.e., electricity transmission control and 
monitoring devices for grid demand and response) fit within the scope 
of this categorical exclusion.
B1.9 Airway Safety Markings and Painting
    DOE proposes to include repair and in-kind replacement of lighting 
within the scope of this categorical exclusion. Within the context of 
this categorical exclusion, in-kind replacement is defined as 
replacement that does not result in a significant change in the 
expected useful life, design capacity (for example, energy output in 
lumens), function, or shielding of existing

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lighting. The initial installation of such lighting would remain 
ineligible for categorical exclusion. In addition, DOE proposes to add 
wind turbines as structures similar to transmission lines and antenna 
structures to which the exclusion applies. DOE has determined that 
these proposed changes would not have the potential to cause 
significant impacts.
B1.11 Fencing
    DOE proposes to clarify that the limitation in this categorical 
exclusion applies to fencing that would have the potential to cause 
significant impacts to surface water flow or wildlife populations or 
migration, as opposed to individual animal movements. Fencing can and 
probably often does affect individual movements, but such impacts on 
individual animals would not be considered significant unless the 
context and intensity of the impacts would have the potential to cause 
significant impacts to wildlife populations or migration.
B1.12 Detonation or Burning of Explosives or Propellants After Testing
    DOE proposes to delete the restriction that explosives or 
propellants must have failed in outdoor tests and thus to expand the 
categorical exclusion to include explosives or propellants that failed 
in indoor tests. Whether the explosives or propellants were tested 
indoors or outdoors, the outdoor detonation or burning of those 
explosives or propellants would not have the potential to cause 
significant impacts. The phrase ``otherwise not consumed in testing'' 
refers to excess or residual explosive or propellant materials that 
remain after a test is completed. DOE also proposes to specify one type 
of permit under the Resource Conservation and Recovery Act that could 
be applicable.
    In response to DOE's December 2009 Request for Information, one 
commentor requested that DOE specify the amount, types, and methods 
allowed for the activities included in this categorical exclusion. DOE 
has determined that the limits contained in this categorical exclusion 
do not require quantification and is not proposing any changes to the 
categorical exclusion in response to this comment.
B1.13 Pathways, Short Access Roads, and Rail Lines
    DOE proposes to expand the scope of the categorical exclusion to 
include more projects related to transportation, recreation, and 
fitness (e.g., pedestrian walkways and trails, bicycle paths, and small 
outdoor fitness areas). Other Federal agencies that have categorical 
exclusions for comparable projects are the Bureau of Indian Affairs, 
the Federal Highway Administration, and the Department of Homeland 
Security, and the experience of these agencies supports DOE's proposed 
expansion of this categorical exclusion.
    DOE also proposes to include a condition in the categorical 
exclusion that the actions be consistent with existing rights-of-way 
and approved land use or transportation improvement plans. In addition, 
DOE proposes to replace ``railroads'' with the term ``rail lines,'' 
adding branch or spur lines as examples. DOE's experience is that the 
construction of rail access to or within an existing site has generally 
occurred at a scale that is better characterized by these small-scale 
activities--branch line (a secondary rail line which may branch off a 
main line) and spur (a rail track on which cars are left for loading, 
unloading, or rail car storage).
    In response to the DOE's December 2009 Request for Information, a 
commentor stated that road construction or expansion should not be the 
subject of a categorical exclusion. Further, the commentor expressed a 
concern about the potential for damage to ``high quality, high priority 
habitat'' as a result of constructing and operating roads and that use 
of such a categorical exclusion would limit or circumvent consideration 
of appropriate mitigation for habitat disturbance or loss. As outlined 
above, DOE's proposed amendments to categorical exclusion B1.13 require 
the construction, acquisition, and relocation of short access roads and 
rail lines to be consistent with applicable right-of-way conditions and 
approved land use or transportation improvement plans. Furthermore, 
consideration of the integral elements in applying this categorical 
exclusion addresses the possibility of damage to ``high quality, high 
priority habitat'' because, among other things, one of the 
``environmentally sensitive resources'' to consider in those integral 
elements is habitat for Federally or State-listed species. (See the 
Technical Support Document.)
B1.15 Support Buildings
    DOE proposes to expand the list of examples of support buildings 
and support structures to include those for ``small-scale fabrication 
(such as machine shop activities and modular buildings), assembly, and 
testing of non-nuclear equipment or components.'' Such structures are 
comparable to, or smaller in scale than, other structures given as 
examples in the categorical exclusion, and DOE's experience at DOE 
sites is that siting, construction, and operation of these activities 
normally fit within the class of actions. Also, DOE proposes to further 
clarify the scope of the categorical exclusion by specifying that it 
excludes facilities for nuclear weapon activities.
B1.19 Microwave, Meteorological, and Radio Towers
    DOE proposes to add ``modification,'' ``abandonment,'' and 
``removal'' to the list of activities included in this class of actions 
in order to describe the complete life cycle of categorically excluded 
towers. In DOE's experience, modification, abandonment, and removal of 
these towers and associated facilities, when subject to the 
restrictions in this categorical exclusion, would have fewer impacts 
than construction and would not have the potential to cause significant 
impacts.
    DOE proposes to include meteorological towers as an additional 
example of applicable facilities within this categorical exclusion 
because DOE has determined that the environmental impacts resulting 
from siting, construction, modification, operation, abandonment, and 
removal of meteorological towers would be similar to the impacts from 
these activities relating to microwave and radio towers already 
contained in the scope of the existing categorical exclusion.
    DOE proposes to clarify the restriction in the existing categorical 
exclusion, by replacing ``great visual value'' with a more objective 
criteria of ``governmentally designated scenic area'' and cross-
referencing to the relevant integral element (appendix B(4)(iv)).
B1.20 Protection of Cultural Resources, Fish and Wildlife Habitat
    DOE proposes to add to the scope of this categorical exclusion by 
referencing activities taken to protect cultural resources and by 
including examples of those activities (fencing, labeling, or 
flagging). DOE's Power Marketing Administrations often engage in such 
activities for cultural and wildlife protection purposes, and these 
activities would not have the potential to cause significant impacts. 
DOE also proposes to include a condition in the categorical exclusion 
that the activities would be conducted in accordance with an existing 
natural or cultural resource plan, if any.
B1.23 Demolition and Disposal of Buildings
    In response to DOE's December 2009 Request for Information, one 
commentor questioned whether there should be a

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size limitation for the activities under this categorical exclusion. 
Further, the commentor asked how DOE takes into consideration possible 
contamination when applying this categorical exclusion. In response to 
these comments, DOE proposes to modify this categorical exclusion by 
adding a limitation that these activities could be categorically 
excluded only if there would be no potential for release of substances 
at a level, or in a form, that could pose a threat to public health or 
the environment.
    The application of this categorical exclusion is intended to be 
based on existing data and knowledge about historical uses of the area, 
including chemical and other processes employed. DOE has extensive 
experience (former Rocky Flats Site, Hanford Site, Idaho National 
Laboratory, and other sites) in determining the potential for release 
of harmful substances from activities through modeling and safety basis 
authorization documentation. Potential hazards are considered before 
taking action (for example, demolition actions), and monitoring is 
conducted, as appropriate, to verify that there are no harmful releases 
of radiological or hazardous materials. Potential for releases can 
reliably be determined through site inventories, the use of well-
established release models, and established best practices.
B1.24 Property Transfers
    As discussed under categorical exclusion A7 (above), DOE proposes 
to delete A7 and incorporate its key components, including transfers of 
personal property (equipment and materials), within B1.24. By doing 
this, DOE makes categorical exclusion determinations for property 
transfers subject to documentation and online posting. DOE proposes to 
remove the reference to ``uncontaminated'' as unnecessary given the 
incorporation of the substance of this limitation in the revised 
categorical exclusion.
    DOE proposes to delete the phrases ``there would not be any 
lessening in quality or increases in volumes, concentrations, or 
discharge rates, of wastes, air emissions, or water effluents'' and 
``environmental impacts would generally be similar to those before the 
transfer'' as potentially inconsistent. DOE proposes to replace these 
phrases with ``there would be no potential for release of substances at 
a level, or in a form, that could pose a threat to public health or the 
environment'' and ``would not have the potential to cause a significant 
change in impacts from the transfer.'' Such terminology will, in DOE's 
experience, ensure that any property transfers under this categorical 
exclusion would not have the potential to cause significant impacts.
    In response to DOE's December 2009 Request for Information, a 
commentor expressed concern that DOE, in making land transfer decisions 
under existing categorical exclusion A7, would be ``circumventing local 
authority'' and ``normal land use planning and zoning processes.'' The 
potential applicability of such authority and processes to a potential 
land transfer would be addressed on a case-by-case basis.
B1.25 Property Transfers for Cultural Resources Protection, Habitat 
Preservation, and Wildlife Management
    DOE proposes to include in B1.25 actions undertaken to protect 
cultural resources. DOE's Power Marketing Administrations often engage 
in property transfers for cultural protection purposes. Based on this 
experience, DOE finds property transfers intended for protecting 
cultural resources normally would not have the potential to cause 
significant impacts. Further, DOE proposes to remove the limitation 
that only associated buildings supporting certain purposes are to be 
transferred with property under this categorical exclusion, because the 
existing purpose of structures present on a property to be transferred 
for wildlife or cultural resource purposes is unrelated to 
environmental impacts associated with such transfer.
    Also, for the reasons discussed for categorical exclusion B1.24, 
above, DOE proposes to eliminate the references to ``uncontaminated,'' 
but include a limitation on actions subject to categorical exclusion 
B1.25, that there would be no potential for release of a substance at a 
level or in a form, that could pose a threat to public health or the 
environment.
B1.29 Disposal Facilities for Construction and Demolition Waste
    DOE proposes to add ``expansion'' and ``modification'' to the list 
of activities included in this categorical exclusion in order to 
include all aspects of the life cycle of the disposal facilities. In 
DOE's experience, expansion and modification actions, when subject to 
the limitations expressed in this categorical exclusion, would have 
fewer impacts than construction, and would not have the potential to 
cause significant impacts.
B1.30 Transfer Actions
    DOE proposes to modify this categorical exclusion (based on its 
experience transferring materials and equipment) to remove the 
condition that the amounts of materials, equipment, or waste being 
transferred must be ``small and incidental'' to the amount of such 
material at the receiving site. Instead, DOE proposes to add a 
condition that the receiving site has existing storage capacity and 
management capability for the material.
    In addition, DOE proposes to limit use of the categorical exclusion 
to, as appropriate, facilities and operations that are already 
permitted, licensed, and approved. That is, this proposed categorical 
exclusion would not apply to circumstances where the receiving site 
requires a permit or license amendment or variance from its existing 
approvals in order to receive or manage the materials, and it also 
would not apply to circumstances where the receiving facilities are not 
yet completed and operational.
    DOE has decades of experience transporting materials, including 
various types of radioactive materials and waste, and has completed 
NEPA reviews of such transportation under many different scenarios. DOE 
NEPA reviews of such transfers consistently show that these actions 
would not have the potential to cause significant impacts. 
Nevertheless, DOE will continue to analyze transportation impacts in 
EAs and EISs where the scope of the proposed action presents the 
potential for significant impacts or where the proposed action fails to 
meet the conditions contained in this categorical exclusion. (See the 
Technical Support Document.)
B1.31 Installation or Relocation of Machinery and Equipment
    DOE proposes several changes to this categorical exclusion. DOE 
proposes to add ``installation'' to the list of actions, which is now 
limited to the ``relocation'' of machinery and equipment; explicitly 
include ``operation'' of installed or relocated machinery and 
equipment; add ``manufactur