National Environmental Policy Act Implementing Procedures, 34074-34094 [2024-09186]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34074-34094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09186]


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DEPARTMENT OF ENERGY

10 CFR Part 1021

[DOE-HQ-2023-0063]
RIN 1990-AA48


National Environmental Policy Act Implementing Procedures

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (DOE or the Department) is 
revising its National Environmental Policy Act (NEPA) implementing 
procedures (regulations) to add a categorical exclusion for certain 
energy storage systems and revise categorical exclusions for upgrading 
and rebuilding powerlines and for solar photovoltaic systems, as well 
as to make conforming changes to related sections of DOE's NEPA 
regulations. These changes will help ensure that DOE conducts an 
appropriate and efficient environmental review of proposed projects 
that normally do not result in significant environmental impacts.

DATES: This rule is effective May 30, 2024.

ADDRESSES: Documents relevant to this rulemaking are posted at 
www.regulations.gov (Docket: DOE-HQ-2023-0063). These documents 
include: the notice of proposed rulemaking, public comments, this final 
rule, and DOE's Technical Support Document, which provides additional 
information regarding the changes and a redline/strikeout version of 
affected sections of the DOE NEPA regulations indicating the changes 
made by this rule.

FOR FURTHER INFORMATION CONTACT: For information regarding DOE's NEPA 
regulations, contact Ms. Carrie Abravanel, Deputy Director, Office of 
NEPA Policy and Compliance, at [email protected] or 202-586-
4798.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction and Background
II. Establishment and Use of Categorical Exclusions
III. Changes Made in This Final Rule
    A. Overview
    B. Changes to Categorical Exclusion B4.13 for Upgrading and 
Rebuilding Existing Powerlines and Related Provisions
    C. New Categorical Exclusion B4.14 for Certain Energy Storage 
Systems and Related Provisions
    D. Changes to Categorical Exclusion B5.16 for Solar Photovoltaic 
Systems and Related Provisions
IV. Comments Received and DOE's Responses
    A. General Comments on Proposed Amendments
    B. Comments Regarding Upgrading and Rebuilding Powerlines
    C. Comments Regarding Energy Storage Systems
    D. Comments Regarding Solar Photovoltaic Systems
V. Procedural Issues and Regulatory Review
    A. Review Under Executive Orders 12866, 13563, and 14094
    B. Review Under Executive Orders 12898 and 14096
    C. Review Under National Environmental Policy Act
    D. Review Under Regulatory Flexibility Act
    E. Review Under Paperwork Reduction Act
    F. Review Under Unfunded Mandates Reform Act of 1995
    G. Review Under Treasury and General Government Appropriations 
Act, 1999
    H. Review Under Executive Order 13132
    I. Review Under Executive Order 12988
    J. Review Under Treasury and General Government Appropriations 
Act, 2001
    K. Review Under Executive Order 13211
    L. Review Under Executive Order 12630
    M. Congressional Notification
VI. Approval of the Office of the Secretary

I. Introduction and Background

    The National Environmental Policy Act, as amended, (42 U.S.C. 4321 
et seq.) requires Federal agencies to provide a detailed statement 
regarding the environmental impacts of proposals for major Federal 
actions significantly affecting the quality of the human environment. 
The Council on Environmental Quality (CEQ) regulations implementing 
NEPA (40 CFR parts 1500-1508) require agencies to develop their own 
NEPA implementing procedures to apply the CEQ regulations to their 
specific programs and decision-making processes (40 CFR 1507.3). DOE 
promulgated its regulations entitled ``National Environmental Policy 
Act Implementing Procedures'' (10 CFR part 1021) on April 24, 1992 (57 
FR 15122), revised these regulations on five subsequent occasions,\1\ 
and now revises these regulations again with this rule.
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    \1\ July 9, 1996 (61 FR 36222), December 6, 1996 (61 FR 64603), 
August 27, 2003 (68 FR 51429), October 13, 2011 (76 FR 63764), and 
December 4, 2020 (85 FR 78197).
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    NEPA establishes three types of environmental review for Federal 
proposed actions--environmental impact statement, environmental 
assessment, and categorical exclusion--each involving different levels 
of information and analysis. An environmental impact statement is a 
detailed analysis of reasonably foreseeable environmental effects 
prepared for a major Federal action significantly affecting the quality 
of the human environment (42 U.S.C. 4332(2)(C) and 40 CFR part 1502 and 
section 1508.1(j)). An environmental assessment is a concise public 
document prepared by a Federal agency to set forth the basis for its 
finding of no significant impact or its determination that an 
environmental impact statement is necessary (42 U.S.C. 4336(b)(2) and 
40 CFR 1501.5, 1501.6, and 1508.1(h)). A categorical exclusion is a 
category of actions that the agency has determined, as established in 
its agency NEPA procedures, normally does not have a significant effect 
on the human environment and therefore does not require preparation of 
an environmental assessment or environmental impact statement (40 CFR 
1501.4, 1507.3(e)(2)(ii), and 1508.1(d)). DOE's procedures for applying 
categorical exclusions require the Department to consider several 
conditions (described in section II of this document), including 
whether extraordinary circumstances exist such that a normally excluded 
action may have a significant environmental effect.

II. Establishment and Use of Categorical Exclusions

    CEQ issued guidance in 2010 on establishing, applying, and revising 
categorical exclusions under NEPA (75 FR 75628; December 6, 2010). CEQ 
explained, ``Categorical exclusions are

[[Page 34075]]

not exemptions or waivers of NEPA review; they are simply one type of 
NEPA review. To establish a categorical exclusion, agencies determine 
whether a proposed activity is one that, on the basis of past 
experience, normally does not require further environmental review. 
Once established, categorical exclusions provide an efficient tool to 
complete the NEPA environmental review process for proposals that 
normally do not require more resource intensive [environmental 
assessments or environmental impact statements]. The use of categorical 
exclusions can reduce paperwork and delay, so that [environmental 
assessments or environmental impact statements] are targeted toward 
proposed actions that truly have the potential to cause significant 
environmental effects.''
    DOE establishes and revises 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 the 
actions normally do not have significant environmental impacts, 
individually or cumulatively. To establish the record in this 
rulemaking, DOE evaluated environmental assessments prepared by DOE and 
by other Federal agencies, categorical exclusions established by DOE 
and by other Federal agencies, categorical exclusion determinations, 
technical reports, applicable requirements, industry practices, and 
other publicly available information. DOE summarized this information 
in the preamble to the notice of proposed rulemaking and in a Technical 
Support Document that was issued alongside the notice of proposed 
rulemaking (88 FR 78681; November 16, 3023). DOE provided the public 
with an opportunity to review and comment on DOE's proposed changes. 
DOE reviewed all comments received on the notice of proposed 
rulemaking, added information to the Technical Support Document, 
revised the categorical exclusions addressed in this rule (section III 
of this document), and prepared responses to public comments (section 
IV of this document).
    In addition to developing a substantiation record to support the 
establishment or revision of a categorical exclusion, DOE also conducts 
a project-specific environmental review when determining whether one or 
more categorical exclusions applies to a proposed action. This entails 
evaluation of a proposed action against several requirements included 
in DOE's NEPA regulations. DOE must determine on a case-by-case basis, 
in accordance with 10 CFR 1021.410(b), that: (1) the proposed action 
fits within a categorical exclusion listed in appendix A or B to 
subpart D of part 1021, including (in the case of categorical 
exclusions listed in appendix B) the integral elements set forth in 
appendix B; (2) there are no extraordinary circumstances \2\ related to 
the proposal that may affect the significance of the environmental 
impacts of the proposed action and require preparation of an 
environmental assessment or environmental impact statement, consistent 
with 40 CFR 1501.4(b)(1) and (b)(2); and (3) the proposal has not been 
improperly segmented \3\ to meet the definition of a categorical 
exclusion, there are no connected or related actions with cumulatively 
significant impacts, and the proposed action is not precluded by 40 CFR 
1506.1 or 10 CFR 1021.211 as an impermissible interim action.
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    \2\ DOE defines extraordinary circumstances as ``unique 
situations presented by specific proposals, including, but not 
limited to, scientific controversy about the environmental effects 
of the proposal; uncertain effects or effects involving unique or 
unknown risks; and unresolved conflicts concerning alternative uses 
of available resources.'' (10 CFR 1021.410(b)(2))
    \3\ Segmentation can occur when a proposal is broken down into 
smaller parts in order to avoid the appearance of significance of 
the total action. (10 CFR 1021.410(b)(3))
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    As part of its determination of whether the proposed action fits 
within a categorical exclusion, DOE evaluates whether the proposed 
action satisfies conditions included within the text of the individual 
categorical exclusion. These conditions are discussed generally in this 
section and in more detail in section III of this document, which 
describes the changes that DOE is making in this final rule. For 
example, each of the categorical exclusions included in this rulemaking 
contains requirements that the proposed action incorporate applicable 
standards and follow best management practices. These standards and 
practices can vary by technology and location. Also, they change over 
time to reflect lessons learned and to address emerging technologies 
and practices. The Technical Support Document provides links to and 
summarizes information on some of the relevant standards and best 
management practices for the categorical exclusions that are included 
in this rulemaking. As another example, the changes included in this 
rulemaking specify conditions regarding siting proposed actions on 
previously disturbed or developed land. DOE defines previously 
disturbed or developed as ``land that has been changed such that its 
functioning ecological processes have been and remain altered by human 
activity. The phrase encompasses areas that have been transformed from 
natural cover to non-native species or a managed state, including, but 
not limited to, utility and electric power transmission corridors and 
rights-of-way, and other areas where active utilities and currently 
used roads are readily available'' (10 CFR 1021.410(g)(1)). As DOE 
explained in a 2011 notice of proposed rulemaking, ``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'' 
(76 FR 218; January 3, 2011). DOE's experience reviewing proposed 
projects across the United States since 2011 supports this same 
conclusion. As another example, in categorical exclusion B4.14 for 
certain energy storage systems, DOE allows siting within a small area 
contiguous to a previously disturbed or developed area. DOE also has 
more than a decade of experience implementing categorical exclusions 
that allow construction on land that is contiguous to previously 
disturbed or developed areas. The area of contiguous land affected 
would be small as discussed in 10 CFR 1021.410(g)(2). Any proposed use 
of contiguous land is subject to review against all the conditions 
relevant to the categorical exclusion, including the integral elements 
that require consideration of effects on threatened and endangered 
species and their habitat, historic properties, and other 
environmentally sensitive resources. The Technical Support Document 
includes summaries of environmental assessments for projects proposed 
on previously disturbed or developed land and on contiguous land.
    As previously noted, DOE's NEPA regulations also include ``integral 
elements'' that apply to all categorical exclusions listed in appendix 
B to subpart D of part 1021 (appendix B, paragraphs (1) through (5)). 
Although the integral elements are not repeated for each categorical 
exclusion, they are part of the definition of each categorical 
exclusion listed in appendix B, and DOE must consider them as part of 
its determination whether the proposed action fits within a categorical 
exclusion (10 CFR 1021.410(b)(1)). Integral elements require that, to 
fit within a categorical exclusion, the proposed action must not 
threaten a violation of applicable environment, safety, and

[[Page 34076]]

health requirements; require siting and construction or major expansion 
of waste storage, disposal, recovery, or treatment facilities; disturb 
hazardous substances, pollutants, or contaminants that preexist in the 
environment such that there would be uncontrolled or unpermitted 
releases; have the potential to cause significant impacts on 
environmentally sensitive resources; or involve governmentally 
designated noxious weeds or invasive species, unless certain conditions 
are met.\4\ DOE defines ``environmentally sensitive resource'' as a 
resource that has typically been identified as needing protection 
through Executive order, statute, or regulation by Federal, state, or 
local government, or a federally recognized Indian tribe. 
Environmentally sensitive resources include historic properties, 
threatened and endangered species or their habitat, floodplains, and 
wetlands, among others (10 CFR part 1021, subpart D, appendix B).
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    \4\ This is a summary description of the integral elements. See 
10 CFR part 1021, subpart D, appendix B for the full text.
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    In determining whether a proposed action fits within a categorical 
exclusion, DOE may review information provided by an applicant, in its 
application and during follow-up requests; information from systems 
maintained by DOE, another Federal agency, or external party (e.g., 
geographic information systems); information from site visits; 
information from discussions or consultations with Federal, state, 
local, or tribal governments; and information from other sources as 
needed. At any point during this review, DOE can determine that 
additional information is needed to make a categorical exclusion 
determination or decide to prepare an environmental assessment or 
environmental impact statement.
    Only if DOE determines that all the applicable requirements and 
conditions of the categorical exclusion (including the integral 
elements, as applicable) have been met will it proceed to review the 
proposed action for extraordinary circumstances, and potentially 
proceed to issue a categorical exclusion determination. DOE regularly 
posts its categorical exclusion determinations at www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations.

III. Changes Made in This Final Rule

A. Overview

    In this final rule, DOE adds a categorical exclusion for certain 
energy storage systems and revises categorical exclusions for upgrading 
and rebuilding powerlines and for solar photovoltaic (PV) systems. DOE 
also makes conforming changes to other categorical exclusions, to a 
class of actions normally requiring an environmental assessment, and to 
a class of actions normally requiring an environmental impact statement 
(10 CFR part 1021, subpart D, appendices B, C, and D). DOE's process 
for developing the proposed changes is described in the notice of 
proposed rulemaking. The final changes, including differences from what 
was included in the notice of proposed rulemaking, are discussed in 
sections III.B through III.D of this final rule. These changes do not 
require any changes to or otherwise affect categorical exclusion 
determinations completed prior to the effective date of this final 
rule.
    In addition, the notice of proposed rulemaking mistakenly included 
the text of paragraph (b) of categorical exclusion B5.1, Actions to 
conserve energy or water, and a new paragraph at B5.1(c). DOE did not 
intend to include that regulatory text in the notice of proposed 
rulemaking and has removed it from this final rule. DOE is not making 
changes to categorical exclusion B5.1 paragraph (b) or adding paragraph 
(c) at this time but may propose such changes in a future rulemaking.

B. Changes to Categorical Exclusion B4.13 for Upgrading and Rebuilding 
Existing Powerlines and Related Provisions

    Powerlines are a critical component of the electric grid that move 
electricity from facilities that generate electricity to our 
communities, businesses, and factories. Upgrading and rebuilding \5\ 
powerlines extends their useful life. Upgrades and rebuilds also can 
help reduce the need for new powerlines and can allow the replacement 
of components with newer, more efficient and resilient technology.
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    \5\ A transmission line rebuild is typically a replacement of 
conductor and equipment without increasing capacity. Transmission 
line design and new materials and equipment would meet current 
standards and electrical clearance requirements. A transmission line 
upgrade is typically a replacement of conductor and equipment, or 
the addition of sensors or other advanced technology, to increase 
the line's capacity, such as by increasing the operating voltage or 
increasing the temperature rating.
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    One example is reconductoring. Conductors are the wires that carry 
electricity. Most of the existing electric grid uses conductors with a 
steel core for strength surrounded by aluminum for the electrical 
current. More recently, conductor designs (referred to as advanced 
conductors) with composite or carbon cores, in place of steel, have 
come into use. Advanced conductors provide a variety of benefits 
including increased capacity. By increasing the capacity of powerlines 
it is possible to integrate renewable energy and other sources of 
electricity into the grid without the need to build new powerlines. Use 
of advanced conductors reduces line losses (i.e., power lost during 
transmission and distribution of electricity) relative to traditional 
conductors, thereby improving efficiency.\6\ Improvements to capacity 
and efficiency can help to ensure reliability, reduce costs to 
consumers, and reduce greenhouse gas (GHG) emissions associated with 
electricity generation, transmission, and distribution.
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    \6\ Grid Strategies, LLC, ``Advanced Conductors on Existing 
Transmission Corridors to Accelerate Low Cost Decarbonization,'' 
March 2022, available at: https://acore.org/wp-content/uploads/2022/03/Advanced_Conductors_to_Accelerate_Grid_Decarbonization.pdf.
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    Upgrading and rebuilding powerlines also can avoid or reduce 
adverse environmental impacts, such as by relocating small \7\ segments 
of the existing line to avoid a sensitive environmental resource. 
Upgrading and rebuilding powerlines also can enhance resilience. For 
example, an upgrade or rebuild project might convert segments of 
existing overhead powerlines to underground lines or replace old 
powerline poles to ensure continued safe operations.
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    \7\ See 10 CFR 1021.410(g)(2) for a discussion of ``small'' in 
the context of determining the applicability of a DOE categorical 
exclusion.
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    Categorical exclusion B4.13 currently applies to upgrading or 
rebuilding ``approximately 20 miles in length or less'' of existing 
powerlines and allows for minor relocations of small segments of 
powerlines. With this final rule, DOE removes the mileage limitation, 
adds options for relocating within an existing right-of-way or within 
otherwise previously disturbed or developed lands, specifies conditions 
for widening a right-of-way under this categorical exclusion to comply 
with applicable electrical standards, and adds new conditions.
    The potential significance of environmental impacts from upgrading 
or rebuilding powerlines is more related to local environmental 
conditions than to the length of the powerlines. For example, the 
presence of environmentally sensitive resources along the existing 
right-of-way is more pertinent than the length of the existing 
powerlines to be upgraded or rebuilt. DOE reviewed environmental 
assessments for powerline upgrades and rebuilds of various lengths. 
(See

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Technical Support Document, p. 2.) The length of the projects is based 
on the endpoints, which are commonly substations (e.g., rebuild the 
powerline from substation A to substation B). Environmental assessments 
and other information summarized in the Technical Support Document, as 
well as DOE's experience with powerline upgrades and rebuilds, do not 
indicate a particular mileage limit that would mark a threshold for 
significant impacts. DOE's experience comes from operating transmission 
systems for more than 50 years that currently include more than 25,000 
miles of powerlines.
    In this final rule, DOE clarifies options for relocating powerlines 
within the scope of categorical exclusion B4.13. Relocating segments of 
a powerline can improve resilience, avoid sensitive resources, or serve 
other purposes. (See Technical Support Document, p. 13, DOE/EA-1967 for 
an example of relocation to avoid a rock fall and landslide area, 
thereby moving the powerline to a more stable area.) The prior version 
of B4.13 encompassed ``minor relocations of small segments of the 
powerlines.'' This final rule makes the change included in the notice 
of proposed rulemaking to delete ``minor'' because it is unnecessary to 
qualify ``relocations of small segments'' with ``minor.'' Also, DOE is 
revising B4.13 to specify that small segments of powerlines may be 
relocated ``within an existing powerline right of way or within 
otherwise previously disturbed or developed lands.'' The prior version 
of B4.13 did not include this limitation. In addition, DOE is making 
three clarifying changes in response to public comment on the notice of 
proposed rulemaking (discussed in section IV.B of this document). In 
this final rule, DOE adds ``powerline'' before ``right-of-way'' such 
that B4.13 now specifies that the categorical exclusion applies to 
projects ``within an existing powerline right-of way.'' The final rule 
also specifies that upgrading or rebuilding powerlines might include 
widening of an existing right-of-way to comply with electrical 
standards (e.g., increasing voltage may require a wider clearance to 
either side of the powerline to avoid fires or other accidents).
    Commenters sought clarification regarding whether and how B4.13 
includes widening of a right-of-way. A right-of-way may need to be 
widened to meet electrical standards due to a variety of factors 
associated with powerline upgrades and rebuilds such as changes in 
voltage, type of conductor (wires carrying the electrical current), and 
span length (distance between poles or towers). This widening keeps the 
area around a powerline clear of vegetation and other potential hazards 
to reduce risk of fires, power outages, and other accidents. (See 
Technical Support Document, p. 36.) Widening a right-of-way was part of 
the scope of the version of categorical exclusion B4.13 in effect prior 
to this final rule. (See, Technical Support Document, p. 18, 
Categorical Exclusion Determination for the Palisades-Swan Valley 
Transmission Line Rebuild for a project requiring widening in some 
areas of the rebuild project.) In this final rule, DOE has added to 
categorical exclusion B4.13 that, ``Upgrading or rebuilding existing 
electric powerlines also may involve widening an existing powerline 
right-of-way to meet current electrical standards if the widening 
remains within previously disturbed or developed lands and only extends 
into a small area beyond such lands as needed to comply with applicable 
electrical standards.''
    Finally, DOE clarifies that the ``categorical exclusion does not 
apply to underwater powerlines.'' These changes in the final rule 
better state DOE's intention for the changes included in the notice of 
proposed rulemaking.
    The revisions to categorical exclusion B4.13 included in this final 
rule provide additional flexibility for powerline upgrade and rebuild 
projects consistent with the requirements for a categorical exclusion. 
While DOE has removed the mileage limit, DOE will continue to apply the 
conditions, including integral elements, described in section II of 
this document when deciding whether a particular proposed action 
qualifies for categorical exclusion B4.13. This review includes 
consideration of extraordinary circumstances and integral elements, 
such as the potential for significant impacts on environmentally 
sensitive resources, amongst other considerations. At any point during 
the review of a proposed action, DOE may determine that it must prepare 
an environmental assessment or environmental impact statement, rather 
than apply categorical exclusion B4.13 to the proposed action. In other 
words, inclusion of the revised categorical exclusion B4.13 in DOE's 
regulations does not bring all powerline upgrade or rebuild projects 
within the scope of the revised categorical exclusion.
    DOE's review of environmental assessments and other information in 
preparing this rulemaking revealed that proposals to upgrade or rebuild 
powerlines normally incorporate practices that avoid or reduce 
potential land disturbance, erosion, disturbance of environmentally 
sensitive resources, and take other measures to protect the environment 
in the project area. To account for this, DOE has added a condition 
requiring that, to qualify for the categorical exclusion, the proposed 
project be in accordance with applicable requirements and incorporate 
appropriate design and construction standards, control technologies, 
and best management practices. This condition, together with the 
integral elements and consideration of extraordinary circumstances 
(described in section II of this document), will help to ensure that a 
proposed upgrade or rebuild of an existing powerline would be sited and 
designed appropriately.
    DOE also is making a conforming change to its class of action, C4, 
that normally requires an environmental assessment for upgrading and 
rebuilding existing powerlines more than approximately 20 miles in 
length. That conforming change removes the reference to powerline 
length and, instead, clarifies that an environmental assessment 
normally would be prepared when the proposed action does not qualify 
for categorical exclusion B4.13.

C. New Categorical Exclusion B4.14 for Certain Energy Storage Systems 
and Related Provisions

    For purposes of this rulemaking, an energy storage system is a 
device or group of devices assembled together, capable of storing 
energy in order to supply electrical energy at a later time. Energy 
storage can be used to integrate renewable energy (such as wind and 
solar energy) into the electric grid, help generation facilities 
operate at optimal levels to meet customer demand, and reduce the use 
of less efficient generating units that would otherwise run only at 
peak times. An energy storage system also provides protection from 
power interruptions and serves as reserve power in case of power 
outages or fluctuations. The most familiar type of energy storage 
system is a group of electrochemical batteries and associated equipment 
referred to as a battery energy storage system. Another form uses a 
flywheel, which converts excess electricity from the grid to kinetic 
energy in a fast-spinning rotor. As needed, the stored energy is 
converted back to electricity and returned to the grid or put to other 
use.
    DOE and others have been developing large-scale energy storage 
systems for decades. Deployment of these systems has increased over the 
past decade. Today, energy storage systems support the operation of 
electric transmission facilities, microgrids, energy generation

[[Page 34078]]

facilities, and commercial and industrial facilities.\8\
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    \8\ The U.S. Energy Information Administration published 
information about large-scale energy storage for electricity 
generation (www.eia.gov/energyexplained/electricity/energy-storage-for-electricity-generation.php) and market trends for battery 
storage (www.eia.gov/analysis/studies/electricity/batterystorage/). 
Also, DOE published an energy storage market report in 2020 
(www.energy.gov/sites/prod/files/2020/12/f81/Energy%20Storage%20Market%20Report%202020_0.pdf).
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    In this rule, DOE establishes a new categorical exclusion, B4.14, 
for the construction, operation, upgrade, or decommissioning of an 
electrochemical-battery or flywheel energy storage system within a 
previously disturbed or developed area or within a small area 
contiguous to a previously disturbed or developed area. Section II of 
this document includes discussion of DOE's definition of previously 
disturbed or developed area and DOE's experience referring to 
contiguous areas in its categorical exclusions. The total acreage used 
for an energy storage system will be defined by the needs of the 
proposed project. Based on past experience, DOE anticipates that energy 
storage systems typically require 15 acres or less and would be sited 
close to energy, transmission, or industrial facilities. (See Technical 
Support Document, p. 41.) Consistent with this expectation and because 
contiguous land might be undisturbed and undeveloped, DOE proposed that 
siting outside a previously disturbed or developed area be limited to a 
``small'' contiguous area. DOE would determine whether a contiguous 
area is small, based on the criteria discussed in 10 CFR 
1021.410(g)(2), ``in the context of the particular proposal, including 
its proposed location. In assessing whether a proposed action is small, 
in addition to the actual magnitude of the proposal, DOE considers 
factors such as industry norms, the relationship of the proposed action 
to similar types of development in the vicinity of the proposed action, 
and expected outputs of emissions or waste. When considering the 
physical size of a proposed facility, for example, DOE would review the 
surrounding land uses, the scale of the proposed facility relative to 
existing development, and the capacity of existing roads and other 
infrastructure to support the proposed action.'' In addition, the 
notice of proposed rulemaking included conditions that the proposed 
project be in accordance with applicable requirements (such as land use 
\9\ and zoning requirements) and incorporate appropriate design and 
construction standards, control technologies, and best management 
practices. For this final rule, DOE includes those conditions and, in 
response to public comment, adds a condition that the proposed project 
also incorporate appropriate ``safety standards (including the current 
National Fire Protection Association 855, Standard for the Installation 
of Stationary Energy Storage Systems).'' (See section IV.C of this 
document and Technical Support Document, p. 56.) In addition, DOE would 
ensure that the proposed project satisfies the integral elements and 
review the proposal for extraordinary circumstances, as described in 
section II of this document. This review ensures that DOE considers the 
potential environmental effects of a proposed energy storage system 
prior to determining whether categorical exclusion B4.14 applies. In 
proposing this categorical exclusion, DOE evaluated environmental 
assessments and findings of no significant impact prepared by DOE and 
other Federal agencies, categorical exclusion determinations made by 
DOE, and other information. In response to public comment on the notice 
of proposed rulemaking, DOE also reviewed additional information on 
accidents, fires, and other safety considerations, including guidance 
to improve safety and minimize the risk of fires. (See Technical 
Support Document, p. 41.)
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    \9\ On DOE sites and in other locations, land use planning may 
be documented in a site land use plan, or be subject to siting 
processes or other comparable systems. Use of land use and zoning 
requirements is inclusive of these processes.
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    For consistency with the new categorical exclusion B4.14, DOE made 
changes to three related categorical exclusions. Based on its past 
experience with energy storage systems, in 2011, DOE added ``power 
storage (such as flywheels and batteries, generally less than 10 MW)'' 
as an example of conservation actions in categorical exclusion B5.1, 
Actions to conserve energy or water. DOE also added ``load shaping 
projects (such as the installation and use of flywheels and battery 
arrays)'' to the list of example actions in categorical exclusion B4.6, 
Additions and modifications to transmission facilities. In this final 
rule, DOE has deleted ``power storage (such as flywheels and batteries, 
generally less than 10 MW)'' from the examples in B5.1. DOE does not 
include the 10 MW (megawatt) limit in new categorical exclusion B4.14 
because capacity, whether denominated in megawatts as a measure of 
instantaneous output or megawatt-hours as a measure of the total amount 
of energy capable of being stored, is not a reliable indicator of 
potential environmental impacts. Including a capacity limit within the 
categorical exclusion could mean that technology improvements resulting 
in more power storage within the same physical footprint may not 
qualify for the categorical exclusion even though the potential 
environmental impacts have not changed. DOE also deleted the example of 
flywheels and battery arrays from B4.6 but retained the reference to 
``load shaping projects'' and added ``reducing energy use during 
periods of peak demand'' as a new example. DOE added a note to B4.6 
that energy storage systems are addressed in B4.14. DOE also added this 
note to categorical exclusion B4.4, Power marketing services and 
activities, which was established in 1992 and lists storage and load 
shaping as examples. These conforming changes will avoid confusion over 
which categorical exclusion and associated conditions apply to energy 
storage systems.

D. Changes to Categorical Exclusion B5.16 for Solar Photovoltaic 
Systems and Related Provisions

    Solar PV technology converts sunlight into electrical energy. 
Individual PV cells, which may produce only 1 or 2 watts of 
electricity, are connected together to form modules (otherwise known as 
panels). The modules are combined with other components (e.g., to 
convert electricity from direct current (DC) to alternating current 
(AC)) to create a solar PV system. These systems can be located in a 
wide variety of locations and sized for an individual home or business 
up to utility-scale, generating hundreds of megawatts.\10\
---------------------------------------------------------------------------

    \10\ DOE's Solar Energy Technologies Office has a website that 
describes solar PV technologies (www.energy.gov/eere/solar/solar-photovoltaic-technology-basics).
---------------------------------------------------------------------------

    Solar PV systems do not release GHGs while operating, though, as 
with any industrial activity, manufacturing and installing solar PV 
systems can release GHGs. The U.S. Energy Information Administration 
reports that, ``Studies conducted by a number of organizations and 
researchers have concluded that PV systems can produce the equivalent 
amount of energy that was used to manufacture the systems within 1 to 4 
years. Most PV systems have operating lives of up to 30 years or 
more.'' \11\ Thus, on a life-cycle basis, solar PV systems provide many 
years of electricity generation without GHG emissions.
---------------------------------------------------------------------------

    \11\ U.S. Energy Information Administration ``Solar explained'' 
available at www.eia.gov/energyexplained/solar/solar-energy-and-the-environment.php; retrieved March 21, 2024.
---------------------------------------------------------------------------

    DOE established categorical exclusion B5.16, Solar photovoltaic 
systems, in 2011 to include the installation,

[[Page 34079]]

modification, operation, and removal of solar PV systems located on a 
building or other structure or, if located on land, within a previously 
disturbed or developed area generally comprising less than 10 acres. In 
this final rule, DOE changes ``removal'' of a solar PV system to 
``decommissioning.'' Decommissioning encompasses recycling and other 
types of actions that occur when a facility is taken out of service. 
DOE also removes the acreage limitation for proposed projects. Based on 
DOE's experience, acreage is not a reliable indicator of potential 
environmental impacts. As discussed in section II of this document, the 
potential significance of environmental impacts is more related to 
local environmental conditions than to acreage. DOE's review of various 
environmental assessments indicate that an acreage limit would not 
serve as an appropriate indicator of significant impacts. This 
conclusion is illustrated, for example, by environmental assessments 
for solar PV projects larger than 1,000 acres on previously disturbed 
or developed land that would not result in significant environmental 
impacts. (See Technical Support Document, p. 74.)
    The nature and significance of environmental impacts is determined 
by a proposed project's proximity to and potential effects on 
environmentally sensitive resources and other conditions that are 
accounted for in categorical exclusion B5.16, including in the integral 
elements and in extraordinary circumstances, as described in section II 
of this document. DOE will consider the integral elements and the 
presence of any extraordinary circumstances when reviewing a proposed 
solar PV project's eligibility for this categorical exclusion. This 
review would ensure that DOE considers potential environmental impacts 
of a proposed solar PV system prior to determining whether categorical 
exclusion B5.16 applies. For example, in preparing the Technical 
Support Document, DOE observed that some large solar PV systems have 
been proposed for agricultural land. While integrating solar PV systems 
with farms may provide a variety of economic and environmental benefits 
to farmers,\12\ doing so also raises questions about land use and the 
protection of important farmlands. One of the integral elements 
requires that the project must not be one that would have the potential 
to cause significant impacts on environmentally sensitive resources, 
including on prime or unique farmland, or other farmland of statewide 
or local importance (10 CFR part 1021, appendix B, paragraph (4)(v)). 
The requirement to consider extraordinary circumstances also will help 
ensure that DOE considers potential impacts on farmland and surrounding 
communities when deciding whether to apply the categorical exclusion.
---------------------------------------------------------------------------

    \12\ U.S. Energy Information Administration ``Solar explained'' 
available at www.eia.gov/energyexplained/solar/solar-energy-and-the-environment.php; retrieved March 21, 2024.
---------------------------------------------------------------------------

    Public comments raised concern about impacts of solar PV systems on 
wildlife and habitat. (See section IV.D.2 of this document.) In 
response to those concerns and to clarify DOE's intent, DOE has added a 
condition that the proposed project be ``consistent with applicable 
plans for the management of wildlife and habitat, including plans to 
maintain habitat connectivity.'' Further, one of the integral elements 
applicable to categorical exclusion B5.16 requires that the project 
must not be one that would have the potential to cause significant 
impacts on environmentally sensitive resources, including threatened or 
endangered species or their habitat (10 CFR part 1021, appendix B, 
paragraph (4)(ii)). The conditions added to B5.16 better ensure that 
solar PV systems are installed and operated in a manner that is 
protective of all species and their habitat.
    DOE also has made conforming changes in appendix C, Classes of 
Actions that Normally Require EAs but not Necessarily EISs, and in 
appendix D, Classes of Actions that Normally Require EISs. These 
appendices each include a class of actions, C7 and D7, that associates 
the level of NEPA review for interconnection requests and power 
acquisition with the power output of the electric generation resource. 
In 2011, DOE proposed for C7 that an environmental assessment normally 
would be required for the interconnection of, or acquisition of power 
from, new generation resources that are equal to or less than 50 
average megawatts ``and that would not be eligible for categorical 
exclusion under 10 CFR part 1021'' (76 FR 233; January 3, 2011). DOE 
did not receive public comment on the proposed addition regarding 
categorical exclusion eligibility. In the 2011 final rule, DOE did not 
include the condition regarding eligibility for a categorical 
exclusion. DOE explained this decision by stating ``to improve clarity, 
DOE is removing the previously proposed condition that the new 
generation resource `would not be eligible for categorical exclusion 
under this part.' DOE normally would not prepare an environmental 
assessment when a categorical exclusion would apply. Therefore, the 
condition is unnecessary and potentially confusing'' (76 FR 63784; 
October 13, 2011). DOE's practice continues to be that it ``normally 
would not prepare an environmental assessment when a categorical 
exclusion would apply.'' However, in light of the change to B5.16--
which removes the acreage restriction for solar PV systems, thereby 
allowing the categorical exclusion to apply to systems generating up to 
hundreds of megawatts--DOE believes that including a condition in C7 is 
appropriate and helpful. It will clarify DOE's practice that an 
environmental assessment is normally required ``unless the generation 
resource is eligible for a categorical exclusion.'' DOE did not propose 
a similar condition in 2011 for D7, which applies to new generation 
resources greater than 50 average megawatts. DOE has added the same 
condition to both C7 and D7 for the reasons previously described. For 
D7, DOE also specifies that an environmental impact statement is not 
required when an environmental assessment was prepared that resulted in 
a finding of no significant impact. This is standard practice, and DOE 
added this text only to avoid any potential confusion.

IV. Comments Received and DOE's Responses

    DOE published a Request for Information (RFI) in the Federal 
Register on November 15, 2022 (87 FR 68385), to help DOE identify 
activities associated with clean energy projects and clean energy 
infrastructure that should be considered for new or revised categorical 
exclusions. Thirty-three individuals or entities responded to the 
Request for Information.\13\ DOE responded to those comments relevant 
to this rulemaking in the notice of proposed rulemaking and does not 
repeat those responses here.
---------------------------------------------------------------------------

    \13\ The Request for Information and public comments are 
available at www.regulations.gov/docket/DOE-HQ-2023-0002/comments.
---------------------------------------------------------------------------

    The notice of proposed rulemaking (88 FR 78681; November 16, 3023) 
announced a public review period ending on January 2, 2024. In response 
to public requests, DOE subsequently extended the public review period 
through January 16, 2024 (88 FR 88854; December 26, 2023). DOE received 
approximately 115 comment submittals from individuals, industry trade 
groups, environmental and community organizations, state, Tribal, and 
local governments, and other entities. DOE has considered the comments 
on the proposed rulemaking received during the public comment period as 
well as all late comments. DOE has incorporated

[[Page 34080]]

some revisions suggested in these comments into the final rule. The 
following discussion describes the comments received, provides DOE's 
response to the comments, and describes changes to the rule resulting 
from public comments. Section IV.A of this document includes comment 
summaries and responses that address DOE's proposed revisions 
collectively or address related topics such as NEPA implementation. 
Sections IV.B, IV.C, and IV.D include comment summaries and DOE's 
responses regarding powerline upgrades and rebuilds, energy storage 
systems, and solar photovoltaic systems, respectively.

A. General Comments on Proposed Amendments

    DOE received comments that expressed support for the rulemaking, as 
well as comments in opposition to the proposed rulemaking. DOE 
appreciates the commenters adding their perspectives to the rulemaking 
process. DOE responds to those comments that included detailed feedback 
on the proposed rulemaking.
1. Comments Supporting An Expansion of the Rulemaking
    Some commenters requested that DOE expand this rulemaking to add 
additional categorical exclusions for clean energy technologies, 
electricity transmission, and related programs. These comments include 
suggestions to add categorical exclusions for carbon capture, 
utilization, and storage, including the installation of direct air 
capture technologies; geothermal exploration, permitting, and 
development; hydrogen pipelines, production, and combustion; adding 
capacity and making improvements to existing water power facilities; 
energy generation projects that qualify for investment or production 
tax credits under the Inflation Reduction Act; small-scale, renewable 
natural gas projects; small-scale nuclear power reactors (generally 
less than 350 megawatts); wind power; and other clean energy projects. 
Comments also suggested that DOE add categorical exclusions for 
interstate and interregional transmission lines; high-voltage direct 
current transmission lines; and microgrids. In addition, comments 
suggested that DOE add new categorical exclusions for vegetation 
management and expand the list of examples included in DOE's existing 
categorical exclusion for actions to conserve energy or water (B5.1).
    DOE considered each of these comments and decided not to modify 
this rule to include these suggested new or revised categorical 
exclusions. DOE currently lacks sufficient technical support to 
determine whether the suggested activities normally do not result in 
significant environmental impact. Also, DOE noted that several of the 
suggestions overlap with DOE's existing categorical exclusions. For 
example, DOE has applied its existing categorical exclusions to 
microgrid projects and vegetation management, and DOE's existing 
categorical exclusions for powerline projects apply to high-voltage 
direct current lines and alternating current lines. DOE would need to 
evaluate whether changes to the scope of its existing categorical 
exclusions would be appropriate. DOE will retain the comments for 
further consideration in any future rulemaking regarding DOE's NEPA 
procedures.
2. Comments Regarding NEPA and Other Environmental Requirements
    Commenters noted that implementation of DOE's proposed changes may 
be affected by the pending Phase 2 revisions of the CEQ NEPA 
Implementing Regulations.\14\ Some commenters recommended coordination 
with CEQ on this rulemaking to ensure consistency, while other 
commenters requested that this rulemaking not proceed until CEQ has 
promulgated its final rule. DOE consulted with CEQ while preparing this 
rule consistent with consultation requirements in the CEQ regulations 
(40 CFR 1507.3(b). This consultation included consideration of whether 
DOE's changes are consistent with the CEQ regulations.
---------------------------------------------------------------------------

    \14\ See CEQ's notice of proposed rulemaking published on July 
31, 2023 (88 FR 49924).
---------------------------------------------------------------------------

    Other commenters stated that clear environmental regulations and 
guidelines for the different technologies are still needed and 
therefore this rulemaking is premature. DOE recognizes that 
environmental requirements and practices will continue to change as 
technology advances and awareness increases about potential impacts and 
ways to avoid or lessen those impacts. DOE's categorical exclusions, 
including the ones addressed in this rulemaking, require projects to 
incorporate the requirements and best practices applicable at the time 
that DOE is considering whether to apply the categorical exclusion to a 
particular proposed action. In addition, DOE regularly reviews its 
categorical exclusions to determine whether they continue to be 
appropriate in light of new information and requirements.
    Commenters recommended that DOE evaluate whether the proposed 
rulemaking could affect coastal uses or resources in states or 
territories with a Coastal Zone Management Program pursuant to the 
Coastal Zone Management Act. Commenters recommended that DOE adopt 
internal procedures to ensure compliance with the Coastal Zone 
Management Act regardless of the level of NEPA review. DOE recognizes 
that compliance with the Coastal Zone Management Act is an independent 
responsibility regardless of the level of NEPA review. DOE will 
continue its practice of coordinating with the relevant state agency to 
ensure compliance with the Coastal Zone Management Act, when 
applicable.
3. Comments Regarding Public Engagement
    Some commenters expressed concern that the public comment periods 
on the Request for Information and notice of proposed rulemaking 
overlapped with the winter holiday season. DOE appreciates that there 
are competing schedule demands and that these may fall hardest on small 
organizations and community members. DOE provided an initial 45-day 
comment period for the Request for Information and reopened that public 
comment period for an additional 30 days, and DOE extended the 45-day 
comment period for the notice of proposed rulemaking by 14 days to 
provide interested individuals and organizations additional time to 
provide comments. DOE received comments from a broad range of 
organizations and individuals who raised many substantive issues.
    Commenters emphasized the importance of public involvement in 
decision-making, expressing that under NEPA, affected communities must 
be able to voice their concerns about projects, especially on public 
lands. Some commenters stated that creating a categorical exclusion 
removes safeguards for communities and investigation of adverse 
impacts, including cumulative impacts. Other commenters stated that the 
applicability criteria of the proposed rule would require substantive 
review by DOE to identify a project's eligibility for a categorical 
exclusion followed by DOE's consideration of the individual conditions 
in the categorical exclusion, which would deprive DOE of anticipated 
efficiencies at the expense of public participation. Commenters 
requested that DOE provide public comment opportunities for categorical 
exclusion determinations. While DOE may choose to provide opportunities 
for public comment at any time, DOE's normal practice is not to request 
public comment before making a categorical exclusion determination. 
This is

[[Page 34081]]

consistent with CEQ and DOE NEPA regulations.
    Commenters asked DOE to post categorical exclusion determinations 
(including sufficient information to demonstrate proper use) that rely 
on the proposed categorical exclusions on the DOE website in a timely 
fashion for public review. DOE's practice is to post categorical 
exclusion determinations for actions listed in appendix B of its NEPA 
regulations, which includes all of the categorical exclusions included 
in this rulemaking, on the DOE website generally within two weeks of 
the determination (10 CFR 1021.410(e) and www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations). A categorical exclusion 
determination includes a description of the proposed action, the 
categorical exclusion(s) applied, and confirmation that conditions 
associated with the categorical exclusion(s) were satisfied.
4. Comments Regarding Tribal Resources
    A federally recognized Indian Tribe expressed concern about the 
potential impacts of DOE's proposed rule on its treaty reserved rights 
and cultural resources and practices. As explained in section II of 
this document, DOE conducts an environmental review at both the stage 
of establishing or revising a categorical exclusion and at the stage of 
determining whether one or more categorical exclusions applies to a 
proposed action. This final rule establishes and revises categorical 
exclusions in DOE's NEPA procedures; this final rule will not result in 
environmental impacts and is not a proposal to apply any categorical 
exclusion to particular proposed actions. When determining whether one 
or more categorical exclusions applies to a proposed action, DOE 
conducts a project-specific environmental review. This review includes 
consideration of extraordinary circumstances and integral elements, 
including the potential for significant impacts on environmentally 
sensitive resources, amongst other considerations. ``An environmentally 
sensitive resource is typically a resource that has been identified as 
needing protection through Executive order, statute, or regulation by 
Federal, state, or local government, or a federally recognized Indian 
Tribe'' (10 CFR part 1021, appendix B, paragraph (4)). Environmentally 
sensitive resources include ``(i) Property (such as sites, buildings, 
structures, and objects) of historic, archeological, or architectural 
significance designated by a Federal, state, or local government, 
Federally recognized Indian tribe, or Native Hawaiian organization, or 
property determined to be eligible for listing on the National Register 
of Historic Places'', among others (10 CFR part 1021, subpart D, 
appendix B).

B. Comments Regarding Upgrading and Rebuilding Powerlines

1. Comments Requesting Clarifications Regarding Categorical Exclusion 
B4.13
    Commenters asked DOE to clarify that categorical exclusion B4.13 
would apply to projects that receive Federal loans or grants and not 
only to transmission lines that impact Federal land. Other commenters 
requested clarification that categorical exclusion B4.13 covers all 
types of powerlines, including powerlines that feed into a Federal 
electric transmission system. DOE clarifies here that categorical 
exclusion B4.13 could apply to proposals for DOE financial assistance, 
including loans and grants, as well as any other DOE action subject to 
NEPA, so long as the proposed action satisfies all conditions of the 
categorical exclusion.
    Commenters asked DOE to clarify whether the scope of categorical 
exclusion B4.13 includes improvements to existing maintenance and 
repair access roads that are not used for powerline upgrades or 
rebuilds. Commenters noted that existing access roads may not be 
suitable for the types of heavy construction equipment associated with 
rebuilding powerlines and that use of large construction equipment for 
rebuild projects may require improving existing access roads, such as 
widening roads, clearing surrounding trees, and adding gravel for 
stability to allow work under varying weather conditions. DOE responds 
that categorical exclusion B4.13 could include improvements to, and 
reconstruction of, access roads, laydown areas, and related work that 
are part of the proposed action and would take place within the 
existing right-of-way or relocation area. DOE also could consider 
whether categorical exclusion B1.13, Pathways, short access roads, and 
rail lines, would be appropriate for certain needed access roads. 
Consistent with DOE's NEPA regulations, the full scope of the proposed 
action must satisfy all conditions of DOE's categorical exclusions, 
including the integral elements (10 CFR part 1021, subpart D, appendix 
B) and consideration of extraordinary circumstances, segmentation, and 
cumulative impacts (10 CFR 1021.410(b)). DOE also notes that where 
access roads are not suitable for heavy equipment, replacement poles 
and other equipment sometimes are delivered to the project site by 
helicopter.
    Commenters requested that categorical exclusion B4.13 include use 
of existing transportation rights-of-way, including those owned by 
railroads and highways managed on the public's behalf. DOE recognizes 
that highway and railroad rights-of-way may be appropriate locations 
for new powerlines. However, different criteria were used to establish 
highway and railroad rights-of-way than would be used for new 
powerlines, and DOE does not have sufficient information at this time 
to support a categorical exclusion for such projects. DOE will retain 
the comment for potential consideration in a future NEPA rulemaking. 
Commenters also requested that DOE designate existing transportation 
rights-of-way as National Interest Electric Transmission Corridors 
(NIETCs) pursuant to Section 216 of the Federal Power Act. DOE 
appreciates this suggestion, but designating NIETCs is beyond the scope 
of this rulemaking.
    Commenters asked that DOE ensure that use of categorical exclusion 
B4.13 be as transparent and clear as possible. Commenters requested 
that DOE clarify definitions of the applicable conditions, parameter 
language, and extraordinary circumstances that would determine 
applicability of the categorical exclusion. DOE responds that to 
provide transparency in the use of categorical exclusions, DOE began 
posting categorical exclusion determinations online in 2009. DOE will 
continue to regularly post categorical exclusion determinations for 
B4.13 and other categorical exclusions listed in appendix B of DOE's 
NEPA regulations (10 CFR part 1021, subpart D) at www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations. DOE has added discussion 
of the conditions that apply to categorical exclusions in sections II, 
III, and IV of this final rule.
    The proposed changes to categorical exclusion B4.13 included 
relocation of small segments of powerlines within an existing right-of-
way or within otherwise previously disturbed or developed lands. 
Commenters requested that DOE narrow the categorical exclusion, such as 
by including only actions within the powerline's existing right-of-way, 
within a minor widening of the existing right-of-way within otherwise 
previously disturbed or developed lands, or within another existing 
utility or electric power transmission corridor or right-of-way where 
active utilities and currently used roads are readily available. DOE 
appreciates these suggestions but finds that they would limit 
flexibility to

[[Page 34082]]

relocate small sections of powerlines to previously disturbed or 
developed lands that are outside an existing powerline right-of-way and 
to widen a right-of-way as needed to meet electrical standards, 
including when the widening extends to a small area beyond previously 
disturbed or developed lands. Such relocation consistent with the 
conditions placed on the use of categorical exclusion B4.13 normally 
would not pose a potential for significant environmental impacts. (See 
Technical Support Document, p. 2.) Moreover, such relocation may allow 
improvements to environmental protection by moving small sections of a 
powerline around a sensitive resource.
    Commenters requested clarification on whether the limitation that 
small segments of powerlines may be relocated within an existing right-
of-way or within previously disturbed land encompasses rights-of-way 
other than that of the powerline being relocated. DOE intends this 
language to encompass other powerline rights-of-way so long as safety, 
reliability and other conditions are met. To help clarify this point, 
DOE added ``powerline'' so that the wording in this final rule is 
``within an existing powerline right-of-way.'' Commenters asked that 
DOE clarify what is considered to be a right-of-way and pointed, as an 
example, to the Department of Transportation's definition of existing 
right-of-way for highway projects (23 CFR 771.117(c)(22)). The meaning 
of right-of-way varies by context. The right-of-way for a powerline may 
be defined through an agreement, such as an easement, with a private 
landowner, permit from a land management agency, or other mechanism 
conveying rights to construct and maintain the powerline and associated 
facilities. For purposes of this rulemaking, DOE is referring to the 
cleared right-of-way, i.e., the right-of-way where vegetation 
management and other practices are necessary for safety reasons (e.g., 
to avoid the potential to cause fire). The width of that cleared right-
of-way is based on design criteria (e.g., line voltage). (See Technical 
Support Document, p. 36.)
    Commenters explained that when upgrading powerlines to a higher 
voltage, current electrical standards may require wider rights-of-way 
than were established when powerlines were built. Commenters 
recommended that categorical exclusion B4.13 include expansion of an 
existing right-of-way to meet current electrical standards and that DOE 
revise the categorical exclusion to state that small segments of 
powerlines may be relocated ``within or adjacent to'' an existing 
right-of-way. Commenters also expressed concern about the risk of fire 
being started by overhead powerlines. DOE includes in this final rule 
that categorical exclusion B4.13 encompasses widening of the cleared 
right-of-way to meet current electrical standards. As discussed in 
section III of this document, the categorical exclusion may only apply 
when such widening ``remains within previously disturbed or developed 
lands and only extends into a small area beyond such lands as needed to 
comply with applicable electrical standards.'' There are existing 
rights-of-way that are not bounded entirely by previously disturbed or 
developed lands. In such locations, it may be necessary to extend part 
of the right-of-way into undisturbed land in order to meet the 
applicable electrical code for the entire length of the powerline 
upgrade or rebuild project. It is common for the widening to be only 
about 40 feet or less (i.e., 20 feet or less on each side of the right-
of-way). Before deciding whether to apply categorical exclusion B4.13 
for such widening, DOE would review the proposed action against all the 
conditions applicable to categorical exclusion B4.13, including 
integral elements and the consideration of extraordinary circumstances.
2. Comments Regarding Effects on Wildlife and Habitat
    Some commenters stated that powerline projects may fragment or 
reduce habitat or otherwise adversely affect wildlife by removing 
trees, widening the right-of-way, creating greater barriers to animal 
movement, and in other ways. Commenters stated that some of the 
environmental assessments included in DOE's Technical Support Document 
involved projects that would remove hundreds of trees. These commenters 
suggested that DOE had overlooked the potential for significant 
environmental impacts from these effects on habitat and that an 
environmental assessment may be better able to account for these 
impacts. They referred to research linking habitat loss with declines 
in wildlife populations and to the deaths of birds by collision with 
powerlines and from electrocution.
    Commenters recommended that relocating powerlines avoid bird travel 
routes and consider alternative designs and structures, visual cues, 
and other methods to avoid or reduce impacts to birds and other species 
and their habitats. DOE responds that these are common considerations 
in planning upgrades and rebuilds of existing powerlines, including 
relocating or widening rights-of way. DOE's integral elements require 
that the project must not be one that would have the potential to cause 
significant impacts on environmentally sensitive resources, including 
threatened or endangered species or their habitat or species protected 
under the Migratory Bird Treaty Act (10 CFR part 1021, appendix B, 
paragraph (4)(ii)). Categorical exclusion B4.13 also requires projects 
to incorporate appropriate design and construction standards, control 
technologies, and best management practices, which may include measures 
to reduce effects on birds. In addition, applicants must comply with 
all applicable state and Federal laws, including applicable 
requirements imposed by state wildlife agencies or Federal land 
management agencies, including to identify potential high-risk bird 
strike areas, identify shifts in bird flight patterns, and develop 
marking plans and design features to reduce associated risks. These 
requirements ensure that projects covered by categorical exclusion 
B4.13 will not have significant effects on birds.
    Other commenters stated that managed lands in forested areas, 
including transmission line corridors, can provide early successional 
habitat for native bees and other pollinators, substantially improving 
species richness and abundance of bees relative to adjacent forest 
areas. Commenters also stated that transmission corridors can benefit 
some species of birds, deer, and plants. The ability of these corridors 
to provide areas for food, nesting, and shelter are enhanced with 
habitat management practices (such as leaving habitat trees, planting 
low-growing native vegetation, and removing invasive plant species), 
which typically accompany transmission development.
    DOE recognizes that a combination of adverse and beneficial impacts 
can accompany upgrades and rebuilds of existing electric powerlines. As 
described in section II of this document, the terms of categorical 
exclusion B4.13, including the integral elements, ensure that projects 
would not have a significant effect on species and habitat. If a 
project does not satisfy these elements, or extraordinary circumstances 
exist that make significant effects likely, DOE must prepare an 
environmental assessment or environmental impact statement, rather than 
apply a categorical exclusion.
3. Comments Regarding Sulfur Hexafluoride
    Commenters stated that transmission lines leak sulfur hexafluoride, 
a greenhouse gas 26,000 more times potent than carbon dioxide. For this 
final rule, DOE supplemented the

[[Page 34083]]

Technical Support Document with information regarding sulfur 
hexafluoride, a potent greenhouse gas that has a high global warming 
potential. Sulfur hexafluoride is used in gas-insulated switchgears, 
breakers, and lines in the transmission sector. Transmission operators 
follow manufacturer guidelines, state requirements, and federal 
handling and reporting requirements, including the Greenhouse Gas 
Reporting Program under the Clean Air Act, as applicable, for use and 
handling of sulfur hexafluoride. Improved engineering and equipment 
design, advances in leak detection and repair, and alternative 
insulating gases with lower global warming potentials have resulted in 
the reduction of sulfur hexafluoride emissions from the electric power 
sector over time. Further, upgrading and rebuilding powerlines with 
newer equipment that requires less or no sulfur hexafluoride or has 
reduced leakage rates and improved monitoring further contribute to a 
reduction in sulfur hexafluoride emissions across the electric 
transmission sector. (See Technical Support Document, p. 40.)
4. Comments Regarding Endangered Species Act Section 7 Consultations
    Commenters stated the DOE could encourage programmatic Endangered 
Species Act Section 7 consultations for specific regions and cited the 
programmatic biological assessment prepared by DOE's Western Area Power 
Administration for wind energy development and interconnection requests 
in the Upper Great Plains Region as a relevant example. DOE responds 
that the referenced programmatic biological assessment analyzed 
information and identified a list of conservation measures for 28 
species of concern. Western Area Power Administration and the U.S. Fish 
and Wildlife Service developed a review and approval system based on 
consistency forms and checklists of conservation measures for each 
species. If a wind project developer commits to implement the 
applicable conservation measures, Western Area Power Administration's 
consultation responsibilities under Section 7 of the Endangered Species 
Act are concluded when Western Area Power Administration and the U.S. 
Fish and Wildlife Service review and sign the consistency forms; no 
separate Section 7 consultation is required unless the particular 
project involves a listed species, critical habitat, or an effect that 
was not addressed in the programmatic biological assessment. DOE 
supports using programmatic consultations and similar approaches to 
improve the efficiency of implementing the Endangered Species Act, the 
National Historic Preservation Act, and other laws. These requirements 
are separate from the requirements of NEPA, and reliance on a 
categorical exclusion for NEPA compliance does not affect DOE's 
obligations under other laws.
5. Comments Regarding Effects on Communities
    Commenters stated that, by affecting land previously unused as 
transmission line right-of-way, rerouting transmission lines may affect 
local land use, affect people's relation with their environment, and 
impact neighborhoods and communities. DOE recognizes that these are 
considerations in developing a proposal to reroute powerlines and 
relies on the terms of categorical exclusion B4.13, including the 
integral elements, and the consideration of extraordinary circumstances 
to ensure that projects would not have a significant effect on 
communities.
6. Comments Regarding Technical Support for Revisions to Categorical 
Exclusion B4.13
    Commenters stated that the environmental assessments included in 
the Technical Support Document for the notice of proposed rulemaking 
were prepared for projects in the Bonneville Power Administration and 
Western Are Power Administration systems. However, the categorical 
exclusion could be applied to projects in any region of the United 
States. In response to this comment, DOE reviewed seven additional 
environmental assessments and findings of no significant impact 
prepared by other Federal agencies for powerline upgrade or rebuild 
projects in Kentucky, Minnesota, Mississippi, Missouri, North Dakota, 
and Wisconsin. These NEPA documents support DOE's determination that 
powerline upgrade and rebuild projects normally do not pose a potential 
for significant environmental impacts. DOE added these seven 
environmental assessments to the Technical Support Document for this 
final rule.
    Commenters also pointed to the environmental assessment for Midway 
Benton No. 1 Rebuild Project as an example of where project changes 
were needed to lower potential environmental impacts. DOE included a 
wide and diverse range of environmental assessments in the Technical 
Support Document. These environmental assessments and findings of no 
significant impact demonstrate that, in the aggregate, these types of 
projects normally do not pose a potential for significant environmental 
impact and, thus, are appropriate for a categorical exclusion. DOE 
stated in the Technical Support Document for the notice of proposed 
rulemaking that, ``Inclusion of these environmental assessments does 
not mean that the proposed projects would have qualified for any 
categorical exclusion as proposed in this rulemaking. That 
determination would be made on a case-by-case basis.'' (See Technical 
Support Document, p. 1.) DOE did not intend to indicate that it had 
determined that a categorical exclusion would have been appropriate for 
that project. Rather, DOE found that consideration of the environmental 
assessment for the Midway Benton No. 1 Rebuild Project, along with 
other information in the Technical Support Document, helped DOE 
understand whether the proposed revisions to categorical exclusion 
B4.13 are appropriate. DOE will continue to consider each proposed 
project on its own merits in deciding whether to apply a categorical 
exclusion or prepare an environmental assessment or environmental 
impact statement.
7. Comments Regarding Underwater Powerlines
    Commenters stated that the scope of categorical exclusion B4.13 
should not include upgrading and rebuilding existing offshore, 
underwater powerlines. These commenters referred to potential adverse 
environmental impacts resulting from the propellers on boats used 
during upgrade and rebuild projects, trenching, turbidity, boulder 
relocation, and electric fields. DOE did not intend that categorical 
exclusion B4.13 would include underwater powerlines. DOE has added a 
statement in this final rule specifying that the categorical exclusion 
does not apply to underwater powerlines.
8. Comments Regarding NEPA Implementation
    One commenter recommended that DOE consider NEPA efficiencies, such 
as utilizing programmatic regional reviews for transmission projects. 
The commenter also recommended that DOE streamline NEPA processes to 
support designation of transmission corridors and financial assistance 
for transmission projects. DOE supports taking steps to improve the 
efficiency of NEPA and other environmental review requirements, without 
undermining the purposes of these processes, to support timely and 
effective decision making.
    Some commenters stated that a categorical exclusion is 
inappropriate for transmission line upgrade or rebuild

[[Page 34084]]

projects. DOE responds that these comments express a misunderstanding 
of the purpose of categorical exclusions and how categorical exclusions 
are applied to particular proposed actions. For example, some 
commenters stated that a categorical exclusion determination does not 
require any environmental documentation beyond that a proposed action 
belongs in a specific category. As explained in section II of this 
document, to qualify for the categorical exclusion, a proposed action 
must satisfy all the conditions in the categorical exclusion, including 
integral elements, and DOE must evaluate for any extraordinary 
circumstances. Some commenters pointed to one environmental assessment 
included in the Technical Support Document that considered impacts on 
cultural resources and suggested that such analysis would not have been 
required under a categorical exclusion. In fact, for all categorical 
exclusions listed in appendix B of its NEPA regulations (10 CFR part 
1021), DOE requires consideration of whether the proposed action would 
violate any applicable environmental requirements and whether the 
proposed action would have the potential to cause significant impacts 
on environmentally sensitive resources, including ``Property (such as 
sites, buildings, structures, and objects) of historic, archeological, 
or architectural significance designated by a Federal, state, or local 
government, Federally recognized Indian tribe, or Native Hawaiian 
organization, or property determined to be eligible for listing on the 
National Register of Historic Places'' (10 CFR part 1021, subpart D, 
appendix B, paragraph (4)(i)). In addition, DOE's responsibility to 
comply with the National Historic Preservation Act is independent of 
its NEPA responsibilities. With the revised categorical exclusion 
B4.13, DOE would have considered the potential impacts on cultural 
resources before making a decision and could determine that an 
environmental assessment is more appropriate than applying a 
categorical exclusion.
    Some commenters described the purpose of a categorical exclusion in 
an overly limiting way, for example, as for actions that are benign or 
have no adverse effect whatsoever. CEQ, however, defines a categorial 
exclusion as ``a category of actions that the agency has determined, in 
its agency NEPA procedures (Sec.  1507.3 of this chapter), normally do 
not have a significant effect on the human environment'' (40 CFR 
1508.1(d)). The categorical exclusions included in this rulemaking are 
consistent with CEQ's regulations.
    Some commenters questioned whether additional NEPA review would be 
necessary for powerlines that already have been reviewed under NEPA. In 
general, a proposed project in which DOE is financing, undertaking, or 
providing other support for the upgrade or rebuild of a powerline has 
the potential to cause environmental effects. The NEPA review process 
provides methods for DOE to evaluate the potential significance of 
those impacts. Any documentation from past NEPA or other environmental 
reviews can inform, and potentially simplify, the required 
environmental review of the currently proposed project.

C. Comments Regarding Energy Storage Systems

1. Comments Regarding Accidents at Battery Energy Storage Systems
    Commenters expressed concern regarding the safety of lithium-ion 
battery energy storage systems, including risks associated with a 
thermal runaway event. Commenters stated that DOE's Technical Support 
Document did not address risks from thermal runaway.
    A thermal runaway event is when lithium-ion batteries become 
unstable, potentially resulting in high temperatures, battery failure, 
venting of gas or particulates, smoke, or fire. As one way to help 
control the impacts of such an event, a battery energy storage system 
is comprised of modules that physically isolate and control thermal 
runaway events from the larger battery energy storage system. 
Government agencies, including DOE, and standard setting organizations 
such as the National Fire Protection Association conduct research on 
thermal runaway events and other accident scenarios involving lithium-
ion and other battery technologies. These organizations recommend 
practices and develop standards to lessen the likelihood and 
consequence of such events, and to respond to thermal runaway events 
and other accidents if they occur. For example, to stay current with 
best practices and knowledge, the National Fire Protection Association 
updates its standards every three to five years.
    Commenters stated that fires at battery energy storage systems are 
challenging to extinguish and must be allowed to burn out for days. 
Commenters also stated that fires can emit large volumes of toxic 
gases, such as hydrogen fluoride, hydrogen cyanide, and hydrogen 
chloride. Commenters stated that these releases of toxic fumes can 
result in large plumes that necessitate evacuations of nearby 
populations and that there is insufficient time to implement a shelter-
in-place approach because there is no mechanism to communicate quickly 
enough to surrounding communities. Commenters further stated that 
safety standards in the Technical Support Document for the notice of 
proposed rulemaking did not consider the public health risk of toxic 
gas released during a battery energy storage system fire.
    DOE has supplemented the Technical Support Document in response to 
these comments. DOE reviewed and added information on hazard 
consequences analyses that address toxic gas plume dispersion modeling 
in the event of a battery energy storage system fire or thermal runaway 
event, including characterization of those toxic gases and potential 
health effects. These analyses evaluated toxic gas dispersion, 
including hydrogen fluoride, hydrogen cyanide, and carbon monoxide, 
using site-specific factors to determine the maximum distance that may 
result in a level of concern for nearby residents or first responders. 
These analyses identified the endpoint distances as 30, 51, and 210 
feet from the release point. The maximum airborne concentration 
estimated at these distances is such that nearly all individuals could 
be exposed to for up to one hour without experiencing or developing 
irreversible or other serious health effects or symptoms that could 
impair an individual's ability to take protective action. The analyses 
indicated that assumptions were chosen that tended to overstate the 
expected consequences. A hazard consequence analysis is a site-specific 
analysis, and the examples provided in the Technical Support Document 
indicate that a safety incident at a battery energy storage facility 
would generally not result in adverse health impacts beyond the 
facility's property line. (See Technical Support Document, p. 63.) 
Further, DOE notes that battery energy storage facilities that qualify 
for the new categorical exclusion would be required to incorporate 
appropriate safety standards including the current National Fire 
Protection Association 855 Standard. National Fire Protection 
Association Standard 855 requires the development of emergency response 
plans.
    Commenters also stated that toxic chemicals could be used to put 
out battery energy storage system fires. Commenters expressed concern 
about runoff from fire suppression water or fire retardant, the lack of 
containment systems for this runoff, the resulting risk of soil and 
groundwater pollution, and

[[Page 34085]]

potential impacts to water resources. Commenters stated that fire-
extinguishing water used at the East Hampton Energy Storage Center in 
East Hampton, NY, contaminated a sole-source aquifer used for drinking 
water with toxic chemicals. Commenters stated that fighting battery 
energy storage system fires could require up to 2 million gallons of 
water over a three-day period and that there are no spill containment 
systems in place at battery energy storage systems to catch fire water 
suppression runoff.
    DOE has supplemented the Technical Support Document to include best 
management practices regarding spill control plans from individual 
projects as well as requirements from National Fire Protection 
Association Standard 855 to minimize spill risk during normal operation 
and in the event of a fire. (See Technical Support Document, p. 41.) 
Site-specific spill prevention plans are typically developed for 
individual projects as a standard best practice. DOE further notes that 
the emerging consensus in the firefighting community is that water 
should be used sparingly in responding to battery energy storage system 
fires to minimize potential risk of contamination to water resources.
    Commenters stated that there is a lack of appropriate training for 
emergency responders in the event of an incident at a battery energy 
storage system and that available training and resources are limited. 
National Fire Protection Association Standard 855 requires the 
development of emergency response plans, mandates initial and annual 
training, and recommends inclusion of emergency response personnel in 
these trainings. The Technical Support Document also includes 
recommendations from the American Clean Power Association and the New 
York Battery and Energy Storage Technology Consortium and Fire and Risk 
Alliance for the development of emergency response plans and pre-
incident planning and incident response.
    Commenters stated that the chance of fire at a utility-scale 
battery energy storage system is 1 in 30 to 1 in 50 and that the 
average age of a battery that catches fire is 18 months. Several 
commenters pointed to past battery energy storage system fires 
including those in Surprise, AZ, Chandler, AZ, Moss Landing, CA, and in 
New York State. DOE responds that a recent Pacific Northwest National 
Laboratory report \15\ noted that the Electric Power Research 
Institute's (EPRI's) database identifies 14 fires involving large, 
grid-connected battery energy storage systems in the U.S. ``To place 
that number in context, there were 491 large, utility-scale projects in 
the U.S. as of April 2023, for a fire incidence rate of about 2.9 
percent. No [battery energy storage system] fire in the U.S. has 
resulted in loss of life, and many of the affected facilities were able 
to resume operation.'' DOE acknowledges that battery energy storage 
facilities present safety risks if not managed properly and have 
resulted in past safety incidents. DOE reviewed the U.S. fires reported 
in the EPRI database and confirmed that few if any injuries occurred, 
apart from the 2019 Surprise, AZ, incident that involved multiple 
severe injuries. Lessons learned from that 2019 event have since led to 
improvements in safety standards and first responder training. The 
battery energy storage systems that qualify for categorical exclusion 
B4.14 would be built and operated using the most current safety 
standards, including those identified in the National Fire Protection 
Association 855 Standard.
---------------------------------------------------------------------------

    \15\ Energy Storage in Local Zoning Ordinances (Pacific 
Northwest National Laboratory, 2023): www.pnnl.gov/main/publications/external/technical_reports/PNNL-34462.pdf.
---------------------------------------------------------------------------

    Commenters stated that DOE's Technical Support Document included 
small-scale projects (less than 10 megawatts) and mobile facilities and 
thus did not consider that the risk of thermal runaway increases with 
the number of battery cells and facility size. DOE notes that the 
Technical Support Document for the notice of proposed rulemaking also 
included environmental assessments for battery energy storage systems 
ranging from approximately 20 megawatts up to 225 megawatts storage 
capacity. For this final rule, DOE supplemented the Technical Support 
Document with information to clarify that appropriate battery energy 
storage system designs can prevent fire risk from increasing with 
facility size. Energy storage system failures are designed to be 
contained to the unit of origin, for example, by providing sufficient 
spacing between modules or enclosures to avoid a fire from spreading. 
Systems also may include fire suppression, smoke detectors, sprinkler 
systems, and fire barriers, as applicable to the design. Because of 
these safety features, the risk of a fire incident at a battery energy 
storage project does not increase with project size; the two are 
decoupled in a well-designed system that prevents a fire in one unit 
from spreading to neighboring units. (See Technical Support Document, 
p. 56.)
    Commenters stated that DOE's Technical Support Document was 
inadequate because the battery energy storage systems included have not 
been built, and operational safety has not yet been proven. Commenters 
also asserted that design standards and best management practices cited 
in the Technical Support Document, such as UL 9540A, are not sufficient 
to mitigate the risk of thermal runaway. DOE notes that battery energy 
storage systems have experienced rapid growth in recent years. 
According to the U.S. Energy Information Administration, currently 
planned and operational U.S. utility-scale battery capacity totaled 
around 16 gigawatts at the end of 2023. (See Technical Support 
Document, p. 41.) This growth in deployment of battery energy storage 
systems provides real-world information on design and operation that 
feeds into efforts to continuously improve the safety of these 
facilities, such as through the ongoing development and revision of 
applicable safety standards.
    DOE is aware that battery energy storage facilities present a risk 
of safety incidents, including the risk of a thermal runaway event that 
may result in fire. To ensure that battery energy storage systems are 
designed and operated using layers of protection, current best 
practices, and the most up-to-date standards, categorical exclusion 
B4.14 may only be used for proposed battery energy storage systems that 
comply with appropriate safety standards, including the current 
National Fire Protection Association Standard 855. The requirements and 
depth of National Fire Protection Association Standard 855 would ensure 
that battery energy storage systems are designed using current best 
practices to minimize the potential for a safety incident that could 
result in a thermal runaway. Also, the National Fire Protection 
Association Standard 855 requires the development of a hazard 
mitigation analysis, which is a method to evaluate potential failure 
modes and their cause and effects, in order to develop methods to 
prevent failure during system operation. Further, the National Fire 
Protection Association updates its standards every 3 to 5 years, 
ensuring that its standards continue to reflect current best practices.
    Commenters stated that meeting the including UL 9540A standard 
cited in DOE's Technical Support Document would not prevent a thermal 
runaway event once started. DOE notes that in a UL 9540A test a thermal 
runaway event is intentionally created to better understand how the 
cell performs under failure, which helps to design fire safety

[[Page 34086]]

features to limit the propagation of fire from one cell to another, in 
the event of a failure. Systems that meet UL 9540A, in addition to all 
the other requirements included in the National Fire Protection 
Association Standard 855 would ensure layers of protection to prevent 
accidents and mitigate safety risk. (See Technical Support Document, p. 
56.)
    Commenters also stated that DOE's Technical Support Document should 
not include information from the American Clean Power Association 
because a lobbyist organization is not an appropriate source for safety 
standards. DOE includes three reference documents from the American 
Clean Power Association in the Technical Support Document: a 
compilation of relevant codes and standards for battery energy storage 
systems prepared by other organizations, guidelines for first 
responders in the event of an accident, and a summary of information 
related to battery energy storage systems. DOE has reviewed these 
documents and finds them helpful in explaining useful information about 
the safe operation of battery energy storage systems.
    Commenters also requested that DOE issue a new policy that 
addresses how the public safety risks posed by lithium-based battery 
energy storage systems should be accounted for in future NEPA actions. 
DOE will consider whether there is a need for guidance on the 
consideration of battery energy storage systems in NEPA reviews. 
However, that is outside the scope of this rulemaking.
    Commenters also stated that battery energy storage systems should 
have sensors that provide information on the presence of flammable 
gases onsite and that information should be available to emergency 
responders. DOE has supplemented the Technical Support Document to 
include information that battery energy storage systems contain fire 
and gas detection systems. Further, DOE notes that the current National 
Fire Protection Association Standard 855 contains a variety of 
provisions related to gas detection; fire control and suppression, 
measures to prevent explosions and safely contain fires, hazard 
mitigation analysis, emergency response plans, and requirements for 
initial and annual training. (See Technical Support Document, p. 56.)
    Commenters requested that DOE investigate whether these energy 
storage systems emit toxins or carcinogens during normal operation. DOE 
has supplemented the Technical Support Document with additional 
information explaining that energy storage systems do not leak 
chemicals or emit toxic or carcinogenic gases during normal operation. 
(See Technical Support Document, p. 41.)
2. Comments Regarding Siting of Battery Energy Storage Systems
    Commenters stated that battery energy storage systems should not be 
sited near earthquake fault zones, sole-source aquifers, residential 
areas, densely populated areas, schools, daycare facilities, hospitals, 
nursing homes, threatened and endangered species, recreational areas, 
or transportation corridors. Commenters stated that battery energy 
storage systems should be sited only in desolate areas. Commenters 
expressed concern that battery energy storage systems would be sited in 
fire-prone landscapes and that sparks from a fire originating at a 
battery energy storage system would spread to nearby areas. Commenters 
stated that disruption to nearby communities should be mitigated, and 
expressed concern that without adequate planning and siting, important 
emergency routes, such as to and from hospitals and between nursing 
homes and hospitals, could be disrupted. Commenters requested that DOE 
include measures to ensure energy storage systems are not sited on 
areas of prime or sensitive habitat. DOE incorporates siting 
considerations into its decision whether to apply categorical exclusion 
B4.14 to any proposed action. This includes conditions within the 
categorical exclusion regarding the type of land on which the proposed 
project may be located, the requirement to be in accordance with land 
use and zoning requirements, and the integral elements that include the 
requirement not to pose a significant impact to environmentally 
sensitive resources. Categorical exclusion B4.14 also requires that, to 
apply it to a particular proposed project, the proposed action must 
incorporate safety standards and other specified conditions that reduce 
the risk of accidents. As noted in the Pacific Northwest National 
Laboratory's October 2023 report, Energy Storage in Local Zoning 
Ordinances, there is variation in local siting and zoning 
considerations for energy storage systems. This report notes that 
safety is frequently the most important concern expressed in local 
zoning proceedings for energy storage projects and identifies several 
case studies for how local planners have mitigated impacts from various 
jurisdictions. (See Technical Support Document, p. 59.) At any point 
during DOE's review of whether categorical exclusion B4.14 applies, DOE 
can determine that additional information is needed to make a 
categorical exclusion determination or decide to prepare an 
environmental assessment or environmental impact statement.
    Commenters stated that a battery energy storage system should never 
be sited in an undeveloped area. Other commenters expressed concern 
that siting battery energy storage systems on undisturbed land could 
significantly impact the environment and surrounding communities and 
requested additional support for DOE's inclusion of undisturbed areas 
contiguous to previously disturbed or developed areas. Commenters 
stated that DOE's supporting information relied on an environmental 
assessment for the Vonore Project that included mitigation measures to 
reach a finding of no significant impact. DOE responds that, as 
explained in section III.C of this document, based on past experience, 
DOE anticipates that energy storage systems typically require 15 acres 
or less and would be sited close to energy, transmission, or industrial 
facilities. Consistent with this expectation and because contiguous 
land might be undisturbed and undeveloped, siting outside a previously 
disturbed or developed in the new categorical exclusion would be 
limited to a ``small'' contiguous area. DOE would consider whether a 
contiguous area is small, based on the criteria discussed in 10 CFR 
1021.410(g)(2)). DOE has revised its Technical Support Document to 
clarify that there are three EAs and FONSIs that evaluate battery 
energy storage systems ranging in size up to 225 megawatts located on 
sites contiguous to previously disturbed and developed areas. (See 
Technical Support Document, p. 42.) Further, DOE reviewed the Vonore 
Project that the commenter suggested relied on mitigation measures in 
an environmental assessment to reach a finding of no significant impact 
and notes that the Tennessee Valley Authority indicated that two ``non-
routine measures would be applied during the construction, operation, 
and maintenance of the proposed Vonore [battery energy storage system], 
transmission lines, and access roads to reduce the potential for 
adverse environmental effects'', not that those measures were necessary 
to reach a finding of no significant impact. (See Technical Support 
Document, p. 50.) Commenters stated that DOE's supporting information 
included an environmental assessment tiered from a programmatic 
environmental impact statement. DOE removed this environmental 
assessment from the Technical Support Document.

[[Page 34087]]

5. Comments Regarding Siting Contiguous to a Previously Disturbed or 
Developed Area
    Commenters stated that DOE should not limit the categorical 
exclusion to a ``small'' or 15-acre area contiguous to previously 
disturbed or developed areas and that DOE should clarify that there 
would be no acreage limitation. Commenters stated that DOE's supporting 
information did not accurately reflect the acreage required and that 25 
MW per acre is a more accurate assumption for battery energy storage 
systems. Commenters also stated that an acreage limitation could result 
in more densely packed battery energy storage systems with greater risk 
of thermal runaway. Similarly, other commenters recommended that DOE 
remove reference to specific acreages that were included in the 
preamble to DOE's Notice of Proposed Rulemaking and instead use the 
definition of ``small'' in 10 CFR 1021.410(g)(2). DOE responds that 
section II of this document includes discussion of DOE's definition of 
previously disturbed or developed area and DOE's experience referring 
to contiguous areas in its categorical exclusions. The total acreage 
used for an energy storage system will be defined by the needs of the 
proposed project. Based on past experience, DOE anticipates that energy 
storage systems typically require 15 acres or less and would be sited 
close to energy, transmission, or industrial facilities. However, this 
recognition of that past experience does not indicate an acreage limit 
on the scope of categorical exclusion B4.14. (See Technical Support 
Document, p. 41.) As previously explained, DOE would consider whether a 
contiguous area is small, based on the criteria discussed in 10 CFR 
1021.410(g)(2).
    Other commenters stated that 15 acres or less should be added as a 
numeric limit in the categorical exclusion. DOE considered this 
suggestion but has concluded that an acreage limit is not an 
appropriate method for determining whether a project normally would 
result in significant environmental effects. Rather, the terms of 
categorical exclusion B4.14, including the integral elements and need 
to consider extraordinary circumstances, provide a reasoned basis for 
the categorical exclusion.
    Commenters stated that areas contiguous to previously disturbed or 
developed land may have particular conservation values or be more 
likely to be located in communities that have historically experienced 
disproportionate impacts. Commenters requested that DOE require that 
contiguous areas be evaluated separately under a land use plan, a 
programmatic environmental impact statement or environmental analysis, 
or other equivalent decisions that provide detailed analysis and 
opportunity for public engagement. Similarly, another commenter 
requested that DOE revise the categorical exclusion conditions to 
include limitations regarding site dimensions, land use history, and 
proximate uses and resources to indicate a preference for siting 
locations where fewer impacts would be expected to occur. Commenters 
requested that DOE include measures to ensure energy storage systems 
are not sited on areas of prime or sensitive habitat. Because 
contiguous land might be undisturbed and undeveloped, DOE proposes that 
siting outside a previously disturbed or developed area be limited to a 
``small'' contiguous area. DOE would consider whether a contiguous area 
is small, based on the criteria discussed in 10 CFR 1021.410(g)(2)), 
``in the context of the particular proposal, including its proposed 
location. In assessing whether a proposed action is small, in addition 
to the actual magnitude of the proposal, DOE considers factors such as 
industry norms, the relationship of the proposed action to similar 
types of development in the vicinity of the proposed action, and 
expected outputs of emissions or waste. When considering the physical 
size of a proposed facility, for example, DOE would review the 
surrounding land uses, the scale of the proposed facility relative to 
existing development, and the capacity of existing roads and other 
infrastructure to support the proposed action.'' In addition, the 
proposed project must be ``in accordance with applicable requirements 
(such as land use and zoning requirements) in the proposed project area 
and the integral elements listed at the start of appendix B of this 
part, and would incorporate appropriate safety standards (including the 
current National Fire Protection Association 855, Standard for the 
Installation of Stationary Energy Storage Systems), design and 
construction standards, control technologies, and best management 
practices.''
4. Comments Regarding Other Potential Impacts of Energy Storage Systems
    Commenters stated battery energy storage systems would result in 
noise and light pollution and visual impacts for nearby residents. 
Commenters expressed concern about adverse socioeconomic impacts of 
battery energy storage systems, stating that the risk of fire, toxic 
chemical releases, and emergency lockdowns would negatively affect home 
values, quality of life, and the local economy. DOE has supplemented 
the Technical Support Document to include additional information 
regarding potential noise and light pollution impacts from proposed 
projects. (See Technical Support Document, p. 41).
    Commenters expressed concern regarding disposal of batteries at the 
end of their useful life and questioned if the batteries would be 
recycled or taken to hazardous waste landfills. Commenters stated that 
battery energy storage systems should not be categorically excluded due 
to the associated environmental impact of rare earth mining for battery 
materials, as well as the transport of hazardous materials to and from 
the facility upon decommissioning. Commenters stated that battery 
energy storage systems are waste-generating facilities with large 
quantities of hazardous, flammable materials stored onsite. DOE has 
supplemented the Technical Support Document to include additional 
information regarding waste management and decommissioning plans for 
proposed projects. For example, a decommissioning plan should be 
prepared during project planning that details what will happen when a 
battery energy storage system reaches its end of life. Decommissioning 
plans generally should include removal of all structures; recycling of 
equipment to the greatest extent possible; the proper disposal of non-
recyclable equipment in accordance with manufacturer specifications and 
applicable local, state, and Federal requirements; and re-establishment 
of vegetation and restoration of the project site. (See Technical 
Support Document, p. 41.) In addition, National Fire Protection 
Association Standard 855 mandates a decommissioning plan for removing 
and disposing of the system at the end of its useful life.
    Commenters stated that a battery energy storage system operating as 
a new entrant to the electrical grid introduces security 
vulnerabilities that could adversely affect the electrical grid. DOE 
has supplemented the Technical Support Document to include additional 
information regarding the North American Electric Reliability 
Corporation Critical Infrastructure Protection security requirements 
for system integrators of certain battery energy storage equipment, 
including cyber systems, asset categorization, and security system 
management. DOE also notes that the use of energy storage systems has 
increased substantially in recent years. This has demonstrated

[[Page 34088]]

through real world experience that energy storage systems can be safely 
integrated into the electrical grid and provides experience that is 
used to improve related guidance and practices. (See Technical Support 
Document, p. 56.)
    Commenters recommended that if categorical exclusion B4.14 is 
applied to a proposed project that is within or would affect a state's 
coastal zone, DOE continue to comply with relevant requirements of the 
Coastal Zone Management Act. DOE recognizes its responsibility to 
comply with the Coastal Zone Management Act and will continue to do so. 
DOE also notes that one of the conditions, or integral elements, for 
applying categorical exclusion B4.14 to a proposed action is that the 
proposed action would not ``Threaten a violation of applicable 
statutory, regulatory, or permit requirements for environment, safety, 
and health, or similar requirements of DOE or Executive Orders'' (10 
CFR part 1021, subpart D, appendix B). This condition includes 
compliance with relevant requirements of the Coastal Zone Management 
Act.
5. Comments Regarding Public Scoping and Alternatives Analysis
    Commenters explained that DOE's categorical exclusion for battery 
energy storage systems removes transparency for communities and 
explained that there is a lack of public outreach for proposed battery 
energy storage systems when applying a categorical exclusion. Some 
commenters specified that communities should have public review and 
comment for proposed battery energy storage systems, including for 
example, potential environmental and safety risks, evacuation plans, 
and mitigation strategies. DOE responds that to provide transparency in 
the use of categorical exclusions, DOE began posting categorical 
exclusion determinations online in 2009. DOE will continue to regularly 
post categorical exclusion determinations for B4.14 and other 
categorical exclusions listed in appendix B of DOE's NEPA regulations 
(10 CFR part 1021, subpart D) at www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations.
    Commenters further stated that an alternatives analysis should be 
required to compare alternatives to battery energy storage system 
technology, as well as alternative siting locations. DOE considers 
alternatives, as appropriate, in NEPA reviews and in its decision 
making. Whether DOE evaluates alternatives for a particular proposed 
action, and the nature of those alternatives, depends on several 
factors including the potential for significant impacts and the purpose 
and need for DOE's action.
6. Comments Requesting That DOE Expand Categorical Exclusion B4.14
    In explaining why categorical exclusion B4.14 is limited to 
electrochemical-battery and flywheel energy storage systems, DOE stated 
in the notice of proposed rulemaking that, ``At this time, DOE has not 
identified sufficient information to conclude that compressed air 
energy storage, thermal energy storage (e.g., molten salt storage), or 
other technologies normally do not present the potential for 
significant environmental impacts. DOE welcomes comments that provide 
analytic support for whether these other energy storage technologies 
meet the requirements for a categorical exclusion.'' Commenters 
recommended that DOE expand categorical exclusion B4.14 to include any 
energy storage system that is technologically feasible or was developed 
either by a DOE laboratory or with financial support from the Federal 
Government. Commenters also recommended expansion of categorical 
exclusion B4.14 to include specific energy storage technologies, 
including above-ground compressed air energy storage; thermal energy 
storage, including molten salt storage; solid-state thermal batteries; 
pumped storage hydropower; gravity storage; underground hydrogen 
storage. DOE appreciates these suggestions, including the rationale 
provided by the commenters. DOE has determined, however, that it does 
not currently have sufficient information to determine that these 
technologies normally do not pose a potential for significant impacts. 
DOE will retain the comments for consideration in a future rulemaking.
    Commenters recommended that categorical exclusion B4.14 include the 
use of iron-air batteries. Iron-air batteries are a type of 
electrochemical battery and, therefore, included within the scope of 
categorical exclusion B4.14.
    Commenters suggested that DOE add a new categorical exclusion for 
combined battery and solar projects. DOE may apply more than one 
categorical exclusion to a proposed action so long as the potential 
effects of the total project are analyzed and the proposed action 
fulfills all the conditions, including integral elements, of each 
categorical exclusion applied. For example, it could be appropriate to 
apply categorical exclusions B4.14, Construction and operation of 
electrochemical-battery or flywheel energy storage systems, and B5.16, 
Solar photovoltaic systems, to the same proposed action, depending on 
project- and site-specific conditions. Given this practice, the 
commenters' suggested addition is unnecessary.
7. Comments Regarding Specific Energy Storage System Projects
    Commenters expressed opposition to specific battery energy storage 
system projects including those in Morro Bay, CA, East Hampton, NY, 
Warwick, NY, Holtsville, NY, Covington, WA, and in Eldorado near Santa 
Fe, NM. Commenters requested to be informed of all future battery 
energy storage systems. This rulemaking does not involve decisions or 
actions related to any particular proposed battery energy storage 
system. As described in section II of this document, before DOE may 
apply categorical exclusion B4.14 to a particular proposed action, DOE 
must conduct a project-specific environmental review to determine 
whether all conditions applicable to the categorical exclusion are met. 
DOE does not review or have a decision-making role regarding all 
battery energy storage systems and has no mechanism to inform local 
residents of all future battery energy storage systems.

D. Comments Regarding Solar Photovoltaic Systems

1. Comments Regarding the Lake Effect Hypothesis (LEH)
    There is a potential that birds, particularly waterfowl, perceive 
large solar PV facilities as water bodies. Underlying this lake effect 
hypothesis is the possibility that solar panels and water polarize 
light in a similar way. This might cause birds to try to land or feed 
on solar PV panels, which could cause bird fatalities and other harms. 
Some commenters raised this concern and stated that birds may mistake 
solar panels for water bodies and be stranded, injured, or killed. 
Commenters requested that best management practices, such as non-
reflective coating, increased panel spacing, and vertical positioning 
of the panels at night for panels on rotating axes, be incorporated 
into solar facilities to minimize this risk. Other commenters added 
that certain mitigation measures may depend on the species of bird and 
other animal being affected, and that mitigation is best addressed in 
an environmental impact statement. DOE is aware of this potential 
impact and is one of the Federal agencies sponsoring research to better 
understand whether birds mistake solar panels for water, whether that 
might affect behavior, and what effective mitigation is available. (See 
Technical Support Document, p. 103.)

[[Page 34089]]

Categorical exclusion B5.16 includes conditions that require that the 
proposed project not have significant effects on protected species. At 
any point in its environmental review of a particular project, DOE can 
decide to prepare an environmental assessment or environmental impact 
statement rather than relying on a categorical exclusion.
2. Comments Regarding Wildlife and Habitat
    Commenters stated that insect populations may be at risk from solar 
PV facilities and that PV panels produce polarized light that may 
confuse insects seeking water for feeding or breeding purposes, 
potentially leading to reproductive failure and possible ecosystem 
effects. DOE has supplemented the Technical Support Document to include 
research that summarizes the potential for negative impacts, including 
potential light pollution that may adversely impact aquatic insect 
breeding, as well as the positive impacts of solar PV systems on insect 
populations. (See Technical Support Document, p. 103.) The Technical 
Support Document summarizes research regarding siting considerations 
that demonstrate that use of previously disturbed or developed lands, 
such as former agricultural fields, is preferable to siting on 
undisturbed land. In addition, use of native mixes of flowering plants 
and grasses during revegetation can improve the biodiversity of both 
plant and insect populations, including pollinators, as the habitat 
matures post-construction. Proper siting of proposed solar PV systems 
and revegetation plans that use diverse, pollinator-friendly seed mixes 
would ensure that adverse impacts to insect populations are not 
significant. Categorical exclusion B5.16 includes conditions that 
require that the proposed project not have significant effects on 
protected species. At any point in its environmental review of a 
particular project, DOE can decide to prepare an environmental 
assessment or environmental impact statement rather than relying on a 
categorical exclusion.
    Commenters stated that habitat fragmentation and the spread of non-
native, invasive species could result from building solar projects 
along linear corridors such as utility rights-of-way, particularly in 
cases where the projects are fully fenced. These commenters further 
stated that land and wildlife managers must assess current wildlife 
habitat connectivity in the proposed project area, as well as future 
connectivity needs in light of climate change. DOE appreciates 
commenters raising concerns about habitat connectivity. DOE's integral 
elements and consideration of extraordinary circumstances would ensure 
consideration of these impacts. Nonetheless, to better highlight 
potential effects on habitat, in this final rule, DOE added conditions 
to categorical exclusion B5.16 to ensure that proposed solar PV 
projects would be consistent with applicable plans for management of 
wildlife and habitat, including plans to maintain habitat connectivity.
    Commenters stated that the Wild Springs Solar Project included in 
the Technical Support Document is not a typical design because the 
fencing encloses blocks of panels, rather than surrounding the entire 
project. These commenters stated that the project was designed and 
sited to avoid prairie dog colony areas. These commenters asserted that 
if a categorical exclusion had been applied to this project, these 
protective measures are unlikely to have been taken. Categorical 
exclusion B5.16 requires that the proposed project not have significant 
effects on species, habitat, and other local environmental conditions, 
as well as the use of best management practices. DOE disagrees with the 
assertion that the protective design elements would not have been 
included in the project if a categorical exclusion would have been used 
for NEPA review.
3. Comments Regarding Various Environmental Effects
    Commenters expressed concerns regarding impacts from toxic dust 
during construction, visual impacts, lower property values, harm to 
tourism economies, and a heat island effect. Commenters expressed 
concern over water use during construction and for dust control and the 
cumulative impact of dust emissions, both during construction and 
operation. Commenters stated that categorical exclusion B5.16 must 
include provisions for effective dust control in desert and dry, wind-
prone areas. DOE is aware of these concerns. Dust control and 
limitations on other effects are encompassed in the requirement that 
the proposed project be in ``accordance with applicable requirements 
(such as land use and zoning requirements) in the proposed project area 
and the integral elements listed at the start of appendix B of this 
part, and would be consistent with applicable plans for the management 
of wildlife and habitat, including plans to maintain habitat 
connectivity, and incorporate appropriate control technologies and best 
management practices.''
    One individual expressed concern about fire risk due to electrical 
lines associated with solar energy systems. DOE responds that any 
electrical lines associated with a solar PV system would be required to 
meet all applicable standards for vegetation management, system design, 
and other conditions to prevent the lines from causing fires.
4. Comments Regarding Cumulative Effects
    Commenters expressed concern over the cumulative effects of 
removing the 10-acre size limit for solar PV systems in categorical 
exclusion B5.16, suggesting that the impacts could extend to tens of 
thousands of acres in a concentrated area. Commenters also stated that 
the categorical exclusion must not apply to utility-scale solar 
developments larger than 500 acres because of cumulative impacts. DOE 
considers cumulative impacts in determining whether to apply a 
categorical exclusion to a proposed action. DOE's regulations list 
conditions that must be met before making a categorical exclusion 
determination. Among these conditions is a requirement to consider 
``connected and cumulative actions, that is, the proposal is not 
connected to other actions with potentially significant impacts (40 CFR 
1508.25(a)(1)), [and] is not related to other actions with individually 
insignificant but cumulatively significant impacts (40 CFR 
1508.27(b)(7)).'' DOE might also consider cumulative impacts in the 
context of extraordinary circumstances, integral elements, or other 
conditions such as consistency with applicable plans for the management 
of wildlife and habitat, including plans to maintain habitat 
connectivity. In regard to the suggested 500-acre limit for the 
categorical exclusion, as explained in section II of this document, DOE 
does not have a basis for identifying a particular acreage limit for 
categorical exclusion B5.16. Local conditions are the appropriate basis 
for assessing the significance of environmental impacts for a 
particular proposed project.
5. Comments Regarding the Need for Additional Guidance and Regulation
    Commenters identified a need for further guidance on responsible 
solar buildout, particularly regarding critical wildlife habitats and 
productive agricultural lands. DOE appreciates this recommendation and 
expects that guidance and best practices will continue to improve as 
the technology advances. Categorical exclusion B5.16 includes 
flexibility to accommodate these changes (e.g., by providing for

[[Page 34090]]

consideration of the best practices relevant at the time the proposed 
action is reviewed).
    Other commenters stated that categorical exclusion B5.16 requires 
that actions ``would be in accordance with applicable requirements 
(such as land use and zoning requirements)'' but noted that not all 
jurisdictions have current planning and zoning that expressly addresses 
siting of large-scale solar PV projects. Commenters asserted that a 
large-scale PV solar project, therefore, could be permitted in a 
corridor or right-of-way without meaningful NEPA review simply because 
it is not prohibited in those areas under the current zoning and 
planning requirements. DOE disagrees with this characterization. As 
explained in section II of this document and in response to comments, 
DOE must consider several conditions related to environmental impacts 
before deciding whether to apply categorical exclusion B5.16 to a 
particular proposed action. In an area without applicable land use and 
zoning requirements, DOE still would consider whether the proposed 
project location is on previously disturbed or developed land, 
applicable requirements and plans for the management of wildlife and 
habitat, including plans to maintain habitat connectivity, whether the 
proposed project incorporates appropriate control technologies and best 
management practices, the integral elements listed in DOE's 
regulations, and other conditions required of every categorical 
exclusion, such as consideration of any extraordinary circumstances.
6. Comments Regarding the Definition of Previously Disturbed or 
Developed Lands
    Some commenters proposed edits to narrow DOE's definition of 
``previously disturbed or developed lands.'' DOE considered these 
suggestions and concluded that the changes are unnecessary. DOE has 
successfully applied the current definition over more than a decade for 
a variety of projects involving several DOE categorical exclusions that 
use the phrase ``previously disturbed or developed.'' This phrase and 
definition are only part of the criteria that must be met to use 
categorical exclusion B5.16. As described in section II of this 
document and in response to other comments, the use of the categorical 
exclusion is dependent upon successfully satisfying several conditions 
related to environmental effects.
7. Comments Regarding Scope
    Commenters suggested that DOE extend categorical exclusion B5.16 to 
include agricultural lands, especially where the project developers 
agree to follow certain practices to protect native habitats and manage 
stormwater. DOE considers agricultural land potentially within the 
scope of categorical exclusion B5.16 so long as the proposed action 
meets all applicable conditions. Those conditions include avoiding 
significant impacts on habitat and following applicable plans for the 
management of wildlife and habitat, including plans to maintain habitat 
connectivity, among others.
    Commenters stated that large, solar PV power plants built on water 
decrease photosynthesis and primary productivity and may have adverse 
ecosystem effects. Categorical exclusion B5.16 does not apply to solar 
PV projects proposed to be located on water. In DOE's NEPA regulations, 
the term `` `previously disturbed or developed' refers to land'' (10 
CFR 1021.410(g)(1)).
8. Comments Regarding Solar Panel Production and Decommissioning
    Commenters expressed concern about environmental impacts of solar 
panel production, citing the environmental effects and carbon emissions 
of raw material sourcing, mining, smelting, and refining. The effects 
of solar panel production are not within DOE's control or 
responsibility and are therefore outside the scope of DOE's NEPA review 
for solar PV systems. The scope of categorical exclusion B5.16 includes 
of installation, modification, and decommissioning of solar PV systems, 
and the related environmental effects are within the scope of DOE's 
NEPA review.
    Commenters stated that use of the categorical exclusion would 
prevent public review of materials used in solar panels with potential 
to leach into landfills and impact water quality. Commenters stated 
that potential carcinogens such as PFAS (per- and polyfluoroalkyl 
substances) and metals such as silver, cadmium, and tellurium may be 
used in solar PV panels. DOE has supplemented the Technical Support 
Document regarding the safe operation and maintenance of solar PV 
panels. PV panels are sealed and do not leach chemicals during normal 
operation. Maintenance and repair of PV panels ensures that broken or 
cracked PV panels do not leach metals or other potentially hazardous 
contaminants. Recycling PV panels keeps PV panels out of landfills. 
(See Technical Support Document, p. 52.)
    Commenters stated that consideration has not been given to the safe 
decommissioning and recycling of PV panels. DOE conducts research on 
the safe decommissioning and recycling of PV panels. Categorical 
exclusion B5.16 includes decommissioning of a solar PV system, and the 
environmental effects of decommissioning are considered as part of this 
rulemaking. (See Technical Support Document, p. 74.) DOE has 
supplemented the Technical Support Document to include additional 
information regarding waste management and decommissioning plans for 
proposed projects. For example, a decommissioning plan should be 
prepared during project planning and best practices for what will 
happen when the solar PV project reaches its end of life. 
Decommissioning plans generally should include removal of all 
structures, including solar panels and all related equipment; recycling 
of PV panels and related equipment to the greatest extent possible; the 
proper disposal of non-recyclable equipment in accordance with 
manufacturer specifications and applicable local, state, and Federal 
requirements; and re-establishment of vegetation and restoration of the 
project site. (See Technical Support Document, p. 74.) In addition, 
National Fire Protection Association Standard 855 mandates a 
decommissioning plan for removing and disposing of the system at the 
end of its useful life.

V. Procedural Issues and Regulatory Review

A. Review Under Executive Orders 12866, 13563, and 14094

    Executive Order (``E.O.'') 12866, ``Regulatory Planning and 
Review,'' as supplemented and reaffirmed by E.O. 13563, ``Improving 
Regulation and Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011) and 
amended by E.O. 14094, ``Modernizing Regulatory Review,'' 88 FR 21879 
(April 11, 2023), requires agencies, to the extent permitted by law, to 
(1) propose or adopt a regulation only upon a reasoned determination 
that its benefits justify its costs (recognizing that some benefits and 
costs are difficult to quantify); (2) tailor regulations to impose the 
least burden on society, consistent with obtaining regulatory 
objectives, taking into account, among other things, and to the extent 
practicable, the costs of cumulative regulations; (3) select, in 
choosing among alternative regulatory approaches, those approaches that 
maximize net benefits (including

[[Page 34091]]

potential economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity); (4) to the extent 
feasible, specify performance objectives, rather than specifying the 
behavior or manner of compliance that regulated entities must adopt; 
and (5) identify and assess available alternatives to direct 
regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public. DOE 
emphasizes as well that E.O. 13563 requires agencies to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible. In its guidance, the 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget (OMB) has emphasized that such techniques may 
include identifying changing future compliance costs that might result 
from technological innovation or anticipated behavioral changes. Many 
benefits and costs associated with this final rule are not 
quantifiable. The direct benefits include reduced cost and time for 
environmental analysis incurred by DOE, project proponents, and the 
public. Indirect benefits are expected to include deployment of 
technologies that improve the reliability and resilience of the 
Nation's electric grid and that expand electricity generation capacity 
while reducing emissions of GHGs. For the reasons stated in this 
preamble, this regulatory action is consistent with these principles.
    This regulatory action has been determined not to be ``a 
significant regulatory action'' under E.O. 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action 
is not subject to review under that Executive Order by OIRA of OMB.

B. Review Under Executive Orders 12898 and 14096

    E.O. 12898, ``Federal Actions To Address Environmental Justice in 
Minority Populations and Low-Income Populations,'' as supplemented and 
amended by E.O. 14096, ``Revitalizing Our Nation's Commitment to 
Environmental Justice for All,'' requires each Federal agency, 
consistent with its statutory authority, to make achieving 
environmental justice part of its mission. E.O. 14096 directs Federal 
agencies to carry out environmental reviews under NEPA in a manner that 
``(A) analyzes direct, indirect, and cumulative effects of Federal 
actions on communities with environmental justice concerns; (B) 
considers best available science and information on any disparate 
health effects (including risks) arising from exposure to pollution and 
other environmental hazards, such as information related to the race, 
national origin, socioeconomic status, age, disability, and sex of the 
individuals exposed; and (C) provides opportunities for early and 
meaningful involvement in the environmental review process by 
communities with environmental justice concerns potentially affected by 
a proposed action, including when establishing or revising agency 
procedures under NEPA.'' DOE provided opportunities for public 
engagement in this rulemaking, including opportunities for communities 
with environmental justice concerns, and DOE considered and responded 
to comments raising environmental justice concerns (section IV of this 
document). Also, in determining whether the categorical exclusions 
apply to a future proposed action, DOE will consider whether the 
proposed action threatens a violation of these Executive Orders, 
consistent with the first integral element listed in appendix B of 
DOE's NEPA procedures.

C. Review Under National Environmental Policy Act

    The Department's NEPA procedures assist the Department in 
fulfilling its responsibilities under NEPA and the CEQ regulations but 
are not themselves final determinations of the level of environmental 
review required for any proposed action. The CEQ regulations do not 
direct agencies to prepare an environmental assessment or environmental 
impact statement before establishing agency procedures that supplement 
the CEQ regulations to implement NEPA (40 CFR 1507.3). In establishing 
a new categorical exclusion and making other changes as described in 
this final rule, DOE followed the requirements of CEQ's procedural 
regulations, which include publishing the notice of proposed rulemaking 
in the Federal Register for public review and comment, considering 
public comments, and consulting with CEQ regarding conformity with NEPA 
and the CEQ regulations (40 CFR 1507.3(b)).
    In this final rule, DOE finalizes amendments that establish, 
modify, and clarify procedures for considering the environmental 
effects of DOE actions within DOE's decisionmaking process, thereby 
enhancing compliance with the letter and spirit of NEPA. DOE has 
determined that this final rule qualifies for categorical exclusion 
under 10 CFR part 1021, subpart D, appendix A6, because it is a 
strictly procedural rulemaking, and no extraordinary circumstances 
exist that require further environmental analysis. Therefore, DOE has 
determined that promulgation of these amendments is not a major Federal 
action significantly affecting the quality of the human environment 
within the meaning of NEPA, and does not require an environmental 
assessment or an environmental impact statement.

D. Review Under Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by E.O. 13272, ``Proper Consideration of Small Entities in Agency 
Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published procedures and 
policies on February 19, 2003, to ensure that the potential impacts of 
its rules on small entities are properly considered during the 
rulemaking process (68 FR 7990). DOE has made its procedures and 
policies available on the Office of the General Counsel's website: 
https://energy.gov/gc under Resources.
    DOE has reviewed this rule under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. The revisions to 10 CFR part 1021 streamline the 
environmental review for proposed actions, resulting in a decrease in 
burdens associated with carrying out such reviews. For example, the 
revisions to DOE's categorical exclusions are expected to reduce the 
number of environmental assessments that applicants would need to pay 
to have prepared for DOE's consideration. Applicants may sometimes 
incur costs in providing environmental information that DOE requires 
when making a categorical exclusion determination. The Government 
Accountability Office found in 2014 that there is little data available 
on the costs for preparing NEPA reviews and that agencies ``generally 
do not reports costs that are `paid by the applicant' because these 
costs reflect business transactions between applicants and their 
contractors and are not available to agency officials.'' \16\ In 2011, 
DOE estimated the cost of preparing

[[Page 34092]]

environmental assessments over the prior decade at an average of 
$100,000 and a median of $65,000.\17\ DOE does not have more current 
cost data. The costs of making a categorical exclusion determination 
are less than those to prepare an EA. Although DOE does not have data 
on what percentage of EAs were funded by applicants that qualified as 
small entities, a beneficial cost impact is expected to accrue to 
entities of all sizes.
---------------------------------------------------------------------------

    \16\ GAO-14-369, NATIONAL ENVIRONMENTAL POLICY ACT: Little 
Information Exists on NEPA Analyses, April 2014, available at 
www.gao.gov/assets/gao-14-369.pdf.
    \17\ 76 FR 237, January 3, 2011.
---------------------------------------------------------------------------

    Based on the foregoing, DOE certifies that this final rule will not 
have a significant economic impact on a substantial number of small 
entities. Accordingly, DOE has not prepared a regulatory flexibility 
analysis for this rulemaking. DOE's certification and supporting 
statement of factual basis will be provided to the Chief Counsel for 
Advocacy of the Small Business Administration pursuant to 5 U.S.C. 
605(b).

E. Review Under Paperwork Reduction Act

    This rulemaking imposes no new information or record-keeping 
requirements. Accordingly, OMB clearance is not required under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and the procedures 
implementing that Act (5 CFR 1320.1 et seq).

F. Review Under Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on state, local, and tribal governments, in the 
aggregate, or to the private sector, other than to the extent such 
actions merely incorporate requirements specifically set forth in a 
statute. Section 202 of UMRA requires a Federal agency to perform a 
detailed assessment of the anticipated costs and benefits of any rule 
that includes a Federal mandate which may result in costs to State, 
local, or Tribal governments, or to the private sector, of $100 million 
or more in any one year (adjusted annually for inflation) (2 U.S.C. 
1532(a) and (b)). Section 204 of UMRA requires each agency that 
proposes a rule containing a significant Federal intergovernmental 
mandate to develop an effective process for obtaining meaningful and 
timely input from elected officers of State, local, and Tribal 
governments (2 U.S.C. 1534).
    This final rule amends DOE's existing regulations governing 
compliance with NEPA to better align DOE's regulations, including its 
categorical exclusions, with its current activities and recent 
experiences. This final rule will not result in the expenditure by 
State, local, and Tribal governments in the aggregate, or by the 
private sector, of $100 million or more in any one year. Accordingly, 
no assessment or analysis is required under the UMRA.

G. Review Under Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. This final rule will not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

H. Review Under Executive Order 13132

    E.O. 13132, ``Federalism,'' 64 FR 43255 (Aug. 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt state law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the states and carefully assess the 
necessity for such actions. DOE has examined this final rule and has 
determined that it will not preempt state law and will not have a 
substantial direct effect on the states, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by E.O. 13132.

I. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (Feb. 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 E.O. 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 
E.O. 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, this final rule meets the relevant standards 
of E.O. 12988.

J. Review Under Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most disseminations 
of information to the public under information quality guidelines 
established by each agency pursuant to general guidelines issued by 
OMB.
    OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has 
reviewed this final rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OMB 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1)(i) is a significant regulatory action under 
E.O. 12866, or any successor order, and (ii) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy; or (2) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. This regulatory 
action does not have a

[[Page 34093]]

significant adverse effect on the supply, distribution, or use of 
energy, and is therefore not a significant energy action. Accordingly, 
DOE has not prepared a Statement of Energy Effects.

L. Review Under Executive Order 12630

    DOE has determined pursuant to E.O. 12630, ``Governmental Actions 
and Interference with Constitutionally Protected Property Rights,'' 53 
FR 8859 (Mar. 18, 1988), that this final rule would not result in any 
takings that might require compensation under the Fifth Amendment to 
the United States Constitution.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that the Office of Information and Regulatory Affairs has 
determined that this action meets the criteria set forth in 5 U.S.C. 
804(2).

VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this notice of 
final rulemaking.

List of Subjects in 10 CFR Part 1021

    Environmental impact statements.

Signing Authority

    This document of the Department of Energy was signed on April 24, 
2024, by Samuel T. Walsh, General Counsel, pursuant to delegated 
authority from the Secretary of Energy. That document with the original 
signature and date is maintained by DOE. For administrative purposes 
only, and in compliance with requirements of the Office of the Federal 
Register, the undersigned DOE Federal Register Liaison Officer has been 
authorized to sign and submit the document in electronic format for 
publication, as an official document of the Department of Energy. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

    Signed in Washington, DC, on April 24, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons stated in the preamble, DOE amends part 1021 of 
chapter X of title 10, Code of Federal Regulations, as set forth below:

PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING 
PROCEDURES

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

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


0
2. Appendix B of subpart D of part 1021 is amended by:
0
a. Revising B4.4, B4.6, and B4.13;
0
b. Adding B4.14; and
0
c. Revising B5.1 and B5.16.
    The revisions and addition read as follows:

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

* * * * *

B4. * * *

* * * * *

B4.4 Power Marketing Services and Activities

    Power marketing services and power management activities 
(including, but not limited to, storage, load shaping and balancing, 
seasonal exchanges, and other similar activities), provided that the 
operations of generating projects would remain within normal 
operating limits. (See B4.14 of this appendix for energy storage 
systems.)
* * * * *

B4.6 Additions and Modifications To Transmission Facilities

    Additions or modifications to electric power transmission 
facilities within a previously disturbed or developed facility area. 
Covered activities include, but are not limited to, switchyard rock 
grounding upgrades, secondary containment projects, paving projects, 
seismic upgrading, tower modifications, load shaping projects (such 
as reducing energy use during periods of peak demand), changing 
insulators, and replacement of poles, circuit breakers, conductors, 
transformers, and crossarms. (See B4.14 of this appendix for energy 
storage systems.)
* * * * *

B4.13 Upgrading and Rebuilding Existing Powerlines

    Upgrading or rebuilding existing electric powerlines, which may 
involve relocations of small segments of the powerlines within an 
existing powerline right-of-way or within otherwise previously 
disturbed or developed lands (as discussed at 10 CFR 
1021.410(g)(1)). Upgrading or rebuilding existing electric 
powerlines also may involve widening an existing powerline right-of-
way to meet current electrical standards if the widening remains 
within previously disturbed or developed lands and only extends into 
a small area beyond such lands as needed to comply with applicable 
electrical standards. Covered actions would be in accordance with 
applicable requirements, including the integral elements listed at 
the start of appendix B of this part; and would incorporate 
appropriate design and construction standards, control technologies, 
and best management practices. This categorical exclusion does not 
apply to underwater powerlines. As used in this categorical 
exclusion, ``small'' has the meaning discussed at 10 CFR 
1021.410(g)(2).

B4.14 Construction and Operation of Electrochemical-Battery or 
Flywheel Energy Storage Systems

    Construction, operation, upgrade, or decommissioning of an 
electrochemical-battery or flywheel energy storage system within a 
previously disturbed or developed area or within a small (as 
discussed at 10 CFR 1021.410(g)(2)) area contiguous to a previously 
disturbed or developed area. Covered actions would be in accordance 
with applicable requirements (such as land use and zoning 
requirements) in the proposed project area and the integral elements 
listed at the start of appendix B of this part, and would 
incorporate appropriate safety standards (including the current 
National Fire Protection Association 855, Standard for the 
Installation of Stationary Energy Storage Systems), design and 
construction standards, control technologies, and best management 
practices.
* * * * *

B5. * * *

B5.1 Actions To Conserve Energy or Water

    (a) Actions to conserve energy or water, demonstrate potential 
energy or water conservation, and promote energy efficiency that 
would not have the potential to cause significant changes in the 
indoor or outdoor concentrations of potentially harmful substances. 
These actions may involve financial and technical assistance to 
individuals (such as builders, owners, consultants, manufacturers, 
and designers), organizations (such as utilities), and governments 
(such as state, local, and tribal). Covered actions include, but are 
not limited to weatherization (such as insulation and replacing 
windows and doors); programmed lowering of thermostat settings; 
placement of timers on hot water heaters; installation or 
replacement of energy efficient lighting, low-flow plumbing fixtures 
(such as faucets, toilets, and showerheads), heating, ventilation, 
and air conditioning systems, and appliances; installation of drip-
irrigation systems; improvements in generator efficiency and 
appliance efficiency ratings; efficiency improvements for vehicles 
and transportation (such as fleet changeout); transportation 
management systems (such as traffic signal control systems, car 
navigation, speed cameras, and automatic plate number recognition); 
development of energy-efficient manufacturing, industrial, or 
building practices; and small-scale energy efficiency and 
conservation research and development and small-scale pilot 
projects. Covered actions include building renovations or new 
structures, provided that they occur in a previously disturbed or 
developed area. Covered actions could involve commercial, 
residential, agricultural, academic, institutional, or industrial 
sectors. Covered

[[Page 34094]]

actions do not include rulemakings, standard-settings, or proposed 
DOE legislation, except for those actions listed in B5.1(b) of this 
appendix.
* * * * *

B5.16 Solar Photovoltaic Systems

    (a) The installation, modification, operation, or 
decommissioning of commercially available solar photovoltaic 
systems:
    (1) Located on a building or other structure (such as rooftop, 
parking lot or facility, or mounted to signage, lighting, gates, or 
fences); or
    (2) Located within a previously disturbed or developed area.
    (b) Covered actions would be in accordance with applicable 
requirements (such as land use and zoning requirements) in the 
proposed project area and the integral elements listed at the start 
of appendix B of this part, and would be consistent with applicable 
plans for the management of wildlife and habitat, including plans to 
maintain habitat connectivity, and incorporate appropriate control 
technologies and best management practices.

0
3. Amend Appendix C of subpart D of part 1021 by revising C4 and C7 to 
read as follows:

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

* * * * *

C4 Upgrading, Rebuilding, or Construction of Powerlines

    (a) Upgrading or rebuilding existing powerlines when the action 
does not qualify for categorical exclusion B4.13; or construction of 
powerlines:
    (1) More than approximately 10 miles in length outside 
previously disturbed or developed powerline or pipeline rights-of-
way; or
    (2) more than approximately 20 miles in length within previously 
disturbed or developed powerline or pipeline rights-of-way.
* * * * *

C7 Contracts, Policies, and Marketing and Allocation Plans for Electric 
Power

    (a) Establishment and implementation of contracts, policies, and 
marketing and allocation plans related to electric power acquisition 
that involve:
    (1) The interconnection of, or acquisition of power from, new 
generation resources that are equal to or less than 50 average 
megawatts, unless the generation resource is eligible for a 
categorical exclusion;
    (2) Changes in the normal operating limits of generation 
resources equal to or less than 50 average megawatts; or
    (3) Service to discrete new loads of less than 10 average 
megawatts over a 12-month period.
* * * * *

0
4. Amend Appendix D to subpart D of part 1021 by revising D7 to read as 
follows:

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

* * * * *

D7 Contracts, Policies, and Marketing and Allocation Plans for Electric 
Power

    (a) Establishment and implementation of contracts, policies, and 
marketing and allocation plans related to electric power acquisition 
that involve:
    (1) The interconnection of, or acquisition of power from, new 
generation resources greater than 50 average megawatts, unless the 
generation resource is eligible for a categorical exclusion or was 
evaluated in an environmental assessment resulting in a finding of 
no significant impact;
    (2) Changes in the normal operating limits of generation 
resources greater than 50 average megawatts; or
    (3) Service to discrete new loads of 10 average megawatts or 
more over a 12-month period.
* * * * *
[FR Doc. 2024-09186 Filed 4-29-24; 8:45 am]
BILLING CODE 6450-01-P