Proposed Rule2023-25174
National Environmental Policy Act Implementing Procedures
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 16, 2023
Issuing agencies
Energy Department
Abstract
The U.S. Department of Energy (DOE or the Department) proposes to amend its implementing procedures (regulations) governing compliance with the National Environmental Policy Act (NEPA). The proposed changes would add a categorical exclusion for certain energy storage systems and revise categorical exclusions for upgrading and rebuilding transmission lines and for solar photovoltaic systems, as well as make conforming changes to related sections of DOE's NEPA regulations. The proposed changes are based on the experience of DOE and other Federal agencies, current technologies, regulatory requirements, and accepted industry practice. DOE invites public comments on the proposed changes.
Full Text
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<title>Federal Register, Volume 88 Issue 220 (Thursday, November 16, 2023)</title>
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[Federal Register Volume 88, Number 220 (Thursday, November 16, 2023)]
[Proposed Rules]
[Pages 78681-78691]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-25174]
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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: Notice of proposed rulemaking and request for comment.
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SUMMARY: The U.S. Department of Energy (DOE or the Department) proposes
to amend its implementing procedures (regulations) governing compliance
with the National Environmental Policy Act (NEPA). The proposed changes
would add a categorical exclusion for certain energy storage systems
and revise categorical exclusions for upgrading and rebuilding
transmission lines and for solar photovoltaic systems, as well as make
conforming changes to related sections of DOE's NEPA regulations. The
proposed changes are based on the experience of DOE and other Federal
agencies, current technologies, regulatory requirements, and accepted
industry practice. DOE invites public comments on the proposed changes.
DATES: DOE must receive comments by January 2, 2024 to ensure
consideration.
ADDRESSES: Documents relevant to this proposed rulemaking are posted at
<a href="http://www.regulations.gov">www.regulations.gov</a> (Docket: DOE-HQ-2023-0063). Documents posted to
this docket include: this notice of proposed rulemaking and DOE's
Technical Support Document, which provides additional information
regarding certain proposed changes and a redline/strikeout version of
affected sections of the DOE NEPA regulations indicating the changes in
this proposed rule.
Submit comments, labeled ``DOE NEPA Implementing Procedures, RIN
1990-AA48,'' by one of the following methods:
1. <a href="http://www.regulations.gov">www.regulations.gov</a>: Enter ``Docket ID DOE-HQ-2023-0063'' in the
search box. Click on ``Comment'' to submit comments, which you may
enter directly on the web page or by uploading in a file.
2. Postal Mail: Mail comments to NEPA Rulemaking Comments, Office
of NEPA Policy and Compliance (GC-54), U.S. Department of Energy, 1000
Independence Avenue SW., Washington, DC 20585. Because security
screening may delay mail sent through the U.S. Postal Service, DOE
encourages electronic submittal of
[[Page 78682]]
comments through <a href="http://www.regulations.gov">www.regulations.gov</a>.
3. Email: send comments to <a href="/cdn-cgi/l/email-protection#074348422a494257462a55726b626a666c6e6960476f762963686229606871"><span class="__cf_email__" data-cfemail="3a7e757f17747f6a7b17684f565f575b5153545d7a524b145e555f145d554c">[email protected]</span></a>.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the ``Public
Participation--Submission of Comments'' (section IV) of the
SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: For questions concerning how to
comment on this proposed rule, contact Ms. Carrie Abravanel, Office of
NEPA Policy and Compliance, at <a href="/cdn-cgi/l/email-protection#377378721a797267761a65425b525a565c5e5950775f461953585219505841"><span class="__cf_email__" data-cfemail="89cdc6cca4c7ccd9c8a4dbfce5ece4e8e2e0e7eec9e1f8a7ede6eca7eee6ff">[email protected]</span></a> or 202-
586-4600.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction and Background
A. Establishment and Use of Categorical Exclusions
B. Development of the Proposed Changes
II. Description of Proposed Changes
A. Overview
B. Proposed Changes to Categorical Exclusion B4.13 for Upgrading
and Rebuilding Existing Powerlines
C. Proposed New Categorical Exclusion B4.14 for Certain Energy
Storage Systems
D. Proposed Changes to Categorical Exclusion B5.16 for Solar
Photovoltaic Systems
III. 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
IV. Public Participation--Submission of Comments
V. 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's
NEPA procedures are contained in 10 CFR part 1021.
NEPA establishes three types of review for 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, 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 agency to consider whether extraordinary circumstances
exist due to which a normally excluded action may have a significant
environmental effect.
A. Establishment and Use of Categorical Exclusions
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. The rulemaking process provides the
public with an opportunity to review and comment on DOE's proposed
changes. DOE will consider the comments received during the public
comment period.
Once established in DOE's NEPA procedures, use of a categorical
exclusion requires evaluation of a proposed action against several
conditions. DOE must determine, 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; (2) there are no
extraordinary circumstances \1\ 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 \2\ 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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\1\ 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))
\2\ Segmentation can occur when a proposal is broken down into
small parts in order to avoid the appearance of significance of the
total action. (10 CFR 1021.410(b)(3))
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In addition, DOE evaluates whether the proposed action satisfies
conditions included within the text of the individual categorical
exclusion and the conditions known as ``integral elements'' that apply
to all categorical exclusions listed in appendix B to subpart D of part
1021 (appendix B, paragraphs (1) through (5)). Together, these
conditions limit the types of proposals that fit within a categorical
exclusion and help ensure that adverse environmental impacts are
avoided or reduced. These conditions are discussed generally in this
section and also in section II of this document, which describes each
of DOE's proposed changes.
The categorical exclusions discussed in this proposed rulemaking
include conditions specific to the categorical exclusion. For example,
the proposed action must follow applicable codes and best management
practices. These codes and practices vary by technology and location
(e.g., fire protection codes that differ by state). Also, they change
over time to reflect lessons learned and to address emerging technology
and practices. The Technical Support Document provides links to and
summarizes information on some of the relevant codes and best practices
for the categorical exclusions that are included in this proposed
rulemaking. As another example, the changes proposed in this rulemaking
specify conditions regarding siting proposed actions on previously
disturbed or developed land and on land contiguous to previously
disturbed and developed land. DOE defines previously disturbed or
developed as
[[Page 78683]]
``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. DOE also has experience
implementing categorical exclusions that allow construction on land
that is contiguous to previously disturbed or developed areas and
proposes to make certain siting on contiguous land part of one of the
proposed categorical exclusions. 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 species, 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.
In addition to conditions within an individual categorical
exclusion, the proposed action also must satisfy conditions known as
``integral elements.'' Integral elements are part of each categorical
exclusion in appendix B. These conditions appear at the beginning of
the appendix and are not repeated for each categorical exclusion.
Integral elements require that, to fit within a categorical exclusion,
the proposed action must not threaten a violation of applicable
environment, safety, and 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.\3\ In appendix B, 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, floodplains,
and wetlands, among others. (10 CFR part 1021, subpart D, appendix B)
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\3\ 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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Only if DOE determines that all the applicable conditions have been
met may it issue a categorical exclusion determination. DOE posts its
categorical exclusion determinations at <a href="http://www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations">www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations</a>.
B. Development of the Proposed Changes
In this proposed rulemaking, DOE proposes to add a categorical
exclusion for certain energy storage systems and revise categorical
exclusions for upgrading and rebuilding transmission lines and for
solar photovoltaic (PV) systems, as well as make conforming changes to
related sections of DOE's NEPA regulations. DOE last made changes to
its categorical exclusions in these areas in 2011 (76 FR 63764; October
13, 2011). Since then, DOE has developed a better understanding of the
potential environmental impacts of these types of actions through
research, conducting environmental reviews, and engaging with industry,
local communities, and other government agencies. The proposed changes
are based on the experience of DOE and other Federal agencies, current
technologies, regulatory requirements, and accepted industry practice.
DOE consulted with CEQ during the development of these proposed
changes.
DOE has documented the technical substantiation for the proposed
changes in this preamble and in an accompanying Technical Support
Document. The Technical Support Document summarizes environmental
assessments for the types of projects addressed in this proposed
rulemaking and other information. The environmental assessments
demonstrate how DOE and other Federal agencies evaluated potential
environmental impacts of these projects and determined that they would
not result in a significant environmental effect. To be clear, not
every environmental assessment discussed in the Technical Support
Document reflects a project that would have qualified for a categorical
exclusion proposed in this rulemaking. Such determinations would have
to be made on a case-by-case basis.
DOE developed its support for this proposed rulemaking consistent
with CEQ's 2010 guidance on establishing, applying, and revising
categorical exclusions under NEPA (75 FR 75628; December 6, 2010). DOE
also considered climate impacts and greenhouse gas (GHG) emissions in
preparing these proposals consistent with CEQ's 2023 interim guidance
on the consideration of GHG emissions and climate change (88 FR 1196;
January 9, 2023). The description of the proposed changes in section II
of this document includes a discussion of how the proposed changes may
affect GHG emissions.
The public made suggestions for revising DOE's categorical
exclusions in response to a Request for Information (RFI) published in
the Federal Register on November 15, 2022. (87 FR 68385). Those
suggestions, along with others made by DOE's NEPA Compliance Officers
and other staff, led to the proposals included in this proposed
rulemaking. DOE evaluated the proposals by reviewing environmental
assessments prepared by DOE and by other Federal agencies, categorical
exclusions established by other Federal agencies, technical reports,
applicable requirements and industry practices, and other publicly
available information.
Thirty-three individuals or entities responded to the Request for
Information. The Request for Information and these comments are
available at <a href="http://www.regulations.gov/docket/DOE-HQ-2023-0002/comments">www.regulations.gov/docket/DOE-HQ-2023-0002/comments</a>.
Relevant to this proposed rulemaking, commenters asked DOE to add
energy storage systems to its categorical exclusions, to expand the
scope of its categorical exclusion for upgrading and rebuilding
powerlines, and to expand its categorical exclusion for solar
photovoltaic systems to at least 200 acres within previously disturbed
or developed areas. DOE addresses these and related comments in its
discussion of proposed changes in section II.B of this document. The
identification number for individual commenter documents used on
<a href="http://www.regulations.gov">www.regulations.gov</a> and the page(s) where a particular comment appears
are
[[Page 78684]]
included in section II.B of this document.
II. Description of Proposed Changes
A. Overview
DOE proposes to establish a new categorical exclusion for certain
energy storage systems and to revise existing categorical exclusions
for upgrading and rebuilding transmission lines and for solar
photovoltaic systems. DOE's proposal also includes 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). These proposed changes are
discussed in sections II.B through II.D of this document.
These proposed changes, if finalized, would not require any changes
to or otherwise affect categorical exclusion determinations completed
prior to the effective date of any final rule.
B. Proposed Changes to Categorical Exclusion B4.13 for Upgrading and
Rebuilding Existing Powerlines
Powerlines are a critical component of the electric grid that moves
electricity from facilities that generate electricity to our
communities, businesses, and factories. Upgrading and rebuilding \4\
powerlines extends their useful life. Upgrades and rebuilds can also
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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\4\ 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 (called 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, which can be used to integrate renewable energy and other
sources into the grid without the need to build new transmission lines.
Use of advanced conductors reduces line losses (i.e., power lost during
transmission and distribution of electricity) relative to traditional
conductors, thereby improving efficiency.\5\ Improvements to capacity
and efficiency can help to ensure reliability, reduce costs to
consumers, and reduce GHG emissions associated with electricity
generation, transmission, and distribution.
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\5\ Grid Strategies, LLC, ``Advanced Conductors on Existing
Transmission Corridors to Accelerate Low Cost Decarbonization,''
March 2022, available at: <a href="https://acore.org/wp-content/uploads/2022/03/Advanced_Conductors_to_Accelerate_Grid_Decarbonization.pdf">https://acore.org/wp-content/uploads/2022/03/Advanced_Conductors_to_Accelerate_Grid_Decarbonization.pdf</a>.
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Upgrading and rebuilding powerlines also can avoid or reduce
adverse environmental impacts, such as by relocating small \6\ 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
transmission poles to ensure continued safe operations.
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\6\ 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. DOE proposes to remove the mileage limitation, add options
for relocating within an existing right of way or within otherwise
previously disturbed or developed lands, and add 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 transmission line upgrades and rebuilds of various
lengths. (See Technical Support Document, page 4.) The length of the
projects is based on the endpoints, which are commonly substations
(e.g., rebuild the transmission line 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 also proposes to clarify 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, in the Technical Support Document, page 6, DOE/
EA-1912 for an example of relocation to avoid cultural resources and
DOE/EA-1967 to avoid a rock fall and landslide area.) Currently, B4.13
allows ``minor relocations of small segments of the powerlines.'' DOE
proposes to delete ``minor'' because it is unnecessary to qualify
``relocations of small segments'' with ``minor.'' DOE also proposes to
specify that, under the proposed revisions, small segments of
powerlines may be relocated ``within an existing right of way or within
otherwise previously disturbed or developed lands.'' This change would
provide additional flexibility without increasing adverse environmental
impacts. Any proposed relocation would be subject to all the conditions
with the proposed categorical exclusion B4.13, including conformity to
the integral elements that require consideration or potential impacts
on environmentally sensitive resources and other potential impacts.
DOE's review of environmental assessments and other information in
preparing this proposed rulemaking identified conditions that would be
appropriate to add to categorical exclusion B4.13. 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 local environment. To account for this, DOE proposes to add a
condition that the proposed project would be in accordance with
applicable requirements and would 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 I.A
of this document), would ensure that DOE considers whether a proposed
upgrade or rebuild of an existing powerline would be sited and designed
appropriately prior to determining whether categorical exclusion B4.13
applies.
DOE proposes 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 proposed change would remove the reference to powerline
length and, instead, clarify that an environmental assessment
[[Page 78685]]
normally would be prepared when the proposal does not qualify for
categorical exclusion B4.13.
In response to DOE's November 2022 Request for Information,\7\
Edison Electric Institute (EEI) suggested that DOE increase the length
of powerlines in categorical exclusion B4.13 to ``at least 100 miles''
within previously disturbed or developed rights-of-way. (EEI (RFI
0010), pages 7-8) EEI stated that, ``Such [rights-of-way] are already
managed from an environmental, safety, and reliability standpoint and
thus, projects in these areas should not result in significant effects
on the human environment.'' (EEI (RFI 0010), page 8) EEI further stated
that this change would ``prioritize projects in existing [rights-of-
way] over new greenfield projects'' and that utilizing existing rights-
of-way would ``more efficiently build the transmission infrastructure
necessary for the clean energy transformation.'' (EEI (RFI 0010), page
8) The Cross-Cutting Issues Group suggested that DOE omit the 20-mile
limitation in B4.13 and stated that, ``Projects in previously disturbed
or developed [rights-of-way] will not significantly impact the human
environment regardless of the length of the powerlines.'' (Cross-
Cutting Issues Group (RFI 0012), page 5) DOE's proposed changes to
categorical exclusion B4.13 are consistent with these comments.
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\7\ The Request for Information and these comments are available
at <a href="http://www.regulations.gov/docket/DOE-HQ-2023-0002/comments">www.regulations.gov/docket/DOE-HQ-2023-0002/comments</a>.
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The Cross-Cutting Issues Group requested that DOE confirm that
categorical exclusion B4.13 covers all types of powerlines, including
``gen-tie lines'' and ``powerlines that feed into a federal electric
transmission system (e.g., Tennessee Valley Authority)'' and related
project elements such as access roads. (Cross-Cutting Issues Group (RFI
0012), pages 4-5) DOE interprets B4.13 to encompass all types of
powerlines, including those identified by the commenter. In regard to
access roads and other project elements, DOE's NEPA regulations
explain, ``A class of actions [e.g., a categorical exclusion] includes
activities foreseeably necessary to proposals encompassed within the
class of actions (such as award of implementing grants and contracts,
site preparation, purchase and installation of equipment, and
associated transportation activities).'' (10 CFR 1021.410(d))
C. Proposed New Categorical Exclusion B4.14 for Certain Energy Storage
Systems
For purposes of this proposed 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
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 (<a href="http://www.eia.gov/energyexplained/electricity/energy-storage-for-electricity-generation.php">www.eia.gov/energyexplained/electricity/energy-storage-for-electricity-generation.php</a>) and market trends for battery
storage (<a href="http://www.eia.gov/analysis/studies/electricity/batterystorage/">www.eia.gov/analysis/studies/electricity/batterystorage/</a>).
Also, DOE published an energy storage market report in 2020
(<a href="http://www.energy.gov/sites/prod/files/2020/12/f81/Energy%20Storage%20Market%20Report%202020_0.pdf">www.energy.gov/sites/prod/files/2020/12/f81/Energy%20Storage%20Market%20Report%202020_0.pdf</a>).
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DOE proposes to establish 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 I.A 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, page 24.) Consistent with this expectation and
because contiguous land might be undisturbed and undeveloped, DOE
proposes that siting outside a previously disturbed or developed be
limited to a ``small'' contiguous area. DOE would consider whether a
contiguous area is small ``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.'' (10
CFR 1021.410(g)(2)) In addition, the proposed categorical exclusion
includes conditions that the proposed project be in accordance with
applicable requirements (such as land use \9\ and zoning requirements)
and would incorporate appropriate design and construction standards,
control technologies, and best management practices. In addition, DOE
would review the proposed project against the criteria, including
integral elements and extraordinary circumstances, described in section
I.A of this document. This review would ensure 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 has 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. (See Technical Support Document, page 24.)
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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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DOE also proposes conforming 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 to
categorical
[[Page 78686]]
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.
DOE now proposes to delete ``power storage'' from the examples in B5.1.
DOE would 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 proposes to
delete the example of flywheels and battery arrays from B4.6 but retain
the reference to ``load shaping projects'' and add ``reducing energy
use during periods of peak demand'' as a new example. DOE would add a
note to B4.6 that energy storage systems are addressed in B4.14. DOE
also would add 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 would
avoid confusion over which categorical exclusion and associated
conditions apply to energy storage systems.
In response to DOE's November 2022 Request for Information,\10\
three commenters (Cross-Cutting Issues Group, Duke Energy, and EEI)
requested that DOE include energy storage systems, and the installation
and operation of such systems, in categorical exclusions B4.4 and B4.6.
Cross-Cutting Issues Group explained that including energy storage
systems explicitly in B4.4 and B4.6 would ``provide more certainty'' as
project proponents explore different types of energy storage system
technologies (such as compressed air energy storage and molten salt
storage), ``particularly the timing and costs associated with deploying
such projects.'' (Cross-Cutting Issues Group (RFI 0012), page 6) EEI
and Cross-Cutting Issues Group asked DOE to explicitly include the
addition or modification of a ``battery array or other energy storage
device(s)'' as part of these categorical exclusions. (EEI (RFI 0010),
pages 9-10; Cross-Cutting Issues Group (RFI 0012), page 6)
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\10\ The Request for Information and these comments are
available at <a href="http://www.regulations.gov/docket/DOE-HQ-2023-0002/comments">www.regulations.gov/docket/DOE-HQ-2023-0002/comments</a>.
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DOE's proposed changes address these comments. DOE believes that
the best way to ensure consistency is to have a single categorical
exclusion for energy storage systems. DOE is proposing that new
categorical exclusion B4.14 be limited to electrochemical-battery and
flywheel energy storage systems. 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. If DOE identifies sufficient
support, DOE may revise the categorical exclusion in the final rule to
include additional energy storage technologies.
D. Proposed Changes to Categorical Exclusion B5.16 for Solar
Photovoltaic Systems
Solar photovoltaic (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.\11\
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\11\ DOE's Solar Energy Technologies Office has a website that
describes solar PV technologies (<a href="http://www.energy.gov/eere/solar/solar-photovoltaic-technology-basics">www.energy.gov/eere/solar/solar-photovoltaic-technology-basics</a>).
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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.'' \12\ Thus, on a life-cycle basis, solar PV systems provide many
years of electricity generation without GHG emissions.
---------------------------------------------------------------------------
\12\ U.S. Energy Information Administration ``Solar explained''
available at <a href="http://www.eia.gov/energyexplained/solar/solar-energy-and-the-environment.php">www.eia.gov/energyexplained/solar/solar-energy-and-the-environment.php</a>; retrieved August 27, 2023.
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DOE's current categorical exclusion B5.16, Solar photovoltaic
systems, includes the installation, 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. DOE proposes to change
``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 proposes to
remove 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 I.B 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, page 42.)
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 accounted for
in categorical exclusion B5.16 and in the integral elements,
extraordinary circumstances, and other factors described in section I.A
of this document. If the proposed changes are finalized, DOE would
consider the integral elements and the presence of any extraordinary
circumstances when reviewing proposed solar PV projects' 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,\13\
[[Page 78687]]
doing so also raises questions about land use and the protection of
important farmlands. One of the integral elements ensures that DOE
considers the potential impacts on prime or unique farmland, or other
farmland of statewide or local importance. (10 CFR part 1021, appendix
B, paragraph (4)(v).)
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\13\ U.S. Energy Information Administration ``Solar explained''
available at <a href="http://www.eia.gov/energyexplained/solar/solar-energy-and-the-environment.php">www.eia.gov/energyexplained/solar/solar-energy-and-the-environment.php</a>; retrieved August 27, 2023.
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DOE also proposes to make 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.'' DOE is again proposing to add a condition
regarding the applicability of a categorical exclusion to C7, however.
In light of the proposed change to B5.16--which would remove 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 is now proposing to add the same
condition to both C7 and D7 for the reasons previously described. For
D7, DOE also is proposing to specify 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 proposes to add this text only to avoid any potential
confusion.
In response to DOE's November 2022 Request for Information,\14\ EEI
suggested that DOE revise categorical exclusion B5.16 to apply to
``solar photovoltaic systems, both large- and small-scale, and increase
the acreage to at least 200 acres within previously disturbed or
developed areas to fully capture the extent of large-scale solar
installation that utilize more than 10 areas and may not be
contiguous.'' (EEI (RFI 0010), page 10) DOE's proposal in this
rulemaking is consistent with this comment.
---------------------------------------------------------------------------
\14\ The Request for Information and these comments are
available at <a href="http://www.regulations.gov/docket/DOE-HQ-2023-0002/comments">www.regulations.gov/docket/DOE-HQ-2023-0002/comments</a>.
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III. 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 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 proposed 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 proposed 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
[[Page 78688]]
communities with environmental justice concerns potentially affected by
a proposed action, including when establishing or revising agency
procedures under NEPA.'' DOE is providing opportunities for public
engagement in this proposed rulemaking, including opportunities for
communities with environmental justice concerns. Also, in determining
whether the proposed 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 notice, DOE is following 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. (See 40 CFR 1507.3(b)).
In this proposed rule, DOE proposes 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
preliminarily determined that this proposed rule would qualify 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 preliminarily 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:
<a href="https://energy.gov/gc">https://energy.gov/gc</a> under Resources.
DOE has reviewed this proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. The proposed 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 proposed 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.'' \15\ In 2011, DOE estimated the cost of preparing
environmental assessments over the prior decade at an average of
$100,000 and a median of $65,000.\16\ 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.
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\15\ GAO-14-369, NATIONAL ENVIRONMENTAL POLICY ACT: Little
Information Exists on NEPA Analyses, April 2014, available at
<a href="http://www.gao.gov/assets/gao-14-369.pdf">www.gao.gov/assets/gao-14-369.pdf</a>.
\16\ 76 FR 237, January 3, 2011.
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Based on the foregoing, DOE certifies that this proposed rule, if
adopted, would not have a significant economic impact on a substantial
number of small entities. Accordingly, DOE has not prepared a
regulatory flexibility analysis for this proposed 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 proposed rulemaking will impose no new information or record-
keeping requirements. Accordingly, OMB clearance is not required under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) 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).
The proposed rule would amend 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. The proposed rule would not result in the expenditure by
State, local, and Tribal governments in the aggregate, or by the
private sector, of $100 million or more in any one year. Accordingly,
no assessment or analysis is required under the UMRA.
[[Page 78689]]
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. The proposed rule would not have any impact on the autonomy
or integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
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 proposed rule and has
determined that it would not preempt state law and would not have a
substantial direct effect on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by 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, the proposed 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 proposed 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 would not have a significant adverse effect on the supply,
distribution, or use of energy, and is therefore not a significant
energy action. Accordingly, DOE has not prepared a Statement of Energy
Effects.
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 proposed rule would not result in
any takings that might require compensation under the Fifth Amendment
to the United States Constitution.
IV. Public Participation--Submission of Comments
DOE will accept comments, data, and information regarding this
notice of proposed rulemaking no later than the date provided in the
DATES section at the beginning of this document. Interested individuals
are invited to submit data, views, or arguments with respect to the
specific sections addressed in this proposed rule using the methods
described in the ADDRESSES section at the beginning of this document.
1. Submitting comments via <a href="http://www.regulations.gov">www.regulations.gov</a>. Your contact
information will be viewable by DOE's Office of the General Counsel
staff only. Your contact information will not be publicly viewable
except for your first and last names, organization name (if any), and
submitter representative name (if any). If your comment is not
processed properly because of technical difficulties, DOE will use this
information to contact you. If DOE cannot read your comment due to
technical difficulties and cannot contact you for clarification, DOE
may not be able to consider your comment. However, your contact
information will be publicly viewable if you include it in the comment
itself or in any documents attached to your comment. Any information
that you do not want to be publicly viewable should not be included in
your comment, nor in any document attached to your comment. Persons
viewing comments will see only first and last names, organization
names, correspondence containing comments, and any documents submitted
with the comments.
Do not submit to <a href="http://www.regulations.gov">www.regulations.gov</a> information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information (CBI)). Comments submitted through
<a href="http://www.regulations.gov">www.regulations.gov</a> cannot be claimed as CBI. Comments received through
<a href="http://www.regulations.gov">www.regulations.gov</a> will waive any CBI claims for the information
submitted. For information on submitting CBI, see the Confidential
Business Information section.
[[Page 78690]]
DOE processes submissions made through <a href="http://www.regulations.gov">www.regulations.gov</a> before
posting. Normally, comments will be posted within a few days of being
submitted. However, if large volumes of comments are being processed
simultaneously, your comment may not be viewable for up to several
weeks. Please keep the comment tracking number that <a href="http://www.regulations.gov">www.regulations.gov</a>
provides after you have successfully uploaded your comment.
2. Submitting comments via email or mail. Comments and documents
submitted via email or mail will also be posted to <a href="http://www.regulations.gov">www.regulations.gov</a>.
If you do not want your personal contact information to be publicly
viewable, do not include it in your comment or any accompanying
documents. Instead, provide your contact information in a cover letter.
Include your first and last names, email address, telephone number, and
optional mailing address. The cover letter will not be publicly
viewable as long as it does not include any comments.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are not secured, that are written in English, and that are free of any
defects or viruses. Documents should not contain special characters or
any form of encryption and, if possible, they should carry the
electronic signature of the author.
3. Confidential Business Information. Pursuant to the provisions of
10 CFR 1004.11, any person submitting information or data he or she
believes to be confidential and exempt by law from public disclosure
should submit two well-marked copies: One copy of the document marked
``CONFIDENTIAL'' including all the information believed to be
confidential, and one copy of the document marked ``NON-CONFIDENTIAL''
with the information believed to be confidential deleted. Submit these
documents via email to <a href="/cdn-cgi/l/email-protection#f0b4bfb5ddbeb5a0b1dda2859c959d919b999e97b09881de949f95de979f86"><span class="__cf_email__" data-cfemail="2a6e656f07646f7a6b07785f464f474b4143444d6a425b044e454f044d455c">[email protected]</span></a>. DOE will make
its own determination about the confidential status of the information
and treat it according to its determination.
It is DOE's policy that all comments may be included in the public
docket, without change and as received, including any personal
information provided in the comments (except information deemed to be
exempt from public disclosure).
4. Campaign form letters. Please submit campaign form letters by
the originating organization in batches of between 50 to 500 form
letters per PDF or as one form letter with a list of supporters' names
compiled into one or more PDFs. This reduces comment processing and
posting time.
V. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of
proposed rulemaking and request for comment.
List of Subjects in 10 CFR Part 1021
Environmental impact statements.
Signing Authority
This document of the Department of Energy was signed on November 8,
2023, 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 November 9, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE proposes to amend 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.)
* * * * *
.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 (as discussed at 10 CFR 1021.410(g)(2))
segments of the powerlines within an existing right of way or within
otherwise previously disturbed or developed lands (as discussed at
10 CFR 1021.410(g)(1)). 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.
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 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
[[Page 78691]]
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 actions do not include
rulemakings, standard-settings, or proposed DOE legislation, except
for those actions listed in B5.1(b) and (c) of this appendix.
(b) Covered actions include rulemakings that establish energy
conservation standards for consumer products and industrial
equipment, provided that the actions would not:
(1) Have the potential to cause a significant change in
manufacturing infrastructure (such as construction of new
manufacturing plants with considerable associated ground
disturbance);
(2) Involve significant unresolved conflicts concerning
alternative uses of available resources (such as rare or limited raw
materials);
(3) Have the potential to result in a significant increase in
the disposal of materials posing significant risks to human health
and the environment (such as RCRA hazardous wastes); or
(4) Have the potential to cause a significant increase in energy
consumption in a state or region.
(c) Covered actions also include rulemakings that establish
energy conservation standards for new Federal buildings and Federal
buildings undergoing major renovation, provided that the actions
would not have the potential to:
(1) Result in a significant decrease in indoor air quality; or
(2) Result in a significant increase in emissions of air
pollutants.
* * * * *
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 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:
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. 2023-25174 Filed 11-15-23; 8:45 am]
BILLING CODE 6450-01-P
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</html>Indexed from Federal Register on November 16, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.