Notice2024-03502
Notice of Adoption of Department of Energy Categorical Exclusion Under the National Environmental Policy Act
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
February 21, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is adopting the Department of Energy's (DOE) Categorical Exclusion (CE) for Methane Gas Recovery and Utilization Systems under the National Environmental Policy Act (NEPA) to use in EPA's program and funding opportunities administered by EPA. This notice describes the categories of proposed actions for which EPA intends to use DOE's CE and describes the consultation between the agencies.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 35 (Wednesday, February 21, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 35 (Wednesday, February 21, 2024)]
[Notices]
[Pages 13077-13079]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-03502]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL OP-OFA-110]
Notice of Adoption of Department of Energy Categorical Exclusion
Under the National Environmental Policy Act
AGENCY: Environmental Protection Agency.
ACTION: Notice of adoption of categorical exclusion.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is adopting the
Department of Energy's (DOE) Categorical Exclusion (CE) for Methane Gas
Recovery and Utilization Systems under the National Environmental
Policy Act (NEPA) to use in EPA's program and funding opportunities
administered by EPA. This notice describes the categories of proposed
actions for which EPA intends to use DOE's CE and describes the
consultation between the agencies.
DATES: This action is effective upon publication.
FOR FURTHER INFORMATION CONTACT: Melissa Winters, Manager, Pollution
Prevention and Communities Branch, Land, Chemicals, and Redevelopment
Division, EPA Region 10, by phone at 206-553-5180, or by email at
<a href="/cdn-cgi/l/email-protection#2c5b454258495e5f02414940455f5f4d6c495c4d024b435a"><span class="__cf_email__" data-cfemail="06716f6872637475286b636a6f7575674663766728616970">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
NEPA and CEs
The National Environmental Policy Act, as amended at, 42 U.S.C.
4321-4347 (NEPA), requires all Federal agencies to assess the
environmental impact of their actions. Congress enacted NEPA in order
to encourage productive and enjoyable harmony between humans and the
environment, recognizing the profound impact of human activity and the
critical importance of restoring and maintaining environmental quality
to the overall welfare of humankind. 42 U.S.C. 4321, 4331. NEPA's twin
aims are to ensure agencies consider the environmental effects of their
proposed actions in their decision-making processes and inform and
involve the public in that process. 42 U.S.C. 4331. NEPA created the
Council on Environmental Quality (CEQ), which promulgated NEPA
implementing regulations, 40 CFR parts 1500 through 1508 (CEQ
regulations).
To comply with NEPA, agencies determine the appropriate level of
review--an environmental impact statement (EIS), environmental
assessment (EA), or CE. 42 U.S.C. 4336. If a proposed action is likely
to have significant environmental effects, the agency must prepare an
EIS and document its decision in a record of decision. 42 U.S.C. 4336.
If the proposed action is not likely to have significant environmental
effects or the effects are unknown, the agency may instead prepare an
EA, which involves a more concise analysis and process than an EIS. 42
U.S.C. 4336. Following the EA, the agency may conclude the process with
a finding of no significant impact if the analysis shows that the
action will have no significant effects. If the analysis in the EA
finds that the action is likely to have significant effects, however,
then an EIS is required.
Under NEPA and the CEQ regulations, a Federal agency also can
establish CEs--categories of actions that the agency has determined
normally do not significantly affect the quality of the human
environment--in their agency NEPA procedures. 42 U.S.C. 4336(e)(1); 40
CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency determines that a
CE covers a proposed action, it then evaluates the proposed action for
extraordinary circumstances in which a normally excluded action may
have a significant effect. 40 CFR 1501.4(b). If no extraordinary
circumstances are present or if further analysis determines that the
extraordinary circumstances do not involve the potential for
significant environmental effects, the agency may apply the CE to the
proposed action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2),
40 CFR 1501.4. If the extraordinary circumstances have the potential to
result in significant effects, the agency is required to prepare an EA
or EIS.
Section 109 of NEPA, enacted as part of the Fiscal Responsibility
Act of 2023, allows a Federal agency to ``adopt'' and use another
agency's CEs for a category of proposed agency actions. 42 U.S.C.
[[Page 13078]]
4336(c). To use another agency's CEs under section 109, the adopting
agency must identify the relevant CEs listed in another agency's
(``establishing agency'') NEPA procedures that cover the adopting
agency's category of proposed actions or related actions; consult with
the establishing agency to ensure that the proposed adoption of the CE
to a category of actions is appropriate; identify to the public the CE
that the adopting agency plans to use for its proposed actions; and
document adoption of the CE. Id.
This notice documents EPA's adoption of DOE's CE for Methane Gas
Recovery and Utilization Systems under section 109 of NEPA to use in
EPA's program and funding opportunities, including those administered
for Congressionally directed spending for projects identified in EPA's
Appropriations Acts. Types of projects funded under EPA's
Appropriations Acts include activities that reduce greenhouse gas
emissions and pollution in communities, including capturing methane
from wastewater treatment plants and landfills.
II. Identification of the Categorical Exclusion
EPA is adopting DOE's CE for Methane Gas Recovery and Utilization
Systems. DOE's CE is codified in DOE's NEPA procedures as CE B5.21 of
10 CFR part 1021, subpart D, appendix B, as follows:
B5.21 Methane Gas Recovery and Utilization Systems
The installation, modification, operation, and removal of
commercially available methane gas recovery and utilization systems
installed within a previously disturbed or developed area on or
contiguous to an existing landfill or wastewater treatment plant that
would not have the potential to cause a significant increase in the
quantity or rate of air emissions. Covered actions would be in
accordance with applicable requirements (such as local land use and
zoning requirements) in the proposed project area and would incorporate
appropriate control technologies and best management practices.
``Previously disturbed or developed'' refers to 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 nonnative 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).
The DOE CE also includes additional conditions referred to as
integral elements (10 CFR part 1021, subpart D, appendix B). In order
to apply this CE, the proposal must be one that would not:
(1) Threaten a violation of applicable statutory, regulatory, or
permit requirements for environment, safety, and health, or similar
requirements of EPA \1\ or Executive Orders;
---------------------------------------------------------------------------
\1\ Modified from 10 CFR part 1021 subpart D, app. B to reflect
EPA as the adopting agency.
---------------------------------------------------------------------------
(2) Require siting and construction or major expansion of waste
storage, disposal, recovery, or treatment facilities (including
incinerators), but the proposal may include categorically excluded
waste storage, disposal, recovery, or treatment actions or facilities;
(3) Disturb hazardous substances, pollutants, contaminants, or
CERCLA excluded petroleum and natural gas products that preexist in the
environment such that there would be uncontrolled or unpermitted
releases;
(4) Have the potential to cause significant impacts on
environmentally sensitive resources. 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. An
action may be categorically excluded if, although sensitive resources
are present, the action would not have the potential to cause
significant impacts on those resources (such as construction of a
building with its foundation well above a sole-source aquifer or upland
surface soil removal on a site that has wetlands). Environmentally
sensitive resources include, but are not limited to:
(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;
(ii) Federally listed threatened or endangered species or their
habitat (including critical habitat) or Federally proposed or candidate
species or their habitat (Endangered Species Act); state listed or
state-proposed endangered or threatened species or their habitat;
Federally-protected marine mammals and Essential Fish Habitat (Marine
Mammal Protection Act; Magnuson-Stevens Fishery Conservation and
Management Act); and otherwise Federally-protected species (such as the
Bald and Golden Eagle Protection Act or the Migratory Bird Treaty Act);
(iii) Floodplains and wetlands;
(iv) Areas having a special designation such as Federally- and
state designated wilderness areas, national parks, national monuments,
national natural landmarks, wild and scenic rivers, state and Federal
wildlife refuges, scenic areas (such as National Scenic and Historic
Trails or National Scenic Areas), and marine sanctuaries;
(v) Prime or unique farmland, or other farmland of statewide or
local importance, as defined at 7 CFR 658.2(a), ``Farmland Protection
Policy Act: Definitions,'' or its successor;
(vi) Special sources of water (such as sole-source aquifers,
wellhead protection areas, and other water sources that are vital in a
region); and
(vii) Tundra, coral reefs, or rain forests; or
(5) Involve genetically engineered organisms, synthetic biology,
governmentally designated noxious weeds, or invasive species, unless
the proposed activity would be contained or confined in a manner
designed and operated to prevent unauthorized release into the
environment and conducted in accordance with applicable requirements,
such as those of the Department of Agriculture, EPA, and the National
Institutes of Health.
Proposed EPA Category of Actions
EPA intends to apply this CE to support proposals for the
installation, modification, operation, and removal of commercially
available methane gas recovery and utilization systems. The systems
must be within a previously disturbed or developed area, and must be on
or contiguous to an existing landfill or wastewater treatment plant.
Activities covered by the CE may be undertaken directly by EPA or be
financed in whole or in part through Federal funding opportunities,
including those administered for Congressionally directed spending for
projects identified in EPA's Appropriations Acts. EPA will consider
each proposal for the installation, modification, operation, and
removal of commercially available methane gas recovery and utilization
projects to ensure that the proposal is within the scope of the CE.
III. Consideration of Extraordinary Circumstances
When applying this CE, EPA will evaluate the proposed action to
ensure consideration of the integral elements
[[Page 13079]]
listed above. In considering extraordinary circumstances, EPA will
consider whether the proposed action has the potential to result in
significant effects as described in DOE's extraordinary circumstances
listed at 10 CFR 1021.410(b)(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. In addition, EPA will consider
its list of extraordinary circumstances as described at 40 CFR
6.204(b).
IV. Consultation With DOE and Determination of Appropriateness
EPA and DOE consulted on the appropriateness of EPA's adoption of
the CE in November 2023. EPA and DOE's consultation included a review
of DOE's experience developing and applying the CE, as well as the
types of actions for which EPA plans to utilize the CE. These EPA
actions are very similar to the type of projects for which DOE has
applied the CE and therefore the impacts of EPA projects will be very
similar to the impacts of DOE projects, which are not significant,
absent extraordinary circumstances. Therefore, EPA has determined that
its proposed use of the methane gas recovery and utilization systems CE
as described in this notice is appropriate.
V. Notice to the Public and Documentation of Adoption
This notice serves to identify to the public and document EPA's
adoption of DOE's CE B5.21 for Methane Gas Recovery and Utilization
Systems. This notice identifies the types of actions to which EPA will
apply the CE, as well as the considerations that EPA will use in
determining whether an action is within the scope of the CE.
Dated: February 14, 2024.
Timothy Hamlin,
Director, Land, Chemicals, and Redevelopment Division, EPA Region 10.
[FR Doc. 2024-03502 Filed 2-20-24; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on February 21, 2024.
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.