Adoption of Department of Energy Categorical Exclusion Under the National Environmental Policy Act

AGENCY:

Pipeline and Hazardous Materials Safety Administration, Department of Transportation.

ACTION:

Notice.

SUMMARY:

The Pipeline and Hazardous Materials Safety Administration (PHMSA) is adopting a categorical exclusion (CE) established by the Department of Energy (DOE) that covers a category of actions that PHMSA proposes to take. This notice identifies the DOE CE and PHMSA's category of proposed actions for which it intends to use DOE's CE, describes the consultation between the agencies, and how PHMSA will apply and notify the public of its use.

DATES:

The CE identified below is available for PHMSA to use for its proposed actions effective July 3, 2024.

FOR FURTHER INFORMATION CONTACT:

Carolyn Nelson, Office of Planning and Analytics, PHMSA, by email at Carolyn.Nelson@dot.gov or by phone at 202-860-6173.

SUPPLEMENTARY INFORMATION:

I. Background on the National Environmental Policy Act and CEs

Congress enacted the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347, 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 seeks to ensure that agencies consider the environmental effects of their proposed actions in their decision-making processes and inform and involve the public in that process. 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 of any major federal action—an environmental impact statement (EIS), environmental assessment (EA), or CE. 40 CFR 1501.3. 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. 40 CFR part 1502, 1505.2. 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. 40 CFR 1501.5. Following the EA, the agency may conclude the action will have no significant effects and document that conclusion in a finding of no significant impact. 40 CFR 1501.6. If the analysis concludes that the action is likely to have significant effects, however, then an EIS is required.

Under NEPA and the CEQ regulations, CEs are categories of actions that the agency has determined normally do not have a significant effect on the human environment—in their agency NEPA procedures. 42 U.S.C. 4336e (1); 40 CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). Once established, an agency determines whether a CE covers a proposed action, and if so, whether there are extraordinary circumstances in which a normally excluded action may have a significant effect. 40 CFR 1501.4(b). If no extraordinary circumstances are present, the agency may apply the CE to the proposed action. 42 U.S.C. 4336(a)(2), 40 CFR 1501.4. If extraordinary circumstances are present, the agency nevertheless may still categorically exclude the proposed action if it determines there are circumstances that lessen the impacts or other conditions sufficient to avoid significant effects.

Section 109 of NEPA, enacted as part of the Fiscal Responsibility Act of 2023, allows a federal agency to “adopt” another federal agency's CEs for proposed actions. 42 U.S.C. 4336c. To adopt 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 borrowing agency's category of proposed actions or related actions; consult with the establishing agency to ensure that the proposed adoption of the CE for a category of actions is appropriate; identify to the public the CE that the borrowing agency plans to use for its proposed actions; and document adoption of the CE. 42 U.S.C. 4336c.

In addition, per the process outlined in CEQ regulations Section 1501.4(e), an agency may adopt a CE listed in another agencies NEPA procedures that covers its proposed action through identifying the CE, consultation between agencies, public notification of the CE to adopt, evaluate actions for extraordinary circumstances, and publishing the documentation of the application of the adopted CE. PHMSA has identified DOE's categorical exclusion B5.4 repair or replacement of pipelines that could be utilized for a number of PHMSA's proposed actions. PHMSA has consulted with DOE and determined that the proposed adoption of the CE for these categories of actions is appropriate. This FR notice serves as the notification to the public on PHMSA's adoption of the CE, the process PHMSA will use to evaluate proposed actions for extraordinary circumstances, as well as where PHMSA will publish any CE determinations that utilize this CE will be posted.

PHMSA's Natural Gas Distribution Infrastructure Safety and Modernization (NGDISM) Grant Program

PHMSA has prepared this notice to meet these statutory requirements. PHMSA is a United States Department of Transportation (DOT) agency created in 2004. PHMSA's mission is to protect people and the environment by advancing the safe transportation of energy and other hazardous materials that are essential to our daily lives. To do this, the agency establishes national policy, sets and enforces standards, educates, and conducts research to prevent incidents. On November 15, 2021, President Biden signed the Bipartisan Infrastructure Law, which includes PHMSA's NGDISM Grant Program. The grant funding is available to a municipality or community owned utility (not including for-profit entities) to repair, rehabilitate, or replace its natural gas distribution pipeline systems or portions thereof or to acquire equipment to (1) reduce incidents and fatalities, and (2) to avoid economic losses.

II. DOE CE B5.4

PHMSA has decided to adopt DOE CE B5.4 listed in appendix B to subpart D of DOE's NEPA regulations, 10 CFR part 1021. That CE is:

B5.4 Repair or Replacement of Pipelines

Repair, replacement, upgrading, rebuilding, or minor relocation of pipelines within existing rights-of-way, provided that the actions are in accordance with applicable requirements (such as Army Corps of Engineers permits under section 404 of the Clean Water Act). Pipelines may convey materials including, but not limited to, air, brine, carbon dioxide, geothermal system fluids, hydrogen gas, natural gas, nitrogen gas, oil, produced water, steam, and water.

The text of DOE CE B5.4 includes conditions on the scope or application of the CE ( e.g., that actions be within existing rights-of-way and in accordance with applicable requirements). DOE's regulations also include additional conditions that apply to all of their categorical exclusions, referred to as integral elements, at 10 CFR part 1021, subpart D, appendix B (1)-(5). These integral elements are similar to other agencies' extraordinary circumstance criteria. DOE's integral elements require that to fit within CE B5.4 a 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 DOE or Executive Orders.

(2) Require siting and construction or major expansion of waste storage, disposal, recovery, or treatment facilities (including incinerators), but the proposal may include categorically excluded waste storage, disposal, recovery, or treatment actions or facilities.

(3) Disturb hazardous substances, pollutants, contaminants, or Comprehensive Environmental Response, Compensation, and Liability Act (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 (as defined in 10 CFR 1022.4, “Compliance with Floodplain and Wetland Environmental Review Requirements: Definitions,” or its successor);

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.

(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, the Environmental Protection Agency, and the National Institutes of Health.

In addition, DOE requires as a prerequisite to applying any CE listed in its NEPA regulations that the proposal has not been segmented to meet the definition of a CE; the proposal is not connected to other actions with potentially significant impacts; is not related to other actions with individually insignificant but cumulatively significant impacts; and is not precluded by 40 CFR 1506.1 or 10 CFR 1021.211 during EIS preparation. 10 CFR 1021.410(b)(3). Also, DOE requires that use of all CEs in its appendix B, including CE B5.4, be documented and be made available to the public by posting online. 10 CFR 1021.410(e).

III. PHMSA Proposed Use of DOE CE B5.4

Upon adoption, PHMSA would apply DOE's CE B5.4 to the repair or replacement of pipelines associated with the NGDISM Grant Program. In addition, PHMSA may also use the CE for similar repair and replacement of pipelines that are funded or approved under other programs, where appropriate.

PHMSA has consulted with DOE and determined that the repair and replacement of pipelines associated with the NGDISM grant program are within the same scope of the projects where DOE has applied this categorical exclusion. PHMSA adopts the CE and includes the conditions on the scope that the actions be within existing rights-of-way and be in accordance with applicable requirements.

IV. Consideration of Extraordinary Circumstances

If an agency determines that a CE covers a proposed action, the agency must evaluate the proposed action for extraordinary circumstances in which a normally excluded action may have a significant effect. 40 CFR 1501.4(b). PHMSA has identified the following as potential extraordinary circumstances based on DOE's integral elements, DOE's extraordinary circumstances, as well as other DOT operating administrations' extraordinary circumstances list to evaluate when applying this categorical exclusion.

1. The proposed action is greater in scope or size than normally encompassed for actions in the category, or the proposed action is controversial or likely to create controversy on environmental grounds.

2. The proposed action has a high potential to increase the likelihood of a reportable release of hazardous material.

3. The proposed action is reasonably likely to be inconsistent with or cause a violation of a federal, state, local, or tribal law or requirement.

4. The proposed action is reasonably likely to result in substantial adverse effects associated with climate change.

5. The proposed action is reasonably likely to have disproportionate and adverse effects on communities with environmental justice concerns as defined in the PHMSA Environmental Justice Procedures Document.1

6. The proposed action is likely to have an effect on an environmentally sensitive resource, unless the effect has been resolved through another environmental process, such as the Clean Water Act or Coastal Zone Management Act. An environmentally sensitive resource includes:

7. Wildlife or waterfowl refuges, historic sites, public parks, or other protected properties under section 4(f) of the Department of Transportation Act (49 U.S.C. 303) or section 6(f) of the Land and Water Conservation Fund Act of 1965 (54 U.S.C. 200305(f)(3)).

8. Historic, architectural, archeological, or cultural resources protected under section 106 of the National Historic Preservation Act of 1966 (54 U.S.C. 306108) or the Archeological and Historic Preservation Act of 1974 (54 U.S.C. ch. 3125). PHMSA will consult with the National Register of Historic Places and the State Historic Preservation Officer.

9. Farmland protected under the Farmland Protection Policy Act. This must involve the acquisition and conversion of the land to non-agricultural uses. PHMSA will consult with the U.S. Department of Agriculture (7 U.S.C. 4201 et seq.).

10. Threatened or endangered species or their habitat, as defined under the Endangered Species Act (16 U.S.C. 1531 et seq.). PHMSA will consult with the U.S. Fish and Wildlife Service (non-marine species) or the National Marine Fisheries Service (marine species).

11. Wetlands, as defined in Executive Order 11990, Protection of Wetlands, and DOT Order 5660.1A, Preservation of the Nation's Wetlands and Floodplains, as defined in Executive Order 11988, Floodplain Management, and DOT Order 5650.2. Generally, this definition refers to areas with aquatic or hydrophytic vegetation. PHMSA will consult with the Army Corps of Engineers.

12. State coastal zones, as defined by state coastal zone management programs, or undeveloped coastal barriers along the Atlantic or Gulf Coasts. (Refer to the Coastal Zone Management Act, 16 U.S.C. 1451 et seq.) PHMSA will consult with the National Oceanic and Atmospheric Administration.

13. Wild and scenic rivers in the National Inventory established by the Wild and Scenic Rivers Act (16 U.S.C. 1271-1287). PHMSA will consult with the National Park Service.

PHMSA will then assess whether there are circumstances that lessen the impacts or other conditions sufficient to avoid significant effects, consistent with 40 CFR 1501.4(b). If PHMSA cannot apply CE B5.4 to a particular proposed action due to extraordinary circumstances, PHMSA will prepare an EA or EIS, consistent with 40 CFR 1501.4(b)(2), or determine if the action is covered under an existing NEPA document. PHMSA must also consider the presence of any integral elements at 10 CFR part 1021, subpart D, appendix B (1)-(5). PHMSA does not currently have its own NEPA implementing procedures. When PHMSA establishes NEPA implementing procedures, PHMSA will add this categorical exclusion to the PHMSA NEPA procedures along with an extraordinary circumstances list to apply to not only this CE, but other CEs that are identified.

V. Consultation With DOE and Determination of Appropriateness

PHMSA worked with DOE to identify DOE CEs that could apply to PHMSA proposed actions and began consultation on April 24, 2024. During this consultation, the agencies considered DOE's past use of the CE, including how often DOE has modified a proposed action, or prepared an EA or EIS for a proposed action otherwise covered by the CE. The agencies discussed and concurred that the categories of PHMSA proposed actions would be appropriately covered by the DOE CE. The agencies discussed the extraordinary circumstances that DOE applies to help inform the extraordinary circumstances that PHMSA should consider before applying this CE to PHMSA's proposed actions. Finally, the agencies discussed the level of documentation PHMSA should complete and publish (per 10 CFR 1021.410(e)) when applying this CE. Based on this consultation, PHMSA has concluded that it is appropriate for PHMSA to adopt DOE's CE and apply to the replacement or repair of pipelines, including those covered under the NGDISM Grant Program. PHMSA will be posting any CE determinations using this CE on our website at https://www.phmsa.dot.gov/about-phmsa/working-phmsa/grants/pipeline/nepa-and-ngdism-grant.

VI. Conclusion

This notice documents adoption of the DOE CE B5.4 listed above in accordance with 42 U.S.C. 4336c (4), and its availability for use by PHMSA, effective immediately. Issued on June 27, 2024, under authority delegated in 49 CFR 1.81(a)(5).