2024-14568. Notice of Adoption of Department of Energy Categorical Exclusions Pursuant to Section 109 of the National Environmental Policy Act

AGENCY:

Office of the Secretary, Department of Homeland Security.

ACTION:

Notice of adoption of the Department of Energy's categorical exclusions pursuant to section 109 of the National Environmental Policy Act.

SUMMARY:

The Department of Homeland Security (DHS) is adopting 18 Categorical Exclusions (CE) established by the Department of Energy (DOE) pursuant to the National Environmental Policy Act to use for proposed DHS actions. This notice describes the categories of proposed actions for which DHS intends to use DOE's CEs and details the consultation between the agencies.

DATES:

This action is effective upon publication.

FOR FURTHER INFORMATION CONTACT:

Jennifer DeHart Hass, Director, Environmental Planning and Historic Preservation, by phone at 202-834-4346, or by email at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

National Environmental Policy Act and Categorical Exclusions

The National Environmental Policy Act, 42 U.S.C. 4321-4347 (NEPA), requires all Federal agencies to assess the environmental impacts of their actions. Congress enacted NEPA 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 categorical exclusion. 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. Id. 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. Id.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 may establish in its NEPA implementing procedures categorical exclusions, which are categories of actions the agency has determined normally do not significantly affect the quality of the human environment. 42 U.S.C. 4336e(1); 40 CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency determines that a categorical exclusion 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 impacts, the agency may apply the categorical exclusion to the proposed action without preparing an EA or EIS. 42 U.S.C. 4336(a)(2). 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 a categorical exclusion listed in another agency's NEPA procedures for a category of proposed agency actions for which the categorical exclusion was established. 42 U.S.C. 4336c. To adopt another agency's categorical exclusion under Section 109, an agency must identify the relevant categorical exclusion listed in that agency's (“establishing agency”) NEPA procedures that cover its category of proposed actions or related actions; consult with the establishing agency to ensure that the proposed adoption of the categorical exclusion to a category of actions is appropriate; identify to the public the categorical exclusion that the agency plans to use for its proposed actions; and document adoption of the categorical exclusion. Id.

This notice documents DHS's adoption of 18 DOE CEs under Section 109 of NEPA.

II. Identification of the Categorical Exclusions

DOE NEPA implementing procedures are codified in 10 CFR part 1021. Appendix A of 10 CFR part 1021, subpart D, lists the categorical exclusions applicable to general DOE actions; Appendix B lists categorical exclusions applicable to specific DOE actions. DHS identifies below the 18 DOE CEs, listed in Appendix B that DHS is adopting. Each of these DOE CEs includes conditions on the scope or application of the CE within the text of the numbered paragraphs listed below and within the integral elements in DOE's regulations (10 CFR part 1021, subpart D, Appendix B (1)-(5)). Under each CE, DHS describes categories of proposed actions for which DHS and its agency components may use the CE. All DHS components will have access to, and intend to use, the adopted CEs. The identified categories of actions are those for which DHS contemplates using the CE at this time; DHS may expand use of one or more of the CEs identified below to other activities where appropriate and in accordance with applicable conditions for use of the CE.

1. B1.16 Asbestos Removal. Removal of asbestos-containing materials from buildings in accordance with applicable requirements (such as 40 CFR part 61, “National Emission Standards for Hazardous Air Pollutants”; 40 CFR part 763, “Asbestos”; 29 CFR part 1910, subpart I, “Personal Protective Equipment”; and 29 CFR part 1926, “Safety and Health Regulations for Construction”; and appropriate state and local requirements, including certification of removal contractors and technicians).

Potential application to DHS activities:

• Removal of asbestos-containing materials from buildings owned or controlled by DHS and its agency components; and
• Removal of asbestos-containing materials from structures during demolition and removal activities or resiliency projects funded through FEMA Federal assistance.

2. B1.32 Traffic Flow Adjustments. Traffic flow adjustments to existing roads (including, but not limited to, stop sign or traffic light installation, adjusting direction of traffic flow, and adding turning lanes), and road adjustments (including, but not limited to, widening and realignment) that are within an existing right-of-way and consistent with approved land use or transportation improvement plans.

Potential application to DHS activities:

• U.S. Coast Guard (USCG) manages drawbridge timing through the regulatory process and is in the process of improving bases. The ability to perform these traffic flow adjustments would expand on existing DHS USCG CEs to address traffic flow needs off of USCG property; and
• Implementation of temporary or permanent traffic flow adjustments at DHS facilities, including ports of entry.

3. B3.1 Site characterization and environmental monitoring. Site characterization and environmental monitoring (including, but not limited to, siting, construction, modification, operation, and dismantlement and removal or otherwise proper closure (such as of a well) of characterization and monitoring devices, and siting, construction, and associated operation of a small-scale laboratory building or renovation of a room in an existing building for sample analysis). Such activities would be designed in conformance with applicable requirements and use best management practices to limit the potential effects of any resultant ground disturbance. Covered activities include, but are not limited to, site characterization and environmental monitoring under CERCLA and RCRA. (This class of actions excludes activities in aquatic environments. See B3.16 for such activities.) Specific activities include, but are not limited to:

(a) Geological, geophysical (such as gravity, magnetic, electrical, seismic, radar, and temperature gradient), geochemical, and engineering surveys and mapping, and the establishment of survey marks. Seismic techniques would not include large-scale reflection or refraction testing;

(b) Installation and operation of field instruments (such as stream-gauging stations or flow-measuring devices, telemetry systems, geochemical monitoring tools, and geophysical exploration tools);

(c) Drilling of wells for sampling or monitoring of groundwater or the vadose (unsaturated) zone, well logging, and installation of water-level recording devices in wells;

(d) Aquifer and underground reservoir response testing;

(e) Installation and operation of ambient air monitoring equipment;

(f) Sampling and characterization of water, soil, rock, or contaminants (such as drilling using truck- or mobile-scale equipment, and modification, use, and plugging of boreholes);

(g) Sampling and characterization of water effluents, air emissions, or solid waste streams;

(h) Installation and operation of meteorological towers and associated activities (such as assessment of potential wind energy resources);

(i) Sampling of flora or fauna; and

(j) Archeological, historic, and cultural resource identification in compliance with 36 CFR part 800 and 43 CFR part 7.

Potential application to DHS activities:

• DHS performs site characterization and environmental monitoring for research, development, testing, and evaluation activities and completes environmental baseline surveys and due diligence prior to property acquisitions and site development.

4. B3.2 Aviation activities. Aviation activities for survey, monitoring, or security purposes that comply with Federal Aviation Administration regulations.

Potential application to DHS activities:

• DHS Components use unmanned aircraft systems to support mission operations, such as to complete aerial surveys, security, and monitoring activities.

5. B3.6 Small-scale research and development, laboratory operations, and pilot projects. Siting, construction, modification, operation, and decommissioning of facilities for small-scale research and development projects; conventional laboratory operations (such as preparation of chemical standards and sample analysis); and small-scale pilot projects (generally less than 2 years) frequently conducted to verify a concept before demonstration actions, provided that construction or modification would be within or contiguous to a previously disturbed or developed area (where active utilities and currently used roads are readily accessible). Not included in this category are demonstration actions, meaning actions that are undertaken at a scale to show whether a technology would be viable on a larger scale and suitable for commercial deployment.

Potential application to DHS activities:

• Small-scale research and development, conventional laboratory operations, and pilot projects; and,
• USCG regularly needs to field test and conduct pilot projects to ensure that USCG continues to be properly equipped to meet mission requirements.
• This CE would address research, development, testing, and evaluation expansion to into field operations/pilot projects often supported by the DHS Science and Technology Directorate (S&T).

6. B3.11 Outdoor tests and experiments on materials and equipment components. Outdoor tests and experiments for the development, quality assurance, or reliability of materials and equipment (including, but not limited to, weapon system components) under controlled conditions. Covered actions include, but are not limited to, burn tests (such as tests of electric cable fire resistance or the combustion characteristics of fuels), impact tests (such as pneumatic ejector tests using earthen embankments or concrete slabs designated and routinely used for that purpose), or drop, puncture, water-immersion, or thermal tests. Covered actions would not involve source, special nuclear, or byproduct materials, except encapsulated sources manufactured to applicable standards that contain source, special nuclear, or byproduct materials may be used for nondestructive actions such as detector/sensor development and testing and first responder field training.

Potential application to DHS activities:

• DHS Components perform tests and evaluations of materials and equipment outdoors, including unmanned aircraft systems.

7. B3.16 Research activities in aquatic environments. Small-scale, temporary surveying, site characterization, and research activities in aquatic environments, limited to:

(a) Acquisition of rights-of-way, easements, and temporary use permits;

(b) Installation, operation, and removal of passive scientific measurement devices, including, but not limited to, antennae, tide gauges, flow testing equipment for existing wells, weighted hydrophones, salinity measurement devices, and water quality measurement devices;

(c) Natural resource inventories, data and sample collection, environmental monitoring, and basic and applied research, excluding

(1) large-scale vibratory coring techniques and

(2) seismic activities other than passive techniques; and

(d) Surveying and mapping.

Potential application to DHS activities:

• DHS Components perform small scale and temporary research, testing, and evaluation activities in aquatic environments.

8. B4.6 Additions and modifications to transmission facilities. Additions or modifications to electric power transmission facilities within a previously disturbed or developed facility area. Covered activities include, but are not limited to, switchyard rock grounding upgrades, secondary containment projects, paving projects, seismic upgrading, tower modifications, load shaping projects (such as reducing energy use during periods of peak demand), changing insulators, and replacement of poles, circuit breakers, conductors, transformers, and crossarms. (See B4.14 for energy storage systems.)

Potential application to DHS activities:

• FEMA funds utility projects through its various grant programs, such as, but not limited to, the Hazard Mitigation Grant Program and Building Resilient Infrastructure and Communities program.

9. B4.7 Fiber optic cable. Adding fiber optic cables to transmission facilities or burying fiber optic cable in existing powerline or pipeline rights-of-way. Covered actions may include associated vaults and pulling and tensioning sites outside of rights-of-way in nearby previously disturbed or developed areas.

Potential application to DHS activities:

• DHS Components install fiber optic cables at DHS facilities to support mission operations; and
• FEMA funds disaster recovery and resiliency projects that can include installation of fiber optic cables.

10. B4.9 Multiple use of powerline rights-of-way. Granting or denying requests for multiple uses of a transmission facility's rights-of-way (including, but not limited to, grazing permits and crossing agreements for electric lines, water lines, natural gas pipelines, communications cables, roads, and drainage culverts).

Potential application to DHS activities:

• FEMA funds disaster recovery and resiliency projects that can involve powerline rights-of-way with multiple uses, such as crossing agreements for electric lines, water lines, natural gas pipelines, communications cables, roads, and drainage culverts.

11. B4.10 Removal of electric transmission facilities. Deactivation, dismantling, and removal of electric transmission facilities (including, but not limited to, electric powerlines, substations, and switching stations) and abandonment and restoration of rights-of-way (including, but not limited to, associated access roads).

Potential application to DHS activities:

• FEMA funds disaster recovery and resiliency projects that may involve deactivation, dismantling, and removal of electric transmission facilities.

12. B4.11 Electric power substations and interconnection facilities. Construction or modification of electric power substations or interconnection facilities (including, but not limited to, switching stations and support facilities).

Potential application to DHS activities:

• FEMA funds disaster recovery and resiliency projects that may involve construction or modification of electric power stations and interconnection facilities.

13. B4.12 Construction of powerlines. Construction of electric powerlines approximately 10 miles in length or less, or approximately 20 miles in length or less within previously disturbed or developed powerline or pipeline rights-of-way.

Potential application to DHS activities:

• FEMA funds disaster recovery and resiliency projects that may involve construction of electric powerlines within previously disturbed or developed powerline rights-of-way.

14. B4.13 Upgrading and rebuilding existing powerlines. Upgrading or rebuilding existing electric powerlines, which may involve relocations of small segments of the powerlines within an existing powerline right-of-way or within otherwise previously disturbed or developed lands (as discussed at 10 CFR 1021.410(g)(1)  ^[1] ). Upgrading or rebuilding existing electric powerlines also may involve widening an existing powerline right-of-way to meet current electrical standards if the widening remains within previously disturbed or developed lands and only extends into a small area beyond such lands as needed to comply with applicable electrical standards. Covered actions would be in accordance with applicable requirements, including the integral elements listed at the start of appendix B of [10 CFR part 1021]; and would incorporate appropriate design and construction standards, control technologies, and best management practices. This categorical exclusion does not apply to underwater powerlines. As used in this categorical exclusion, “small” has the meaning discussed at 10 CFR 1021.410(g)(2).^[2]

Potential application to DHS activities:

• FEMA funds disaster recovery and resiliency projects that can involve relocation of powerlines and poles.

15. 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 [10 CFR part 1021], and would incorporate appropriate safety standards (including the current National Fire Protection Association 855, Standard for the Installation of Energy Storage Systems), design and construction standards, control technologies, and best management practices.

Potential application to DHS activities:

• FEMA funds disaster recovery and resiliency projects that could require construction and operation of electrochemical-battery or flywheel energy storage systems.

16. B5.15 Small-scale renewable energy research and development and pilot projects. Small-scale renewable energy research and development projects and small-scale pilot projects, provided that the projects are located within a previously disturbed or developed area. 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.

Potential application to DHS activities:

• DHS S&T, as well as other DHS components, conduct small-scale renewable energy research and development and pilot projects.

17. 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 [10 CFR part 1021], and would be consistent with applicable plans for the management of wildlife and habitat, including plans to maintain habitat connectivity, and incorporate appropriate control technologies and best management practices.

Potential application to DHS activities:

• Several DHS Components are planning to install and operate photovoltaic energy systems at facilities for sustainable energy implementation. Photovoltaic systems are essentially solar panels that can reduce greenhouse gas emissions, are renewable and clean sources of energy, can lower electricity bills, and can power facilities. This approach is in line with a DHS's net zero approach for facility infrastructure projects.

18. B5.25 Small-scale renewable energy research and development and pilot projects in aquatic environments. Small-scale renewable energy research and development projects and small-scale pilot projects located in aquatic environments. Activities would be in accordance with, where applicable, an approved spill prevention, control, and response plan, and would incorporate appropriate control technologies and best management practices. Covered actions would not occur (1) Within areas of hazardous natural bottom conditions or (2) within the boundary of an established marine sanctuary or wildlife refuge, a governmentally proposed marine sanctuary or wildlife refuge, or a governmentally recognized area of high biological sensitivity, unless authorized by the agency responsible for such refuge, sanctuary, or area (or after consultation with the responsible agency, if no authorization is required). If the proposed activities would occur outside such refuge, sanctuary, or area and if the activities would have the potential to cause impacts within such refuge, sanctuary, or area, then the responsible agency shall be consulted in order to determine whether authorization is required and whether such activities would have the potential to cause significant impacts on such refuge, sanctuary, or area. Areas of high biological sensitivity include, but are not limited to, areas of known ecological importance, whale and marine mammal mating and calving/pupping areas, and fish and invertebrate spawning and nursery areas recognized as being limited or unique and vulnerable to perturbation; these areas can occur in bays, estuaries, near shore, and far offshore, and may vary seasonally. No permanent facilities or devices would be constructed or installed. Covered actions do not include drilling of resource exploration or extraction wells, use of large-scale vibratory coring techniques, or seismic activities other than passive techniques.

Potential application to DHS activities:

• DHS S&T, as well as other DHS components, conduct small-scale renewable energy research and development and pilot projects.

The DOE CEs include additional conditions, referred to as “Integral Elements,” which are listed in 10 CFR part 1021 Subpart D, Appendix B). In order to apply a DOE CE, the proposed action 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 DHS ^[3] 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 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, the Environmental Protection Agency, and the National Institutes of Health.

III. Consideration of Extraordinary Circumstances

When applying these CEs, DHS will evaluate the proposed action to ensure evaluation of “Integral Elements” listed above. In addition, in considering extraordinary circumstances, DHS 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.” (10 CFR 1021.410(b)(2). Consistent with DHS Instruction Manual 023-01-001-01, Implementing the National Environmental Policy Act (DHS Instruction Manual), DHS will document each application of the above-listed CEs and its consideration of extraordinary circumstances within the DHS Environmental Planning and Historic Preservation Decision Support System.

IV. Consultation With DOE and Determination of Appropriateness

DHS and DOE consulted on the appropriateness of DHS's adoption of the 18 CEs in April 2024. This consultation included a review of DOE's experience developing and applying the CEs and the types of actions for which DHS plans to utilize the CEs. Based on this consultation and review, DHS has determined that the types of projects it intends to undertake are substantially similar to such projects for which DOE has applied the CEs. Accordingly, the impacts of DHS projects will be substantially similar to the impacts of DOE projects, which are not significant, absent the existence of extraordinary circumstances. Therefore, DHS has determined that DHS's proposed use of the CEs, as described within this notice, is appropriate.

V. Notice to the Public and Documentation of Adoption

This notice serves to identify to the public and document DHS's adoption of DOE's categorical exclusions and identifies the types of actions to which DHS contemplates applying the CEs at this time; DHS may expand use of one or more of the CEs identified above to other activities where appropriate, and in accordance with applicable conditions for use of the CE. Upon issuance of this notice, the CEs will be available to DHS and accessible at www.dhs.gov/​national-environmental-policy-act.

Kenneth Burgess,

Acting Deputy Chief Readiness Support Officer, Department of Homeland Security.

Footnotes

1.  10 CFR 1021.410(g)(1). “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 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.

2.  10 CFR 1021.410(g)(2). [DHS] considers terms such as “small” and “small-scale” 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, [DHS] 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, [DHS] 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. (Modified from CFR part 1021 to reflect DHS as the adopting agency.)

3.  Modified from CFR part 1021 Subpart D, App. B to reflect DHS as the adopting agency.