Revision of National Environmental Policy Act Implementing Procedures

The Department of Energy (DOE) is issuing this interim final rule to remove its existing implementing regulations for the National Environmental Policy Act of 1969, et seq., as amended (NEPA). DOE's existing NEPA implementing regulations were promulgated as a “supplement[ ] . . . to be used in conjunction with,” 10 CFR 1021.100, the Council on Environmental Quality's (CEQ's) NEPA regulations. DOE also “adopt[ed]” the CEQ's regulations by incorporation. 10 CFR 1021.103. But the CEQ's regulations have been repealed, effective April 11. See Removal of National Environmental Policy Act Implementing Regulations (Feb. 25, 2025). Moreover, in Executive Order (E.O.) 14154, Unleashing American Energy (90 FR 8353; January 29, 2025), President Trump rescinded President Carter's E.O., 11991, Relating to Protection and Enhancement of Environmental Quality (42 FR 26967; May 24, 1977), which was the basis CEQ had invoked for its authority to make rules to begin with. DOE's regulations, which were a “supplement[ ] . . . to be used in conjunction with” those CEQ regulations, thus stand in obvious need of fundamental revision. President Trump in E.O. 14154 further directed agencies to revise their NEPA implementing procedures.

Not only that, but Congress recently amended NEPA in significant part in the Fiscal Responsibility Act of 2023 (FRA), in which Congress increased the length of Title I of NEPA by more than 300%, providing much detail on procedural issues, which CEQ and individual acting agencies had previously needed to address in their own procedures. With DOE's NEPA implementing procedures still unmodified more than two years after this significant legislative overhaul, it is exigent that DOE move quickly to conform its procedures to the statute as amended. Finally, the Supreme Court has recently issued its decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, 145 S. Ct. 1497 (2025), in which it described the “transform[ation]” of NEPA “from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects.” Id. at 1507, 1513. The Supreme Court explained that part of that problem had been caused by decisions of lower courts, which it rejected, issuing a “course correction” mandating that courts give “substantial deference” to reasonable agency conclusions underlying its NEPA process. Id. at 1513- 1514. But the Court also acknowledged, and through its course correction sought to address, the effect on “litigation-averse agencies” which, in light of judicial “micromanage[ment],” had been “tak[ing] ever more time and [ ] prepar[ing] ever longer EISs for future projects.” Id. at 1513. DOE, thus, is issuing this Interim Final Rule (IFR) to align its actions with the Supreme Court's decision and streamline its process of ensuring reasonable NEPA

decisions. This revision has thus been called for, authorized, and directed by all three branches of government at the highest possible levels.

DOE's procedures for implementing the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., as amended, are contained principally in 10 CFR part 1021. Additional DOE NEPA procedures are contained in 10 CFR part 205, subpart W. These procedures in 10 CFR part 205, subpart W specifically relate to applications for a Presidential permit authorizing the construction, connection, operation, and maintenance of facilities for transmission of electric energy at international boundaries under E.O. 10485 (18 FR 5397; September 3, 1953), as amended by E.O. 12038 (43 FR 4957; February 3, 1978).

DOE is issuing this interim final rule to revise 10 CFR part 1021 so that it includes only DOE's existing categorical exclusions in appendix B, related requirements, and a provision for emergency circumstances; and to remove NEPA procedures from 10 CFR part 205, subpart W. Other than these few provisions, DOE's procedures will henceforth be contained in the U.S. Department of Energy National Environmental Policy Act (NEPA) Implementing Procedures, a copy of which is reprinted below for explanatory purposes only (and will not codified in the CFR). The procedures are intended to be non-binding guidance.

The Supreme Court could not have been clearer in Seven County that NEPA is a procedural statute. See Seven County, 145 S. Ct. 1507 (“NEPA is a purely procedural statute.”); see id. at 1510 (“NEPA is purely procedural. . . . NEPA does not mandate particular results, but simply prescribes the necessary process for an agency's environmental review of a project”); (internal quotation omitted); id. at 1511 (NEPA is a purely procedural statute”); id. at 1513 (NEPA is properly understood as “a modest procedural requirement”); id. at 1514 (“NEPA's status as a purely procedural statute”); see also id. at 1507 (“Simply stated, NEPA is a procedural cross-check, not a substantive roadblock.”). The history of DOE's implementing regulations also reflects the understanding that they were understood as procedural rules, for they were uncodified for over a decade before being codified “as a matter of good policy,” id. at 1517. This is, moreover, consistent with the approach that several other Federal agencies have used for decades.

Also, this action fulfills President Trump's directive in E.O. 14154 for each agency to, in consultation with the CEQ, revise its agency-level NEPA implementing procedures in light of the Fiscal Responsibility Act. 90 FR 8355. Executive Order 14301, Reforming Nuclear Reactor Testing at the Department of Energy, (May 23, 2025) directed DOE in section 6(a) to “take action to reform the Department's rules governing compliance with the National Environmental Policy Act (NEPA) no later than June 30, 2025, consistent with the policies articulated in sections 2 and 5 of Executive Order 14154 of January 20, 2025 (Unleashing American Energy), and with applicable law.” This interim final rule also fulfills that direction.

In addition, DOE is removing NEPA procedures from its Presidential permit regulations (10 CFR part 205, subpart W) to be consistent with the removal of most DOE NEPA procedures in 10 CFR part 1021 and to avoid confusion among potential applicants. DOE has previously stated that it issues Presidential permits pursuant to authority delegated by the President under E.O. 10485, as amended by E.O. 12038, which provides that “the proper conduct of foreign relations of the United States requires that executive permission be obtained for the construction and maintenance at the borders of the United States of facilities for the exportation or importation of electric energy and natural gas[.]” \1\ The authority delegated to DOE by the E.O. does not derive from any act of Congress but arises “by virtue of the authority vested in [the President] as President of the United States and Commander in Chief of the armed forces of the United States[.]” \2\ Thus, in issuing a Presidential permit, DOE does not act pursuant to its congressionally established authority as a Federal agency, but on behalf of the President pursuant to a delegation of the President's authority under the United States Constitution. It is settled and established law that the President is not an “agency” within the meaning of the Administrative Procedure Act (APA) and that Presidential actions are not subject to NEPA review.\3\ Because NEPA review is not required for Presidential actions, DOE has further determined it appropriate to remove the NEPA procedures within its Presidential permit regulations at 10 CFR part 205, subpart W.

\1\ 18 FR 5397 (preamble).

\2\ Id.

\3\ Franklin v. Massachusetts, 505 U.S. 788, 800 (1992) (holding the President is not subject to judicial review under the APA, given “the separation of powers and the unique constitutional position of the President); see also Dalton v. Specter, 511 U.S. 462, 469-471 (1994); Portland Audubon Soc'y v. Endangered Species Committee, 984 F.2d 1534, 1547 (9th Cir. 1993); and, Greene County. Planning Bd. v. Fed. Power Comm'n, 528 F.2d 38 (2d Cir. 1975) (holding that issuance of a Presidential permit by DOE's predecessor agency was not subject to judicial review under the Federal Power Act because the issuance of such a permit is “a function rooted in the President's power with respect to foreign relations if not as Commander in Chief of the Armed Forces”).

DOE is retaining its categorical exclusions in appendix B and related requirements in regulation to avoid any uncertainty about the continuation of its already-established categorical exclusions or the procedural mechanism through which DOE established them. The 2023 revisions to NEPA and the 2025 repeal of the Council on Environmental Quality's (CEQ's) NEPA procedures do not require reconsideration or repeal of DOE's previous determinations as to which of its actions normally do not significantly affect the quality of the human environment, which is the basis for an agency's establishment of a categorical exclusion, see NEPA Sec. 111(1). DOE is retaining a provision for action in emergency situations to ensure that DOE can respond timely to any such event and to avoid any confusion regarding the continued validity of this already-established provision for action in emergency situations.

DOE has prepared new NEPA implementing procedures that are reprinted as part of this IFR for explanatory purposes only; they will not be codified in the CFR. These new DOE NEPA implementing procedures ensure compliance with NEPA, as amended. DOE's new NEPA procedures are also available at https://energy.gov/nepa. DOE will begin implementing its new NEPA procedures immediately.

Prior to and separate from this interim final rule, DOE published a direct final rule on May 16, 2025, (90 FR 20753) that removes several sections of 10 CFR part 205 as part of a deregulatory action consistent with Executive Order 14192, Unleashing Prosperity Through Deregulation signed on January 31, 2025 (90 FR 9065). Some of the changes made in this interim final rule duplicate aspects of that prior direct final rule, with the same effect regarding removing the NEPA provisions from DOE's Presidential permit regulations. There is, however, no substantive conflict between this interim final rule and the previously published direct final rule.

Congress enacted NEPA to declare a national policy “to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote

the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and [to] fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. 4331(a).

NEPA, as amended by the Fiscal Responsibility Act of 2023 (FRA), Public Law 118-5, furthers this national policy by requiring Federal agencies to prepare an environmental impact statement (EIS)--“in essence, a report”--for proposed “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. 4332(2)(C); Seven County, 145 S. Ct. 1507. This statement must address: (1) The reasonably foreseeable environmental effects of the proposed agency action; (2) any reasonably foreseeable adverse environmental effects that cannot be avoided should the proposal be implemented; (3) a reasonable range of alternatives to the proposed agency action, including an analysis of any negative environmental impacts of not implementing the proposed agency action in the case of a no action alternative, that are technically and economically feasible, and meet the purpose and need of the proposal; (4) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of Federal resources which would be involved in the proposed action should it be implemented. 42 U.S.C. 4332(2)(C).

NEPA does not mandate particular results or substantive outcomes. Seven County,145 S. Ct. at 1510-1512. Rather, NEPA requires Federal agencies to consider the environmental effects of proposed actions as part of agencies' decision-making processes. As amended by the Fiscal Responsibility Act of 2023, NEPA provides requirements to facilitate timely and unified Federal reviews, including provisions clarifying lead, joint lead, and cooperating agency designations, generally requiring the development of a single environmental document, directing agencies to develop procedures for project sponsors to prepare environmental assessments and environmental impact statements, and prescribing page limits and deadlines. 42 U.S.C. 4336a. NEPA also sets forth the circumstances under which agencies may rely on programmatic environmental documents, 42 U.S.C. 4336b, and adopt and use another agency's categorical exclusions. 42 U.S.C. 4336c.

NEPA identifies three levels of review--categorical exclusion, environmental assessment, and environmental impact statement. 42 U.S.C. 4336a. A categorical exclusion is a “a category of actions that a Federal agency has determined normally does not significantly affect the quality of the human environment within the meaning of [NEPA] section 102(2)(C).” 42 U.S.C. 4336e(1). An environmental assessment is a “concise” document “set[ting] forth the basis of [an] agency's finding of no significant impact or determination that an environmental impact statement is necessary,” prepared in connection with a proposed agency action that does not have a significant impact or the significance of whose impact is unknown. 42 U.S.C. 4336(b)(2). An environmental impact statement is a document analyzing a proposed agency action with significant impact, governed by the provisions of 42 U.S.C. 4332(2)(C), 4336(b)(1).

In 1979, DOE established 10 CFR part 1021 through a rulemaking that adopted the CEQ NEPA implementing regulations (44 FR 45918). From 1979 to 1992, as a supplement to the CEQ NEPA implementing regulations, DOE issued its NEPA implementing procedures as “guidelines,” which also listed categories of actions that normally do not have potential to cause significant environmental impacts (categorical exclusions) (45 FR 20694; 45 FR 78756; 47 FR 7976; 48 FR 685; 52 FR 659; 52 FR 47662; 54 FR 12474; 55 FR 37174).

In 1992, after notice and comment, DOE replaced the NEPA guidelines with revised and expanded DOE NEPA regulations at 10 CFR part 1021 (57 FR 15122), including adoption of the CEQ NEPA implementing regulations. The proposed and final rulemakings were both explicit that DOE was “issuing its NEPA Guidelines as regulations that will be published in the Code of Federal Regulations” to “ensure that its NEPA procedures are more accessible to the public,” and not because the agency had changed its mind that the procedures were just that, procedural. 57 FR 15122; 55 FR 46444. Indeed, both emphasized that “[t]he rule amends and codifies already existing policies and procedures for compliance with NEPA,” and contained no substantive changes that would impose obligations on private citizens. 57 FR 15144; 55 FR 46448. In 1996, DOE made changes to the DOE NEPA regulations to improve efficiency by clarifying and streamlining certain DOE requirements, including those relating to power marketing activities (61 FR 36222; 61 FR 64603). In 2011, DOE amended the DOE NEPA regulations to modify and clarify existing provisions and to add 20 new categorical exclusions and make associated changes (76 FR 63764). In 2020, DOE updated the DOE NEPA regulations regarding authorizations under section 3 of the Natural Gas Act, including revising a categorical exclusion for exporting natural gas (85 FR 78197). In 2024, DOE added a new categorical exclusion for certain energy storage systems and revised categorical exclusions for upgrading and rebuilding powerlines and for solar photovoltaic systems (89 FR 34074).

In 10 CFR part 205, subpart W, DOE is removing and reserving sections 321, 328, and 329 in their entirety. DOE also is removing paragraphs (c) and (d) in section 322 and re-lettering paragraph (e) to now be paragraph (c).

In 10 CFR part 1021, DOE is removing the reference to CEQ NEPA implementing regulations from section 100, Purpose, and is merging in section 102(a), Applicability, to more concisely state the purpose of these regulations. DOE is renumbering the Definitions from section 104 to be section 101 and removing definitions that are no longer relevant to this part. DOE is renumbering section 410, Application of categorical exclusions, to be section 102, is updating references to other sections of the revised part 1021, and is removing references to the CEQ NEPA implementing regulations. DOE is removing the reference to CEQ NEPA implementing regulations from section 343(a), Emergency actions, and renumbering that paragraph as section 103. DOE is moving appendices A and B to subpart D of part 1021 to be appendices A and B to part 1021 and is updating references to other sections of the revised part 1021 throughout those appendices. DOE is removing all other sections of 10 CFR part 1021.

In the relocated 10 CFR part 1021, appendix A, DOE is modifying the title from Categorical Exclusions Applicable to General Agency Actions to Administrative and Routine Actions Excepted from NEPA Review. The actions in this list were formerly identified as categorical exclusions for DOE. NEPA does not apply to actions that are solely administrative and routine that are undertaken to support the normal conduct of DOE business. While such activities are Federal actions, they are not “major” and therefore not subject to NEPA. These can now be classified as actions where NEPA does not apply because they do not fall within the definition of “major

Federal action” in Section 110(10) of NEPA, 42 U.S.C. 4336e(10). These actions have been retained as appendix A for ease of reference and to avoid confusion.

As stated previously, DOE relied on CEQ's NEPA implementing regulations in promulgating its NEPA implementing regulations. President Carter originally directed CEQ to implement NEPA regulations via E.O. 11991. However, President Trump rescinded that Executive Order in E.O. 14154.\4\ As CEQ explained in its interim final rule rescinding its NEPA implementing regulations, the President removed CEQ's prior asserted basis for issuing and maintaining its NEPA implementing regulations, and directed CEQ to rescind those regulations. Accordingly, CEQ concluded those regulations cannot stand.\5\ CEQ has accordingly repealed its NEPA regulations. See Removal of National Environmental Policy Act Implementing Regulations, (Feb. 25, 2025). That rule became effective on April 11, 2025. See id.

\4\ E.O. 14154 at sec. 5(a).

\5\ 90 FR 10610.

As explained previously, DOE's existing NEPA implementing regulations were promulgated as a “supplement[ ] . . . to be used in conjunction with,” 10 CFR 1021.100, the Council on Environmental Quality's (CEQ's) NEPA regulations, and DOE also “adopt[ed]” the CEQ's regulations by incorporation.\6\ Subsequent revisions to the DOE regulations added additional language to supplement the CEQ NEPA implementing regulations in certain sections, but in others retained the original language from the CEQ NEPA implementing regulations. Within part 1021 there are numerous cross references to the CEQ NEPA implementing regulations. Because DOE's regulations expressly adopt and repeatedly reference CEQ's regulations, removal of the CEQ NEPA implementing regulations from the Code of Federal Regulations leaves DOE's existing regulations hanging in air. They are now a “supplement . . . to be used in conjunction with” rules that no longer exist and that could not exist again under existing Executive Orders.

\6\ See 10 CFR 1021.103.

Moreover, under these circumstances, leaving DOE's existing regulations on the books would create grave uncertainty and confusion in the application of the DOE NEPA regulations, in conflict with a directive from the President. E.O. 14154 directs agencies to revise their NEPA implementing procedures to “prioritize efficiency and certainty.” Leaving DOE's existing regulations on the books, “supplementing” CEQ's nonexistent regulations, would obviously create confusion. This directive also explains in pertinent part the major part of the existing regulation that has been retained: As explained in Section I, DOE has determined that retaining its categorical exclusions as appendix B in regulation will avoid any uncertainty regarding the continued validity of its already-established categorical exclusions or the procedural mechanism through which DOE established them.

Where such categorical-exclusion-specific concerns do not prevail, however, DOE has decided that the flexibility to respond to new developments in this fast-evolving area of law, afforded by using non- codified procedures, outweighs the appeal of codifying its regulations going forward. Notably, in 1992, when DOE codified its existing procedures to “ensure that [they] are more accessible to the public,” 57 FR 15122; 55 FR 46444, the internet was in its infancy. Now, DOE can--and will--ensure that accessibility to the public by posting these procedures online, which removes the upside of codification. By contrast, not codifying its procedures will enable it to rapidly update these procedures in response to future court decisions (such as Seven County) or Presidential directives (such as E.O. 14301). The balance thus tips decisively toward using a non-regulatory, but publicly accessible, procedural document. Because rescinding DOE's existing regulations without simultaneously adopting a replacement would likely cause uncertainty among regulated parties, these new procedures that DOE adopts have informed its decision to rescind most of its prior regulations.

DOE's new NEPA implementing procedures are a more faithful implementation of the statute as amended in 2023 than its old procedures. They implement major structural features of the 2023 amendments, such as deadlines and page limits for environmental assessments and environmental impact statements, as directed at NEPA Section 107(g), and provide that DOE will complete preparation of these documents within the maximum length and on the timeline that Congress intends. They incorporate Congress's definition of “major Federal action” and the exclusions thereto, as codified at NEPA Section 111(10). They incorporate Congress's mandated procedure for determining the appropriate level of review under NEPA, as codified in NEPA Section 106. They incorporate Congress's direction with respect to establishment, adoption, and application of categorical exclusions, as codified at NEPA Section 111(10). They provide procedures governing project-sponsor-prepared environmental assessments and environmental impact statements, as directed at NEPA Section 107(f). And they incorporate Congress's revision to the requirements for what an agency must address in its environmental impact statements, as codified at NEPA Section 102(2)(C), and Congress's requirement that public notice and solicitation of comment be provided when issuing a notice of intent to prepare an environmental impact statement, as directed at NEPA Section 107(c). All of these are crucial features of Congress's policy design and its purpose in the 2023 amendments that NEPA review be more efficient and certain.

Moreover, all of these respond to the President's directive in E.O. 14154; and all of these reflect the Supreme Court's recent and unequivocal statement that NEPA is a purely procedural statute. DOE is conscious of the Supreme Court's admonition that NEPA review has grown out of all proportion to its origins of a “modest procedural requirement,” creating, “under the guise of just a little more process,” “[d]elay upon delay, so much so that the process seems to `borde[r] on the Kafkaesque.' ” Seven County, 145 S. Ct. at 1513 (internal quotation omitted). These procedures, therefore, attempt to align NEPA with its Congressionally mandated dimensions, reflecting the guidance given also by the President and the Supreme Court, and making review under it faster, more flexible, and more efficient.

In reaching this decision, DOE acknowledges that third parties may claim to have reliance interests in DOE's existing NEPA procedures. Moreover, as the Supreme Court has just explained, NEPA “is a purely procedural statute” that “imposes no substantive environmental obligations or restrictions.” Seven County, 145 S. Ct. at 1507. Any asserted reliance interests grounded in substantive environmental concerns, such interests are not in accord with the best meaning of the law and are entitled to “no . . . weight.” Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1914 (2020).

Because reliance interests are inherently backward-looking, it is unclear how any party could assert reliance interests in prospective

procedures. To the extent such interests exist, DOE holds that they are “outweigh[ed]” by “other interests and policy concerns.” Id. Namely, the complex web of regulations that preexisted the 2023 amendments to NEPA and these new procedures repeatedly “led to more agency analysis of separate projects, more consideration of attenuated effects, more exploration of alternatives to proposed agency action, more speculation and consultation and estimation and litigation,” which in turn has meant that “[f]ewer projects make it to the finish line,” or even “to the starting line.” Seven County, 145 S. Ct. at 1513-1514. This has increased the cost of projects dramatically, “both for the agency preparing the EIS and for the builder of the project,” resulting in systemic harms to America's infrastructure and economy. Id. at 1514. Correspondingly, the wholesale revision and simplification of this regime, effectuated by these Procedures, is necessary to ensure efficient and predictable reviews, with significant upsides for the economy and for projects of all sorts. This set of policy considerations drastically outweighs any claimed reliance interests in the preexisting procedures.

DOE has revised its NEPA implementing procedures to conform to the 2023 statutory amendments, to respond to President Trump's direction in E.O. 14154 to, “[c]onsistent with applicable law, prioritize efficiency and certainty over any other objectives, including those of activist groups, that do not align with the policy goals set forth in section 2 of [that] order or that could otherwise add delays and ambiguity to the permitting process,” and to address the pathologies of the NEPA process and NEPA litigation as identified by the Supreme Court. Where DOE has retained an aspect of its preexisting NEPA implementing procedures, it is because that aspect is compatible with these guiding principles; where DOE has revised or removed an aspect, it is because that aspect is not so compatible.

DOE is repealing its prior procedures and practices for implementing NEPA, a “purely procedural statute” which “ `simply prescribes the necessary process' for an agency's environmental review of a project--a review that is, even in its most rigorous form, “only one input into an agency's decision and does not itself require any particular substantive outcome.” Seven County, 145 S. Ct. at 1511. “NEPA imposes no substantive constraints on the agency's ultimate decision to build, fund, or approve a proposed project,” and “is relevant only to the question of whether an agency's final decision . . . was reasonably explained.” Id. at 1511. As such, notice and comment procedures are not required because this revision falls within the APA exception for “rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). DOE's existing regulations do not dictate what outcomes such consideration must produce, nor do they impose binding legal obligations on private citizens. Rather, they prescribe how DOE will conduct its NEPA reviews: detailing the structure of environmental impact statements, specifying submission requirements, and directing the timing of public comment periods. These are procedural provisions, not substantive environmental ones. DOE recognized as much, indeed, even when codifying them: DOE was explicit that it was “issuing its NEPA Guidelines as regulations that will be published in the Code of Federal Regulations” to “ensure that its NEPA procedures are more accessible to the public,” and not because the agency had changed its mind that the procedures were just that, procedural. 57 FR 15122; 55 FR 46444. Indeed, both emphasized that “[t]he rule amends and codifies already existing policies and procedures for compliance with NEPA,” and contained no substantive changes that would impose obligations on private citizens. 57 FR 15144; 55 FR 46448. Thus, because procedural rules do not require notice and comment, they do not require notice and comment to be removed from the Code of Federal Regulations.

Just so, DOE's new procedures will also be purely procedural, guiding the agency's own compliance with NEPA. Indeed, it is hard to see how they could be otherwise, since the Supreme Court has recently repeatedly emphasized that “NEPA is a purely procedural statute.” Seven County, 145 S. Ct. at 1507, see id. at 1510 (“NEPA is purely procedural. . . . NEPA does not mandate particular results, but simply prescribes the necessary process for an agency's environmental review of a project”) (internal quotation omitted); id. at 1511 (NEPA is a purely procedural statute”); id. at 1513 (NEPA is properly understood as “a modest procedural requirement”); id. at 1514 (“NEPA's status as a purely procedural statute”); see also id. at 1507 (“Simply stated, NEPA is a procedural cross-check, not a substantive roadblock.”). Procedures for implementing a purely procedural statute must be, by their nature, procedural rules.

Moreover, even if (and to the extent that) DOE's regulations were not procedural rules, they may be characterized as interpretative rules or general statements of policy under 5 U.S.C.U.S.C. 553(b)(A). An interpretative rule provides an interpretation of a statute, rather than making discretionary policy choices that establish enforceable rights or obligations for regulated parties under delegated congressional authority. The definitions sections of both the old and new procedures, for instance, may be classified as such. General statements of policy provide notice of an agency's intentions as to how it will enforce statutory requirements, again without creating enforceable rights or obligations for regulated parties under delegated congressional authority. The prefatory sections of both the old and new procedures, for instance, may be classified as general statements of policy. Both of these types of agency action are expressly exempted from notice and comment by statute.

Moreover, DOE also finds that, to the extent that prior notice and solicitation of public comment would otherwise be required or this action could not immediately take effect, the need to expeditiously replace its existing rules satisfies the APA's “good cause” exceptions 5 U.S.C. 553(b)(B), (d). The APA authorizes agencies to issue regulations without notice and public comment when an agency finds, for good cause, that notice and comment is “impracticable, unnecessary, or contrary to the public interest,” 5 U.S.C.U.S.C. 553(b)(B), and to make the rule effective immediately for good cause, 5 U.S.C. 553(d)(3).As discussed in Sections I and II, previously, DOE's prior rules were promulgated as a “supplement[ ] . . . to be used in conjunction with,” 10 CFR 1021.100, CEQ's NEPA regulations, and DOE also “adopt[ed]” the CEQ's regulations by incorporation. As such, DOE's current rules are left hanging in air, supplementing a NEPA regime that no longer exists. DOE, thus far and as a temporary, emergency measure, has been continuing to operate under its prior procedures as if the CEQ NEPA regime still existed. This is not, however, tenable. As soon as proper procedures were available--i.e., now--this makeshift regime needs to be rescinded immediately.

That being so, rescinding the old procedures immediately without replacing them would create a vacuum that would inflict immense uncertainty on agencies and regulated parties and potentially grind all projects under DOE's purview to a halt. So pairing the rescission with a new structure immediately is absolutely critical. Because of this need for speed and certainty, notice-and-comment is, to the extent it was required at all, impracticable and contrary to the public interest.

To the extent that public comment may inform DOE as to whether it has legal authority to make a different choice than the one it has taken in this interim final rule, DOE's solicitation of public comment for 30-days following the publication of the rule is intended to accommodate that possibility. But, to the extent that this interim final rule would otherwise require a proposal and solicitation of public comment, DOE's view is that the “good cause” exception (5 U.S.C. 553(b)(B)) pertains here. And though DOE seeks comments to obtain the public's views, such comments could not alter the legal realities--most notably the repeal of the CEQ's NEPA rules and the rescission of the E.O. that purported to authorize them--that create the swift need for such a change. DOE will consider comments submitted in response to this action and may address them when issuing a final rule, if warranted, after consideration of the comments received.

For the same reasons stated in the present section, above, DOE finds that “good cause” exists under 5 U.S.C. 553(d)(3) to waive the 30-day delay of the effective date that would otherwise be required. This IFR will accordingly be effective immediately.

E.O. 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) 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) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this regulatory action is consistent with these principles.

Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this regulatory action does constitute a “significant regulatory action” under E.O. 12866, as supplemented by E.O. 13563, and has reviewed this action.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and Tribal governments. Subsection 101(5) of title I of that law defines a Federal intergovernmental mandate to include a regulation that would impose upon State, local, or Tribal governments an enforceable duty, except a condition of Federal assistance or a duty arising from participating in a voluntary Federal program. Title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments, in the aggregate, or the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of the title 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 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 that title requires each agency that proposed a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and Tribal governments. 2 U.S.C. 1534. This interim final rule does not result in the expenditure by State, local, and Tribal governments, in aggregate, or by the private sector of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995.

This document of the Department of Energy was signed on June 30, 2025, by Jeffrey Novak, Acting 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 June 30, 2025. Treena V. Garrett, Federal Register Liaison Officer, U.S. Department of Energy.

For the reasons stated in the preamble, DOE amends part 205 of chapter II and part 1021 of chapter X of title 10 of the Code of Federal Regulations as set forth below:

PART 205--ADMINISTRATIVE PROCEDURES AND SANCTIONS

0 1. The authority citation for part 205 is revised to read as follows:

Authority: Department of Energy Organization Act, Pub. L. 95- 91, 91 Stat. 565 (42 U.S.C. 7101 et seq.); Federal Power Act, Pub. L. 66-280, 41 Stat. 1063 (16 U.S.C. 792 et seq.); E.O. 10485, 18 FR 5397, 3 CFR, 1949-1953, Comp., p. 970 as amended by E.O. 12038, 43 FR 4957, 3 CFR 1978 Comp., p. 136; E.O. 14154, 90 FR 8353.

Sec. 205.321 [Removed and Reserved]

0 2. Remove and reserve Sec. 205.321.

Sec. 205.322 [Amended]

0 3. Amend Sec. 205.322 by removing paragraphs (c) and (d) and redesignating paragraph (e) as paragraph (c).

Sec. 205.328 [Removed and Reserved]

0 4. Remove and reserve Sec. 205.328.

Sec. 205.329 [Removed and Reserved]

0 5. Remove and reserve Sec. 205.329.

0 6. Revise part 1021 to read as follows:

PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES

Sec. 1021.100 Purpose. 1021.101 Definitions.

1021.102 Application of categorical exclusions (categories of actions that normally do not require EAs or EISs). 1021.103 Emergency actions. Appendix A to Part 1021 Administrative and Routine Actions Excepted from NEPA Review Appendix B to Part 1021 Categorical Exclusions Applicable to Specific Agency Actions

Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 4321 et seq.; 50 U.S.C. 2401 et seq.

PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES

Sec. 1021.100 Purpose.

The purpose of this part is to establish certain procedures that the Department of Energy (DOE) shall use to comply with the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4332(2)), as amended. This part applies to all Departmental Elements.

Sec. 1021.101 Definitions.

As used in these implementing procedures, terms have the meanings provided in NEPA section 111, 42 U.S.C. 4336e. In addition:

CERCLA-excluded petroleum and natural gas products means petroleum, including crude oil or any fraction thereof, that is not otherwise specifically listed or designated as a hazardous substance under section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601.101(14)) and natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel or of pipeline quality (or mixtures of natural gas and such synthetic gas).

Contaminant means a substance identified within the definition of contaminant in section 101(33) of CERCLA (42 U.S.C. 9601.101(33)).

Hazardous substance means a substance identified within the definition of hazardous substances in section 101(14) of CERCLA (42 U.S.C. 9601.101(14)). Radionuclides are hazardous substances through their listing under section 112 of the Clean Air Act (42 U.S.C. 7412) (40 CFR part 61, subpart H).

Pollutant means a substance identified within the definition of pollutant in section 101(33) of CERCLA (42 U.S.C. 9601.101(33)).

Sec. 1021.102 Application of categorical exclusions (categories of actions that normally do not require EAs or EISs).

(a) The actions listed in appendices A and B to this part are categories of actions that DOE has determined do not normally have a significant effect on the human environment (categorical exclusions).

(b) To find that a proposal is excluded pursuant to a categorical exclusion, DOE shall determine the following:

(1) The proposal fits within a category of actions that is listed in appendix B to this part;

(2) There are no extraordinary circumstances related to the proposal that may affect the significance of the environmental effects of the proposal. Extraordinary circumstances are 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; and

(c) All categorical exclusions may be applied by any organizational element of the Department of Energy. The sectional divisions in appendix B to this part are solely for purposes of organization of that appendix and are not intended to be limiting.

(d) A category of actions includes activities foreseeably necessary to proposals encompassed within the category of actions (such as award of implementing grants and contracts, site preparation, purchase and installation of equipment, and associated transportation activities).

(e) Categorical exclusion determinations for actions listed in appendix B shall be documented and made available to the public by posting online, generally within two weeks of the determination, unless additional time is needed in order to review and protect classified information, “confidential business information,” or other information that DOE would not disclose pursuant to the Freedom of Information Act (FOIA) (5 U.S.C. 552). Posted categorical exclusion determinations shall not disclose classified information, “confidential business information,” or other information that DOE would not disclose pursuant to FOIA.

(f) Proposed recurring activities to be undertaken during a specified time period, such as routine maintenance activities for a year, may be addressed in a single categorical exclusion determination after considering the potential aggregated impacts.

(g) The following clarifications are provided to assist in the appropriate application of categorical exclusions that employ the terms or phrases:

(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) DOE 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, 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.

Sec. 1021.103 Emergency actions.

DOE may take an action without observing all provisions of DOE's NEPA implementing procedures in emergency situations that demand immediate action. DOE shall consult with CEQ as soon as possible regarding alternative arrangements for emergency actions having significant environmental impacts. DOE shall document, including publishing a notice in the Federal Register, emergency actions covered by this paragraph within 30-days after such action occurs; this documentation shall identify any adverse impacts from the actions taken, further mitigation necessary, and any NEPA documents that may be required.

Appendix A to Part 1021--Administrative and Routine Actions Excepted From NEPA Review

B4.1 Contracts, policies, and marketing and allocation plans for electric power B4.2 Export of electric energy B4.3 Electric power marketing rate changes B4.4 Power marketing services and activities B4.5 Temporary adjustments to river operations B4.6 Additions and modifications to transmission facilities B4.7 Fiber optic cable B4.8 Electricity transmission agreements B4.9 Multiple use of powerline rights-of-way B4.10 Removal of electric transmission facilities B4.11 Electric power substations and interconnection facilities B4.12 Construction of powerlines B4.13 Upgrading and rebuilding existing powerlines B4.14 Construction and operation of electrochemical-battery or flywheel energy storage systems

B5. Categorical Exclusions Applicable to Conservation, Fossil, and Renewable Energy Activities

B5.1 Actions to conserve energy or water B5.2 Modifications to pumps and piping B5.3 Modification or abandonment of wells B5.4 Repair or replacement of pipelines B5.5 Short pipeline segments B5.6 Oil spill cleanup B5.7 Export of natural gas and associated transportation by marine vessel B5.8 [Reserved] B5.9 Temporary exemptions for electric powerplants B5.10 Certain permanent exemptions for existing electric powerplants B5.11 Permanent exemptions allowing mixed natural gas and petroleum B5.12 Workover of existing wells B5.13 Experimental wells for injection of small quantities of carbon dioxide B5.14 Combined heat and power or cogeneration systems B5.15 Small-scale renewable energy research and development and pilot projects B5.16 Solar photovoltaic systems B5.17 Solar thermal systems B5.18 Wind turbines B5.19 Ground source heat pumps B5.20 Biomass power plants B5.21 Methane gas recovery and utilization systems B5.22 Alternative fuel vehicle fueling stations B5.23 Electric vehicle charging stations B5.24 Drop-in hydroelectric systems B5.25 Small-scale renewable energy research and development and pilot projects in aquatic environments

B6. Categorical Exclusions Applicable to Environmental Restoration and Waste Management Activities

B6.1 Cleanup actions B6.2 Waste collection, treatment, stabilization, and containment facilities B6.3 Improvements to environmental control systems B6.4 Facilities for storing packaged hazardous waste for 90 days or less B6.5 Facilities for characterizing and sorting packaged waste and overpacking waste B6.6 Modification of facilities for storing, packaging, and repacking waste B6.7 [Reserved] B6.8 Modifications for waste minimization and reuse of materials B6.9 Measures to reduce migration of contaminated groundwater B6.10 Upgraded or replacement waste storage facilities

The categories of actions listed below include the following conditions as integral elements of the categories of actions. To fit within the categories of actions listed below, 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 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; 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.

Routine maintenance activities and custodial services for buildings, structures, rights-of-way, infrastructures (including, but not limited to, pathways, roads, and

railroads), vehicles and equipment, and localized vegetation and pest control, during which operations may be suspended and resumed, provided that the activities would be conducted in a manner in accordance with applicable requirements. Custodial services are activities to preserve facility appearance, working conditions, and sanitation (such as cleaning, window washing, lawn mowing, trash collection, painting, and snow removal). Routine maintenance activities, corrective (that is, repair), preventive, and predictive, are required to maintain and preserve buildings, structures, infrastructures, and equipment in a condition suitable for a facility to be used for its designated purpose. Such maintenance may occur as a result of severe weather (such as hurricanes, floods, and tornados), wildfires, and other such events. Routine maintenance may result in replacement to the extent that replacement is in-kind and is not a substantial upgrade or improvement. In-kind replacement includes installation of new components to replace outmoded components, provided that the replacement does not result in a significant change in the expected useful life, design capacity, or function of the facility. Routine maintenance does not include replacement of a major component that significantly extends the originally intended useful life of a facility (for example, it does not include the replacement of a reactor vessel near the end of its useful life). Routine maintenance activities include, but are not limited to:

(a) Repair or replacement of facility equipment, such as lathes, mills, pumps, and presses;

(b) Door and window repair or replacement;

(c) Wall, ceiling, or floor repair or replacement;

(d) Reroofing;

(e) Plumbing, electrical utility, lighting, and telephone service repair or replacement;

(f) Routine replacement of high-efficiency particulate air filters;

(g) Inspection and/or treatment of currently installed utility poles;

(h) Repair of road embankments;

(i) Repair or replacement of fire protection sprinkler systems;

(j) Road and parking area resurfacing, including construction of temporary access to facilitate resurfacing, and scraping and grading of unpaved surfaces;

(k) Erosion control and soil stabilization measures (such as reseeding, gabions, grading, and revegetation);

(l) Surveillance and maintenance of surplus facilities in accordance with DOE Order 435.1, “Radioactive Waste Management,” or its successor;

(m) Repair and maintenance of transmission facilities, such as replacement of conductors of the same nominal voltage, poles, circuit breakers, transformers, capacitors, crossarms, insulators, and downed powerlines, in accordance, where appropriate, with 40 CFR part 761 (Polychlorinated Biphenyls Manufacturing, Processing, Distribution in Commerce, and Use Prohibitions) or its successor;

(n) Routine testing and calibration of facility components, subsystems, or portable equipment (such as control valves, in-core monitoring devices, transformers, capacitors, monitoring wells, lysimeters, weather stations, and flumes);

(o) Routine decontamination of the surfaces of equipment, rooms, hot cells, or other interior surfaces of buildings (by such activities as wiping with rags, using strippable latex, and minor vacuuming), and removal of contaminated intact equipment and other material (not including spent nuclear fuel or special nuclear material in nuclear reactors); and

(p) Removal of debris.

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 category of actions excludes activities in aquatic environments. See B3.16 of this appendix 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.

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.

These activities would be conducted in accordance with, where applicable, an

approved spill prevention, control, and response plan and would incorporate appropriate control technologies and best management practices. None of the activities listed above would occur 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.

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 1021.102(g)(1)). Upgrading or rebuilding existing electric powerlines also may involve widening an existing powerline right-of- way to meet current electrical standards if the widening remains within previously disturbed or developed lands and only extends into a small area beyond such lands as needed to comply with applicable electrical standards. Covered actions would be in accordance with applicable requirements, including the integral elements listed at the start of appendix B of this part; and would incorporate appropriate design and construction standards, control technologies, and best management practices. This categorical exclusion does not apply to underwater powerlines. As used in this categorical exclusion, “small” has the meaning discussed at 10 CFR 1021.102(g)(2).

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

Construction, operation, upgrade, or decommissioning of an electrochemical-battery or flywheel energy storage system within a previously disturbed or developed area or within a small (as discussed at 10 CFR 1021.102(g)(2)) area contiguous to a previously disturbed or developed area. Covered actions would be in accordance with applicable requirements (such as land use and zoning requirements) in the proposed project area and the integral elements listed at the start of appendix B of this part, and would incorporate appropriate safety standards (including the current National Fire Protection Association 855, Standard for the Installation of Stationary Energy Storage Systems), design and construction standards, control technologies, and best management practices.

B5. Categorical Exclusions Applicable to Conservation, Fossil, and Renewable Energy Activities

(a) Actions to conserve energy or water, demonstrate potential energy or water conservation, and promote energy efficiency that would not have the potential to cause significant changes in the indoor or outdoor concentrations of potentially harmful substances. These actions may involve financial and technical assistance to individuals (such as builders, owners, consultants, manufacturers, and designers), organizations (such as utilities), and governments (such as state, local, and tribal). Covered actions include, but are not limited to weatherization (such as insulation and

replacing windows and doors); programmed lowering of thermostat settings; placement of timers on hot water heaters; installation or replacement of energy efficient lighting, low-flow plumbing fixtures (such as faucets, toilets, and showerheads), heating, ventilation, and air conditioning systems, and appliances; installation of drip- irrigation systems; improvements in generator efficiency and appliance efficiency ratings; efficiency improvements for vehicles and transportation (such as fleet changeout); transportation management systems (such as traffic signal control systems, car navigation, speed cameras, and automatic plate number recognition); development of energy-efficient manufacturing, industrial, or building practices; and small-scale energy efficiency and conservation research and development and small-scale pilot projects. Covered actions include building renovations or new structures, provided that they occur in a previously disturbed or developed area. Covered actions could involve commercial, residential, agricultural, academic, institutional, or industrial sectors. Covered actions do not include rulemakings, standard- settings, or proposed DOE legislation, except for those actions listed in B5.1(b) 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.

The installation, modification, operation, and removal of commercially available small-scale, drop-in, run-of-the-river hydroelectric systems that would (1) Involve no water storage or water diversion from the stream or river channel where the system is installed and (2) not have the potential to cause significant impacts on water quality, temperature, flow, or volume. Covered systems would be located up-gradient of an existing anadromous fish barrier that is not planned for removal and where fish passage retrofit is not planned and where there would not be the potential for significant impacts to threatened or endangered species or other species of concern (as identified in B(4)(ii) of this appendix). Covered actions would involve no major construction or modification of stream or river channels, and the hydroelectric systems would be placed and secured in the channel without the use of heavy equipment. 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.

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.

B6. Categorical Exclusions Applicable to Environmental Restoration and Waste Management Activities

Small-scale, short-term cleanup actions, under RCRA, Atomic Energy Act, or other authorities, less than approximately 10 million dollars in cost (in 2011 dollars), to reduce risk to human health or the environment from the release or threat of release of a hazardous substance other than high-level radioactive waste and spent nuclear fuel, including treatment (such as incineration, encapsulation, physical or chemical separation, and compaction), recovery, storage, or disposal of wastes at existing facilities currently handling the type of waste involved in the action. These actions include, but are not limited to:

(a) Excavation or consolidation of contaminated soils or materials from drainage channels, retention basins, ponds, and spill areas that are not receiving contaminated surface water or wastewater, if surface water or groundwater would not collect and if such actions would reduce the spread of, or direct contact with, the contamination;

(b) Removal of bulk containers (such as drums and barrels) that contain or may contain hazardous substances, pollutants, contaminants, CERCLA-excluded petroleum or natural gas products, or hazardous wastes (designated in 40 CFR part 261 or applicable state requirements), if such actions would reduce the likelihood of spillage, leakage, fire, explosion, or exposure to humans, animals, or the food chain;

(c) Removal of an underground storage tank including its associated piping and underlying containment systems in accordance with applicable requirements (such as RCRA, subtitle I; 40 CFR part 265, subpart J; and 40 CFR part 280, subparts F and G) if such action would reduce the likelihood of spillage, leakage, or the spread of, or direct contact with, contamination;

(d) Repair or replacement of leaking containers;

(e) Capping or other containment of contaminated soils or sludges if the capping or containment would not unduly limit future groundwater remediation and if needed to reduce migration of hazardous substances, pollutants, contaminants, or CERCLA-excluded petroleum and natural gas products into soil, groundwater, surface water, or air;

(f) Drainage or closing of man-made surface impoundments if needed to maintain the integrity of the structures;

(g) Confinement or perimeter protection using dikes, trenches, ditches, or diversions, or installing underground barriers, if needed to reduce the spread of, or direct contact with, the contamination;

(h) Stabilization, but not expansion, of berms, dikes, impoundments, or caps if needed to maintain integrity of the structures;

(i) Drainage controls (such as run-off or run-on diversion) if needed to reduce offsite migration of hazardous substances, pollutants, contaminants, or CERCLA-excluded petroleum or natural gas products or to prevent precipitation or run-off from other sources from entering the release area from other areas;

(j) Segregation of wastes that may react with one another or form a mixture that could result in adverse environmental impacts;

(k) Use of chemicals and other materials to neutralize the pH of wastes;

(l) Use of chemicals and other materials to retard the spread of the release or to mitigate its effects if the use of such chemicals would reduce the spread of, or direct contact with, the contamination;

(m) Installation and operation of gas ventilation systems in soil to remove methane or petroleum vapors without any toxic or radioactive co-contaminants if appropriate filtration or gas treatment is in place;

(n) Installation of fences, warning signs, or other security or site control precautions if humans or animals have access to the release; and

(o) Provision of an alternative water supply that would not create new water sources if necessary immediately to reduce exposure to contaminated household or industrial use water and continuing until such time as local authorities can satisfy the need for a permanent remedy.