[Federal Register Volume 89, Number 128 (Wednesday, July 3, 2024)]
[Notices]
[Pages 55303-55306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14652]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No.: PHMSA-2024-0079]
Adoption of Department of Energy Categorical Exclusion Under the
National Environmental Policy Act
AGENCY: Pipeline and Hazardous Materials Safety Administration,
Department of Transportation.
ACTION: Notice.
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SUMMARY: The Pipeline and Hazardous Materials Safety Administration
(PHMSA) is adopting a categorical exclusion (CE) established by the
Department of Energy (DOE) that covers a category of actions that PHMSA
proposes to take. This notice identifies the DOE CE and PHMSA's
category of proposed actions for which it intends to use DOE's CE,
describes the consultation between the agencies, and how PHMSA will
apply and notify the public of its use.
[[Page 55304]]
DATES: The CE identified below is available for PHMSA to use for its
proposed actions effective July 3, 2024.
FOR FURTHER INFORMATION CONTACT: Carolyn Nelson, Office of Planning and
Analytics, PHMSA, by email at [email protected] or by phone at
202-860-6173.
SUPPLEMENTARY INFORMATION:
I. Background on the National Environmental Policy Act and CEs
Congress enacted the National Environmental Policy Act (NEPA), 42
U.S.C. 4321-4347, to encourage productive and enjoyable harmony between
humans and the environment, recognizing the profound impact of human
activity and the critical importance of restoring and maintaining
environmental quality to the overall welfare of humankind. 42 U.S.C.
4321, 4331. NEPA seeks to ensure that agencies consider the
environmental effects of their proposed actions in their decision-
making processes and inform and involve the public in that process.
NEPA created the Council on Environmental Quality (CEQ), which
promulgated NEPA implementing regulations, 40 CFR parts 1500 through
1508 (CEQ regulations). To comply with NEPA, agencies determine the
appropriate level of review of any major federal action--an
environmental impact statement (EIS), environmental assessment (EA), or
CE. 40 CFR 1501.3. If a proposed action is likely to have significant
environmental effects, the agency must prepare an EIS and document its
decision in a record of decision. 40 CFR part 1502, 1505.2. If the
proposed action is not likely to have significant environmental effects
or the effects are unknown, the agency may instead prepare an EA, which
involves a more concise analysis and process than an EIS. 40 CFR
1501.5. Following the EA, the agency may conclude the action will have
no significant effects and document that conclusion in a finding of no
significant impact. 40 CFR 1501.6. If the analysis concludes that the
action is likely to have significant effects, however, then an EIS is
required.
Under NEPA and the CEQ regulations, CEs are categories of actions
that the agency has determined normally do not have a significant
effect on the human environment--in their agency NEPA procedures. 42
U.S.C. 4336e (1); 40 CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). Once
established, an agency determines whether a CE covers a proposed
action, and if so, whether there are extraordinary circumstances in
which a normally excluded action may have a significant effect. 40 CFR
1501.4(b). If no extraordinary circumstances are present, the agency
may apply the CE to the proposed action. 42 U.S.C. 4336(a)(2), 40 CFR
1501.4. If extraordinary circumstances are present, the agency
nevertheless may still categorically exclude the proposed action if it
determines there are circumstances that lessen the impacts or other
conditions sufficient to avoid significant effects.
Section 109 of NEPA, enacted as part of the Fiscal Responsibility
Act of 2023, allows a federal agency to ``adopt'' another federal
agency's CEs for proposed actions. 42 U.S.C. 4336c. To adopt another
agency's CEs under section 109, the adopting agency must identify the
relevant CEs listed in another agency's (``establishing agency'') NEPA
procedures that cover the borrowing agency's category of proposed
actions or related actions; consult with the establishing agency to
ensure that the proposed adoption of the CE for a category of actions
is appropriate; identify to the public the CE that the borrowing agency
plans to use for its proposed actions; and document adoption of the CE.
42 U.S.C. 4336c.
In addition, per the process outlined in CEQ regulations Section
1501.4(e), an agency may adopt a CE listed in another agencies NEPA
procedures that covers its proposed action through identifying the CE,
consultation between agencies, public notification of the CE to adopt,
evaluate actions for extraordinary circumstances, and publishing the
documentation of the application of the adopted CE. PHMSA has
identified DOE's categorical exclusion B5.4 repair or replacement of
pipelines that could be utilized for a number of PHMSA's proposed
actions. PHMSA has consulted with DOE and determined that the proposed
adoption of the CE for these categories of actions is appropriate. This
FR notice serves as the notification to the public on PHMSA's adoption
of the CE, the process PHMSA will use to evaluate proposed actions for
extraordinary circumstances, as well as where PHMSA will publish any CE
determinations that utilize this CE will be posted.
PHMSA's Natural Gas Distribution Infrastructure Safety and
Modernization (NGDISM) Grant Program
PHMSA has prepared this notice to meet these statutory
requirements. PHMSA is a United States Department of Transportation
(DOT) agency created in 2004. PHMSA's mission is to protect people and
the environment by advancing the safe transportation of energy and
other hazardous materials that are essential to our daily lives. To do
this, the agency establishes national policy, sets and enforces
standards, educates, and conducts research to prevent incidents. On
November 15, 2021, President Biden signed the Bipartisan Infrastructure
Law, which includes PHMSA's NGDISM Grant Program. The grant funding is
available to a municipality or community owned utility (not including
for-profit entities) to repair, rehabilitate, or replace its natural
gas distribution pipeline systems or portions thereof or to acquire
equipment to (1) reduce incidents and fatalities, and (2) to avoid
economic losses.
II. DOE CE B5.4
PHMSA has decided to adopt DOE CE B5.4 listed in appendix B to
subpart D of DOE's NEPA regulations, 10 CFR part 1021. That CE is:
B5.4 Repair or Replacement of Pipelines
Repair, replacement, upgrading, rebuilding, or minor relocation
of pipelines within existing rights-of-way, provided that the
actions are in accordance with applicable requirements (such as Army
Corps of Engineers permits under section 404 of the Clean Water
Act). Pipelines may convey materials including, but not limited to,
air, brine, carbon dioxide, geothermal system fluids, hydrogen gas,
natural gas, nitrogen gas, oil, produced water, steam, and water.
The text of DOE CE B5.4 includes conditions on the scope or
application of the CE (e.g., that actions be within existing rights-of-
way and in accordance with applicable requirements). DOE's regulations
also include additional conditions that apply to all of their
categorical exclusions, referred to as integral elements, at 10 CFR
part 1021, subpart D, appendix B (1)-(5). These integral elements are
similar to other agencies' extraordinary circumstance criteria. DOE's
integral elements require that to fit within CE B5.4 a proposal must be
one that would not:
(1) Threaten a violation of applicable statutory, regulatory, or
permit requirements for environment, safety, and health, or similar
requirements of DOE or Executive Orders.
(2) Require siting and construction or major expansion of waste
storage, disposal, recovery, or treatment facilities (including
incinerators), but the proposal may include categorically excluded
waste storage, disposal, recovery, or treatment actions or facilities.
(3) Disturb hazardous substances, pollutants, contaminants, or
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA)-excluded petroleum and
[[Page 55305]]
natural gas products that preexist in the environment such that there
would be uncontrolled or unpermitted releases.
(4) Have the potential to cause significant impacts on
environmentally sensitive resources. An environmentally sensitive
resource is typically a resource that has been identified as needing
protection through Executive Order, statute, or regulation by federal,
state, or local government, or a federally recognized Indian tribe. An
action may be categorically excluded if, although sensitive resources
are present, the action would not have the potential to cause
significant impacts on those resources (such as construction of a
building with its foundation well above a sole-source aquifer or upland
surface soil removal on a site that has wetlands). Environmentally
sensitive resources include, but are not limited to:
i. Property (such as sites, buildings, structures, and objects) of
historic, archeological, or architectural significance designated by a
federal, state, or local government, federally recognized Indian tribe,
or Native Hawaiian organization, or property determined to be eligible
for listing on the National Register of Historic Places;
ii. Federally listed threatened or endangered species or their
habitat (including critical habitat) or federally proposed or candidate
species or their habitat (Endangered Species Act); state-listed or
state-proposed endangered or threatened species or their habitat;
federally protected marine mammals and Essential Fish Habitat (Marine
Mammal Protection Act; Magnuson-Stevens Fishery Conservation and
Management Act); and otherwise federally protected species (such as the
Bald and Golden Eagle Protection Act or the Migratory Bird Treaty Act);
iii. Floodplains and wetlands (as defined in 10 CFR 1022.4,
``Compliance with Floodplain and Wetland Environmental Review
Requirements: Definitions,'' or its successor);
iv. Areas having a special designation such as federally and state-
designated wilderness areas, national parks, national monuments,
national natural landmarks, wild and scenic rivers, state and federal
wildlife refuges, scenic areas (such as National Scenic and Historic
Trails or National Scenic Areas), and marine sanctuaries;
v. Prime or unique farmland, or other farmland of statewide or
local importance, as defined at 7 CFR 658.2(a), ``Farmland Protection
Policy Act: Definitions,'' or its successor;
vi. Special sources of water (such as sole-source aquifers,
wellhead protection areas, and other water sources that are vital in a
region); and
vii. Tundra, coral reefs, or rain forests.
(5) Involve genetically engineered organisms, synthetic biology,
governmentally designated noxious weeds, or invasive species, unless
the proposed activity would be contained or confined in a manner
designed and operated to prevent unauthorized release into the
environment, and conducted in accordance with applicable requirements,
such as those of the Department of Agriculture, the Environmental
Protection Agency, and the National Institutes of Health.
In addition, DOE requires as a prerequisite to applying any CE
listed in its NEPA regulations that the proposal has not been segmented
to meet the definition of a CE; the proposal is not connected to other
actions with potentially significant impacts; is not related to other
actions with individually insignificant but cumulatively significant
impacts; and is not precluded by 40 CFR 1506.1 or 10 CFR 1021.211
during EIS preparation. 10 CFR 1021.410(b)(3). Also, DOE requires that
use of all CEs in its appendix B, including CE B5.4, be documented and
be made available to the public by posting online. 10 CFR 1021.410(e).
III. PHMSA Proposed Use of DOE CE B5.4
Upon adoption, PHMSA would apply DOE's CE B5.4 to the repair or
replacement of pipelines associated with the NGDISM Grant Program. In
addition, PHMSA may also use the CE for similar repair and replacement
of pipelines that are funded or approved under other programs, where
appropriate.
PHMSA has consulted with DOE and determined that the repair and
replacement of pipelines associated with the NGDISM grant program are
within the same scope of the projects where DOE has applied this
categorical exclusion. PHMSA adopts the CE and includes the conditions
on the scope that the actions be within existing rights-of-way and be
in accordance with applicable requirements.
IV. Consideration of Extraordinary Circumstances
If an agency determines that a CE covers a proposed action, the
agency must evaluate the proposed action for extraordinary
circumstances in which a normally excluded action may have a
significant effect. 40 CFR 1501.4(b). PHMSA has identified the
following as potential extraordinary circumstances based on DOE's
integral elements, DOE's extraordinary circumstances, as well as other
DOT operating administrations' extraordinary circumstances list to
evaluate when applying this categorical exclusion.
1. The proposed action is greater in scope or size than normally
encompassed for actions in the category, or the proposed action is
controversial or likely to create controversy on environmental grounds.
2. The proposed action has a high potential to increase the
likelihood of a reportable release of hazardous material.
3. The proposed action is reasonably likely to be inconsistent with
or cause a violation of a federal, state, local, or tribal law or
requirement.
4. The proposed action is reasonably likely to result in
substantial adverse effects associated with climate change.
5. The proposed action is reasonably likely to have
disproportionate and adverse effects on communities with environmental
justice concerns as defined in the PHMSA Environmental Justice
Procedures Document.1
6. The proposed action is likely to have an effect on an
environmentally sensitive resource, unless the effect has been resolved
through another environmental process, such as the Clean Water Act or
Coastal Zone Management Act. An environmentally sensitive resource
includes:
7. Wildlife or waterfowl refuges, historic sites, public parks, or
other protected properties under section 4(f) of the Department of
Transportation Act (49 U.S.C. 303) or section 6(f) of the Land and
Water Conservation Fund Act of 1965 (54 U.S.C. 200305(f)(3)).
8. Historic, architectural, archeological, or cultural resources
protected under section 106 of the National Historic Preservation Act
of 1966 (54 U.S.C. 306108) or the Archeological and Historic
Preservation Act of 1974 (54 U.S.C. ch. 3125). PHMSA will consult with
the National Register of Historic Places and the State Historic
Preservation Officer.
9. Farmland protected under the Farmland Protection Policy Act.
This must involve the acquisition and conversion of the land to non-
agricultural uses. PHMSA will consult with the U.S. Department of
Agriculture (7 U.S.C. 4201 et seq.).
10. Threatened or endangered species or their habitat, as defined
under the Endangered Species Act (16 U.S.C. 1531 et seq.). PHMSA will
consult with the U.S. Fish and Wildlife Service (non-marine species) or
the National Marine Fisheries Service (marine species).
11. Wetlands, as defined in Executive Order 11990, Protection of
Wetlands, and DOT Order 5660.1A, Preservation of the Nation's Wetlands
and Floodplains, as defined in Executive Order 11988,
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Floodplain Management, and DOT Order 5650.2. Generally, this definition
refers to areas with aquatic or hydrophytic vegetation. PHMSA will
consult with the Army Corps of Engineers.
12. State coastal zones, as defined by state coastal zone
management programs, or undeveloped coastal barriers along the Atlantic
or Gulf Coasts. (Refer to the Coastal Zone Management Act, 16 U.S.C.
1451 et seq.) PHMSA will consult with the National Oceanic and
Atmospheric Administration.
13. Wild and scenic rivers in the National Inventory established by
the Wild and Scenic Rivers Act (16 U.S.C. 1271-1287). PHMSA will
consult with the National Park Service.
PHMSA will then assess whether there are circumstances that lessen
the impacts or other conditions sufficient to avoid significant
effects, consistent with 40 CFR 1501.4(b). If PHMSA cannot apply CE
B5.4 to a particular proposed action due to extraordinary
circumstances, PHMSA will prepare an EA or EIS, consistent with 40 CFR
1501.4(b)(2), or determine if the action is covered under an existing
NEPA document. PHMSA must also consider the presence of any integral
elements at 10 CFR part 1021, subpart D, appendix B (1)-(5). PHMSA does
not currently have its own NEPA implementing procedures. When PHMSA
establishes NEPA implementing procedures, PHMSA will add this
categorical exclusion to the PHMSA NEPA procedures along with an
extraordinary circumstances list to apply to not only this CE, but
other CEs that are identified.
V. Consultation With DOE and Determination of Appropriateness
PHMSA worked with DOE to identify DOE CEs that could apply to PHMSA
proposed actions and began consultation on April 24, 2024. During this
consultation, the agencies considered DOE's past use of the CE,
including how often DOE has modified a proposed action, or prepared an
EA or EIS for a proposed action otherwise covered by the CE. The
agencies discussed and concurred that the categories of PHMSA proposed
actions would be appropriately covered by the DOE CE. The agencies
discussed the extraordinary circumstances that DOE applies to help
inform the extraordinary circumstances that PHMSA should consider
before applying this CE to PHMSA's proposed actions. Finally, the
agencies discussed the level of documentation PHMSA should complete and
publish (per 10 CFR 1021.410(e)) when applying this CE. Based on this
consultation, PHMSA has concluded that it is appropriate for PHMSA to
adopt DOE's CE and apply to the replacement or repair of pipelines,
including those covered under the NGDISM Grant Program. PHMSA will be
posting any CE determinations using this CE on our website at https://www.phmsa.dot.gov/about-phmsa/working-phmsa/grants/pipeline/nepa-and-ngdism-grant.
VI. Conclusion
This notice documents adoption of the DOE CE B5.4 listed above in
accordance with 42 U.S.C. 4336c (4), and its availability for use by
PHMSA, effective immediately. Issued on June 27, 2024, under authority
delegated in 49 CFR 1.81(a)(5).
Tristan Brown,
Deputy Administrator, Pipeline and Hazardous Materials Safety
Administration.
[FR Doc. 2024-14652 Filed 7-2-24; 8:45 am]
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