[Federal Register: January 15, 2003 (Volume 68, Number 10)]
[Proposed Rules]
[Page 1988-1991]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja03-15]
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DEPARTMENT OF AGRICULTURE
Rural Utilities Service
7 CFR Part 1794
RIN 0572-AB73
Environmental Policies and Procedures
AGENCY: Rural Utilities Service, USDA.
ACTION: Proposed rule.
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SUMMARY: The Rural Utilities Service (RUS) is proposing to amend its
existing environmental regulations, Environmental Policies and
Procedures, which have served as RUS' implementation of the National
Environmental Policy Act (NEPA) in compliance with the Council on
Environmental Quality (CEQ) Regulations for Implementing the Procedural
Provisions of the NEPA. Based on a greater use of small-scale and
distributed generation and renewable resources, and the agency's
experience and review of its existing procedures, RUS has determined
that several changes are necessary for its environmental review process
to operate in a more effective and efficient manner.
DATES: Written comments must be received by RUS or bear a postmark or
equivalent, no later than February 14, 2003.
ADDRESSES: Written comments should be sent to F. Lamont Heppe, Jr.,
Director, Program Development and Regulatory Analysis, Rural Utilities
Service, U.S. Department of Agriculture, Stop 1522, 1400 Independence
Ave., SW., Washington, DC 20250-1522. RUS requests a signed original
and three copies of all comments (7 CFR 1700.4). Comments will be
available for public inspection during regular business hours (7 CFR
1.27(b)).
FOR FURTHER INFORMATION CONTACT: Lawrence R. Wolfe, Senior
Environmental Protection Specialist, Engineering and Environmental
Staff; Rural Utilities Service, Stop 1571, 1400 Independence Ave., SW.,
Washington, DC 20250-1571. Telephone (202) 720-1784. E-mail address:
lwolfe@rus.usda.gov.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866 and, therefore has not been reviewed
by the Office of Management and Budget (OMB).
Executive Order 12372
This rule is excluded from the scope of Executive Order 12372,
Intergovernmental Consultation, which requires consultation with State
and local officials. See the final rule related notice titled
``Department Programs and Activities Excluded from Executive Order
12372'' (50 FR 47034) advising that RUS loans and loan guarantees were
not covered by Executive Order 12372.
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. RUS has determined that this proposed rule meets
the applicable standards provided in section 3 of the Executive Order.
In addition, all state and local laws and regulations that are in
conflict with this rule will be preempted. No retroactive effect will
be given to this rule, and, in accordance with section 212(e) of the
Department of Agriculture Reorganization Act of 1994 (7 U.S.C.
6912(e)), administrative appeals procedures, if any are required, must
be exhausted before an action against the Department or its agencies.
Regulatory Flexibility Act Certification
In accordance with the Regulatory Flexibilility Act (5 U.S.C. 601
et seq.), the Administrator of RUS has determined that this proposed
rule, if adopted, would not have significant impact on a substantial
number of small entities. The proposed rule would serve to clarify the
existing regulation and to change the existing classification of
selected minor actions to generally streamline the environmental review
process for such actions. Most of the proposed changes in the proposed
rule should result in modest cost savings and ease the regulatory
compliance burden for affected applicants.
Information Collection and Recordkeeping Requirements
This rule contains no additional information collection or
recordkeeping requirements under OMB control number 0572-0117 that
would require approval under the Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35).
Unfunded Mandates
This rule contains no Federal mandates (under the regulatory
provision of title II of the Unfunded Mandates Reform Act) for State,
local, and tribal governments of the private sector. Thus, this
proposed rule is not subject to the requirements of section 202 and 205
of the Unfunded Mandates Reform Act.
National Environmental Policy Act Certification
RUS has determined that this proposed rule will not significantly
affect the quality of the human environment as defined by the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) Therefore,
this action does not require an environmental impact statement or
assessment.
Program Affected
The program described by this proposed rule is listed in the
Catalog of Federal Domestic Assistance programs under numbers 10.850,
Rural Electrification Loans and Loan Guarantees. This catalog is
available on a subscription basis from the Superintendent of Documents,
the U.S. Government Printing Office, Washington, DC 20402-9325,
telephone number (202) 512-1800.
Background
On December 11, 1998, the Rural Utilities Service (RUS) published 7
CFR Part 1794, Environmental Policies and Procedures, as a final rule
in the Federal Register (63 FR 68648) covering the actions of the
electric, telecommunications, and water and waste programs. Based on a
greater emphasis within the electric industry on the use of small-scale
and distributed generation and renewable resources, and the agency's
experience and review of its existing procedures, RUS has
[[Page 1989]]
determined that several changes are necessary for its environmental
review process to operate in a more effective and efficient manner.
This proposed rule contains a variety of changes from the
provisions of the current rule. Most of these revisions are minor or
merely intended to clarify existing RUS policy and procedure and to
ensure that procedures are consistent among the three RUS programs.
Other revisions expand upon the existing types of actions that are
subject to environmental review or reclassify actions within
categories.
Within subpart A, the term ``distributed generation'' has been
added to the list of definitions and the term ``Environmental Analysis
(EVAL)'' has been deleted from the list of definitions in Sec. 1794.6.
A fourth bulletin was issued in early 2002 that provides guidance in
preparing for and carrying out scoping for electric generation and
transmission projects that require either an environmental assessment
with scoping or an environmental impact statement. Further information
on the four RUS guidance bulletins is provided in Sec. 1794.7.
Within subpart B, language clarifying RUS policy regarding the
completion of RUS environmental review process for certain categories
of actions has been added to Sec. 1794.14(a).
Within subpart C, a number of additional listings to the existing
classification and changes to selected listings within the existing
classification are being proposed. These proposed reclassifications
involve minor actions proposed by applicants, which rarely, if ever,
result in significant environmental impact or public interest. These
changes will streamline environmental review of minor actions, and will
allow the agency to focus its resources on larger projects. RUS
believes that the proposed changes will provide adequate safeguards to
identify any unusual circumstances that may require additional agency
scrutiny.
Within Sec. 1794.21(a), RUS proposes to add separate categories
for generating facilities of less than 100 kilowatts and the co-firing
of bio-fuels and refuse derived fuels at existing fossil-fueled
generating stations. Within Sec. 1794.22(a), RUS proposes to modify
the capacity thresholds for distributed generation facilities at
existing sites. Two new categories of proposals involving natural gas
pipelines and combined cycle facilities at existing sites would be
added to Sec. 1794.22(a).
In addition to including fuel cell and combined cycle generation in
the same listings as combustion turbines, RUS proposes to add three new
categories of proposals within Sec. 1794.23. Proposed length and
capacity threshold changes within Sec. 1794.23, reflect changes that
would be made in Sec. 1794.22(a). Within Sec. Sec. 1794.24 and
1794.25 the only proposed change would include fuel cell and combined
cycle generation in the same listing as combustion turbines.
RUS proposes to modify its procedures in subparts E through G of
this part. In Sec. Sec. 1794.43 and 1794.44, RUS would eliminate the
requirement to publish in the Federal Register, notice of Environmental
Assessment (EA) and Finding of No Significant Impact (FONSI)
availability for electric and telecommunications proposed actions
described in Sec. 1794.23. RUS has determined that no appreciable
benefit has resulted from publishing a separate Federal Register notice
for proposals in that category. By this change the notice requirements
for all three programs would be consistent for all EA proposals
described in Sec. 1794.23. Electric proposals described in Sec.
1794.24 would still be subject to this requirement.
RUS would modify its policy regarding the use of a contractor
prepared Environmental Impact Statement (EIS). Under the existing
regulation, the EIS would either be developed by RUS from an applicant
prepared Environmental Analysis (EVAL) or prepared with the assistance
of a consultant selected by RUS. Based on its experience in recent
years, RUS expects to utilize the services of a consultant selected by
and working for RUS for all actions requiring the preparation of an
EIS. RUS does not contemplate preparing a draft or final EIS relying on
an applicant prepared EVAL, as currently stated in Sec. 1794.61(b).
Therefore, RUS proposes to delete Sec. 1794.61(b). Also, the applicant
submitted document for all proposals will be titled an environmental
report (ER). Previously, the applicant supplied document for a Sec.
1794.24 proposal was an EVAL. These proposed changes would affect
Sec. Sec. 1794.50, 1794.52 through 1794.54, and 1794.61.
List of Subjects in 7 CFR Part 1794
Environmental impact statements, Reporting and recordkeeping
requirements.
For reasons set forth in the preamble, chapter XVII of title 7 of
the Code of Federal Regulations, is proposed to be amended by revising
part 1794 to read as follows:
PART 1794--ENVIRONMENTAL POLICIES AND PROCEDURES
1. The authority citation for part 1794 continues to read as
follows:
Authority: 7 U.S.C. 6941 et seq., 42 U.S.C. 4321 et seq.; 40 CFR
Parts 1500-1508.
2. Section 1794.6 is amended by:
A. Removing the definition for ``Environmental Analysis (EVAL)'';
B. Adding the definition for ``Distributed Generation'', and
C. Amending the definition for ``Environmental Report (ER) by
revising the first sentence.
These amendments are to read as follows:
Sec. 1794.6 Definitions.
* * * * *
Environmental Report (ER). The environmental documentation normally
submitted by applicants for proposed actions subject to compliance with
Sec. Sec. 1794.22 through 1794.24. * * *
* * * * *
Distributed Generation. The generation of electricity by a
sufficiently small electric generating system as to allow
interconnection of the system near the point of service at distribution
voltages or customer voltages. A distributed generating system may be
fueled by any source, including but not limited to renewable energy
sources.
* * * * *
3. Section 1794.7(a) is revised to read as follows:
Sec. 1794.7 Guidance.
(a) Electric and Telecommunications Programs. For further guidance
in the preparation of public notices and environmental documents, RUS
has prepared a series of program specific guidance bulletins. RUS
Bulletin 1724A-600 provides guidance in preparing the ER for proposed
actions classified as categorical exclusions (CEs) (Sec. 1794.22(a));
RUS Bulletin 1794A-601 provides guidance in preparing the ER for
proposed actions which require EAs (Sec. 1794.23(b) and (c)); and RUS
Bulletin 1794A-603 provides guidance in conducting scoping for proposed
actions classified as requiring an EA with scoping or an EIS. Copies of
these bulletins are available upon request by contacting the Rural
Utilities Service, Publications Office, Program Development and
Regulatory Analysis, Stop 1522, 1400 Independence Avenue, SW.,
Washington, DC 20250-1522.
* * * * *
4. Section 1794.15(a) is amended by adding new paragraphs (a)(1),
(a)(2), and (a)(3), to read as follows:
[[Page 1990]]
Sec. 1794.15 Limitations on actions during the NEPA process.
(a) * * *
(1) A categorical exclusion determination has been made for
proposals listed under Sec. Sec. 1794.21 and 1794.22.
(2) Applicant notices announcing the RUS FONSI determination have
been published for proposals listed under Sec. Sec. 1794.23 and
1794.24.
(3) Applicant notices announcing the RUS Record of Decision have
been published for proposals listed under Sec. 1794.25.
* * * * *
5. Section 1794.21 is amended by adding new paragraphs (b)(25) and
(26) to read as follows:
Sec. 1794.21 Categorically excluded proposals without an ER.
* * * * *
(b) * * *
(25) Electric generating facilities of less than 100 kilowatts at
any one site for the purpose of providing limited service to customers
or facilities such as stock tanks and irrigation pumps.
(26) New bulk commodity storage and associated handling facilities
within existing fossil-fueled generating station boundaries for the
purpose of co-firing bio-fuels and refuse derived fuels. A description
of the facilities to be constructed shall be provided to RUS.
* * * * *
6. Section 1794.22 is amended by revising paragraphs (a)(8) and (9)
and by adding new paragraphs (a)(12) and (13) to read as follows:
Sec. 1794.22 Categorically excluded proposals requiring an ER.
(a) * * *
(8) Construction of distributed generation totaling 10 MW or less
at an existing utility, industrial, commercial or educational facility
site. There is no capacity limit for a generating facility located at
or adjacent to an existing landfill site that is powered by refuse
derived fuel. All new associated facilities and related electric power
lines shall be covered in the ER;
(9) Installation of new generating units or the replacement of
existing generating units at a hydroelectric facility or dam which
result in no change in the normal maximum surface area or normal
maximum surface elevation of the existing impoundment. All new
associated facilities and related electric power lines shall be covered
in the ER;
* * * * *
(12) Installing a heat recovery steam generator and steam turbine
with a rating of 200 MW or less on an existing combustion turbine
generation site for the purpose of combined cycle operation. All new
associated facilities and related electric power lines shall be covered
in the ER.
(13) Construction of a natural gas pipeline (ten miles or less in
length) to serve an existing gas-fueled generating facility.
* * * * *
7. Section 1794.23 is amended by:
A. Revising paragraphs (c)(1), (c)(2), and (c)(3), and
B. Adding new paragraphs (c)(12) and (c)(13)
This revision and additions are to read as follows:
Sec. 1794.23 Proposals normally requiring an EA.
* * * * *
(c) * * *
(1) Construction of fuel cell, combustion turbine, combined cycle,
or diesel generating facilities of 50 MW (nameplate rating) or less at
a new site (no existing generating capacity) except for items covered
by Sec. 1794.22(a)(8). All new associated facilities and related
electric power lines shall be covered in the EA;
(2) Construction of fuel cell, combustion turbine, combined cycle,
or diesel generating facilities of 100 MW (nameplate rating) or less at
an existing generating site, except for items covered by Sec.
1794.22(a)(8). All new associated facilities and related electric power
lines shall be covered in the EA;
(3) Construction of any other type of new electric generating
facility of 20 MW (nameplate rating) or less, except for items covered
by Sec. 1794.22(a)(8). All new associated facilities and related
electric power lines shall be covered in the EA;
* * * * *
(12) Installing a heat recovery steam generator and steam turbine
with a rating of more than 200 MW on an existing combustion turbine
generation site for the purpose of combined cycle operation. All new
associated facilities and related electric power lines shall be covered
in the EA.
(13) Construction of a natural gas pipeline (more than ten miles in
length) to serve an existing gas-fueled generating facility.
8. Section 1794.24(b)(2) is revised to read as follows:
Sec. 1794.24 Proposals normally requiring an EA with scoping.
* * * * *
(b) * * *
(2) Construction of fuel cell, combustion turbine, combined cycle,
and diesel generating facilities of more than 50 MW at a new site or
more than 100 MW at an existing site; and the construction of any other
type of electric generating facility of more than 20 MW but not more
than 50 MW (nameplate rating). All new associated facilities and
related electric power lines shall be covered in any EA or EIS that is
prepared.
* * * * *
9. Section 1794.25(a)(1) is revised to read as follows:
Sec. 1794.25 Proposals normally requiring an EIS.
* * * * *
(a) * * *
(1) New electric generating facilities of more than 50 MW
(nameplate rating) other than fuel cell, combustion turbine, combined
cycle, or diesel generators. All new associated facilities and related
electric power lines shall be covered in the EIS; and
* * * * *
Sec. 1794.43 [Amended]
10. Amend Sec. 1794.43 by:
A. Removing paragraph (b), and
B. Amending paragraph (a) by removing the paragraph designation and
the heading ``General''.
11. Section 1794.44 is revised to read as follows:
Sec. 1794.44 Timing of agency action.
RUS may take its final action on proposed actions requiring an EA
(Sec. 1794.23) at any time after publication of the applicant notices
that a FONSI has been made and any required review period has expired.
When substantive comments are received on the EA, RUS may provide an
additional period (15 days) for public review following the publication
of its FONSI determination. Final action shall not be taken until this
review period has expired.
12. Section 1794.50 is revised to read as follows:
Sec. 1794.50 Normal sequence.
For proposed actions covered by Sec. 1794.24 and other actions
determined by the Administrator to require an EA with Scoping, RUS and
the applicant will follow the same procedures for scoping and the
requirements for notices and documents as for proposed actions normally
requiring an EIS through the point at where project scoping has been
completed. Following project scoping, RUS will make a judgment to have
an EA prepared or contract for the preparation of an EIS.
13. Section 1794.51(a) is revised to read as follows:
[[Page 1991]]
Sec. 1794.51 Preparation for scoping.
(a) As soon as practicable after RUS and the applicant have
developed a schedule for the environmental review process, RUS shall
have its notice of intent to prepare an EA or EIS and schedule scoping
meetings (Sec. 1794.13) published in the Federal Register (see 40 CFR
1508.22). The applicant shall have published, in a timely manner, a
notice similar to RUS' notice.
* * * * *
14. Section 1794.52(d) is amended by removing the last sentence and
adding a new sentence at the end of the paragraph to read as follows:
Sec. 1794.52 Scoping meetings.
* * * * *
(d) * * * The applicant or its consultant shall prepare a record of
the scoping meeting. The record shall consist of a transcript when a
traditional meeting format is used or a summary report when an open
house format is used.
* * * * *
15. Section 1794.53 is revised to read as follows:
Sec. 1794.53 Environmental report.
(a) After scoping procedures have been completed, RUS shall require
the applicant to develop and submit an ER. The ER shall be prepared
under the supervision and guidance of RUS staff and RUS shall evaluate
and be responsible for the accuracy of all information contained
therein.
(b) The applicant's ER will normally serve as the RUS EA. After RUS
has reviewed and found the ER to be satisfactory, the applicant shall
provide RUS with a sufficient number of copies of the ER to satisfy the
RUS distribution plan.
(c) The ER shall include a summary of the construction and
operation monitoring and mitigation measures for the proposed action.
These measures may be revised as appropriate in response to comments
and other information, and shall be incorporated by summary or
reference into the FONSI.
16. Section 1794.54 is revised to read as follows:
Sec. 1794.54 Agency determination.
Following the scoping process and the development of a satisfactory
ER by the applicant or its consultant that will serve as the agency's
EA, RUS shall determine whether the proposed action is a major Federal
action significantly affecting the quality of the human environment. If
RUS determines the action is significant, RUS will continue with the
procedures in subpart G of this part. If RUS determines the action is
not significant, RUS will proceed in accordance with Sec. Sec. 1794.42
through 1794.44, except that RUS shall have a notice published in the
Federal Register that announces the availability of the EA and FONSI.
Sec. 1794.61 [Amended]
17. Section 1794.61 is amended by:
A. Removing paragraph (b).
B. Redesignating paragraph (a) as the introductory text; paragraph
(a)(1) as (a); paragraph (a)(2) as (b); and paragraph (a)(3) as (c).
Dated: December 24, 2002.
Blaine D. Stockton,
Acting Administrator, Rural Utilities Service.
[FR Doc. 03-713 Filed 1-14-03; 8:45 am]
BILLING CODE 3410-15-P