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This memorandum provides a reminder of the requirements
for applying categorical exclusions pursuant to the Department of
Energy's (DOE's) NEPA regulations and guidance for simple recordkeeping
of such determinations. Recent litigation has prompted our review of
DOE's procedures for making these determinations.
The draft version of this guidance was discussed at the
June 1997 NEPA Community Meeting. Issues raised then that are not
addressed here concern the breadth and duration of categorical
exclusion determinations and how to decide whether subsequently
proposed actions are within the scope of a previous determination. My
staff is discussing these important issues with the Office of General
Counsel, and we intend to present proposed guidance on these issues to
the DOE NEPA Community for review and comment soon.
This memorandum (1) outlines the factors that must be
considered in applying a categorical exclusion, (2) briefly describes
the relevant aspects of the NEPA litigation, (3) reviews the
established policy (under DOE Order 451.1A, NEPA Compliance Program)
that no documentation is required for categorical exclusion
determinations and current DOE practices, and (4) recommends a format
for simple recordkeeping to foster compliance with applicable
regulations without costly and elaborate documentation.
Background
Categorical exclusions are categories of actions that do
not individually or cumulatively have a significant effect on the human
environment and for which, therefore, neither an environmental
assessment nor an environmental impact statement is required. DOE's
categorical exclusions are listed in Appendices A and B to Subpart D of
its NEPA regulations, 10 CFR Part 1021. In applying a categorical
exclusion under 10 CFR 1021.410(b) to a specific proposed action, DOE
must determine that:
- the proposed action fits within a class of actions
listed in the regulations,
- there are no extraordinary circumstances related to
the proposal that may affect the significance of its environmental
effects, and
- the proposal is not connected to other actions with
potentially significant impacts, related to other proposals with
cumulatively significant actions, or an improper interim action.
Two recent lawsuits have challenged the Department's
application of categorical exclusions.
In one case, the court held that DOE's administrative
record did not document that DOE had considered whether the proposed
action presented extraordinary circumstances or was connected to other
actions with potentially significant impacts. As a result, the
Department's categorical exclusion determination was held to be
arbitrary and capricious. In the second case, the plaintiff also
challenged DOE's compliance with 10CFR 1021.410(b) and questioned the
determination to categorically exclude two proposed actions, alleging
that DOE should have treated the two actions as connected. In a
settlement agreement, DOE committed to prepare one environmental
assessment for the two actions.
These lawsuits highlight the need for DOE to consider
all necessary factors in determining that a proposed action is
categorically excluded. Under DOE 451.1A (section 5.d.(2)), DOE's NEPA
Compliance Officers (NCOs) make categorical exclusion determinations.
The policy stated in that Order, that determinations need not be
documented, was intended to eliminate the time and cost that was being
devoted to the preparation of elaborate and unnecessary paperwork. The
evaluation process that the NCOs must follow in applying the DOE NEPA
regulations to make categorical exclusion determinations remains
necessary with or without documentation.
Guidance
Based on consultation with the Office of General
Counsel, we recommend that a simple record of a categorical exclusion
determination be kept for all but the most routine proposed actions
(e.g., most determinations under Appendix A to Subpart D of the DOE
NEPA regulations would not warrant a record). Such a record should
ensure that the NCO considers all necessary factors in the categorical
exclusion determination process and provide adequate evidence of this
consideration to a reviewing court.
The attached model record of a categorical exclusion
determination is intended to assist your NCOs in meeting their NEPA
responsibilities. NCOs could incorporate the content of the model into
other environmental review records if desired.
We understand that most NCOs already are documenting
their determinations for most categorical exclusions, sometimes quite
extensively, although they may not be documenting that all relevant
factors have been considered. We believe that thoughtfully preparing a
simple categorical exclusion determination record, such as outlined in
the attached model, would adequately and efficiently ensure and
demonstrate compliance. We continue to believe that more detailed
documentation for categorical exclusion determinations is not
needed.
Please direct any questions on this matter to Carol
Borgstrom, Director, Office of NEPA Policy and Assistance, at
202-586-4600.
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