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.
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.
DATES: The CE identified below is available for PHMSA to use for its proposed actions
effective [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER].
FOR FURTHER INFORMATION CONTACT: Carolyn Nelson, Office of Planning and
Analytics, PHMSA, by e-mail at Carolyn.Nelson@dot.gov 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 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 solesource 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, 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: 7/2/2024 8:45 am; Publication Date: 7/3/2024]