[Federal Register: January 8, 2008 (Volume 73, Number 5)] [Proposed Rules] [Page 1401-1428] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr08ja08-22] [[Page 1401]] ----------------------------------------------------------------------- Part II Environmental Protection Agency ----------------------------------------------------------------------- 40 CFR Parts 51 and 93 Revisions to the General Conformity Regulations; Proposed Rule [[Page 1402]] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51 and 93 [EPA-HQ-OAR-2004-0491; FRL-8511-6] RIN 2060-AH93 Revisions to the General Conformity Regulations AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The EPA is proposing to revise its regulations relating to the Clean Air Act (CAA) requirement that Federal actions conform to the appropriate State, Tribal or Federal implementation plan for attaining clean air (``general conformity''). EPA has only revised the General Conformity Regulations once since they were promulgated in 1993 to include de minimis emission levels for fine particulate matter and its precursors (July 17, 2006). Over this period, EPA and other Federal agencies have gained experience with the implementation of the existing regulations and have identified several issues with their implementation. In addition, in 2004 EPA issued regulations to implement the revised ozone standard and in 2007 issued regulations to implement the new fine particulate matter standard. These regulations could affect the timing and process for general conformity determinations. State and other air quality agencies are in the process of developing revised plans to attain the new standards and the proposed revisions to the General Conformity Regulations will be helpful to the State, Tribe, and local agencies as well as the Federal agencies in developing and commenting on the proposed SIP revisions. This proposed rule revision provides for a streamline process for Federal agencies and States and Tribes to ensure Federal activities are incorporated in these State implementation plans (SIPs). Where that is not possible it provides an efficient and effective process for Federal agencies to ensure their actions do not cause or contribute to a violation of the national ambient air quality standards (NAAQS) or interfere with the purpose of a State, Tribal or Federal implementation plan to attain or maintain the NAAQS. DATES: Comments. Comments must be received on or before March 10, 2008. Public Hearing. If anyone contacts EPA requesting a public hearing by January 23, 2008, we will hold a public hearing. Additional information about the hearing would be published in a subsequent Federal Register notice. ADDRESSES: Submit comments, identified by Docket ID No. EPA-HQ-OAR- 2004-0491, by one of the following methods: http://www.regulations.gov. Follow the on-line instructions for submitting comments. E-Mail: a-and-r-docket@epa.gov. Fax: (202) 566-9744. Mail: Air and Radiation Docket and Information Center, Environmental Protection Agency, Docket ID No. EPA-HQ-OAR-2004-0491, Mail Code: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include duplicate copies, if possible. Hand Delivery: General Conformity Revisions, Docket ID No. EPA-HQ-OAR-2004-0491, Environmental Protection Agency Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. Please include duplicate copies, if possible. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct comments to Docket ID No. EPA-HQ-OAR-2004- 0491. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is ``anonymous access'' systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions go to section I.B. of the SUPPLEMENTARY INFORMATION section of this docket. Docket: All documents in the docket are listed in the EDOCKET index at http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742. Public Hearing. If a public hearing is held at 9 a.m. in Washington, DC, or at an alternate site nearby. Details regarding the hearing (time, date, and location) will be posted on EPA's Web site at http://www.epa.gov/oar/genconform_not later than 15 days prior to the hearing date. People interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Ms. Pam Long, Air Quality Planning Division, Office of Air Quality Planning and Standards (C504-03), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, telephone (919) 541-0641, fax number (919) 541-5509, e-mail address long.pam@epa.gov, at least 2 days in advance of the public hearing (see DATES). People interested in attending the public hearing must also call Ms. Long to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning the proposed action. FOR FURTHER INFORMATION CONTACT: Mr. Thomas Coda, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919) 541-3037 or by e-mail at coda.tom@epa.gov. SUPPLEMENTARY INFORMATION: [[Page 1403]] I. General Information A. Does This Action Apply to Me? Entities affected by this rule include Federal agencies and public and private entities that receive approvals or funding from Federal agencies such as airports and ports. B. What Should I Consider as I Prepare My Comments for EPA? 1. Submitting CBI. Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information claimed as CBI; a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2. 2. Tips for Preparing Your Comments. When submitting comments, remember to: Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number). Follow directions. The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. Describe any assumptions and provide any technical information and/or data that you used. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. Provide specific examples to illustrate your concerns, and suggest alternatives. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. Make sure to submit your comments by the comment period deadline identified. C. Where Can I Get a Copy of This Document and Other Related Information? In addition to being available in the docket, an electronic copy of this proposal will also be available on the worldwide web. Following signature by the EPA Administrator, a copy of this notice will be posted at http://www.epa.gov/oar/genconform/regs.htm. D. How Is This Preamble Organized? The information presented in this preamble is organized as follows: I. General Information A. Does This Action Apply To Me? B. What Should I Consider as I Prepare My Comments for EPA? C. Where Can I Obtain Additional Information? D. How Is This Preamble Organized? II. Background A. What Is General Conformity and How Does It Affect Air Quality? B. Why Is EPA Proposing Revisions to These Regulations at This Time? III. How Are the Existing Regulations Implemented? A. Applicability Analysis B. Conformity Determination C. Review Process IV. Summary of the Proposed Revisions to the General Conformity Regulations A. Categories of Proposed Revisions to the General Conformity Regulations B. What Innovative and Flexible Approaches Are Being Proposed? C. What Streamlining and Burden Reduction Measures Are Being Proposed? D. What Revisions Provide Tools and Guidance for Transitioning to New or Revised NAAQS? E. What Revisions Are Being Proposed at the Request of Other Agencies? F. What Are Some of the Clarifications to the Existing Regulations That Are Being Proposed? V. Detailed Discussion of the Proposed Revisions A. 40 CFR Part 51, Subpart W--Determining Conformity of General Federal Actions to State or Federal Implementation Plans B. 40 CFR 93.150--Prohibition C. 40 CFR 93.151--State Implementation Plan (SIP) Revision D. 40 CFR 93.152--Definitions E. 40 CFR 93.153--Applicability Analysis F. 40 CFR 93.154--Federal Agencies Responsibility for a Conformity Determination G. 40 CFR 93.155--Reporting Requirements H. 40 CFR 93.156--Public Participation I. 40 CFR 93.157--Re-evaluation of Conformity J. 40 CFR 93.158--Criteria for Determining Conformity for General Federal Actions K. 40 CFR 93.159--Procedures for Conformity Determinations for General Federal Actions L. 401 CFR 93.160--Mitigation of Air Quality Impacts M. 40 CFR 93.161--Conformity Evaluations for Installations With Facility-Wide Emission Budget N. 40 CFR 93.162--Emissions Beyond the Time Period Covered by the Applicable SIP or TIP O. 40 CFR 93.163--Timing of Offsets and Mitigation Measures P. 40 CFR 93.164--Inter-Precursor Offsets and Mitigation Measures Q. 40 CFR 93.165--Early Emission Reduction Credit Program VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations VII. Statutory Authority II. Background A. What Is General Conformity and How Does It Affect Air Quality? The intent of the General Conformity requirement is to prevent the air quality impacts of Federal actions from causing or contributing to a violation of the national ambient air quality standards (NAAQS) or interfering with the purpose of a State implementation plan (SIP), Tribal implementation plan (TIP) or Federal implementation plan (FIP). In the CAA, Congress recognized that actions taken by Federal agencies could affect State, Tribe, and local agencies' ability to attain and maintain the NAAQS. Congress added section 176(c) (42 U.S.C. 7506) to the CAA to ensure Federal agencies proposed actions conform to the applicable SIP, TIP or FIP for attaining and maintaining the NAAQS. That section requires Federal entities to find that the emissions from the Federal action will conform with the purposes of the SIP, TIP or FIP or not otherwise interfere with the State's or Tribe's ability to attain and maintain the NAAQS. The CAA Amendments of 1990 clarified and strengthened the provisions in section 176(c). Because certain provisions of section 176(c) apply only to highway and mass transit funding and approvals actions, EPA published two set of regulations to implement section 176(c). The Transportation Conformity Regulations, first published on November 24, 1993 (58 FR 62188) and recently revised on July 1, 2004 at 69 FR 40004, May 6, 2005 at 70 FR 24280 and March 10, 2006 at 71 FR 12468, address Federal actions related to highway and mass transit funding and approval actions. The General Conformity Regulations, [[Page 1404]] published on November 30, 1993 (58 FR 63214), cover all other Federal actions. B. Why Is EPA Proposing Revisions to These Regulations at This Time? The EPA recently revised the General Conformity Regulations to include de minimis emission levels for particulate matter with an aerodynamic diameter equal to or less than 2.5 microns (PM2.5) and its precursors (July 17, 2006 at 71 FR 40420). Otherwise, EPA has not revised the General Conformity Regulations since they were promulgated in 1993. Since that time, EPA and other Federal agencies have gained experience with the implementation of the existing regulations and have identified several issues with their implementation. Therefore, EPA initiated a process to review, revise and streamline the regulations. In addition, EPA has recently issued regulations to implement the revised ozone standard (69 FR 23951, April 30, 2004 and 70 FR 71612, November 29, 2005) and regulations to implement the new particulate matter standard (72 FR 20586, April 25, 2007). These regulations could affect the timing and process for general conformity determinations. State and local air quality agencies are in the process of developing revised SIPs to attain the new standards and knowledge of the proposed revisions to the General Conformity Regulations may be helpful to the State, Tribal, and local agencies as well as the Federal agencies in developing and commenting on the proposed SIP revisions. III. How Are the Existing Regulations Implemented? The existing regulations do not specifically identify the roles of Indian Tribes nor the applicability of the regulations to TIPs. Federal agencies and other parties involved in the conformity process have found that in implementing the existing General Conformity Regulations their process falls in to three phases: (A) Applicability analysis, (B) Conformity determination, and (C) Review process. Besides ensuring that the Federal actions are in conformance with the SIP, the regulations encourage consultation between the Federal agency and the State or local air pollution control agencies before and during the environmental review process. A. Applicability Analysis The National Highway System Designation Act of 1995, (Pub. L. 104- 59) added section 176(c)(5) to the CAA to limit applicability of the conformity programs to areas designated as nonattainment under section 107 of the CAA and maintenance areas under section 175A of the CAA only. Therefore, only actions in designated nonattainment and maintenance areas are subject to the regulation. In addition, the regulations recognize that the vast majority of Federal actions do not result in significant increase in emissions and, therefore, include a number of exemptions such as de minimis emission levels based on the type and severity of the nonattainment problem. In the applicability analysis phase, the Federal agency determines: 1. Whether the action will occur in a nonattainment or maintenance area; 2. Whether one of the specific exemptions apply to the action; 3. Whether the Federal agency has included the action on its list of ``presumed to conform'' actions; or 4. Whether the total direct and indirect emissions are below or above the de minimis levels. Under the current regulations, the applicability analysis phase requires Federal agencies to determine if the action is considered ``regionally significant,'' i.e., equal to or greater than ten percent of the area's emission inventory for the pollutant. If the action is regionally significant, Federal agencies must conduct a conformity determination for the action even though the emissions caused by the action are below the de minimis levels, the action is presumed to conform or the action is otherwise exempt. B. Conformity Determination When the applicability analysis shows that the action must undergo a conformity determination, Federal agencies must first show that the action will meet all SIP control requirements such as reasonably available control measures, and the emissions from the action will not interfere with the timely attainment of the standard, the maintenance of the standard or the area's ability to achieve an interim emission reduction milestone. Federal agencies then must demonstrate conformity by meeting one or more of the methods specified in the regulation for determining conformity: 1. Demonstrating that the total direct and indirect emissions are specifically identified and accounted for in the applicable SIP, 2. Obtaining a written statement from the State or local agency responsible for the SIP documenting that the total direct and indirect emissions from the action along with all other emissions in the area will not exceed the SIP emission budget, 3. Obtaining a written commitment from the State to revise the SIP to include the emissions from the action, 4. Obtaining a statement from the metropolitan planning organization (MPO) for the area documenting that any on-road motor vehicle emissions are included in the current regional emission analysis for the area's transportation plan or transportation improvement program, 5. Fully offset the total direct and indirect emissions by reducing emissions of the same pollutant or precursor in the same nonattainment or maintenance area, or 6. Conducting air quality modeling that demonstrates that the emissions will not cause or contribute to new violations of the standards, or increase the frequency or severity of any existing violations of the standards. Air quality modeling cannot be used to demonstrate conformity for emissions of ozone precursors or nitrogen dioxide (NO2). As stated in EPA's proposal of the current regulations (58 FR 13845), due to the complex interaction of the ozone precursors, the regional nature of the ozone and NO2 problems, and limitations of current air quality models, it is not generally appropriate to use an air quality model to determine the impact on ozone or NO2 concentrations from a single emission source or a single Federal action. C. Review Process As public bodies, Federal agencies must make their conformity determinations through a public process. The General Conformity Regulations require Federal agencies to provide notice of the draft determination to the applicable EPA Regional Office, the State and local air quality agencies, the local MPO and, where applicable, the Federal land manager(s). In addition, the regulations require Federal agencies to provide at least a 30-day comment period on the draft determination and make the final determination public. State agencies and the public can appeal the final determination in the U.S. Courts system. Failure by a Federal agency to follow the technical and procedural requirements can result in an adverse court decision. IV. Summary of the Proposed Revisions to the General Conformity Regulations A. Categories of Proposed Revisions to the General Conformity Regulations In accordance with the requirements of section 176(c)(4)(C) of the CAA, when EPA promulgated General Conformity Regulations in 1993 it also promulgated [[Page 1405]] regulations at 40 CFR part 51, subpart W (sections 850-860) which required States to adopt and submit SIPs for General Conformity. In August 2005, Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) which eliminated the requirement for States to adopt and submit General Conformity SIPs. Therefore, EPA is proposing to revise its regulations to make the adoption and submittal of the General Conformity SIP or TIP optional for the State or Tribe. Because 40 CFR part 51, subpart W (Sec. Sec. 51.850-51.860) essentially duplicates the regulations promulgated at 40 CFR part 93, subpart B (Sec. Sec. 93.150-93.160), EPA is proposing to delete all of subpart W except for Sec. 51.851. In the proposed revision to Sec. 51.851, EPA would require that if a State or Tribe submits a General Conformity SIP or TIP that it be consistent with the requirements of 40 CFR part 93, subpart B. In addition, EPA is proposing to add a provision to 40 CFR 51.851 to allow the States and Tribes more flexibility to streamline the conformity process conducted under their SIP or TIP. In 40 CFR part 93, subpart B, EPA is proposing to make only specific revisions to the regulations which (1) clarify the process, (2) delete outdated or unnecessary requirements, (3) authorize innovative and flexible approaches, (4) streamline the process and reduce the paperwork burden, (5) provide transition tools for implementing new standards, (6) incorporate revisions requested by other agencies, and (7) provide a better explanation of regulations and policies. Several of the proposed revisions encourage both the Federal agencies and the States or Tribes to take actions in advance of the project environmental review. Such advance action should speed the review process for the individual projects and reduce the delays for the project without impairing the environmental review. The EPA invites comment on this approach. B. What Innovative and Flexible Approaches Are Being Proposed? 1. The EPA is proposing to add a new section (40 CFR 93.161) to allow for a facility-wide emission budget approach. Under this voluntary arrangement, Federal agencies, in anticipation of future major actions, could negotiate a facility-wide emission budget with the appropriate State, Tribal, or local air quality agency responsible for the SIP or TIP. The State, Tribal, or local agency would incorporate the facility-wide emission budget into the applicable SIP or TIP and submit it to EPA for approval. Once approved, minor actions under the control of the facility where an applicability analysis results in a determination that the emissions are below a de minimis threshold could proceed with no conformity determination. Actions at the facility where the emissions from an action under the facility's control equaled or exceeded an applicable de minimis threshold could demonstrate that the emissions from the proposed action along with all other emissions at the facility are within the EPA approved facility-wide emission budget. By using the facility-wide emission test, the action would be presumed to conform and a conformity determination would not be necessary. Alternatively, a facility with an approved facility-wide emission budget could demonstrate conformity by the conventional methods afforded in the General Conformity regulations. 2. The EPA is proposing a new section (40 CFR 93.165) to explicitly incorporate the use of early emission reduction credits into the regulations. The proposal reflects the provisions of the Airport Early Emission Reduction (AERC) guidance developed in consultation with the Federal Aviation Administration (FAA) and provides a similar framework for other Federal agencies. 3. The EPA is proposing a new section (40 CFR 93.164) to allow, with certain limitations, the emission of one precursor of a criteria pollutant to be mitigated or offset by the reduction in the emissions of another precursor of that pollutant. 4. The EPA is proposing a new section (40 CFR 93.163) to allow alternate schedules for mitigating emissions increases. The mitigation timing approach could allow some flexibility for Federal agencies and States or Tribes to negotiate a program for some emissions mitigation to occur in future years. States or Tribes could consider this approach to accommodate short-term increases in emissions if there is a substantial long-term reduction in emissions. C. What Streamlining and Burden Reduction Measures Are Being Proposed? 1. The EPA is proposing to delete the provision in the existing regulation which required Federal agencies to conduct a conformity determination for regionally significant actions even though the total direct and indirect emissions from the action were below the de minimis emission levels. 2. The EPA is proposing additional categories of actions that Federal agencies can include in their ``presume to conform'' lists and EPA is also proposing to permit States or Tribes to establish in their General Conformity SIPs or TIPs ``presume to conform'' lists for actions within their State or Tribal area. 3. The EPA is proposing to exempt the emissions from stationary sources permitted under the minor source new source review (NSR) programs as EPA's existing General Conformity regulation already provides for exemptions for emissions from major NSR sources. D. What Revisions Provide Tools and Guidance for Transitioning to New or Revised NAAQS? 1. The EPA is proposing to revise the language in the regulation concerning conformity evaluations for existing action during a transition to new nonattainment designations or to the revised regulations. 2. The EPA is proposing requirements for the implementation of the grace period for newly designated nonattainment areas. 3. The EPA is proposing alternate methods to demonstrate conformity for time periods beyond those covered by the SIP or TIP. 4. The EPA is proposing to allow States or Tribes to include an enforceable commitment in the SIP or TIP to address future emissions from a Federal action. E. What Revisions Are Being Proposed at the Request of Other Agencies? 1. Based on EPA's Interim Air Quality Policy on Wildland and Prescribed Fires, which was developed in consultation with Federal land managers, EPA is taking comment on two possible approaches: (1) To include a presumption of conformity for prescribed fire use that are conducted in compliance with certified smoke management plans (SMPs), and (2) for prescribed fires conducted using State approved basic smoke management practices. 2. The EPA is proposing to allow Federal agencies to obtain emission offsets for general conformity purposes from another nearby nonattainment or maintenance area of equal or higher nonattainment classification provided the emissions from that area contribute to violation of the NAAQS in the area where the Federal action is located or in the case of maintenance areas, the emissions from the nearby area contributed in the past to the violations in the area where the Federal action is occurring. 3. At the request of several Federal agencies, EPA is proposing to clarify the [[Page 1406]] language in the regulation that states that nothing in these regulations requires the release of materials and other information where disclosure is restricted by law. Also, EPA is proposing to include a similar clarification for CBI. 4. Several Federal agencies and other parties involved in the process suggested that EPA should consider exempting construction activity emissions from the conformity regulations requirements. Although the existing General Conformity Regulations do not specifically mention construction emissions, they implicitly require Federal agencies to include emissions from construction activities in the conformity evaluation. The EPA understands the concerns of the other Federal agencies and in the discussion about the revision to the definition of ``caused by,'' has identified a number of ways that Federal agencies can work with the State, Tribe, and local agencies to ease the burden of reviewing construction emissions. In addition, EPA is seeking comment on the possibility of exempting short-term construction projects from the General Conformity Regulations. One option would be to define short-term emissions as lasting no more than 2 years. Another option would be to define short-term emissions consistent with how they are defined for Transportation Conformity. Currently under the Transportation Conformity regulations, construction emissions are not required to be included for construction that lasts no longer than 5 years at individual sites. 5. The FAA requested clarification of language in the General Conformity preamble (58 FR 63229) that stated ``the EPA believes that the following actions are illustrative of de minimis actions: * * * Air traffic control activities and adopting approach, departure and enroute procedures for air operations.'' The FAA conducted a study of ground level concentrations caused by elevated aircraft emissions released above ground level (AGL) using EPA-approved models and conservative assumptions.\1\ The study concluded that aircraft operations at or above 3,000 feet AGL have a very small effect on ground level concentrations and could not directly result in a violation of the NAAQS in a local area. Consequently, this study validates the EPA's initial preamble language for air traffic control activities and adopting approach, departure and enroute procedures for aircraft operations above 3,000 feet AGL are clearly de minimis. Therefore, the list of exemptions under 40 CFR 93.153(c)(2)(xxii) has be updated in this proposal to reflect this conclusion. --------------------------------------------------------------------------- \1\ Wayson, Roger, and Fleming, Gregg, ``Consideration of Air Quality Impacts by Airplane Operations at or Above 3000 feet AGL,'' Volpe National Transportations Systems Center and FAA Office of Environment & Energy, FAA-AEE-00-01-DTS-34, September 2000. http://www.faa.gov/regulations_policies/policy_guidance/envir_policy/ . --------------------------------------------------------------------------- F. What Are Some of the Clarifications to the Existing Regulations That Are Being Proposed? 1. The EPA is proposing to clarify that if the action would result in emissions originating in more than one nonattainment or maintenance area, the emissions in each area would be treated as if they result from a separate action. 2. The EPA is proposing to establish procedures to follow in extending the 6-month conformity exemption for actions taken in response to an emergency. 3. The EPA is proposing to revise the procedures that can be used to demonstrate conformity with the applicable SIP. 4. The EPA is proposing to revise the review process to require Federal agencies to notify Tribal governments in the nonattainment or maintenance area. 5. The EPA is proposing to clarify the definition of several terms used in the regulations. 6. The EPA is proposing to include specific language to identify the role of Indian Tribes and TIPs. VI. Detailed Discussion of the Proposed Revisions A. 40 CFR Part 51, Subpart W--Determining Conformity of General Federal Actions to State or Federal Implementation Plans Section 176(c)(4) of the CAA specifies that EPA conformity regulations include a requirement for a State to adopt and submit to EPA for approval, a SIP to implement the provisions of section 176(c). Section 6011 of SAFETEA-LU revised the conformity requirements in section 176(c) of the CAA. Although most of the revisions affected the Transportation Conformity requirements, section 6011(f) and (g) also revised the General Conformity requirements. Specifically, section 6011(f) revised section 176(c)(4)(A) of the CAA by including a requirement that the regulations must be periodically updated and by deleting the requirement for the States to adopt and submit a General Conformity SIP. Section 6011(g) requires EPA to revise its conformity regulations by August 2007 to meet the revised requirements. The EPA does not interpret this provision as prohibiting States or Tribes from voluntarily adopting and submitting General Conformity implementation plans. Therefore, EPA is proposing to revise 40 CFR 51.851 to make the adoption and submittal of the General Conformity SIP optional for the State and eligible federally-recognized Tribal governments. In promulgating the General Conformity Regulations in 1993, EPA published two sets of regulations: 40 CFR Part 51, subpart W (Sec. Sec. 93.850 through 93.869) directed States to adopt and submit General Conformity SIPs to EPA for approval and 40 CFR Part 93 subpart B (Sec. Sec. 93.150 through 93.160) provided the requirements for Federal agencies to follow in conducting their conformity evaluations before EPA approved the General Conformity SIP for the area. Section 40 CFR 51.851 directed States to adopt SIPs meeting the requirements of 40 CFR part 51, subpart W. The other sections in subpart W repeat the requirements found in 40 CFR part 93, subpart B. The EPA is proposing to delete 40 CFR 51.850, and 51.852 through 860 since those sections merely repeat the language in 40 CFR 93.150 and 93.152 through 160 and include a requirement in 40 CFR 51.851(a) that the General Conformity SIP or TIP must meet the requirements in 40 CFR part 93, subpart B. In addition, EPA is proposing several revisions to Sec. 51.851. 1. The EPA is proposing to divide paragraph (b) of 40 CFR 51.851 into four paragraphs--(b), (c), (d), and (e): a. Paragraph (b) stating that until EPA approves the SIP revision, Federal agencies must meet the requirements of 40 CFR part 93, subpart B. b. Paragraph (c) stating that after EPA approves a SIP or TIP meeting the requirement of 40 CFR part 93, subpart B, or portion thereof, the Federal agencies must meet the requirements of the SIP or TIP and portions of 40 CFR part 93, subpart B if not included in the approved SIP or TIP. In addition, the proposed paragraph (c) states that any conformity requirements in an existing implementation plan remain enforceable until the state submits a revision to its applicable implementation plan to specifically remove the conformity requirements and that revision is approved by EPA. Since there is no longer a requirement for State implementation plans to include conformity requirements and the applicable statutes do not grant EPA additional authorities to condition approval of a State's request to remove the general conformity requirements from an implementation plan, it is EPA's intent, once requested by a State, to expeditiously review and approve implementation plan revisions that seek [[Page 1407]] to remove general conformity requirements. c. Paragraph (d) contains the requirement that the SIP or TIP can be no less stringent than 40 CFR part 93, subpart B. d. Paragraph (e) contains the requirement that the SIP or TIP can be no more stringent that the requirement in 40 CFR part 93, subpart B unless the provisions apply to non-Federal as well as Federal entities. 2. The EPA is proposing to add a new provision in Sec. 51.851, which allows States or Tribes to include in their SIP or TIP a list of actions that are presumed to conform. Since 40 CFR 51.850, 852 through 860 merely repeats the language in 40 CFR 93.150, 93.152 through 93.160, deleting Sec. Sec. 51.850, 852 though 860 and requiring the SIP or TIP to meet the requirements in part 93 subpart B will not change the SIP or TIP requirements. However, deleting the sections will reduce the confusion on the requirements in the regulations by removing the duplicative language. In addition, EPA can revise the general conformity requirements by revising only one set of regulations. Although States or Tribes would have to revise any SIPs or TIPs which are in place when EPA revises part 93 subpart B regulations, this would not be an additional burden since they would have to revise their SIP or TIP if EPA revised the part 51, subpart W regulations. By dividing paragraph (b) into four smaller paragraphs, EPA is attempting to simplify the language to make the requirements more understandable. The EPA did not change the requirements in paragraph (b) of the existing regulations. The proposal to allow the States or Tribes the flexibility to adopt as part of the General Conformity SIP or TIP a list of actions that are presumed to conform resulted from the desire of some States to reduce the need to spend resources on reviewing actions which are known to conform. Although States and Tribes are not obligated to adopt a ``presume to conform'' list as part of their General Conformity SIP, if they do adopt a list they must include a list in their SIP or TIP. B. 40 CFR 93.150--Prohibition Section 93.150 establishes the general prohibition against Federal agencies taking actions that do not conform with the SIP and requirements for the Federal agencies to make the conformity determinations following the procedures of subpart B of part 93. The EPA is proposing to make two revisions to Sec. 93.150. First, EPA is proposing to delete the language in paragraph (c) of that section and reserves that paragraph. Second, EPA is proposing to add a new paragraph (e) to the section to state that if an action occurs in more that one nonattainment area that each area must be evaluated separately. In paragraph (c) of the existing regulations, EPA identified categories of actions that were not subject to the regulations based on environmental review for the action that was either completed or underway at the time the regulations were promulgated. The paragraph was based on the environmental reviews (either the conformity determination or the National Environmental Policy Act (NEPA) analysis) being completed in early 1994. Therefore, paragraph (c) is outdated and is not necessary at this time. In the new paragraph (e) in Sec. 93.150, EPA is specifically proposing that conformity determinations must be made for each nonattainment or maintenance area. The emissions from most Federal actions or projects occur within one nonattainment or maintenance area, however, some actions or projects could extend across area boundaries, causing emissions in more than one area. A facility (for example, a national park, military installation or an airport) could be located in multiple counties or even in multiple States. Emissions from an action at such facilities could extend across the nonattainment or maintenance area boundaries. Some Federal actions, such as rulemaking or rail merger approvals, could result in emissions in non-contiguous areas, or even nationwide, affecting multiple nonattainment or maintenance areas. The existing regulations do not specify how actions or projects affecting multiple areas should be addressed. Therefore, EPA is proposing that an action's emissions in each area would be treated as if they result from separate actions. This would result in the need for two or more separate applicability analysis and conformity determinations where general conformity is applicable. The number of conformity determinations would correlate to the number of nonattainment or maintenance areas where the action results in direct or indirect emissions originating in those areas. The analysis should provide a comprehensive emissions inventory that includes a clear and separate accounting or division of emissions by nonattainment or maintenance area. For example, an action may occur in two nonattainment areas, each with a 50 ton/year de minimis threshold. If the action would result in total direct and indirect emissions of 55 tons/year, but 30 tons/year are in one area and 25 tons/year the other area, the action would not require a conformity determination since it would be considered de minimis in both areas. If the action would result in total direct and indirect emissions of 85 tons/year, but 60 tons/year are in one area and 25 tons/year the other area, the action would require a conformity determination in the areas with emission of 60 tons/year but the area with 25 tons/year would not need a conformity determination since that portion of the action would be considered de minimis in that areas. EPA is proposing emissions from actions be treated separately for each nonattainment and maintenance area for the following reasons: 1. Federal agencies demonstrate conformity to a SIP, TIP or FIP that are developed on an area-specific basis and SIPs requirements may vary from one area to another. 2. The General Conformity Regulations exemptions are also area- specific. For example, the de minimis levels are based upon the type and classification of the nonattainment or maintenance area. 3. Section 176(c)(5) of the CAA limits the applicability of the conformity regulations to actions in nonattainment and maintenance areas. Therefore, actions, which affect broad regions encompassing several nonattainment, maintenance or attainment areas, must be evaluated based only on the portions of the emissions in the nonattainment and maintenance areas. C. 40 CFR 93.151--State Implementation Plan (SIP) Revision The main purpose of Sec. 93.151 is to specify that the regulations in part 93 subpart B apply to Federal actions unless the State or Tribe adopts and EPA approves a General Conformity SIP or TIP for the area. The EPA is not proposing to change the purpose of the section, but is proposing to revise the section to clarify its wording. The existing regulations included statements about the stringency of the SIP compared to the requirements in subpart B of part 93. The EPA is proposing to delete those statements because they duplicate statements in 40 CFR 51.851 which specifies the requirements for the SIP and TIP. D. 40 CFR 93.152--Definitions Section 93.152 provides the definition of terms used in the regulations. The EPA is proposing to revise twelve of the definitions, add eleven new terms and delete one term as follows: [[Page 1408]] Applicable implementation plan or applicable SIP. The EPA is proposing two minor revisions to the definition. First, EPA is proposing to correct the citation for the SIP approval and second, EPA is proposing to clarify the definition by adding a parenthetical phrase to clarify that the term includes an approved Tribal implementation plan (TIP). The requirements for eligible Tribes are found in 40 CFR 49.6. Applicability analysis. The EPA is proposing to add this new term to describe the process of determining if the Federal agency must conduct a conformity determination for its action. Areawide air quality modeling analysis. The EPA is proposing to clarify this definition by making a minor wording change and by including photochemical grid model in the definition. Also, EPA is proposing to add an example of the type of models that could be used for the areawide air quality modeling analysis. Caused by. The basic test established by the existing definition of ``caused by'' is that the emissions would not have occurred in the absence of the Federal action (Title I, Section 176). Since the general conformity regulations were promulgated in 1993, EPA has interpreted the regulations to require a Federal agency to include construction emissions in its conformity analysis. The EPA believes that emissions from construction activities initiated by, approved or funded by a Federal agency meets this test and should be included in the conformity evaluation. Some Federal agencies have suggested that since construction emissions are generally excluded from consideration under the transportation conformity and EPA's NSR programs, they should not be included in the general conformity evaluation either. Furthermore, some agencies pointed out, the emissions from construction activities are not always explicitly included in some SIPs, so it is difficult to demonstrate conformity for the emissions and should not factor into the agencies' demonstrations of conformity to those SIPs. Finally, it has been suggested that construction emissions are temporary and not long- term contributors to the NAAQS violations and, therefore, may not be truly reflective of a completed project's contribution to a nonattainment or maintenance area's emissions budget. In EPA's Transportation Conformity program (40 CFR 51.390 and part 93), construction emissions are generally not included in the conformity evaluation. The Transportation Conformity Regulations (40 CFR 93.122(e)) do require the consideration of PM10 from construction-related fugitive dust only in PM10 nonattainment and maintenance areas where the SIP identifies those emissions as a contributor to the nonattainment problem. In such a case, the regional PM10 emissions analysis must consider the construction-related fugitive PM10 emissions and account for them in the determination. The Transportation Conformity Regulations (40 CFR 93.122(f)) do not require the consideration of such regional PM2.5 emissions unless the area's SIP identifies construction-related fugitive PM2.5 as a significant contributor to the area's PM2.5 problem. In addition, the Transportation Conformity Regulations (40 CFR 93.123(c)(5)) do not require construction-related carbon monoxide (CO), PM10, and PM2.5 emissions to be considered in project-level hot-spot analyses (i.e., estimations of future localized CO, PM10 , and PM2.5 concentrations) unless those emissions will last for more than 5 years at an individual site. In the NSR program, only operational emissions from the source are required to be evaluated for the permit and construction emissions are not generally included. Since the General Conformity Regulations cover a wide variety of actions and projects, the regulations were drafted to be general enough to cover the differing circumstances. While a majority of Federal actions and projects may not involve long-term construction activities, some do. For example, increasing the depth of the navigable channel in New York Harbor is expected to take 9 to 10 years to complete. In addition, the States and local agencies can reasonably anticipate and plan for construction emissions from highway and mass transit activities based upon regional transportation plans and historic activities. However, the States, Tribes and local agencies may not be aware of other Federal activities requiring construction or may not be easily able to estimate the emissions from the construction activities. Therefore, the SIPs or TIPs may not adequately account for the emissions from those activities. In drafting and adopting a SIP and TIP, States, Tribes and local agencies generally allow for some emissions from construction activities either in a construction emission category or as part of another category, such as off-road mobile or area sources. The emission estimates for these categories are usually based upon historic activity levels or on projected future activity levels. Therefore, if at the time the SIP or TIP is being developed, the State, Tribe or local agency knows about the future actions or projects at the facility, the construction emissions can be incorporated into the SIP or TIP. For the above reasons, EPA believes that emissions from construction activities could in some circumstances interfere with the SIP or TIP and is therefore not proposing to explicitly exclude all construction emissions from the definition of emissions ``caused by'' the Federal action. However, this proposal provides several options to allow Federal agencies and the States or Tribes to list construction emissions as ``presume to conform'' or to exempt the emissions. 1. Once included in a SIP-approved facility-wide emission budget, the construction emissions could be identified as exempt from the general conformity requirements. 2. Under the new provisions for developing a list of ``presume to conform'' actions, Federal agencies, States, or Tribes can demonstrate that emissions from certain types of construction activities at a facility would conform to the SIP. 3. Some States issue permits for construction emissions. These permits are essentially minor source NSR permits and emissions covered by them would be exempt. Also, EPA is proposing to clarify that conformity is based on annual emissions. Therefore, Federal agencies should estimate construction emissions on an annual basis and would only have to demonstrate conformity of construction emissions during the years when the emissions occurred. Currently under the Transportation Conformity regulations, project level construction emissions are not required to be included for construction that lasts no longer than 5 years at individual sites. EPA also recognizes that construction activities are only temporary and for some projects occur for short periods of time. Since these temporary construction activities may last between 1 to 5 years, the EPA solicits comments on whether to exempt emissions from short-term construction activities as well as the appropriate definition of a short-term project. Confidential business information (CBI). In Sec. Sec. 93.155 and 93.156, EPA is also proposing to specify how CBI used in the conformity determination is to be handled. To support those revisions, EPA is also proposing to add a definition of CBI. The definition is based upon that used to define CBI under the Freedom of Information Act. Conformity determination. The EPA is proposing to add a new term to describe the decision that a Federal agency [[Page 1409]] official makes in determining that the action will conform with the SIP or TIP. Conformity evaluation. The EPA is proposing to add a new definition to describe the entire conformity process from the applicability analysis through the conformity determination, if necessary. Continuing program responsibility. In the existing regulations, EPA defined the term ``emissions that a Federal agency has a continuing program responsibility for.'' That term was awkward and confusing. The EPA is proposing to shorten the term to the ``continuing program responsibility'' and to reformat the definition to make it clearer. Continuous program to implement. This term was used in the existing regulations but was not defined. Therefore, EPA is proposing to add a definition for this term. The definition would require the Federal agency to have a program to implement the action. That program can include a number of steps such as preparation of final design plans and can also allow for seasonal shutdowns. The definition includes a requirement that the action does not stop for more than 18 months unless such a delay is included in the original plans for the action. Direct emissions. The EPA is proposing to revise the definition of direct emissions to include a requirement that the emissions must be reasonably foreseeable. This requirement was unintentionally left out of the definition when it was promulgated in 1993. Emission Inventory. This term is used but not defined in the existing regulations. Therefore, EPA is proposing to add this term to the list. EPA. Since some States have Environmental Protection Agencies, EPA is proposing to add ``U.S.'' in the definition to clarify that the regulations refer to the U.S. Environmental Protection Agency. Indirect emissions. Some questions have arisen concerning whether emissions generated outside a nonattainment area should be accounted for when making a General Conformity determination for a Federal action. EPA is proposing to revise the definition for indirect emissions to clarify that only indirect emissions originating in a nonattainment or maintenance area need to be analyzed for conformity with the applicable SIP. Previous guidance regarding emissions generated outside of nonattainment areas was issued by EPA in 1994, prior to the 1995 statutory amendments to the CAA's conformity provisions which made conformity applicable only with respect to nonattainment and maintenance areas (42 U.S.C. 7506(c)(5)) and which eliminated any need for EPA to issue attainment area conformity regulations. The new definition clarifies that EPA interprets this statutory amendment to mean that any indirect emissions originating in an attainment or unclassifiable area do not need to be analyzed for general conformity purposes. ``In addition to addressing emissions generated outside of nonattainment areas, EPA proposes to revise the definition of ``indirect emissions'' to add the condition that emissions must be of the type that ``the agency can practically control'' and for which ``the agency has continuing program responsibility.'' The addition of this condition clarifies EPA's long standing position that Congress did not intend for conformity to apply to ``cases where, although licensing or approving action is a required initial step for a subsequent activity that causes emissions, the agency has no control over that subsequent activity, either because there is no continuing program responsibility or ability to practically control.'' 58 FR 63,214, 63,221 (Nov. 30, 1993). The Supreme Court noted this long-held position in ruling that the Department of Transportation was not required to undertake a conformity review for its so-called ``Mexican trucks'' rule. DOT v. Public Citizen, 541 U.S. 752 773 (2004). Specifically, the Supreme Court held that DOT's rule concerning safety regulations for Mexican motor carriers operating within the United States interior did not trigger conformity even though DOT approval was required for Mexican trucks to cross the border into the United States. The Court indicated, among other reasons, that DOT ``could not refuse to register Mexican motor carriers simply on the ground that their trucks would pollute excessively. (DOT) cannot determine whether registered carriers actually will bring trucks into the United States, cannot control the routes that carriers take, and cannot determine what the trucks will emit. Any reduction in emissions that would occur at the hands of (DOT) would be mere happenstance. It cannot be said that (DOT) `practicably control[s]' or `will maintain control' over the vehicle emissions from the Mexican trucks, and it follows that the emissions from the Mexican trucks are not `indirect emissions.' '' Id. At 772-73. Local air quality modeling analysis. The EPA is proposing to revise the definition to include an example of the type of models that are used in the local air quality modeling analysis. Maintenance area. The EPA is proposing to make a minor wording change to clarify the definition by citing the regulations and the section of the CAA used to identify maintenance areas. Metropolitan Planning Organization. The EPA is proposing to revise its regulatory definition to make it more consistent with the statutory definition in SAFETEA-LU, which was signed into law on August 10, 2005. Mitigation measure. The existing regulations used the term ``mitigation measure'' and even had a section specifying the requirements for a mitigation measure, however the regulations did not define the term. The EPA is proposing to define a mitigation measure as a method of reducing emissions of the pollutant at the location of the action. This definition would distinguish a mitigation measure from an offset. National ambient air quality standards. In 1997, EPA promulgated new NAAQS for both ozone and for fine particles. The definition in the existing regulations is broad enough to cover the new ozone standard. But, the definition did not cover the fine particle standard known as PM2.5. Therefore, EPA is revising the definition of NAAQS to include PM2.5. Precursors of criteria pollutants. The existing regulations define precursors for both ozone and PM10. Since the PM2.5 standard was promulgated after the General Conformity Regulations, the original regulations did not include the precursors for PM2.5. Therefore, EPA recently amended the regulation (July 17, 2006 at 71 FR 40420) to add PM2.5 precursors, consistent with the proposed implementation program for the PM2.5 standard (70 FR 65984). 1. Sulfur dioxide is a regulated pollutant in all PM2.5 nonattainment and maintenance areas.\2\ --------------------------------------------------------------------------- \2\ Sulfur dioxide is not required to be addressed in transportation conformity determinations before a SIP is submitted unless either the state air agency or EPA regional office makes a finding that on-road emissions of sulfur dioxide are significant contributors to the area's PM2.5 problem. Sulfur dioxide would be addressed after a PM2.5 SIP is submitted if the area's SIP contains an adequate or approved sulfur dioxide motor vehicle emissions budget. EPA based its decision on the de minimis amount of on-road missions of sulfur dioxide now and in the future, and on the implementation of low sulfur gasoline beginning in 2004 and low sulfur diesel fuel beginning in 2006. (70 FR 24283). --------------------------------------------------------------------------- 2. Nitrogen oxides are a regulated pollutant in all PM2.5 nonattainment and maintenance areas unless both the State/Tribe and EPA determine that it is not. 3. Volatile organic compounds (VOC) and ammonia are not regulated [[Page 1410]] pollutants in any PM2.5 nonattainment or maintenance area unless either the State/Tribe or EPA determines that they are. Reasonably foreseeable emissions. As discussed above, under ``direct emissions,'' EPA is proposing to qualify the term direct emissions by st