Revisions to the General Conformity Regulations, 1402-1428 [E7-25241]
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Federal Register / Vol. 73, No. 5 / Tuesday, January 8, 2008 / Proposed Rules
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
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
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AGENCY:
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
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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:
• 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
https://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 https://
www.regulations.gov or e-mail. The
https://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 https://
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
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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 https://
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
https://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 https://
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 https://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.
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.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 73, No. 5 / Tuesday, January 8, 2008 / Proposed Rules
notice will be posted at https://
www.epa.gov/oar/genconform/regs.htm.
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?
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1. Submitting CBI. Do not submit this
information to EPA through https://
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
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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
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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,
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published on November 30, 1993 (58 FR
63214), cover all other Federal actions.
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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
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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,
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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
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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
(§§ 51.850–51.860) essentially
duplicates the regulations promulgated
at 40 CFR part 93, subpart B (§§ 93.150–
93.160), EPA is proposing to delete all
of subpart W except for § 51.851. In the
proposed revision to § 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
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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 shortterm 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
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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
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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
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. https://www.faa.gov/
regulations_policies/policy_guidance/envir_policy/.
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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.
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 6month 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
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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 (§§ 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 (§§ 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 § 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
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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 § 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
§§ 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 § 93.150. First, EPA is proposing to
delete the language in paragraph (c) of
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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 § 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
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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 areaspecific. 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 § 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:
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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
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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 offroad 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
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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 §§ 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
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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
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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.
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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. 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
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).
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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 stating that
those emissions must be reasonably
foreseeable. Therefore, EPA is proposing
to revise the term ‘‘reasonably
foreseeable’’ to include ‘‘direct
emissions.’’
Regionally significant action. As
discussed in the revisions to 93.153(i)
below, EPA is proposing to delete the
regionally significant requirement.
Therefore, if EPA’s proposed revision is
promulgated, there is no need to retain
this definition.
Restricted information. As discussed
in §§ 93.155 and 156 on reporting and
public participation, EPA, at the request
of the several Federal agencies is
proposing to specify how restricted
information used in the conformity
determination is to be handled. To
support those revisions, EPA is also
proposing to add a definition of
restricted information. The definition is
based upon applicable Executive
Orders, regulations and statutes
pertaining to materials and other
information where disclosure is
restricted by law.
Take or start the Federal action. The
EPA is proposing to add a new term to
define the date when an action occurs
or starts. This date is important in
determining what, if any, conformity
requirements apply when an area is
designated or re-designated as
nonattainment. The EPA is proposing to
define this term as the date the decisionmaker signs a document such as a grant,
permit, license or approval. Otherwise,
EPA is proposing to define the term as
the date the Federal agency physically
starts the action that requires the
conformity evaluation.
Tribal implementation plan (TIP). The
EPA is proposing to add a definition for
Tribal implementation plan to mean
plans adopted and submitted by
Federally recognized Indian Tribes.
Under the Tribal Authority Rule (40
CFR part 49), certain Tribal bodies can
adopt and submit implementation plans
to attain and maintain the NAAQS set
by EPA, but the Tribal bodies do not set
their own ambient air standards. The
CAA allows tribes to obtain the
authority to run CAA programs for the
regulation of ‘‘air resources within the
exterior boundaries of the reservation or
other areas within the tribe’s
jurisdiction’’ [CAA Section
301(d)(2)(B)]. Tribes have authority over
all air resources within the exterior
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boundaries of their reservation
(including non-Indian owned fee lands).
For off-reservation areas, tribes must
demonstrate the basis for jurisdiction. In
some cases there may be a SIP and a TIP
covering different portions of the same
nonattainment area. In such cases
emissions from an action that originate
in a nonattainment or maintenance area
that has both Tribal lands with a TIP
and State land requiring a SIP, the
emissions would need to be accounted
for separately and the applicability and
conformity analysis would need to be
done separately for the TIP and the SIP.
Therefore, EPA is proposing to add this
definition to the regulation.
E. 40 CFR 93.153—Applicability
Analysis
The EPA is seeking to clarify the
process of determining if the General
Conformity requirements are applicable
to a Federal action. Although EPA is
providing clarification on actions that
are exempt or presumed to conform in
this regulation, nothing in this
regulation is intended to interfere with
any exemptions established by law.
1. The EPA is proposing to revise the
title of the section to include the word
‘‘analysis.’’ The EPA believes that
adding the word would make the title
more descriptive of the section’s
content.
2. The EPA is proposing to make a
minor wording change to paragraph (a)
and (b) of § 93.153. Paragraph (a) is
revised to clarify the proper citations
under which the Transportation
Conformity program is authorized. In
paragraph (b) EPA is proposing to add
the word ‘‘criteria’’ before the word
‘‘pollutant’’ and ‘‘or precursor’’ after the
word to clarify the paragraph.
3. The EPA is proposing to revise the
table in sub-paragraph (b)(1) to include
all nonattainment areas in the Ozone
Transport Regions. In 1993, when the
General Conformity Regulations were
promulgated, all nonattainment areas in
the Ozone Transport Region were
classified as marginal or above for the 1hour ozone NAAQS. However, in
designating areas for the 8-hour ozone
NAAQS, some nonattainment areas
were identified as needing to meet only
the requirements in subpart 1 of Part D
of Title I of the CAA and were not
classified. Therefore, EPA is proposing
to revise the table in § 93.153(c)(1) to
cover the subpart 1 areas by changing
the category from ‘‘Marginal and
moderate NAA’s inside an ozone
transport region’’ to ‘‘other NAA inside
an ozone transport region.’’
4. In a separate notice EPA recently
revised the tables in paragraphs (b)(1)
and (b)(2) by adding the de minimis
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emission levels for PM2.5. In July 1997,
EPA promulgated two new NAAQS (62
FR 38652) one for an 8-hour ozone
standard and one for fine particulate
matter known as PM2.5. The new 8-hour
and old 1-hour ozone NAAQS address
the same pollutant but differ with
respect to the averaging time, therefore,
EPA retained the existing de minimis
emission levels for ozone precursors.
Although PM2.5 is a subset of PM10, it
differs from the rest of PM10. While the
majority of ambient PM10 results from
direct emissions of the pollutant, a
significant amount of the ambient PM2.5
can result not only from direct
emissions but also from transformation
of precursor and condensing of gaseous
pollutants in the atmosphere. Therefore,
EPA in a separate action has added new
de minimis emission levels of 100 tons
per year for the direct emissions and
precursors of PM2.5. For completeness,
the full table was updated to reflect this
change.
5. The EPA is proposing to revise
paragraph (d)(1) of § 93.153 to exempt
emissions covered by a NSR permit for
minor sources. The existing regulations
exempt emissions covered by a NSR
permit for major sources but not for
minor sources. Since the purpose of the
conformity program is to ensure that
Federal actions do not interfere with the
SIP, TIP or FIP, in promulgating the
existing regulations EPA recognized that
emissions covered by a major source
NSR or prevention of significant
deterioration (PSD) permit already had
been reviewed to ensure that the
emissions did not interfere with the SIP.
Therefore, the existing regulations
exempt the emissions from sources
permitted under major source NSR or
PSD programs. Since 1993, when the
existing regulations were promulgated,
States and local agencies have adopted
NSR programs for minor sources as
required by section 110(a)(2)(C) of the
CAA. These NSR programs for minor
sources also ensure that emissions from
the sources (individually and
collectively) will not interfere with the
SIP. Therefore, EPA is proposing to
revise the regulation to exempt
emissions permitted under the EPAapproved NSR programs for minor
sources. The EPA believes this approach
will reduce the duplicate review of
emissions under both minor source NSR
and conformity programs and treat all
NSR permitted emissions the same way.
Although operating permits issued
under title V of the CAA meet some of
the same requirements, EPA is not
proposing to exempt the emissions
covered by those permits. The
conformity program is similar to the
NSR program in that it evaluates new or
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modified sources prior to construction,
while the ‘‘title V’’ program is basically
for operating emissions at existing
sources. Therefore, the conformity
evaluations for any project that also
requires a title V permit should occur
before the title V permit is issued. The
EPA does note that if for some reason
an operating permit covers the
emissions, a Federal agency may be able
to use the permit to document that the
emissions are accounted for in the SIP.
6. The EPA is proposing to delete ‘‘or
natural disasters such as hurricanes,
earthquakes, etc.,’’ and ‘‘or disaster’’
from paragraph (d)(2) of § 93.153
because they are unnecessary words. In
§ 93.152 EPA defines an emergency,
therefore the words in § 93.153
describing an ‘‘emergency’’ are not
necessary and may be confusing since
they do not include all types of
emergencies.
7. The EPA is proposing to amend
paragraph (e)(2) of § 93.153 to provide
procedures for reviewing an extension
of the exemption from making a
conformity determination for actions
related to responding to an emergency.
A Federal agency, in responding to an
emergency event such as a natural
disaster, terrorist attack, or military
mobilization, may find it impractical to
conduct a conformity evaluation on the
action before it must take the action. To
address this situation, 40 CFR
93.153(d)(2) of the existing regulations
provides Federal agencies with a 6month exemption from the requirement
to undertake a conformity analysis for
actions taken in response to an
emergency. The EPA recognizes that in
rare situations it may be impractical,
even after 6 months, to conduct a
conformity evaluation and is proposing
to amend § 93.153(e) to allow the
agencies to extend the exemption for
another 6 months. This section requires
Federal agencies to make a written
determination that it is impractical to
conduct an evaluation for the action.
The existing regulations are not clear
about the number of additional
extensions permitted nor do the
regulations provide any procedures for
agencies to follow in deciding on the
extension.
EPA believes the only time that the
extension of the 6-month exemption has
been used was in New York following
the terrorist attack of September 11,
2001. In responding to the shutdown of
the Port Authority Trans-Hudson line
between New Jersey and New York,
certain Federal agencies sponsored a
ferry service across the Hudson River.
The service lasted 2 years until the mass
transit service was restored. The Federal
agencies continued with a series of 6-
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month extensions of the General
Conformity exemption. The Federal
agencies did not know what they had to
do to invoke the provision and EPA and
the State agencies had to request
permission to review the decision. In
addition, the public was not given
notice of the decision to extend the
exemption.
The EPA is not proposing to revise
requirements for the initial exemption
for actions in response to emergencies.
The initial governmental actions which
are typically commenced on the order of
hours or days in response to
emergencies or disasters would still be
exempt from the General Conformity
requirements for 6 months after the
commencement of the response to the
emergency or disaster. However, EPA is
proposing requirements for Federal
agencies that want to extend the
exemption beyond the initial 6-month
period. First, EPA is proposing to
require the Federal agencies to allow
EPA and the State 15 days to review and
provide comments on the draft written
determination to extend the exemption
at the beginning of the extension period.
Next, EPA is proposing to require
Federal agencies to publish a notice
within 30 days of making the decision.
The notice must be published in a daily
general circulation newspaper for the
affected area. Finally, EPA is proposing
to limit the maximum number of 6month extensions an agency may
declare on their own to three. Except in
certain circumstances, the EPA believes
an agency should be able to plan for and
conduct a conformity evaluation for
actions within the time allowed by three
6-month extensions following the initial
6-month exemption (i.e., a total of 2
years). In this regard, EPA acknowledges
that there could be a circumstance
where an agency’s action in response to
an emergency may need additional 6month extensions beyond a 2 year
timeframe and this proposal does not
limit the number of additional 6-month
extensions to the emergency provisions.
In these cases, EPA is proposing that if
more than three extensions of the
emergency provisions are needed, for all
subsequent 6-month extensions a
Federal agency must provide
information to EPA and the State
stating: (a) The conditions that gave rise
to the emergency exemption continue to
exist, and (b) how such conditions
effectively prevent the agency from
conducting a conformity evaluation.
8. The EPA is proposing to revise
paragraphs (f), (g), and (h) of § 93.153 to
permit Federal agencies more flexibility
in developing their list of actions that
are ‘‘presumed to conform’’ and provide
requirements for the materials that must
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be included in the documentation and
draft list. Specifically, EPA is proposing
to: Add a paragraph to (f) to specify
when and how more than one
‘‘presumed to conform’’ exception may
be taken for a Federal action; add a new
paragraph (g)(3) to specify that Federal
agencies can list actions that are for
individual areas or SIPs or TIPs; add a
sentence to paragraph (h)(1) to specify
the information that must be included
in the documentation; and add a
sentence to paragraph (h)(2) to allow the
Federal agencies to notify EPA
headquarters when the presumed to
conform actions would have multiregional or national impacts. In
addition, EPA is proposing to revise
paragraphs (f) and (h) to include a
reference to the new paragraph (g)(3).
In promulgating the existing
regulations, EPA identified a number of
actions that were ‘‘presumed to
conform.’’ The regulations also allow
Federal agencies to establish their own
lists of actions that are ‘‘presumed to
conform.’’ Under the existing
regulations, Federal agencies must
justify the inclusion of the actions on
their ‘‘presumed to conform’’ list by
either demonstrating: (1) That the
actions will not cause or contribute to
an air quality problem or otherwise
interfere with the SIP, TIP, or FIP, or (2)
that the actions will have emissions
below the de minimis levels. The
Federal agencies must provide copies of
the proposed list to EPA, affected State
and local air quality agencies and
MPOs. In addition, the agencies must
provide at least a 30-day public
comment period and document its
response to all comments. The notice of
the proposed and final list must be
published in the Federal Register.
Although EPA has worked with one
Federal agency on its ‘‘presumed to
conform’’ list, no Federal agency has
published such a list. One issue that has
given pause to Federal agency efforts to
publish presumed to conform lists is the
potential for several presumed to
conform exemptions to be used in
combination and result in unacceptable
cumulative air quality impacts. To
address this issue, EPA is proposing in
§ 93.153(f) that actions specified in an
individual Federal agency’s presumed
to conform list may not be used in
combination with one another when the
total direct and indirect emissions from
the combination of actions would equal
or exceed any of the de minimis
thresholds in the General Conformity
regulations. By doing this, EPA believes
it will ensure that the intent of
presumed to conform actions—namely
reducing the analysis burden for actions
that have little or no direct or indirect
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emissions—is met. For example, a
Federal agency may undertake a
program or project with several
connected actions that must be analyzed
under the environmental review
requirements of NEPA. Several of those
actions may individually be listed on
the agency’s presumed to conform list
because those actions taken by
themselves would typically have
emissions below de minimis levels. If
the agency wishes to determine the
entire project or program will not
require a conformity determination
because it is presumed to conform, it
must first determine, using the
emissions predicted in establishing the
presumed to conform action that the
emissions from the combination of
actions does not equal or exceed de
minimis levels. Alternatively, the
agency could exclude the emissions
from one presumed to conform action
from the applicability analysis and
would only be required to perform an
applicability analysis and if required, a
conformity determination on the total
direct and indirect emissions of the
actions which are not otherwise exempt.
The EPA believes that the use of a
‘‘presumed to conform’’ list is an
important tool for Federal agencies in
reducing the review time for Federal
actions while still ensuring air quality
goals are met. For example a Federal
land management agency could include
on its list of presumed to conform
actions prescribed fire use where the
agency has formally committed to apply
a list of basic smoke management
practices developed in cooperation with
the affected State(s) and/or air pollution
control agencies or Tribal government.
EPA believes that an additional
option could be added to the regulations
to aid Federal agencies in adopting their
presumed to conform list. The EPA is
proposing to add sub-paragraph (g)(3) to
clarify that the presumption could be for
one facility or for facilities in a specified
area and does not have to be nationally
applicable. For example, if the
nonattainment area’s SIP includes a
sector emission budget for construction
activities, a facility may be able to
demonstrate that construction activities
of a certain size or type fits within the
SIP’s emission budget. With the
concurrence of the State or Tribe, the
Federal agencies could publish a
‘‘presumed to conform’’ list that
includes the construction emissions at
the specific facility.
9. The EPA is proposing to delete the
regionally significant test included in
paragraph (i) of § 93.153. The existing
regulations in § 93.152 define
‘‘regionally significant’’ as ‘‘a Federal
action for which the direct and indirect
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emissions of any pollutant represent 10
percent or more of a nonattainment or
maintenance area’s emissions
inventory.’’ 40 CFR 93.153(i) and (j)
require conformity determinations for
all regionally significant actions,
regardless of any exemptions or
presumptions of conformity based on
other provisions in the regulations.
The ‘‘regionally significant’’ action
concept was proposed in the 1993
Notice of Proposed Rulemaking (58
FR13836) in order to ‘‘capture those
actions that fall below the de minimis
emission levels, but have the potential
to impact the air quality of the region.’’
At that time, EPA requested comments
on whether the 10 percent level was
appropriate. In the discussion of
comments in the preamble to the Final
Rule (58 FR 63214), EPA reported that
it received comments both in favor of
and in opposition to the ‘‘regionally
significant’’ action concept. While many
respondents supported the concept,
there was a diversity of opinions
regarding whether 10 percent was the
most appropriate level. However, EPA
reported that no documentation was
provided to support a different level.
Some respondents felt that the de
minimis cut offs would suffice. The EPA
decided to retain both the concept and
10 percent level in the final rule.
For a regionally significant action, the
Federal agency must conduct a full
conformity determination even if the
action would cause total direct and
indirect emissions below the de
minimis levels. In over 12 years since
promulgation of the existing regulations,
no action has been determined to be
regionally significant. The main reason
that actions with emissions below de
minimis levels are not regionally
significant is that the emission
inventory for almost all nonattainment
and maintenance areas greatly exceeds
ten times the de minimis emission
levels. Review of the 1999 emission
inventory shows that only six (one
ozone, two lead and three sulfur
dioxide) of over 200 nonattainment
areas had emission inventories less than
ten times the de minimis levels.(See
Evaluation of Potential Regionally
Significant Areas Under the General
Conformity Regulations, Science
Applications International Corporation,
March 2005, Docket Number OAR–
2004–0491). In other words, except for
those six areas, an action with emissions
below de minimis levels would never be
considered regionally significant.
Federal agencies have expressed
concern that, in many cases,
demonstrating that a project is not
regionally significant is difficult and
time consuming. First, the future total
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emission inventory for an area may not
be readily available since the SIP may
not cover the time period when the
emissions will occur. In addition, most
national emission inventories are
published 2 to 3 years after the
‘‘inventory’’ year, so if a Federal agency
is comparing the action’s emissions
against the most recent inventory they
may be looking at an inventory that is
3 to 5 years old.
The EPA is proposing to eliminate the
provision. The EPA believes that since
Federal agencies have expended
resources to demonstrate that actions
are not regionally significant and the
existing provision has not been
triggered, eliminating the provision
would streamline the conformity
regulations and have little or no
environmental impact.
10. The EPA is proposing to replace
paragraph (i) of § 93.153 with a new
paragraph to identify three additional
groups of actions that are presumed to
conform. First, EPA is proposing to
allow installations with a facility-wide
emission budget to presume that an
action at the installation will conform
provided that the emissions from that
action along with all other emissions
from the facility will not exceed the
budget. A more detailed discussion of
the facility-wide emission budget
concept is found in § 93.161.
Second, EPA is taking comment on
allowing Federal agencies to presume
that the emissions from prescribed
burns will conform provided the
burning is conducted under a State
certified approved SMP. EPA is also
asking for comments on the approach of
allowing Federal agencies to presume
that the emissions from prescribed
burns conducted using State approved
basic smoke management practices in a
nonattainment or maintenance area
conform with a SIP.
In May 1998, EPA worked with States
and other Federal agencies to develop
and publish an interim policy on
prescribed fires on wildlands. (See
Interim Air Quality Policy on Wildland
and Prescribed Fires, U.S.EPA, May
1998). To comply with the
recommendations in the interim policy,
state air regulators and land managers
should develop a certified SMP which
promotes regional coordination, and
may include real-time air quality
monitoring. A State SMP establishes a
basic framework of procedures and
requirements for managing smoke from
a prescribed fire managed for resource
benefits. A SMP is typically developed
by a State or Tribe with cooperation and
participation by wildland managers,
both public and private, and the general
public. The SMPs establish procedures
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and requirements for minimizing
emissions and managing smoke
dispersion. The goals of SMPs are to
mitigate the nuisance and public safety
hazards (e.g., on roadways and at
airports) posed by smoke intrusions into
populated areas; to prevent
deterioration of air quality and NAAQS
violations; and to address visibility
impacts in mandatory Class I Federal
areas.
Given the fundamental purpose of the
SMP, EPA believes that it is reasonable
to assume that any action in compliance
with the certified SMP would be in
conformance with the applicable SIP.
Therefore, EPA is taking comment on
the approach to designate these actions
as actions presumed to conform. Federal
agencies would not have to conduct a
conformity determination for those
actions. The presumption to conform is
also based on the maintenance in
stringency of the existing SMPs where
implemented or the implementation of
new smoke management programs or
practices as identified above.
As reflected in the Interim Air Quality
Policy on Wildland and Prescribed
Fires, States are provided flexibility on
the structure of a SMP. Thus, a SMP can
be extensive and detailed, or simply
identify the basic smoke management
practices for minimizing emissions, and
controlling impacts from a prescribed
fire. The EPA’s final rule on the
Treatment of Data Influenced by
Exceptional Events published in the
Federal Register on March 22, 2007
(Volume 72, Number 55) states that
basic smoke management practices
could include, among other practices,
steps that will minimize air pollutant
emissions during and after the burn,
evaluate dispersion conditions to
minimize exposure of sensitive
populations, actions to notify
populations and authorities at sensitive
receptors and contingency actions
during the fire to reduce exposure of
people at such receptors, identify steps
taken to monitor the effects of the fire
on air quality, and identify procedures
to ensure that burners are using basic
smoke management practices.
The Agency plans to begin revising its
Interim Air Quality Policy on Wildland
and Prescribed Fires in 2007 as part of
its overall Fire Strategy. The Agency
believes that the conditions for
prescribed fires that are presumed to
conform should be conducted in
accordance with programs and practices
which meet the requirements of EPA’s
Air Quality Policy on Wildland and
Prescribed Fires and those conditions
should be deliberated in the formation
of the revised policy. To inform the
development of that policy, and the
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final revisions of this General
Conformity rule, EPA is also requesting
comment on an additional approach for
allowing a presumption to conform for
emissions from prescribed fires
conducted in the absence of a State
certified SMP, where the Federal agency
submits a demonstration and obtains
written permission from the State prior
to the burn that the planned burn
employs State approved basic smoke
management practices. This approach
would thereby protect public health in
nonattainment and maintenance areas
where a SMP has not been adopted, and
allow Federal agencies the flexibility
needed to conduct necessary prescribed
burning.
Finally, as discussed above, EPA is
also proposing to allow a State or
eligible Tribe, on its own, to adopt in
their SIP or TIP a list of actions for
facilities in its borders that it ‘‘presumes
to conform.’’
11. The EPA is proposing to revise
paragraph (j) of § 93.153 by deleting the
reference to regionally significant
emissions, by adding a reference to
paragraph (i) and by describing the
criteria for requiring a conformity
determination for an action that
otherwise would be presumed to
conform. The existing regulations state
that an action cannot be presumed to
conform if it was regionally significant
or did not in fact meet the requirements
of sub-paragraph (g)(1). As discussed
above, EPA has proposed to delete the
regionally significant test, therefore
reference to it is proposed to be deleted
from this paragraph. For clarity, instead
of referring to sub-paragraph (g)(1), EPA
is proposing to repeat the requirements
in this paragraph.
12. The EPA is proposing to revise
paragraph (k) of § 93.153 to incorporate
the provisions of section 176(c)(6) of the
CAA. (42 U.S.C. 7506(c)(6)). In
November 2000 (Pub. L. 106–377),
Congress added section 176(c)(6) to the
CAA to allow for a conformity transition
period for newly designated
nonattainment areas. That section
establishes a 1-year grace period
following the effective date of the final
nonattainment designation of each
NAAQS before the conformity
requirements must be met in the area. If
an agency takes or starts the Federal
action before the end of the grace
period, it must comply with the
applicable pre-designation conformity
requirements. If an agency takes or starts
the Federal action after the end of the
grace period, it must comply with the
post-designation conformity
requirements. As discussed above in
describing the new term ‘‘take or start
the Federal action,’’ EPA is proposing to
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define the term to mean that a Federal
agency takes an action when it signs a
permit, license, grant or contract or
otherwise starts the Federal action.
From the time that an area is designated
as nonattainment, agencies will have a
year to take or start the Federal action.
If the agency fails to take or start the
Federal action during the grace period,
then it must re-evaluate conformity for
the project based on the requirements
for the new designation and
classification.
F. 40 CFR 93.154—Federal Agencies
Responsibility for a Conformity
Determination
1. The EPA is proposing to revise the
title of this section to clarify the purpose
of the section. In the existing regulations
this section is entitled broadly
‘‘Conformity Analysis.’’ Since the short
section only discusses the requirement
for each Federal agency to make its own
determination, EPA is proposing to
revise the title of the section to more
closely describe the section’s content.
2. The EPA is proposing to add
language to this section to specifically
state that the conformity determination
must meet the requirements of this
subpart.
G. 40 CFR 93.155—Reporting
Requirements
1. Since EPA is proposing to add
additional sections to subpart B, it is
proposing to revise the references to
those sections in § 93.155.
2. Consistent with EPA Tribal
Authority Rule (63 FR 7253), EPA is
proposing to provide federallyrecognized Indian Tribal governments
the same opportunity to comment on
draft conformity determinations as
given to States. Therefore, EPA is
proposing to require the Federal
agencies to notify all the federallyrecognized Indian Tribal governments
in the nonattainment or maintenance
area. To assist other Federal agencies in
this notification, EPA is planning to
place a list of the federally-recognized
Indian Tribal governments in each
nonattainment or maintenance areas on
its General Conformity web site.
3. The EPA is proposing to add an
alternative procedure for notifying EPA
when the action would result in
emissions originating in nonattainment
or maintenance areas in three or more
EPA regions. Specifically, EPA is
proposing to allow agencies to notify the
EPA Office of Air Quality Planning and
Standards rather than each individual
Regional Office. A single contact point
for EPA should be more efficient for the
other Federal agencies than notifying up
to ten Regional Offices.
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4. At the request of the several Federal
agencies EPA is proposing to add a new
paragraph to § 93.155 to describe how
restricted information used to support
conformity determinations should be
handled when provided to EPA, States
and Tribal governments. The existing
General Conformity Regulation does not
contain an explicit statement about
protecting restricted information from
public release. The interagency review
and public participation provisions in
the existing regulation require Federal
agencies to make available for review
the draft conformity determination with
supporting materials that describe the
analytical methods and conclusions
relied upon in making the
determination. Disclosure of classified
information by a Federal employee is a
criminal offense (18 U.S.C. 1905). In
addition, certain unclassified
information is privileged or otherwise
protected from disclosure. Therefore,
several Federal agencies wanted to
ensure that the General Conformity
Regulations clearly state that no agency
or individual was required to release
restricted information including, but not
limited to, classified materials.
Therefore, EPA is proposing to revise
the regulation to add explicit language
concerning the protection of restricted
information. In addition, conformity
determinations could, in part, be based
upon confidential information received
from business sources. The EPA is
proposing to add specific language to
the regulation to protect CBI in
accordance with each Federal agency’s
policy and regulations for the handling
of restricted information and CBI. The
regulations would allow State or EPA
personnel with the appropriate
clearances to be able to view the
restricted or confidential business
information.
H. 40 CFR 93.156—Public Participation
1. The EPA is proposing to correct the
section referenced in § 93.156. The
existing regulations refers to § 93.158.
The correct reference should be
§ 93.154. Section 93.158 prescribes the
criteria for conducting a conformity
analysis, while § 93.154 requires Federal
agencies to make the determination and
references the requirements in the other
sections of subpart B.
2. The EPA is proposing to provide an
alternative public notification procedure
for actions that cause emissions above
the de minimis levels in more than three
nonattainment or maintenance areas.
The existing regulations require that the
Federal agency publish a notice in a
daily newspaper of general circulation
in the nonattainment or maintenance
area. Some Federal actions, such as
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rulemaking, affect a large number of
nonattainment and maintenance areas.
The notification procedure for such an
action could be burdensome and
inefficient. Therefore, EPA is proposing
to allow the Federal agencies to publish
a notice in the Federal Register if the
action would cause emissions above the
de minimis levels in more than three
nonattainment or maintenance areas.
3. The EPA is proposing to also add
a new paragraph to § 93.156 to describe
how restricted information and CBI
used to support conformity
determinations should be handled in
providing the information to the public.
I. 40 CFR 93.157—Re-Evaluation of
Conformity
1. The EPA is proposing to revise the
title of this section to more
appropriately describe the section’s
content. The existing section is entitled
‘‘Frequency of Conformity
Determinations.’’ That title implies that
the general conformity requirements for
Federal actions must be reevaluated on
a regular basis. However, the section
states that conformity must be
reevaluated only if the determination
lapses or the action is modified,
resulting in an increase in emissions.
2. If an action’s emissions are below
the de minimis levels or the action is
not located in a nonattainment or
maintenance area, a conformity
determination is not required.
Therefore, the Federal agency would not
have a date for the conformity
determination. The EPA is proposing
minor wording changes in paragraphs
(a) and (b) to clarify that the date of a
completed NEPA analysis, as evidenced
by a signed finding of no significant
impact (FONSI) for an environmental
assessment, a record of decision (ROD)
for an environmental impact statement,
or a record of a categorical exclusion
can be used when a conformity
determination is not required.
3. The EPA is proposing to add two
new paragraphs (d and e) to § 93.157 to
clarify the requirements for needing to
conduct a conformity determination
when the action is modified. Paragraph
(d) deals with modifying an action for
which the Federal agency made a
conformity determination. In order to
make the determination, the Federal
agency had to demonstrate that all the
emissions caused by the action
conformed to the SIP. Therefore, the
Federal agency does not have to revise
its conformity determination unless the
modification would result in an increase
that equals or exceeded the de minimis
emission levels for the area. Paragraph
(e) deals with modifying an action that
the Federal agency determined had
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emissions below the de minimis level.
Since the emissions from the
unmodified action were determined to
be de minimis and not fully evaluated
to determine conformity, EPA is
proposing the Federal agency conduct a
conformity determination if the total
emissions (the emissions from the
unmodified action plus the increased
emissions resulting from the
modification) equal or exceed the de
minimis levels for the area. EPA seeks
comment on what actions should be
considered to constitute
‘‘modifications’’ for purposes of
conformity and under what conditions,
if any, a subsequent action should be
considered to constitute a ‘‘new’’ action
versus modification of an action for
which a previous de minimis
determination was made.
J. 40 CFR 93.158—Criteria for
Determining Conformity for General
Federal Actions
1. In § 93.158(a)(1), EPA is proposing
to add ‘‘precursor’’ after ‘‘any criteria
pollutant’’ to clarify that Federal
agencies can demonstrate conformity for
the precursors of the criteria pollutants
if the precursor emissions are
specifically identified and accounted for
in the applicable SIP, TIP or FIP.
2. In § 93.158(a)(2) and (a)(5)(iii), EPA
is proposing to allow Federal agencies
to obtain emission offsets for the
General Conformity requirements from a
nearby nonattainment or maintenance
area of equal or higher classification,
provided that the emissions from the
nearby area contribute to the violations
of the NAAQS in the area where the
Federal action is located or, in the case
of a maintenance area, the emissions
from the nearby area have contributed
in the past to the violations in the area
where the Federal action is located. The
proposal would require such emissions
offsets to be obtained through either an
approved SIP revision or an equally
enforceable commitment.
This revision to the offset
requirements would make the General
Conformity offset requirements
consistent with the offset requirements
in section 173(c)(1) of the CAA for the
Federal NSR program. It would also
provide the Federal agencies more
flexibility in obtaining the offsets in
areas impacted by transport from nearby
areas. In light of increased knowledge
concerning transport of pollutants into
areas, EPA solicits comments on
whether to limit the offsets to
nonattainment or maintenance areas of
equal or higher classifications, or permit
broader application to all nonattainment
and maintenance areas.
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3. In § 93.158(a)(2), (a)(3) and (a)(4),
EPA is proposing to revise the
regulations to address the precursors of
PM2.5. The EPA does not believe that the
current models are adequate to
reasonably predict the project level
impact of individual precursor sources
of ozone or PM2.5. Therefore, EPA is
proposing to allow Federal agencies to
use modeling to demonstrate conformity
only for directly emitted pollutants.
Precursors of PM2.5 will be treated the
same as precursors of ozone and direct
emissions of PM2.5 will be treated the
same as CO and PM10. The EPA solicits
comment on this treatment of the
precursors of PM2.5.
4. In § 93.158(a)(3) and (5), EPA is
proposing to correct two typographical
errors. In sub-paragraph (3), EPA is
proposing to correct ‘‘meet’’ to ‘‘meets’’
and in sub-paragraph (5), EPA is
proposing to change ‘‘paragraph
(a)(3(11)’’ to ‘‘paragraph (a)(3)(ii).’’
5. In § 93.158(a)(5)(i), EPA is
proposing to delete the reference to the
year 1990 and replace it with a generic
reference to the most current calendar
year with a complete emission
inventory available before an area is
designated unless EPA sets another
year. In addition to requiring the
conformity regulations, the CAA
Amendments of 1990 required the
designation of areas as nonattainment
based on the existing air quality data.
Therefore, when EPA promulgated the
existing regulations in 1993, all the
designations were based on a 1990 date.
Since EPA promulgated the conformity
regulations, it has promulgated new 8hour ozone and PM2.5 standards and
designated a number of areas as
nonattainment. By changing the
regulations to reference the date when
the area was designated as
nonattainment, EPA is allowing for the
new designations and any future
designations.
6. Also in § 93.158(a)(5)(i), EPA is
proposing to revise the paragraph to
allow Federal agencies to make
conformity determination based upon a
State’s or Tribe’s determination that the
emissions from the action along with all
other emissions in the area would not
exceed the emission budget in the
applicable SIP or TIP. Under the
existing regulations, States could only
make such a determination if they had
an approved attainment demonstration
or maintenance SIP. This revision
would allow the State or Tribe to make
its determination based upon a postdesignation applicable SIP or TIP even
though the plan does not include an
attainment demonstration. For example,
the State or Tribe could base their
determination on an emission budget in
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an EPA approved ‘‘Reasonable Further
Progress’’ plan. By adopting the budget
and submitting it as part of the SIP or
TIP, the State or Tribe is treating the
Federal action like any other source in
the area. When the State or Tribal
agency adopts the attainment or
maintenance SIP or TIP, it will have to
consider the emissions, and if necessary
require additional controls on the
sources. Specifically, EPA solicits
comment on whether demonstrating
conformity to a budget in a milestone
plan (in the absence of an attainment
demonstration) is adequate to ensure
that the emissions from the action will
not interfere with the timely attainment
of the NAAQS.
7. Although not specified in the
regulations, EPA believes that a State
operating permit under title V of the
CAA or other air quality operating
permit can serve as documentation of
the State’s or Tribe’s determination.
8. The EPA is proposing to revise
§ 93.158(a)(5)(i)(C) to allow the State or
Tribe to commit to including the
emissions from the Federal action in
future SIPs. Under the existing
regulations, Federal agencies can
demonstrate conformity by having the
State commit to revising the applicable
SIP to include the emissions. If a State
or Tribe agrees to such a commitment,
the State or Tribe must submit a SIP
revision within 18 months to include
the emissions from the action and to
make other necessary adjustments in the
SIP to accommodate those emissions.
However, the existing SIP or TIP, or a
SIP or TIP required to be submitted in
18 months, may not cover the same
timeframe covered by the conformity
determination. For example, a SIP for a
nonattainment area that demonstrates
attainment may only cover the period
until the attainment date while the
conformity determination may cover
emissions for many years beyond that
date. The State or Tribe may be
submitting future SIPs or TIPs to
address either maintenance of the
standard or to address a continuing
nonattainment problem that would
cover the time period of the emissions.
The EPA’s proposed revision to
§ 93.158(a)(5)(i)(C) would continue to
require States to revise the SIP within
18 months of the conformity
determination based upon a State’s or
Tribe’s commitment. However, if the
existing SIP or TIP, or a SIP or TIP due
within 18 months, does not cover the
time period of the emissions, then the
State or Tribe, in the SIP revision, can
include an enforceable commitment to
account for the emissions in future SIP
revisions. This approach will allow
States and Tribes flexibility in
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committing to include the emissions
from the Federal action in the SIP.
9. The EPA is proposing to revise
§ 93.158(a)(5)(iv) to delete the use of
1990 as the baseline year. As discussed
above, when EPA promulgated the
existing General Conformity Regulations
in 1993, the designations and
classifications were based upon the
1990 air quality and emissions. Since
1993, EPA has promulgated new
standards and designated additional
areas as nonattainment. Therefore, in
many cases the 1990 date for the
baseline emission inventory is
inappropriate. The EPA is proposing to
set the baseline year as the most current
calendar year with a complete emission
inventory available before an area is
designated unless EPA sets another
year.
In some cases, when EPA establishes
a new level for a standard, an area will
have an existing SIP or TIP for the
pollutant that serves as the applicable
SIP or TIP until a revised SIP or TIP is
submitted by the State or Tribe and
approved by EPA. For example, in
transition from the 1-hour ozone
standard to the 8-hour ozone standard,
EPA revoked the 1-hour standard 1 year
after the effective date of the 8-hour
ozone designation. Although EPA
revoked the 1-hour standard, the
existing ozone SIP remains largely in
place until it is replaced by the 8-hour
ozone SIP. The 1-hour ozone SIP is
considered the applicable SIP until it is
replaced.
Finally, EPA is proposing to delete
another alternate baseline year that no
longer is applicable in PM10 areas.
Specifically, we are proposing to delete
in § 93.158(a)(5)(iv)(A)(3) the use of the
‘‘year of the baseline inventory in the
PM10 applicable SIP.’’ EPA believes that
the proposed deletion of this out-dated
baseline year should not affect current
general conformity determinations in
PM10 nonattainment and maintenance
areas.
K. 40 CFR 93.159—Procedures for
Conformity Determinations for General
Federal Actions
1. EPA is proposing to change
§ 93.159(b)(1)(ii) to make it more
consistent with when new motor
vehicle emissions factors models are
used in general conformity
determinations. EPA is proposing to
clarify that the grace period before such
new models are used will be 3 months
from EPA’s model release or a longer
grace period as announced in the
Federal Register. This is more
consistent with 40 CFR 93.111 of the
transportation conformity rule that
allows grace periods for new motor
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vehicle emissions factor models to be
between 3–24 months.
2. The EPA is proposing to revise
§ 93.159(b)(2) and (c) to update the
reference to the Compilation of Air
Pollutant Emission Factors and for the
Guideline on Air Quality Modeling.
EPA has released updated versions of
these documents since it promulgated
the existing regulations in 1993.
3. The EPA is proposing to revise
paragraph (d)(1) to clarify that analysis
is first required for the attainment year
specified in the SIP. In some cases, such
as SIPs for marginal ozone areas, an
attainment demonstration date was not
required in the SIP. Therefore, EPA is
also proposing that if the SIP or TIP
does not specify an attainment
demonstration year then the analysis is
required for the latest attainment year
possible under the CAA. Since the CAA
requires the SIP demonstrate attainment
as expeditiously as possible but no later
than the CAA mandated attainment
date, it is possible that a SIP or TIP
could have an earlier attainment date.
That earlier date would be the
appropriate year for the conformity
analysis.
4. The EPA is proposing a minor
wording revision to paragraph (d)(2) to
clarify the paragraph. The EPA is
proposing to replace the word ‘‘farthest’’
with ‘‘last.’’ The maintenance plans are
developed for a 10-year period and
revised as necessary for the next 10-year
period. The purpose is for conformity to
be evaluated for the last year of the
maintenance plan. The word ‘‘last’’
conveys that meaning.
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L. 401 CFR 93.160—Mitigation of Air
Quality Impacts
The EPA is proposing to revise
paragraph § 93.160(f) to clarify its
meaning. The regulations were meant to
require that the mitigation measures
include a written commitment from the
person or organization reducing the
emissions and those commitments must
be fulfilled.
M. 40 CFR 93.161—Conformity
Evaluations for Installations With
Facility-Wide Emission Budget
The EPA is proposing to add a new
section to the regulations to facilitate
the use of a facility-wide emission
budget in evaluating conformity.
Federal agencies have stated that they
would like to streamline the conformity
process for individual actions or
projects, while States have expressed a
desire for the conformity process to help
identify and reduce emissions at Federal
installations. Although the existing
regulations do not preclude States and
Federal agencies from using this
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approach, the regulations do not
specifically authorize its use. This
approach would be entirely voluntary
on the part of the Federal agency and
would have to be approved by the State,
Tribe or local agency responsible for the
SIP or TIP. For example, States can
currently adopt a facility-wide budget
for a Federal installation as part of the
SIP. With such a budget, a Federal
agency could easily demonstrate
conformity for an action at the
installation provided the emissions
caused by the action along with all of
the other emissions subject to general
conformity at the installation stays
within the budget. If the State or Tribe
includes the emission budget in the SIP
or TIP, the emissions would be
identified and accounted for in the SIP
or TIP. Alternatively, a State or Tribe
could provide a letter to the Federal
agency stating that the emissions from
the installation that are within the
budget conform to the SIP or TIP. This
proposed section for developing such a
budget would in conjunction with a
new § 93.153(j) provide a mechanism for
presuming that the emissions are in
conformance with the SIP or TIP. This
approach allows State or Tribe and
Federal agencies to identify acceptable
levels of emissions from the installation
before starting the environmental review
for the actions and for the agencies to
expedite the review of the Federal
actions at the facilities.
Under this approach, a State, Tribe or
local air quality agency could work with
the Federal agency, or a third party
authorized by the agency (e.g., an
airport authority), who volunteers to
develop a facility-wide emission budget
for an installation or facility. In
principle, at the time the States or
Tribes agree to a budget, they assume
responsibility for ensuring that the
emissions within the budget will not
interfere with the purpose of the SIP or
TIP, and will be included in future SIPs
or TIPs. The budget would be for a set
period of time and near the end of that
time the State, Tribe or local agency and
Federal agencies could revise the budget
for the next time period. For example,
the State, Tribe or local agency and
Federal agency could develop annual
budgets covering a 10-year period. Two
years before the end of the period, the
budget would be reviewed and updated
to cover the next 10-year period. (This
is the same procedure used for
maintenance plans under section 175A
of the CAA. A maintenance plan is
developed for 10-years and 8 years into
that plan a new plan is developed for
the next 10 years.) The budgets would
be developed based upon the latest
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estimates of emissions and growth in
the activities at the facility.
The State or Tribe would include the
emission budget in the existing SIP or
TIP and use the budget for any future
SIP or TIP development. In including
the emissions in the existing SIP or TIP,
States or Tribes can either identify
categories in the existing SIP or TIP that
cover the emissions or can submit a
revision to the SIP or TIP to include the
emissions. If unusual or unforeseen
circumstances warrant a revision, the
State, Tribe or local agency and Federal
agency could agree to revise the budget.
For example, if the State, Tribe or local
agency requires additional reductions to
meet their attainment objective or if the
facility has unexpected growth, a
revised budget could be adopted into
the SIP or TIP.
The EPA believes that the proposed
program would encourage the State,
Tribe or local air quality agency and the
Federal facilities to develop an upfront
emission budget for the facility, and the
action or project environmental review
would be streamlined as long as the
facility remains within an established
budget.
The program would be voluntary on
the part of the Federal agency, State,
Tribe and local air quality agency. No
party would be required to participate.
If the parties agreed to participate, an
emission budget would be established
based upon specific guidance and
documented growth projections for the
facility.
The emission budget approach would
not be applicable to all situations. For
example, not all Federal actions or
projects occur on installations suitable
for emission budgets (e.g., one-time
actions on non-Federal lands such as a
short-term construction project may not
have facilities to have a budget). In
addition, some installations with
budgets may on occasion take actions or
have projects that would result in the
budget being exceeded. In these cases,
or under any circumstances, a Federal
agency may determine applicability or
demonstrate conformity with the
standard requirements contained in
§§ 93.153 through 93.160 and 93.162
through 93.165 of the General
Conformity regulations. These
requirements include, but are not
limited to, a State certifying emissions
are included the SIP, a de minimis
determination or other exemption,
project level mitigation, offsetting
emission reductions, or modeling.
Therefore, having a facility-wide
emissions budget in the SIP would not
limit an agency’s option for determining
conformity, but adds an additional less
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burdensome option for demonstrating
conformity.
As discussed earlier in this preamble
under the definition of ‘‘caused by’’, in
developing the facility-wide emission
budget, the Federal agency generally
would share its plans for construction at
the facility. As a result the State, Tribe
or local agency could consider the
emissions from the construction in its
SIP or TIP and they would have three
options for handling the construction
emissions under the general conformity
program. First, they could include the
emissions in a facility-wide emission
budget. Second, they could determine
that the construction emissions at the
facility would be covered elsewhere in
the SIP or TIP (e.g., in the non-road
mobile source budget or the area source
budget), and thus the emissions could
be presumed to conform. Finally, they
could cover the construction emissions
separately from the emission budget and
conduct a separate conformity
evaluation for those emissions.
Since the facility-wide emission
budget would be used to develop the
SIP or TIP for the area, any Federal
action at the installation that remains
within its budget would not interfere
with the SIP or TIP. By developing a
facility-wide emission budget for the
installation, the Federal agency would
generate a more accurate emission
inventory for the activities at the
installations and provide the State,
Tribe or local agency with realistic
growth projections for the installations.
The facility-wide emission budgets
would encourage operators to identify
ways of reducing emissions and adopt
control measures when possible in order
to allow for unforeseen growth.
N. 40 CFR 93.162—Emissions Beyond
the Time Period Covered by the
Applicable SIP or TIP
The EPA is proposing to add a new
section to address how Federal agencies
can demonstrate conformity for an
action that causes emissions beyond the
time period covered by the SIP or TIP.
First, EPA is proposing to allow Federal
agencies to demonstrate conformity
using the last emission budget in the SIP
or TIP. If it is not practicable to
demonstrate conformity using that
technique, then the Federal agency can
request the State or Tribe to provide an
enforceable commitment to include the
emissions from the Federal action in a
current or future SIP or TIP emissions
budget. In such a case, the State or Tribe
would be required to submit a SIP
revision within 18 months to include
the emissions in the current SIP or TIP
or committing to account for the
emissions in future SIPs or TIPs. The
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emissions included in the future SIP
should be based on the latest planning
assumptions at the time of the SIP
revision. Although a State is committing
to include the emissions in the
emissions budget for the SIP revisions,
this commitment does not prevent the
State from requiring the use of RACT,
RACM or any other control measures
within the State’s authority to ensure
timely attainment of the NAAQS.
O. 40 CFR 93.163—Timing of Offsets
and Mitigation Measures
The EPA is proposing to add a new
section to address the timing of offset
and mitigation measures. First, the
section generally requires that the
emission reductions for the offset and
mitigation measures must occur in the
same calendar year as the emission
increases caused by the Federal action
and that the reductions are equal to the
emissions increases. As an alternative,
the proposed section would allow,
under special conditions and consistent
with CAA requirements, the State or
Tribe to approve other schedules for
offsets or mitigation measures.
Mitigation measures and offsets are
used to reduce the impact of emission
increases from a project or action. To
minimize the impact of the project’s
emissions, the emissions reductions
from offsets or mitigation measures
should occur at the same time as the
emission increases from the project. In
general, EPA has interpreted the
existing regulations to mean that the
reductions must occur in the same
calendar year as the emission increases
caused by the action because the total
direct and indirect emissions from an
action are collated on an annual basis.
Therefore, EPA is proposing to include
this interpretation in the regulations.
For certain projects, however, it may
be beneficial for the State or Tribe to
approve mitigation measures or offsets
that do not provide for emissions
reductions equal to the emission
increases for the specific years, but
provide net long-term air quality
benefits. For example, a project with
relatively high short-term emissions,
such as a construction project, could be
mitigated by converting older
equipment to electric or alternate fuels.
The State or Tribe may find it
advantageous to allow a short period
when the emissions are not fully
mitigated in return for permanent or the
long-term emissions reductions.
Therefore, EPA is proposing to allow,
under certain conditions, the State and
Federal agency to negotiate alternate
schedules for the implementation of the
offsets and mitigation measures. EPA
believes that such emissions reductions
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should also have substantial long-term
attainment and maintenance benefits.
EPA is also proposing that emissions
reductions used over an alternate
schedule would be consistent with
statutory requirements that new
violations are not created, the frequency
or severity of existing violations are not
increased, and timely attainment is not
delayed.
To ensure these noncontemporaneous
emission reductions provide greater
environmental benefits in the long term,
EPA is proposing to require that the
offset or mitigation ratios be greater than
one-for-one. Therefore, EPA is
proposing a ratio that is no less than the
NSR offset ratios for the area. These
ratios are readily available and already
understood to be based on the severity
of the nonattainment problem for the
area. In addition, EPA seeks comment
on other mechanisms that could be used
to require greater than one-for-one
reductions for the offsets and mitigation
measures that occur in later years or
alternatively if greater than one-for-one
reductions should be required.
Also, EPA believes that the mitigation
or offset compensation period should
not last indefinitely and is proposing
that the period should not exceed two
times the period of the under-mitigated
emissions. For example, a Federal
agency may be approving a construction
project lasting 3 years in a serious
nonattainment area and that project will
cause 150 tons per year of increased
emissions; the State or Tribe can
approve mitigation measures or offsets
which reduce emissions by less than
150 tons per year provided the total
reduction over a 6-year period is equal
to or more than 540 tons (150 tons per
year times 3 years equals 450 tons times
the offset/mitigation ratio of 1.2 to 1 for
serious nonattainment areas equals 540
tons). Besides requesting comment on
the concept of allowing the States or
Tribes to approve a longer time period
for offsetting or mitigating the emission
increases, EPA is also seeking comment
on the mechanism and procedures used
to permit/implement the concept. In
addition, EPA is seeking comment on
the appropriate time period for the
Federal agencies to offset or mitigate the
increased emissions. The EPA is
requesting comments on using longer
compensation periods in excess of two
times the project period.
Agreeing to allow the use of offset or
mitigation measures in later years does
not exempt the State or Tribe from
meeting any of its SIP or TIP
obligations, such as reasonable further
progress milestones or attainment
deadlines. Emissions reductions which
accrue beyond the compensation period
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should be properly reflected in the SIP
or TIP, e.g. through a SIP revision.
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P. 40 CFR 93.164—Inter-Precursor
Offsets and Mitigation Measures
EPA is proposing to add a new section
to the regulations to allow the use of
inter-precursor offset and mitigation
measures where they are allowed by the
SIP. For example, some States and local
air districts have SIP-approved NSR
regulations that allow new or modified
stationary sources to offset the increase
in emissions of one criteria pollutant
precursor by reducing the emissions of
another precursor of the same criteria
pollutant, provided there is an
environmental benefit to such an
exchange. The existing General
Conformity regulations do not
specifically allow or prohibit interprecursor offsets and mitigation
measures. Therefore, EPA is proposing
to allow such offsets or mitigation
measures if they are allowed by a State
or Tribe NSR or trading program
approved in the SIP; provided they:
1. Are technically justified; and
2. have a demonstrated environmental
benefit.
The ratio for the offsets must be
consistent with SIP or TIP requirements
and EPA guidance.
The EPA recognizes that the
evaluation of the inter-precursor offsets
may in some cases be difficult and seeks
comments on how such offsets or
mitigation measures should be
evaluated. The EPA expects to use these
comments in developing future
guidance documents.
Q. 40 CFR 93.165—Early Emission
Reduction Credit Program
The EPA is proposing to add a new
section to the regulations to establish an
early emission reduction credit program
for facilities subject to the General
Conformity Regulations. The existing
regulations require that the offsets and
mitigation measures be in place before
the emissions increases caused by the
Federal action occur. However,
emission reduction programs
undertaken before the conformity
determination is made could be
considered as part of the baseline
emissions and not available as offsets or
mitigation measures. To expedite the
project level conformity process,
Federal agencies and project sponsors
could benefit from the ability to reduce
emissions in advance of the time that
the reductions are needed for a
conformity evaluation. Although the
existing regulations do not address the
concept, The Port of Seattle and the
Puget Sound Clean Air Agency
developed a program to implement early
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emissions reductions. In addition,
Congress authorized such a program for
the General Conformity program in the
FAA reauthorization act signed in
December 2003 (Vision 100—A Century
of Aviation Reauthorization Act, Pub. L.
108–176). That Act authorized FAA to
approve funding of programs to reduce
emissions at the airports provided the
State would issue emission reduction
credits that can be used for General
Conformity determinations and NSR
offsets. On September 30, 2004, EPA
issued guidance on the Airport
Emission Reduction Credit (AERC)
program to implement the requirements
of the December 2003 Act (Guidance on
Airport Emission Reduction Credits for
Early Measures Through Voluntary
Airport Low Emission Programs, U.S.
EPA, Office of Air Quality Planning and
Standards, September 2004). Other
Federal agencies may benefit from the
opportunity to reduce emissions prior to
when the reductions are needed to offset
emission increases covered by the
General Conformity program.
To clarify EPA’s intent that this
program be allowed for other Federal
actions, EPA is proposing to add a new
section, § 93.165, to the General
Conformity Regulations to define the
requirements of this program. Under the
program, Federal agencies or interested
third parties (such as airport authorities)
could identify emission control
measures and present the proposed
reduction to the State, Tribe or local air
quality agency. If the measure met the
criteria for an offset (quantifiable;
consistent with the applicable SIP
attainment and reasonable further
progress demonstrations; surplus to the
reductions required by and credited to
other applicable SIP provisions;
enforceable at both the State and
Federal levels; and permanent within
the timeframe specified by the program)
as well as all State, Tribe or local
requirements, the State, Tribe or local
agency can approve the measure as
eligible to produce emission reduction
credits. If credits are issued, then a
Federal agency can use the credits to
reduce the total of direct and indirect
emissions from a proposed action. At
the time the credits are used the State,
Tribe or local agency must certify that
the reductions still meet the criteria
listed above. The credits must be used
in the same calendar year in which they
are generated.
In proposed paragraph (a), EPA would
establish the ability for the State or
Tribe and Federal agency to create and
use the emission reduction credits.
In proposed paragraph (b), EPA
identifies the criteria for creating the
credits. The criteria are the same
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requirements that apply to any offset or
mitigation measure used to compensate
for the increased emissions caused by
the action. First, the Federal agency
must be able to quantify the reductions
using reliable techniques. In some cases,
however, it may not be possible to
quantify the reductions until after the
measure has been implemented. For
example, a facility may adopt a strategy
calling for the purchase and use of
alternate-fueled vehicles. Although the
agency could calculate the difference in
the emissions between the alternatefueled vehicle and the standard vehicle,
it may not know the amount the
vehicles will be used. In this case, the
State or Tribe and Federal agency could
agree on an emission factor and
determine the use at a later time. The
reductions must be quantified before the
credit is used to support a conformity
determination.
In proposed paragraph (c), EPA would
establish the requirements for the use of
the credits. If the strategy used to
produce the credit is implemented at
the same facility and in the same
nonattainment or maintenance area as
the Federal action the credits can be
used in determining if the action would
cause emissions above the de minimis
levels. If the strategy is not implemented
at the same facility but is in the same
nonattainment or maintenance areas as
the action, then the credits can be used
as offset or mitigation measures for the
emissions caused by the action, but not
to determine if the action emissions fall
below de minimis thresholds. In this
context, ‘‘same facility’’ means a
contiguous area that a Federal agency
manages or exercises control over.
Generally, all actions and operations
within a fence line of a facility such as
an airport and would be considered to
be at the ‘‘same facility’’. However,
military operations at a civilian airport
would not be considered to be at the
‘‘same facility’’. Therefore, an airport
could install equipment to supply
power and conditioned air to airplanes
parked at a gate to reduce the use of
diesel generators and auxiliary power
units at an airport terminal. Those
reductions could be considered to be
implemented as part of an airport
expansion project to improve the
terminal and thus would be at the
‘‘same facility.’’
Since the general conformity program
is based on annual emissions, EPA is
proposing to require that the credits be
used in the same year as they are
generated. Such a restriction would
ensure consistency with the other parts
of the general conformity program. This
does not mean that an emission
reduction strategy cannot produce an
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annual stream of credits, but does mean
that the reduction credits cannot be
carried over to another year.
VI. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is a
significant regulatory action because it
may interfere with actions taken or
planned by other Federal agencies.
Accordingly, EPA submitted this action
to the Office of Management and Budget
(OMB) for review under EO 12866 and
any changes made in response to OMB
recommendations have been
documented in the docket for this
action.
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B. Paperwork Reduction Act
This action does not directly impose
an information collection burden under
the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.,
on non-Federal entities. The General
Conformity Regulations require Federal
agencies to determine that their actions
conform to the SIPs or TIPs. However,
depending upon how Federal agencies
implement the regulations, non-Federal
entities seeking funding or approval
from those Federal agencies may be
required to submit information to that
agency.
Although the present proposed
revisions to the regulations do not
establish any specific new information
collection burden, it would establish
alternative voluntary approaches that
may result in a different burden. For
example, the proposed facility-wide
emission budget would allow Federal
agencies or operators of facilities subject
to the General Conformity Requirements
such as commercial service airports to
work with the State, Tribe or local air
quality agency to develop an emission
budget for the facility. The State, Tribe
or local agencies and Federal agencies
or third party facility operators would
incur the burden of developing the
budget. However, those entities would
be relieved of the burden of conducting
and reviewing some, if not all, the
general conformity determinations for
the facility.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
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maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
An agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an Agency to prepare
a regulatory flexibility analysis of any
regulation subject to notice and
comment rulemaking requirements
under the Administrative Procedures
Act or any other statute unless the
Agency certifies the rule will not have
a significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts
of these proposed regulation revisions
on small entities, small entity is defined
as: (1) A small business that is a small
industrial entity as defined in the U.S.
Small Business Administration (SBA)
size standards. (See 13 CFR 121.); (2) A
governmental jurisdiction that is a
government of a city, county, town,
school district or special district with a
population of less than 50,000; and (3)
A small organization that is any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impact of these proposed revisions to
the regulations on small entities, I
certify that this action will not have a
significant economic impact on a
substantial number of small entities.
This proposal will not impose any
requirements on small entities. The
General Conformity Regulations require
Federal agencies to conform to the
appropriate State, Tribal or Federal
implementation plan for attaining clean
air. We continue to be interested in the
potential impacts of the regulations on
small entities and welcome comments
on issues related to related to such
impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
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1419
Federal agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final
regulations with Federal mandates that
may result in expenditures to State,
local, and Tribal governments, in the
aggregate, or to the private sector, of
$100 million or more in any 1 year.
Before promulgating an EPA regulation
for which a written statement is needed,
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and to adopt the least
costly, most cost-effective or least
burdensome alternative that achieves
the objectives of the regulation. The
provisions of section 205 do not apply
when they are inconsistent with
applicable law. Moreover, section 205
allows EPA to adopt an alternative other
than the least costly, most cost-effective
or least burdensome alternative if the
Administrator publishes with the final
regulations an explanation why that
alternative was not adopted. Before EPA
establishes any regulatory requirements
that may significantly or uniquely affect
small governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
The EPA has determined that these
revisions to the regulations do not
contain a Federal mandate that may
result in expenditures of $100 million or
more for State, local, and Tribal
governments, in the aggregate, or the
private sector in any 1 year. Thus, these
proposed regulation revisions are not
subject to the requirements of section
202 and 205 of the UMRA.
The EPA has determined that these
proposed regulation revisions contain
no regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments because these regulations
affect Federal agencies only.
Nonetheless, EPA carried out
consultations with governmental
entities affected by this regulation.
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E. Executive Order 13132—Federalism
Executive Order 13132, entitled
Federalism (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
meaningful and timely input by State
and local officials in the development of
regulatory policies that have Federalism
implications. Policies that have
Federalism implications are defined in
the Executive Order to include
regulations that have substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.
This action does not have Federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. Previously, EPA
determined the costs to States to
implement the General Conformity
Regulations to be less than $100,000 per
year. Thus, Executive Order 13132 does
not apply to these proposed regulation
revisions.
Although section 6 of Executive Order
13132 does not apply to these proposed
regulation revisions, EPA held meetings
with the Federal agencies and
organizations that prepare technical
support for Federal agencies
determinations at which it described the
approaches it was considering and
provided an opportunity for States,
Federal agencies and other stakeholders
to comment on the options being
considered.
In spirit of Executive Order 13121 and
consistent with EPA policy to promote
communications between EPA and State
and local governments, EPA is soliciting
comments on this proposal from State
and local officials.
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F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
Consultation and Coordination with
Indian Tribal Governments (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure meaningful and timely input by
Tribal officials in the development of
regulatory policies that have Tribal
implications.
These proposed regulation revisions
do not have Tribal implications as
specified in Executive Order 13175.
They do not have a substantial direct
effect on one or more Indian Tribes,
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since no Tribe has to demonstrate
conformity for their actions.
Furthermore, except for allowing the
Tribes to comment on draft conformity
determinations, these proposed
regulation revisions do not affect the
relationship or distribution of power
and responsibilities between the Federal
government and Indian Tribes. The
CAA and the Tribal Air Rule establish
the relationship of the Federal
government and Tribes in developing
plans to attain the NAAQS, and these
revisions to the regulations do nothing
to modify that relationship. Because
these proposed regulation revisions do
not have Tribal implications, Executive
Order 13175 does not apply.
Although Executive Order 13175 does
not apply to these regulations, EPA did
consult with some Tribal officials in
developing these proposed regulations
revisions and encouraged Tribal input at
an early stage. The EPA specifically
solicits additional comment on the
proposed revisions to the regulations
from Tribal officials.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
Executive Order 13045: Protection of
Children from Environmental Health
and Safety Risks (62 FR 19885, April 23,
1997) applies to any rule that (1) is
determined to be economically
significant as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency.
These proposed revisions to the
regulations are not subject to Executive
Order 13045 because they are not
economically significant as defined in
Executive Order 12866 and because EPA
does not have reason to believe the
environmental health or safety risk
addressed by the General Conformity
Regulations present a disproportionate
risk to children. The General
Conformity Regulations ensure that
Federal agencies comply with the SIP,
TIP or FIP for attaining and maintaining
the NAAQS. The NAAQS are
promulgated to protect the health and
welfare of sensitive populations,
including children.
The public is invited to submit or
identify peer-reviewed studies and data,
of which the Agency may not be aware,
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that assessed results of early life
exposure to criteria air pollutant
emissions regulated by this rule.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
These revisions to the regulations are
not subject to Executive Order 13211,
Actions That Significantly Affect Energy
Supply, Distribution, or Use, (66 FR
28355, May 22, 2001) because they are
not likely to have a significant adverse
effect on the supply, distribution, or use
of energy. Further, we have concluded
that this rule is not likely to have any
adverse energy effects.
I. National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law 104–113,
section 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards (VCS) in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. The VCS are
technical standards (e.g., materials
specifications, test methods, sampling
procedures, and business practices) that
are developed or adopted by VCS
bodies. The NTTAA directs EPA to
provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable VCS.
These proposed revisions to the
regulations do not involve technical
standards. Therefore, EPA is not
considering the use of any VCS. EPA
welcomes comments on this aspect of
the proposed rulemaking and,
specifically, invites the public to
identify potentially-applicable
voluntary consensus standards and to
explain why such standards should be
used in this regulation.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order (EO) 12898 (59 FR
7629 (Feb. 16, 1994)) establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this
proposed rule will not have
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disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it does not affect the level of
protection provided to human health or
the environment. The proposed
revisions to the regulations would, if
promulgated, revise procedures for
other Federal agencies to follow and
does not relax the control measures on
emission sources. As such, they do not
affect the health or safety of minority or
low income populations. The EPA
encourages other agencies to carefully
consider and address environmental
justice in their implementation of their
evaluations and conformity
determinations.
VII. Statutory Authority
Clean Air Act Section 176(c) (42 U.S.C.
7506)
List of Subjects
40 CFR Part 51
Environmental protection,
Administrative practice and procedures,
Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur dioxide, Volatile
organic compounds.
40 CFR Part 93
Environmental protection,
Administrative practice and procedures,
Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur dioxide, Volatile
organic compounds.
Dated: December 20, 2007.
Stephen L. Johnson,
Administrator.
For the reasons stated in the
preamble, title 40, chapter I of the Code
of Federal Regulations is proposed to be
amended as follows:
PART 51—REQUIREMENTS FOR
PREPARATION, ADOPTION, AND
SUBMITTAL OF IMPLEMENTATION
PLANS
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1. The authority citation for part 51
continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401–
7671q.
Subpart W—[Amended]
2. Remove and reserve § 51.850 and
§§ 51.852 through 51.860.
3. Section 51.851 is revised to read as
follows:
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§ 51.851 State implementation plan (SIP)
or Tribal implementation plan (TIP) revision.
(a) A State or eligible Tribe (a
Federally recognized Tribal government
determined to be eligible to submit a
TIP under 40 CFR 49.6) may submit to
the Environmental Protection Agency
(EPA) a revision to its applicable
implementation plan which contains
criteria and procedures for assessing the
conformity of Federal actions to the
applicable implementation plan,
consistent with this section and 40 CFR
part 93, subpart B.
(b) Until EPA approves the conformity
implementation plan revision permitted
by this section, Federal agencies shall
use the provisions of 40 CFR part 93,
subpart B in addition, to any existing
applicable State or Tribal requirements,
to demonstrate conformity with the
applicable SIP or TIP as required by
section 176(c) of the CAA (42 U.S.C.
7506).
(c) Following EPA approval of the
State or Tribal conformity provisions (or
a portion thereof) in a revision to the
applicable SIP, conformity
determinations shall be governed by the
approved (or approved portion of) State
criteria and procedures. The Federal
conformity regulations contained in 40
CFR part 93, subpart B would apply
only for the portion, if any, of the State’s
or Tribe’s conformity provisions that is
not approved by EPA.
(d) The State or Tribal conformity
implementation plan criteria and
procedures cannot be any less stringent
than the requirements in 40 CFR part
93, subpart B.
(e) A State’s or Tribe’s conformity
provisions may contain criteria and
procedures more stringent than the
requirements described in this subpart
and part 93, subpart B, only if the
State’s or Tribe’s conformity provisions
apply equally to non-Federal as well as
Federal entities.
(f) In its SIP or TIP, the State or Tribe
may identify a list of Federal actions or
type of emissions that it presumes will
conform. The State or Tribe may place
whatever limitations on that list that it
deems necessary. The State or Tribe
must demonstrate that the action will
not interfere with attainment or
maintenance of the standard, meeting
the reasonable further progress
milestones or other requirements of the
Clean Air Act. For example, the State
may identify the emissions from a
certain type and size of construction
activities that it presumes will conform.
Federal agencies can use the list to
determine their ‘‘presumed to conform’’
emissions.
(g) Any previously applicable SIP or
TIP requirements relating to conformity
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1421
remain enforceable until EPA approves
the revision to the SIP or TIP to
specifically remove them.
PART 93—DETERMINING
CONFORMITY OF FEDERAL ACTIONS
TO STATE OR FEDERAL
IMPLEMENTATION PLANS
4. The authority citation for part 93
continues to read as follows:
Authority: 42 U.S.C. 7401–7671q.
Subpart B—[Amended]
5. Section 93.150 is amended by
removing and reserving paragraph (c)
and by adding paragraph (e) to read as
follows:
§ 93.150
Prohibition.
*
*
*
*
*
(e) If an action would result in
emissions originating in more than one
nonattainment or maintenance area, the
conformity must be evaluated for each
area separately.
6. Section 93.151 is revised to read as
follows:
§ 93.151 State implementation plan (SIP)
revision.
The provisions and requirements of
this subpart to demonstrate conformity
required under section 176(c) of the
Clean Air Act (CAA) apply to all Federal
actions in designated nonattainment
and maintenance areas where EPA has
not approved the SIP required under 40
CFR 51.851. When EPA approves a
State’s conformity provisions (or a
portion thereof) in a revision to an
applicable implementation plan, a
conformity evaluation is governed by
the approved (or approved portion of
the) State criteria and procedures. The
Federal conformity regulations
contained in this subpart apply only for
the portions, if any, of the State’s
conformity provisions that are not
approved by EPA. In addition, any
previously applicable implementation
plan conformity requirements remain
enforceable until the EPA approves the
revision to the applicable SIP to
specifically include the revised
requirements or remove requirements.
7. Section 93.152 is amended as
follows:
a. Add the definition for
‘‘Applicability analysis.’’
b. Revise the definition of
‘‘Applicable implementation plan or
applicable SIP.’’
c. Revise the definition for ‘‘Areawide
air quality modeling analysis.’’
d. Add the following definitions in
alphabetical order: ‘‘Confidential
business information,’’ ‘‘Conformity
determinations,’’ ‘‘Conformity
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evaluations,’’ ‘‘Continuing program
responsibility,’’ and ‘‘Continuous
program to implement.’’
e. Revise the definition of ‘‘Direct
emissions.’’
f. Add a new definition for ‘‘Emission
inventory.’’
g. Remove the definition for
‘‘Emissions that a Federal agency has a
continuing program responsibility for.’’
h. Revise the definition of ‘‘EPA.’’
i. Revise the definition of ‘‘Indirect
Emissions.’’
j. Revise the definition of ‘‘Local air
quality modeling analysis.’’
k. Revise the definitions for
‘‘Maintenance area’’ and ‘‘Metropolitan
Planning Organization (MPO).’’
l. Add in alphabetical order a
definition for ‘‘Mitigations measure.’’
m. Revise the definition for ‘‘National
ambient air quality standards’’.
n. In the definitions for ‘‘Precursors of
a criteria pollutant’’ revise paragraphs
(3)(i), (3)(ii) and (3)(iii).
o. Revise the definition for
‘‘Reasonably foreseeable emissions.’’
p. Remove the definition for
‘‘Regionally significant action.’’
q. Add the following definitions:
‘‘Restricted information.’’
r. Add in alphabetical order the
definitions for ‘‘Take or start the Federal
action’’ and ‘‘Tribal implementation
plan (TIP).’’
The additions and revisions read as
follows:
§ 93.152
Definitions.
mstockstill on PROD1PC66 with PROPOSALS2
*
*
*
*
*
Applicability analysis is the process
of determining if your Federal action
must be supported by a conformity
determination.
Applicable implementation plan or
applicable SIP means the portion (or
portions) of the SIP or most recent
revision thereof, which has been
approved under section 110(k) of the
Act, a Federal implementation plan
promulgated under section 110(c) of the
Act, or a plan promulgated or approved
pursuant to section 301 (d) of the Act
(Tribal implementation plan or TIP) and
which implements the relevant
requirements of the Act.
Areawide air quality modeling
analysis means an assessment on a scale
that includes the entire nonattainment
or maintenance area using an air quality
dispersion model or photochemical grid
model to determine the effects of
emissions on air quality, for example, an
assessment using EPA’s community
multilayer air quality (CMAQ) model.
*
*
*
*
*
Confidential business information
(CBI) is information that has been
determined by a Federal agency, in
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accordance with its applicable
regulations, to be a trade secret—or
commercial or financial information
obtained from a person and privileged
or confidential; it is exempt from
required disclosure under the Freedom
of Information Act (5 U.S.C.552(b)(4)).
Conformity determination is the
evaluation made after an applicability
analysis is completed that a Federal
action conforms to the applicable
implementation plan and meets the
requirements of this subpart.
Conformity evaluation is the entire
process from the applicability analysis
through the conformity determination
demonstrating that the Federal action
conforms to the requirements of this
subpart.
Continuing program responsibility
means a Federal agency has
responsibility for emissions caused by:
(1) Actions it takes itself; or
(2) Actions of non-Federal entities
that the Federal agency, in exercising its
normal programs and authorities,
approves, funds, licenses or permits;
provided the agency can impose
conditions on any portion of the action
that could affect the emissions.
Continuous program to implement
means that the Federal agency has
started the action identified in the plan
and does not stop the actions for more
than an 18-month period, unless it can
demonstrate that such a stoppage was
included in the original plan.
*
*
*
*
*
Direct emissions means those
emissions of a criteria pollutant or its
precursors that are caused or initiated
by the Federal action and originate in a
nonattainment or maintenance area and
occur at the same time and place as the
action and are reasonably foreseeable.
*
*
*
*
*
Emission Inventory is a listing of
information on the location, type of
source, type and quantity of pollutant
emitted as well as other parameters of
the emissions.
*
*
*
*
*
EPA means the U.S. Environmental
Protection Agency.
*
*
*
*
*
Indirect emissions means those
emissions of a criteria pollutant or its
precursors. For the purposes of this
definition, even if a federal licensing,
rulemaking or other approving action is
a required initial step for a subsequent
activity that causes emissions, such
initial steps do not mean that a federal
agency can practically control any
resulting emissions:
(1) That are caused or initiated by the
Federal action and originate in the same
nonattainment or maintenance area but
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occur at a different time or place as the
action;
(2) That are reasonably foreseeable;
(3) That the agency can practically
control; and
(4) For which the agency has
continuing program responsibility.
*
*
*
*
*
Local air quality modeling analysis
means an assessment of localized
impacts on a scale smaller than the
entire nonattainment or maintenance
area, including, for example, congested
roadways on a Federal facility, which
uses an air quality dispersion model,
e.g., Industrial Source Complex Model
or Emission and Dispersion Model
System, to determine the effects of
emissions on air quality.
Maintenance area means an area that
was designated as nonattainment and
has been re-designated in 40 CFR part
81 to attainment, meeting the provisions
of section 107(d)(3)(E) of the Act and
has a maintenance plan approved under
section 175A of the Act.
*
*
*
*
*
Metropolitan Planning Organization
(MPO) means the policy board of an
organization created as a result of the
designation process in 23 U.S.C. 134(d).
*
*
*
*
*
Mitigation measure means any
method of reducing emissions of the
pollutant or its precursor taken at the
location of the Federal action and used
to reduce the impact of the emissions of
that pollutant caused by the action.
*
*
*
*
*
National ambient air quality
standards (NAAQS) are those standards
established pursuant to section 109 of
the Act and include standards for
carbon monoxide (CO), lead (Pb),
nitrogen dioxide (NO2), ozone,
particulate matter (PM–10 and PM2.5),
and sulfur dioxide (SO2).
*
*
*
*
*
Precursors of a criteria pollutant are:
*
*
*
*
*
(3) * * *
(i) Sulfur dioxide (SO2) in all PM2.5
nonattainment and maintenance areas,
(ii) Nitrogen oxides in all PM2.5
nonattainment and maintenance areas
unless both the State and EPA
determine that it is not a significant
precursor, and
(iii) Volatile organic compounds
(VOC) and ammonia (NH3) only in PM2.5
nonattainment or maintenance areas
where either the State or EPA
determines that they are significant
precursors.
Reasonably foreseeable emissions are
projected future direct and indirect
emissions that are identified at the time
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the conformity determination is made;
the location of such emissions is known
and the emissions are quantifiable as
described and documented by the
Federal agency based on its own
information and after reviewing any
information presented to the Federal
agency.
*
*
*
*
*
Restricted Information is information
that is privileged or that is otherwise
protected from disclosure pursuant to
applicable statutes, Executive Orders, or
regulations. Such information includes,
but is not limited to: Classified national
security information, protected critical
infrastructure information, sensitive
security information, and proprietary
business information.
Take or start the Federal action means
the date that the Federal agency signs or
approves the permit, license, grant or
contract or otherwise begins the Federal
action that requires a conformity
evaluation under this subpart.
*
*
*
*
*
Tribal implementation plan (TIP)
means a plan to implement the national
ambient air quality standards adopted
by a federally recognized Indian Tribal
government determined to be eligible
under 40 CFR 49.9 and the plan has
been approved by EPA.
8. Section 93.153 is amended as
follows:
a. By revising paragraph (a).
b. By revising paragaraphs (b)
introductory text and (b)(1).
c. By adding paragraph (c)(2)(xxii).
d. By revising paragraphs (d)(1) and
(d)(2).
e. By revising paragraph (e)(2).
f. By adding paragraph (e)(3).
g. By revising paragraph (f).
h. By revising paragraph (g)
introductory text.
i. By Adding paragraph (g)(3).
j. By revising paragraphs (h)
introductory text, (h)(1), (h)(2), and
(h)(4).
k. By revising paragraphs (i), (j), and
(k).
mstockstill on PROD1PC66 with PROPOSALS2
§ 93.153
Applicability.
(a) Conformity determinations for
Federal actions related to transportation
plans, programs and projects developed,
funded or approved under title 23
U.S.C. or 49 U.S.C. Chapter 53 must
meet the procedures and criteria of 40
CFR part 51, subpart T, in lieu of the
procedures set forth in this subpart.
(b) For Federal actions not covered by
paragraph (a) of this section, a
conformity determination is required for
each criteria pollutant or precursor
where the total of direct and indirect
emissions in a nonattainment or
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maintenance area caused by a Federal
action would equal or exceed any of the
rates in paragraphs (b)(1) or (2) of this
section.
(1) For purposes of paragraph (b) of
this section, the following rates apply in
nonattainment areas (NAA’s):
Tons/year
Ozone (VOC’s or NOX):
Serious NAA’s ...................
Severe NAA’s ....................
Extreme NAA’s ..................
Other ozone NAA’s outside
an ozone transport region ................................
Other ozone NAA’s inside
an ozone transport region:
VOC ............................
NOX ............................
Carbon monoxide: All NAA’s ....
SO2 or NO2: All NAA’s .............
PM–10:
Moderate NAA’s ................
Serious NAA’s ...................
PM2.5:
Direct emissions ................
SO2 ....................................
NOX (unless determined
not to be significant precursors) ..........................
VOC or ammonia (if determined to be significant
precursors) .....................
Pb: All NAA’s ............................
*
50
25
10
100
50
100
100
100
100
70
100
100
100
100
25
*
*
*
*
(c) * * *
(2) * * *
(xxii) Air traffic control activities and
adopting approach, departure and
enroute procedures for aircraft
operations above 3,000 feet above
ground level.
*
*
*
*
*
(d) * * *
(1) The portion of an action that
includes major or minor new or
modified stationary sources that require
a permit under the new source review
(NSR) program (section 173 of the Act)
or the prevention of significant
deterioration program (title I, part C of
the Act).
(2) Actions in response to
emergencies which are typically
commenced on the order of hours or
days after the emergency and, if
applicable, which meet the
requirements of paragraph (e) of this
section.
*
*
*
*
*
(e) * * *
(2) For actions which are to be taken
after those actions covered by paragraph
(e)(1) of this section, the Federal agency
makes a new determination as provided
in paragraph (e)(1) of this section and:
(i) Provides a draft copy of the written
determinations required to affected EPA
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1423
Regional office(s), the affected State(s)
and/or air pollution control agencies,
and any Federal recognized Indian
Tribal government in the nonattainment
or maintenance area. Those
organizations must be allowed 15 days
from the beginning of the extension
period to comment on the draft
determination, and
(ii) Within 30 days after making the
determination, publish a notice of the
determination by placing a prominent
advertisement in a daily newspaper of
general circulation in the area affected
by the action.
(3) If additional actions are necessary
in response to an emergency or disaster
under paragraph (d)(2) of this section
beyond the specified time period in
paragraph (e)(2) of this section, a
Federal agency can make a new written
determination as described in (e)(2) of
this section for as many 6-month
periods as needed, but in no case shall
this exemption extend beyond 3 6month periods except where an agency:
(i) provide information to EPA and
the State stating that the conditions that
gave rise to the emergency exemption
continue to exist and how such
conditions effectively prevent the
agency from conducting a conformity
evaluation.
(ii) [Reserved]
(f) Notwithstanding other
requirements of this subpart, actions
specified by individual Federal agencies
that have met the criteria set forth in
either paragraphs (g)(1) (g)(2) or (g)(3) of
this section and the procedures set forth
in paragraph (h) of this section are
presumed to conform, except as
provided in paragraph (j) of this section.
Actions specified by individual Federal
agencies as presumed to conform may
not be used in combination with one
another when the total direct and
indirect emissions from the combination
of actions would equal or exceed any of
the rates specified in paragraphs (b)(1)
or (2) of this section.
(g) The Federal agency must meet the
criteria for establishing activities that
are presumed to conform by fulfilling
the requirements set forth in either
paragraphs (g)(1), (g)(2), or (g)(3) of this
section:
*
*
*
*
*
(3) The Federal agency must clearly
demonstrate that the emissions from the
type or category of actions and the
amount of emissions from the action are
included in the applicable SIP and the
State or local air quality agencies
responsible for the SIP(s) provide
written concurrence that the emissions
from the actions along with all other
expected emissions in the area will not
exceed the emission budget in the SIP.
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(h) In addition to meeting the criteria
for establishing exemptions set forth in
paragraphs (g)(1) (g)(2) or (g)(3) of this
section, the following procedures must
also be complied with to presume that
activities will conform:
(1) The Federal agency must identify
through publication in the Federal
Register its list of proposed activities
that are presumed to conform and the
basis for the presumptions. The notice
must clearly identify the type and size
of the action that would be presumed to
conform and provide criteria for
determining if the type and size action
qualifies it for the presumption;
(2) The Federal agency must notify
the appropriate EPA Regional Office(s),
State and local air quality agencies and,
where applicable, the agency designated
under section 174 of the Act and the
MPO and provide at least 30 days for
the public to comment on the list of
proposed activities presumed to
conform. If the presumed to conform
action has regional or national
application (e.g., the action will cause
emission increases in excess of the de
minimis levels identified in
paragraph(b) of this section in more
than one of EPA’s Regions), the Federal
agency, as an alternative to sending it to
EPA Regional Offices, can send the draft
conformity determination to U.S. EPA,
Office of Air Quality Planning and
Standards;
*
*
*
*
*
(4) The Federal agency must publish
the final list of such activities in the
Federal Register.
(i) Emissions from the following
actions are presumed to conform:
(1) Actions at installations with
facility-wide emission budgets meeting
the requirements in § 93.161 provided
that the State has included the emission
budget in the EPA approved SIP and the
emissions from the action along with all
other emissions from the installation
will not exceed the facility-wide
emission budget.
Alternative 1 for paragraph (i)(2):
(2) Prescribed fires conducted in
accordance with a State certified smoke
management program (SMP) which
meets the requirements of EPA’s Air
Quality Policy on Wildland and
Prescribed Fires.
Alternative 2 for paragraph (i)(2):
(2) Prescribed fires conducted in
accordance with a State certified smoke
management program (SMP) which
meets the requirements of EPA’s Air
Quality Policy on Wildland and
Prescribed Fires or, in the absence of a
State certified SMP, where the Federal
agency has obtained written assurance
from the State prior to the burn that the
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planned burn employs State approved
basic smoke management practices.
(3) Emissions for actions that the State
identifies in the EPA approved SIP as
presumed to conform.
(j) Even though an action would
otherwise be presumed to conform
under paragraph (f) or (i) of this section,
an action shall not be presumed to
conform and the requirements of
§ 93.150, § 93.151, §§ 93.154 through
93.160 and §§ 93.162 through 93.164
shall apply to the action if EPA or a
third party shows that the action would:
(i) Cause or contribute to any new
violation of any standard in any area;
(ii) Interfere with provisions in the
applicable SIP for maintenance of any
standard;
(iii) Increase the frequency or severity
of any existing violation of any standard
in any area; or
(iv) Delay timely attainment of any
standard or any required interim
emissions reductions or other
milestones in any area including, where
applicable, emission levels specified in
the applicable SIP for purposes of:
(A) A demonstration of reasonable
further progress;
(B) A demonstration of attainment; or
(C) A maintenance plan.
(k) The provisions of this subpart
shall apply in all nonattainment and
maintenance areas except conformity
requirements for newly designated
nonattainment areas are not applicable
until 1 year after the effective date of the
final nonattainment designation for each
NAAQS and pollutant in accordance
with section 176(c)(6) of the Act.
9. Section 93.154 is revised to read as
follows:
§ 93.154 Federal agency conformity
responsibility.
Any department, agency, or
instrumentality of the Federal
government taking an action subject to
this subpart must make its own
conformity determination consistent
with the requirements of this subpart. In
making its conformity determination, a
Federal agency must follow the
requirements in §§ 93.155 through
93.160 and §§ 93.162 through 93.165
and must consider comments from any
interested parties. Where multiple
Federal agencies have jurisdiction for
various aspects of a project, a Federal
agency may choose to adopt the analysis
of another Federal agency or develop its
own analysis in order to make its
conformity determination.
10. Section 93.155 is revised to read
as follows:
§ 93.155
Reporting requirements.
(a) A Federal agency making a
conformity determination under
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§§ 93.154 through 93.160 and §§ 93.162
through 93.164 must provide to the
appropriate EPA Regional Office(s),
State and local air quality agencies, any
federally-recognized Indian Tribal
government in the nonattainment or
maintenance area, and, where
applicable, affected Federal land
managers, the agency designated under
section 174 of the Act and the MPO a
30-day notice which describes the
proposed action and the Federal
agency’s draft conformity determination
on the action. If the action has multiregional or national impacts (e.g., the
action will cause emission increases in
excess of the de minimis levels
identified in § 93.153(b) in two or more
of EPA’s Regions), the Federal agency,
as an alternative to sending it to EPA
Regional Offices, can provide the notice
to EPA’s Office of Air Quality Planning
and Standards.
(b) A Federal agency must notify the
appropriate EPA Regional Office(s),
State and local air quality agencies, any
federally-recognized Indian Tribal
government in the nonattainment or
maintenance area, and, where
applicable, affected Federal land
managers, the agency designated under
section 174 of the Clean Air Act and the
MPO within 30 days after making a final
conformity determination under this
subpart.
(c) The draft and final conformity
determination shall exclude any
restricted information or confidential
business information. The disclosure of
restricted information and confidential
business information shall be controlled
by the applicable laws, regulations,
security manuals, or executive orders
concerning the use, access, and release
of such materials. Subject to applicable
procedures to protect restricted
information from public disclosure, any
information or materials excluded from
the draft or final conformity
determination or supporting materials
may be made available in a restricted
information annex to the determination
for review by Federal and State
representatives who have received
appropriate clearances to review the
information.
11. Section 93.156 is revised to read
as follows:
§ 93.156
Public participation.
(a) Upon request by any person
regarding a specific Federal action, a
Federal agency must make available,
subject to the limitation in paragraph(e)
of this section, for review its draft
conformity determination under
§ 93.154 with supporting materials
which describe the analytical methods
and conclusions relied upon in making
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the applicability analysis and draft
conformity determination.
(b) A Federal agency must make
public its draft conformity
determination under § 93.154 by placing
a notice by prominent advertisement in
a daily newspaper of general circulation
in the area affected by the action and by
providing 30 days for written public
comment prior to taking any formal
action on the draft determination. This
comment period may be concurrent
with any other public involvement,
such as occurs in the National
Environmental Policy Act (NEPA)
process. If the action has multi-regional
or national impacts (e.g., the action will
cause emission increases in excess of
the de minimis levels identified in
§ 93.153(b) in two or more of EPA’s
Regions), the Federal agency, as an
alternative to publishing separate
notices, can publish a notice in the
Federal Register.
(c) A Federal agency must document
its response to all the comments
received on its draft conformity
determination under § 93.154 and make
the comments and responses available,
subject to the limitation in paragraph (e)
of this section, upon request by any
person regarding a specific Federal
action, within 30 days of the final
conformity determination.
(d) A Federal agency must make
public its final conformity
determination under § 93.154 for a
Federal action by placing a notice by
prominent advertisement in a daily
newspaper of general circulation in the
area affected by the action within 30
days of the final conformity
determination. If the action would have
multi-regional or national impacts the
Federal agency, as an alternative, can
publish the notice in the Federal
Register.
(e) The draft and final conformity
determination shall exclude any
restricted information or confidential
business information. The disclosure of
restricted information and confidential
business information shall be controlled
by the applicable laws, regulations or
executive orders concerning the release
of such materials.
12. Section 93.157 is revised to read
as follows:
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§ 93.157
Reevaluation of conformity.
(a) Once a conformity evaluation is
completed by a Federal agency, that
determination is not required to be reevaluated if the agency has: maintained
a continuous program to implement the
action; the determination has not lapsed
as specified in paragraph (a) of this
section; or any modification to the
action does not result in an increase in
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emissions above the levels specified in
paragraph (d) of this section. If a
conformity determination is not
required for the action at the time NEPA
analysis is completed, the date of the
finding of no significant impact (FONSI)
for an Environmental Assessment, a
record of decision (ROD) for an
Environmental Impact Statement, or a
categorical exclusion determination can
be used as a substitute date for the
conformity determination date.
(b) The conformity status of a Federal
action automatically lapses 5 years from
the date a final conformity
determination is reported under
§ 93.155, unless the Federal action has
been completed or a continuous
program to implement the Federal
action has been commenced.
(c) Ongoing Federal activities at a
given site showing continuous progress
are not new actions and do not require
periodic re-determinations so long as
such activities are within the scope of
the final conformity determination
reported under § 93.155 of the NEPA
analysis.
(d) If the Federal agency determines
through the applicability analysis that a
conformity determination was not
necessary because the emissions for the
action were below the limits in
§ 93.153(b) and changes to the action
would result in the total emissions from
the action being above the limits in
§ 93.153(b), then the Federal agency
must make a conformity determination.
13. Section 93.158 is amended as
follows:
a. Revising paragraphs (a)(1), (a)(2),
(a)(3) introductory text and (a)(4)
introductory text;
b. Revising paragraph (a)(5)
introductory text;
c. Revising paragraphs (a)(5)(i)
introductory text, and (a)(5)(i)(C), and
d. Adding (a)(5)(i)(D).
e. Revising paragraphs (a)(5)(iii),
(a)(5)(iv) introductory text;
(a)(5)(iv)(A)(1 ), (a)(5)(iv)(A)(2) and
paragraph (a)(5)(iv)(B).
§ 93.158 Criteria for determining
conformity of general Federal actions.
(a) * * *
(1) For any criteria pollutant or
precursor, the total of direct and
indirect emissions from the action are
specifically identified and accounted for
in the applicable SIP’s attainment or
maintenance demonstration or
reasonable further progress milestone or
in a facility-wide emission budget
included in a SIP accordance with
§ 93.161 of this rule;
(2) For precursors of ozone, nitrogen
dioxide, or PM, the total of direct and
indirect emissions from the action are
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1425
fully offset within the same
nonattainment or maintenance area (or
nearby area of equal or higher
classification provided the emissions
from that area contribute to the
violations, or have contributed to
violations in the past, in the area with
the Federal action) through a revision to
the applicable SIP or a similarly
enforceable measure that effects
emissions reductions so that there is no
net increase in emissions of that
pollutant;
(3) For any directly-emitted criteria
pollutant, the total of direct and indirect
emissions from the action meets the
requirements:
*
*
*
*
*
(4) For CO or directly emitted PM—
*
*
*
*
*
(5) For ozone or nitrogen dioxide, and
for purposes of paragraphs (a)(3)(ii) and
(a)(4)(ii) of this section, each portion of
the action or the action as a whole meets
any of the following requirements:
(i) Where EPA has approved a
revision to the applicable
implementation plan after the area was
designated as nonattainment and the
State makes a determination as provided
in paragraph (a)(5)(i)(A) of this section
or where the State makes a commitment
as provided in paragraph (a)(5)(i)(B) of
this section:
*
*
*
*
*
(C) Where a Federal agency made a
conformity determination based on a
State commitment under paragraph
(a)(5)(i)(B) of this section and the State
has submitted a SIP to EPA covering the
time period during which the emissions
will occur or is scheduled to submit
such a SIP within 18 months of the
conformity determination, the State
commitment is automatically deemed a
call for a SIP revision by EPA under
section 110(k)(5) of the Act, effective on
the date of the Federal conformity
determination and requiring response
within 18 months or any shorter time
within which the State commits to
revise the applicable SIP;
(D) Where a Federal agency made a
conformity determination based on a
State commitment under paragraph
(a)(5)(i)(B) of this section and the State
has not submitted a SIP covering the
time period of the emissions will occur
or is not scheduled to submit such a SIP
within 18 months of the conformity
determination, the State must, within 18
months, submit to EPA a revision to the
existing SIP committing to include the
emissions in the future SIP revision.
*
*
*
*
*
(iii) The action (or portion thereof)
fully offsets its emissions within the
same nonattainment or maintenance
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area (or nearby area of equal or higher
classification provided the emissions
from that area contribute to the
violations, or have contributed to
violation in the past, in the area with
the Federal action) through a revision to
the applicable SIP or an equally
enforceable measure that effects
emissions reductions equal to or greater
than the total of direct and indirect
emissions from the action so that there
is no net increase in emissions of that
pollutant;
(iv) Where EPA has not approved a
revision to the relevant SIP since the
area was designated or reclassified, the
total of direct and indirect emissions
from the action for the future years
(described in § 93.159(d)) do not
increase emissions with respect to the
baseline emissions:
(A) * * *
(1 ) The most current calendar year
with a complete emission inventory
available before an area is designated
unless EPA sets another year, or;
(2) The emission budget in the
applicable SIP;
*
*
*
*
*
(B) The baseline emissions are the
total of direct and indirect emissions
calculated for the future years
(described in § 93.159(d)) using the
historic activity levels (described in
paragraph (a)(5)(iv)(A) of this section)
and appropriate emission factors for the
future years; or
*
*
*
*
*
14. Section 93.159 is amended by:
a. Revising paragraphs (b)
introductory text and (b)(1)(ii);
b. Revising paragraphs (b)(2) and (c)
introductory text; and
c. Removing footnotes 1 and 2,
d. Revising paragraph (d).
The revisions and additions read as
follows:
§ 93.159 Procedures for conformity
determinations of general Federal actions.
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*
*
*
*
*
(b) The analyses required under this
subpart must be based on the latest and
most accurate emission estimation
techniques available as described below,
unless such techniques are
inappropriate. If such techniques are
inappropriate, the Federal agency may
obtain written approval from the
appropriate EPA Regional Administrator
for a modification or substitution, of
another technique on a case-by-case
basis or, where appropriate, on a generic
basis for a specific Federal agency
program.
(1) * * *
(ii) A grace period of 3 months shall
apply during which the motor vehicle
emissions model previously specified
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by EPA as the most current version may
be used unless EPA announces a longer
grace period in the Federal Register.
Conformity analyses for which the
analysis was begun during the grace
period or no more than 3 years before
the Federal Register notice of
availability of the latest emission model
may continue to use the previous
version of the model specified by EPA.
(2) For non-motor vehicle sources,
including stationary and area source
emissions, the latest emission factors
specified by EPA in the ‘‘Compilation of
Air Pollutant Emission Factors’’ (AP–42,
https://www.epa.gov/ttn/chiefs/efpac)
must be used for the conformity analysis
unless more accurate emission data are
available, such as actual stack test data
from stationary sources which are part
of the conformity analysis.
(c) The air quality modeling analyses
required under this subpart must be
based on the applicable air quality
models, data bases, and other
requirements specified in the most
recent version of the ‘‘Guideline on Air
Quality Models.’’ (Appendix W to 40
CFR part 51).
*
*
*
*
*
(d) The analyses required under this
subpart must be based on the total of
direct and indirect emissions from the
action and must reflect emission
scenarios that are expected to occur
under each of the following cases:
(1) The attainment year specified in
the SIP, or if the SIP does not specify
an attainment year, the latest attainment
year possible under the Act, or
(2) The last year for which emissions
are projected in the maintenance plan;
(3) The year during which the total of
direct and indirect emissions from the
action is expected to be the greatest on
an annual basis; and
(4) Any year for which the applicable
SIP specifies an emissions budget.
15. Section 93.160 is amended as
follows:
a. Revising paragraph (e);
b. Revising paragraph (f); and
c. Revising paragraph (g).
§ 93.160
Mitigation of air quality impacts.
*
*
*
*
*
(e) When necessary because of
changed circumstances, mitigation
measures may be modified so long as
the new mitigation measures continue
to support the conformity
determination. Any proposed change in
the mitigation measures is subject to the
reporting requirements of § 93.156 and
the public participation requirements of
§ 93.157.
(f) Written commitments to mitigation
measures must be obtained prior to a
positive conformity determination and
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that such commitments must be
fulfilled.
(g) After a State revises its SIP to
adopt its general conformity regulations
and EPA approves that SIP revision, any
agreements, including mitigation
measures, necessary for a conformity
determination will be both State and
Federally enforceable. Enforceability
through the applicable SIP will apply to
all persons who agree to mitigate direct
and indirect emissions associated with
a Federal action for a conformity
determination.
16. Subpart B is further amended by
adding §§ 93.161 through 93.165 to read
as follows:
§ 93.161 Conformity evaluation for Federal
installations with facility-wide emission
budgets.
(a) The State or local agency
responsible for implementing and
enforcing the SIP can in cooperation
with Federal agencies or third parties
authorized by the agency that operate
installations subject to Federal oversight
(e.g., a military base or a commercial
service airport) develop and adopt a
facility-wide emission budget to be used
for demonstrating conformity under
§ 93.158(a)(1). The facility-wide budget
must meet the following criteria:
(1) Be for a set time period;
(2) Cover the pollutants or precursors
of the pollutants for which the area is
designated nonattainment or
maintenance;
(3) Include specific quantities allowed
to be emitted on an annual or seasonal
basis;
(4) The emissions from the facility
along with all other emissions in the
area will not exceed the emission
budget for the area;
(5) Include specific measures to
ensure compliance with the budget such
as periodic reporting requirements or
compliance demonstration when the
Federal agency is taking an action that
would otherwise require a conformity
determination;
(6) Be submitted to EPA as a SIP
revision;
(7) The SIP revision must be approved
by EPA.
(b) The facility-wide budget
developed and adopted in accordance
with paragraph (a) of this section can be
revised by following the requirements in
paragraph (a) of this section.
(c) Total direct and indirect emissions
from Federal actions in conjunction
with all other emissions subject to
general conformity from the facility that
do not exceed the facility budget
adopted pursuant to paragraph (a) of
this section are presumed to conform to
the SIP and do not require a conformity
analysis.
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(d) If the total direct and indirect
emissions from the Federal actions in
conjunction with the other emissions
subject to general conformity from the
facility exceed the budget adopted
pursuant to paragraph (a) of this section,
the action must be evaluated for
conformity. A Federal agency can use
the compliance with the facility-wide
emissions budget as part of the
demonstration of conformity, i.e., the
agency would have to mitigate or offset
the emissions that exceed the emission
budget.
(e) If the SIP for the area includes a
category for construction emissions, the
negotiated budget can exempt
construction emissions from further
conformity analysis.
§ 93.162 Emissions beyond the time
period covered by the SIP.
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If a Federal action would result in
total direct and indirect emissions
which would be emitted beyond the
time period covered by the SIP, the
Federal agency can:
(a) Demonstrate conformity with the
last emission budget in the SIP; or
(b) Request the State to adopt an
emissions budget for the action for
inclusion in the SIP. The State must
submit a SIP revision to EPA within 18
months either including the emissions
in the existing SIP or establishing an
enforceable commitment to include the
emissions in future SIP revisions based
on the latest planning assumptions at
the time of the SIP revision. No such
commitment by a State shall restrict a
State’s ability require RACT, RACM or
any other control measures within the
State’s authority to ensure timely
attainment of the NAAQS.
(i) Cause or contribute to a new
violation of any air quality standard, (ii)
Increase the frequency or severity of any
existing violation of any air quality
standard, or
(iii) Delay the timely attainment of
any standard or any interim emissions
reductions or other milestones in any
area.
(c) The approval by the State of an
offset or mitigation measure with
emissions reductions in another year,
does not relieve the State of any
obligation to meet any SIP or Clean Air
Act milestone or deadline.
§ 93.164 Inter-precursor mitigation
measures and offsets.
Federal agencies must reduce the
same type pollutant as being increased
by the Federal action except the State
may approve offsets or mitigation
measures of different precursors of the
same criteria pollutant, if such trades
are allowed by a State in a SIP approved
new source review regulation, is
technically justified, and has a
demonstrated environmental benefit.
§ 93.165 Early emission reduction credit
programs at Federal facilities and
installation subject to Federal oversight.
(a) Federal facilities and installation
subject to Federal oversight can, with
the approval of the State agency
responsible for the SIP in that area,
create an early emissions reductions
credit program. The Federal agency can
create the emission reduction credits in
accordance with the requirements in
paragraph (b) of this section and can
used them in accordance with
paragraph (c) of this section.
(b) Creation of emission reduction
credits. (1) Emissions reductions must
§ 93.163 Timing of offsets and mitigation
be quantifiable through the use of
measures.
standard emission factors or
(a) The emissions reductions from an
measurement techniques. If nonoffset or mitigation measure used to
standard factors or techniques to
demonstrate conformity must occur
quantify the emissions reductions are
during the same calendar year as the
used, the Federal agency must receive
emission increases from the action
approval from the State agency
except as provided in paragraph (b) of
responsible for the implementation of
this section.
(b) The State may approve reductions the SIP and from EPA’s Regional Office.
The emission reduction credits do not
in other years provided:
(1) The reductions are greater than the have to be quantified before the
reduction strategy is implemented, but
emission increases by the following
must be quantified before the credits are
ratios:
(i) Extreme nonattainment areas ...
1.5:1 used.
(2) The emission reduction methods
(ii) Severe nonattainment areas ....
1.3:1
(iii) Serious nonattainment areas
1.2:1 must be consistent with the applicable
(iv) Moderate nonattainment areas
1.15:1 SIP attainment and reasonable further
(v) All other areas ..........................
1.1:1 progress demonstrations.
(3) The emissions reductions can not
(2) The time period for completing the
be required by or credited to other
emissions reductions must not exceed
applicable SIP provisions.
twice the period of the emissions.
(4) Both the State and Federal air
(3) The offset or mitigation measure
quality agencies must be able to take
with emissions reductions in another
legal action to ensure continued
year will not:
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1427
implementation of the emission
reduction strategy. In addition, private
citizens must also be able to initiate
action to ensure compliance with the
control requirement.
(5) The emissions reductions must be
permanent or the timeframe for the
reductions must be specified.
(6) The Federal agency must
document the emissions reductions and
provide a copy of the document to the
State air quality agency and the EPA
regional office for review. The
documentation must include a detailed
description of the strategy and a
discussion of how it meets the
requirements of paragraphs (b)(1)
through (5) of this section.
(c) Use of emission reduction credits.
The emission reduction credits created
in accordance with paragraph (b) of this
section can be used, subject to the
following limitations, to reduce the
emissions increase from a Federal action
at the facility for the conformity
evaluation.
(1) If the technique used to create the
emission reduction is implemented at
the same facility as the Federal action
and could have occurred in conjunction
with the Federal action, then the credits
can be used to reduce the total direct
and indirect emissions used to
determine the applicability of the
regulation as required in § 93.153 and as
offsets or mitigation measures required
by § 93.158.
(2) If the technique used to create the
emission reduction is not implemented
at the same facility as the Federal action
or could not have occurred in
conjunction with the Federal action,
then the credits cannot be used to
reduce the total direct and indirect
emissions used to determine the
applicability of the regulation as
required in § 93.153, but can be used to
offset or mitigate the emissions as
required by § 93.158.
(3) Emissions reductions credits must
be used in the same year in which they
are generated.
(4) Once the emission reduction
credits are used, they cannot be used as
credits for another conformity
evaluation. However, unused credits
from a strategy used for one conformity
evaluation can be used for another
conformity evaluation as long as the
reduction credits are not double
counted. For example, emission
reduction credits from a control
measure could be used in one year as
offset for construction emission
increases and in another year to mitigate
operational emission increases.
(5) Federal agencies must notify the
State air quality agency and EPA
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Regional Office when the emission
reduction credits are being used.
[FR Doc. E7–25241 Filed 1–7–08; 8:45 am]
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Agencies
[Federal Register Volume 73, Number 5 (Tuesday, January 8, 2008)]
[Proposed Rules]
[Pages 1402-1428]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-25241]
[[Page 1401]]
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Part II
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Parts 51 and 93
Revisions to the General Conformity Regulations; Proposed Rule
Federal Register / Vol. 73, No. 5 / Tuesday, January 8, 2008 /
Proposed Rules
[[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:
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
https://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 https://
www.regulations.gov or e-mail. The https://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 https://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 https://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 https://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 https://
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
https://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
https://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 https://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.
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\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. https://
www.faa.gov/regulations_policies/policy_guidance/envir_policy/.
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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\
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\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).
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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 stating that those emissions must be reasonably
foreseeable. Therefore, EPA is proposing to revise the term
``reasonably foreseeable'' to include ``direct emissions.''
Regionally significant action. As discussed in the revisions to
93.153(i) below, EPA is proposing to delete the regionally significant
requirement. Therefore, if EPA's proposed revision is promulgated,
there is no need to retain this definition.
Restricted information. As discussed in Sec. Sec. 93.155 and 156
on reporting and public participation, EPA, at the request of the
several Federal agencies is proposing to specify how restricted
information used in the conformity determination is to be handled. To
support those revisions, EPA is also proposing to add a definition of
restricted information. The definition is based upon applicable
Executive Orders, regulations and statutes pertaining to materials and
other information where disclosure is restricted by law.
Take or start the Federal action. The EPA is proposing to add a new
term to define the date when an action occurs or starts. This date is
important in determining what, if any, conformity requirements apply
when an area is designated or re-designated as nonattainment. The EPA
is proposing to define this term as the date the decision-maker signs a
document such as a grant, permit, license or approval. Otherwise, EPA
is proposing to define the term as the date the Federal agency
physically starts the action that requires the conformity evaluation.
Tribal implementation plan (TIP). The EPA is proposing to add a
definition for Tribal implementation plan to mean plans adopted and
submitted by Federally recognized Indian Tribes. Under the Tribal
Authority Rule (40 CFR part 49), certain Tribal bodies can adopt and
submit implementation plans to attain and maintain the NAAQS set by
EPA, but the Tribal bodies do not set their own ambient air standards.
The CAA allows tribes to obtain the authority to run CAA programs for
the regulation of ``air resources within the exterior boundaries of the
reservation or other areas within the tribe's jurisdiction'' [CAA
Section 301(d)(2)(B)]. Tribes have authority over all air resources
within the exterior boundaries of their reservation (including non-
Indian owned fee lands). For off-reservation areas, tribes must
demonstrate the basis for jurisdiction. In some cases there may be a
SIP and a TIP covering different portions of the same nonattainment
area. In such cases emissions from an action that originate in a
nonattainment or maintenance area that has both Tribal lands with a TIP
and State land requiring a SIP, the emissions would need to be
accounted for separately and the applicability and conformity analysis
would need to be done separately for the TIP and the SIP. Therefore,
EPA is proposing to add this definition to the regulation.
E. 40 CFR 93.153--Applicability Analysis
The EPA is seeking to clarify the process of determining if the
General Conformity requirements are applicable to a Federal action.
Although EPA is providing clarification on actions that are exempt or
presumed to conform in this regulation, nothing in this regulation is
intended to interfere with any exemptions established by law.
1. The EPA is proposing to revise the title of the section to
include the word ``analysis.'' The EPA believes that adding the word
would make the title more descriptive of the section's content.
2. The EPA is proposing to make a minor wording change to paragraph
(a) and (b) of Sec. 93.153. Paragraph (a) is revised to clarify the
proper citations under which the Transportation Conformity program is
authorized. In paragraph (b) EP