Revisions to the General Conformity Regulations, 17254-17279 [2010-7047]
Download as PDF
17254
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 51 and 93
[EPA–HQ–OAR–2006–0669; FRL–9131–7]
RIN 2060–AH93
Revisions to the General Conformity
Regulations
erowe on DSK5CLS3C1PROD with RULES3
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The EPA is revising its
regulations relating to the Clean Air Act
(CAA) requirement that Federal actions
conform to the appropriate State, tribal
or Federal implementation plan (SIP,
TIP, or FIP) for attaining clean air
(‘‘General Conformity’’). EPA and other
Federal agencies have gained experience
with the implementation of the existing
regulations, which were promulgated in
1993 (and underwent minor revisions in
2006), and have identified several issues
with their implementation. In addition,
in 2004, EPA issued regulations to
implement the revised ozone national
ambient air quality standards (NAAQS)
and in 2007 issued regulations to
implement the new fine particulate
matter standard. State and other air
quality agencies are in the process of
developing revised plans to attain the
new standards and the revisions to the
General Conformity Regulations will be
helpful to the State, Tribe, and local
agencies in developing, and Federal
agencies in commenting, on the
proposed SIPs revisions. This rule
revision will also facilitate Federal
agency compliance with conforming its
activities to the SIPs thereby preventing
violations of the NAAQS. This rule
revision provides for a timely and
effective process for Federal agencies
and States and Tribes to ensure Federal
activities are incorporated in these 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 NAAQS or interfere with the
purpose of a SIP, TIP or FIP to attain or
maintain the NAAQS.
DATES: This action is effective on July 6,
2010.
ADDRESSES: EPA has established a
docket for this rulemaking under Docket
ID No. EPA–HQ–OAR–2006–0669. All
documents in the docket are listed in
the https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in https://
www.regulations.gov or in hard copy at
the EPA Docket Center EPA/DC, EPA
West, Room 3334, 1301 Constitution
Avenue, Northwest, 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 EPA
Docket Center is (202) 566–1742.
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
or Mr. H. Lynn Dail, 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–
2363 or by e-mail at dail.lynn@epa.gov.
SUPPLEMENTARY INFORMATION:
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 seaports.
B. How is this preamble organized?
The information presented in this
preamble is organized as follows:
Outline
I. General Information
A. Does this action apply to me?
B. How is this preamble organized?
C. When did EPA propose these revisions
to the General Conformity Regulations?
D. Where can I obtain additional
information?
II. Background
A. What is General Conformity and how
does it affect air quality?
B. Why is EPA revising these regulations
at this time?
III. How are the existing regulations
implemented?
A. Applicability Analysis
B. Conformity Determination
C. Review Process
IV. Comments Submitted on the Proposed
Rule
V. Summary of the Final Revisions and
Clarifications of the General Conformity
Regulations
A. Overview of Revisions to the General
Conformity Regulations
B. What Innovative and Flexible
Approaches Are Being Finalized?
PO 00000
Frm 00002
Fmt 4701
Sfmt 4700
C. What Burden Reduction Measures Are
Being Finalized?
D. What Revisions Provide Tools and
Guidance for Transitioning to New or
Revised NAAQS?
E. What Revisions Are Being Finalized at
the Request of Other Agencies?
F. What Are Some of the Clarifications to
the Existing Regulations That Are Being
Finalized?
VI. Detailed Discussion of the Final Revisions
to and Clarifications of the General
Conformity Regulations
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—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. 40 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 Tribal Implementation Plan (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
VII. 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
K. Congressional Review Act
L. Judicial Review
VIII. Statutory Authority
E:\FR\FM\05APR3.SGM
05APR3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
B. Why is EPA revising these regulations
at this time?
C. When did EPA propose these
revisions to the General Conformity
Regulations?
The EPA proposed the revised
General Conformity Regulations in the
Federal Register on January 8, 2008 at
73 FR 1402.
D. Where can I obtain additional
information?
In addition to being available in the
docket, an electronic copy of this final
rule is also 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.
II. Background
erowe on DSK5CLS3C1PROD with RULES3
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
NAAQS or interfering with the purpose
of a SIP, TIP, or FIP.
In the CAA, Congress recognized that
actions taken by Federal agencies could
affect State, Tribal, and local agencies’
ability to attain and maintain the
NAAQS. In section 176(c) (42 U.S.C.
7506) of the CAA, Congress established
requirements 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 to 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 approval actions, EPA
published two sets of regulations to
implement section 176(c). The
Transportation Conformity Regulations,
first published on November 24, 1993
(58 FR 62188) and revised on July 1,
2004 at 69 FR 40004, May 6, 2005 at 70
FR 24280 and March 10, 2006 at 71 FR
12468, and January 24, 2008 at 73 FR
4420, address Federal actions related to
highway and mass transit funding and
approval actions. The General
Conformity Regulations, published on
November 30, 1993 (58 FR 63214), cover
all other Federal actions.
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
17255
clarify that Federal actions must
conform to any applicable TIP.
On July 17, 2006 at 71 FR 40420, EPA
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. 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. To
address these issues, EPA initiated a
process to review, revise and streamline
the regulations. In addition, EPA is in
the process of developing regulations to
implement the revised ozone standard
and regulations to implement the new
particulate matter standard. In the near
future, State and local air quality
agencies will be required to develop
revised SIPs to attain these new
standards. Knowledge of the revised
General Conformity Regulations will be
helpful to the State, Tribal, and local
agencies in the SIP development process
as well as the Federal agencies in
commenting on the proposed SIP
revisions. This rule revision will also
facilitate Federal agency compliance
with conforming its activities to the SIPs
and thereby preventing violations of the
NAAQS.
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 only to areas designated as
nonattainment under section 107 of the
CAA and maintenance areas established
under section 175A of the CAA.
Therefore, only actions which cause
emissions in designated nonattainment
and maintenance areas are subject to the
regulations. In addition, the regulations
recognize that the vast majority of
Federal actions do not result in a
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 or more 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;
4. Whether the total direct and
indirect emissions are below or above
the de minimis levels; and/or
5. Where the facility has an emission
budget approved by the State or Tribe as
part of the SIP or TIP, the Federal
agency determines if the emissions from
the proposed action are within the
budget.
If the action will cause emissions
above the de miminis in any
nonattainment or maintenance area and
the action is not otherwise exempt,
‘‘presumed to conform,’’ or included in
the existing emissions budget of the SIP
or TIP, the agency must conduct a
conformity determination before it takes
the action.
III. How are the existing regulations
implemented?
Federal agencies and other parties
involved in the conformity process have
found that in implementing the existing
General Conformity Regulations their
process falls into 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.
The existing regulations do not
specifically identify the roles of Indian
Tribes in the General Conformity
process or the connection between the
regulations and TIPs. In the revised
regulations, EPA has specifically
identified tribal agencies as stakeholders
in the conformity process such as
requiring specific notification for any
federally recognized Tribes in the
nonattainment or maintenance area
where the action is occurring. In
addition, the revised regulations also
PO 00000
Frm 00003
Fmt 4701
Sfmt 4700
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 cause a new violation of
the standard, or 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:
E:\FR\FM\05APR3.SGM
05APR3
17256
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES3
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, Tribe or local agency
responsible for the SIP or TIP
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 or Tribe to revise the SIP
or TIP 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 offsetting 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 1993
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)(FLM). 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 substantive and
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
procedural General Conformity
requirements can result in an adverse
court decision if challenged.
IV. Comments Submitted on the
Proposed Rule
The proposed rule on the ‘‘Revisions
to the General Conformity Regulations’’
was issued on January 8, 2008 (73 FR
1402). The EPA received 65 letters from
State and local governments, Federal
agencies, environmental groups, and
private citizens commenting on the
proposed regulations. Some of the
comments are discussed in section VI of
this notice as they were relevant to the
detailed discussion of revisions. The
EPA has included a response to
comments document which addresses
all of the timely comments received on
the proposed rule in the docket of this
rulemaking action (See Docket No.
EPA–HQ–OAR–2006–0669).
V. Summary of the Final Revisions and
Clarifications of the General
Conformity Regulations
A. Overview of 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 in 40 CFR 93
subpart B (sections 150 to 160), it also
promulgated 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
revising 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 deleting all of subpart W
except for § 51.851. In the revision to
§ 51.851, EPA is requiring 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. The EPA added paragraph (f) to 40
CFR 51.851 to allow the States and
Tribes to develop their own ‘‘presumed
to conform’’ list for actions covered by
their conformity SIPs or TIPs.
In 40 CFR part 93, subpart B, EPA is
making specific revisions to the
regulations which (1) Clarify the
process, (2) delete outdated or
unnecessary requirements, (3) authorize
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
innovative and flexible approaches, (4)
reduce the paperwork burden, (5)
provide transition tools for
implementing new standards, (6)
address issues identified by
implementing agencies, and (7) provide
a better explanation of regulations and
policies.
Several of the 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.
This is discussed in more detail in
section VI below.
B. What Innovative and Flexible
Approaches Are Being Finalized?
1. The EPA is adding a new section
(40 CFR 93.161) to allow for a facilitywide emission budget approach. Under
this voluntary arrangement, Federal
agencies, in anticipation of future major
actions, may 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 could incorporate
the facility-wide emission budget into
the applicable SIP or TIP and submit it
to EPA for approval. After EPA approves
the SIP or TIP, any action at the facility
can be ‘‘presumed to conform’’ provided
that the emissions from the proposed
action along with all other emissions at
the facility are within the EPA approved
facility-wide emission budget 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. For
example, 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.
2. The EPA is adding 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
established by Congress in Federal
Aviation Administration (FAA)
Reauthorization Act of 2003 for the
Airport Early Emission Reduction Credit
(AERC) program and the guidance to
implement that program. The revised
regulations provide a similar framework
for other Federal agencies.
3. The EPA is adding a new section
(40 CFR 93.164) to allow, with certain
limitations, the emission of one
E:\FR\FM\05APR3.SGM
05APR3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
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 adding a new section
(40 CFR 93.163) to allow alternate
schedules for mitigating emissions
increases. The mitigation timing
approach allows 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 can allow this approach
to accommodate short-term increases in
emissions if they believe a substantial
long-term reduction in emissions will
result from a Federal action.
erowe on DSK5CLS3C1PROD with RULES3
C. What Burden Reduction Measures
Are Being Finalized?
1. The EPA is deleting the provision
in the existing regulation (40 CFR
93.153) that requires Federal agencies to
conduct a conformity determination for
regionally significant actions where the
direct and indirect emissions of any
pollutant represent 10 percent or more
of a nonattainment or maintenance
area’s emissions inventory for that
pollutant, even though the total direct
and indirect emissions from the actions
are below the de minimis emission
levels or the actions are otherwise
‘‘presumed to conform’’.
2. The EPA is adding in 40 CFR
93.153 new types of actions that Federal
agencies can include in their ‘‘presumed
to conform’’ lists and EPA is also
permitting States or Tribes to establish
in their General Conformity SIPs or TIPs
‘‘presumed to conform’’ lists for actions
within their State or tribal area.
3. The EPA is finalizing an exemption
in 40 CFR 93.153 for the emissions from
stationary sources permitted under the
minor source New Source Review (NSR)
programs similar to the EPA’s existing
General Conformity regulation which
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 adding a definition in
the regulation (40 CFR 93.152) for ‘‘Take
or start the Federal action’’ to help
Federal agencies determine what, if any,
conformity requirements apply when an
area is designated or re-designated as
nonattainment.
2. The EPA is adding requirements
(40 CFR 93.153(k)) for the
implementation of the statutory grace
period for newly designated
nonattainment areas.
3. The EPA is adding alternate
methods (40 CFR 93.162) to demonstrate
conformity for time periods beyond
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
those covered by the SIP or TIP. The
EPA is also allowing 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 Finalized
at the Request of Other Agencies?
1. As part of EPA’s efforts to finalize
an Air Quality Policy on Wildland and
Prescribed Fires, which was undertaken
in consultation with FLMs, EPA took
comment on two possible approaches:
To include a presumption of conformity
for (1) prescribed fires conducted in
accordance with a State certified smoke
management programs (SMPs) which
meets the requirements of EPA’s Interim
Air Quality Policy on Wildland and
Prescribed Fires or an equivalent
replacement EPA policy, or (2)
prescribed fires conducted in
accordance with a State certified SMPs
which meets the requirements of EPA’s
Interim Air Quality Policy on Wildland
and Prescribed Fires or an equivalent
replacement EPA policy 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 planned burn employs
State approved basic smoke
management practices (BSMP). EPA is
finalizing option 1 to include a
presumption of conformity for
prescribed fires that are conducted in
compliance with SMPs (40 CFR
93.153(i)(2)), with recognition that
prescribed fires employing BSMPs may
be able to meet a presumption of
conformity if such a presumption is
established by an agency following the
requirements of 93.153(g) or by a State
following the requirements of 51.851(f).
In the absence of such SMPs, we
encourage States and Federal agencies
to work together to develop and finalize
SMPs or to include prescribed fires
conducted in accordance with BSMPs as
presumed to conform actions in the
applicable SIP. In addition, Federal
agencies could undertake actions in
accordance with 40 CFR 93.153(f) and
(g) to include prescribed fires conducted
in accordance with specific BSMPs as
actions that are presumed to conform.
2. The EPA is finalizing the proposal
(40 CFR 93.158) 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
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
17257
in the area where the Federal action is
occurring.
3. At the request of several Federal
agencies, EPA is clarifying the language
in the regulation that states that nothing
in these regulations (40 CFR 93.155 and
40 CFR 93.156) requires the release of
materials and other information where
disclosure is restricted by law. Also,
EPA is including a similar clarification
for CBI.
4. Several Federal agencies and others
involved in the General Conformity
process suggested that EPA should
consider exempting construction
activity emissions from the conformity
regulations requirements (40 CFR
93.153). 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 these concerns
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 address
construction emissions in the General
Conformity assessment. However, EPA
is not finalizing an exemption for
construction emissions in the revisions
and is instead affirming that emissions
from construction activities must be
considered in a conformity evaluation.
5. At the request of the FAA, EPA is
codifying one of the examples contained
in the preamble to the existing General
Conformity Regulations (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 the average mixing height of
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 supports the
example provided in EPA’s initial
preamble language for air traffic control
activities and adopting approach,
1 Wayson, Roger, and Fleming, Gregg,
‘‘Consideration of Air Quality Impacts by Airplane
Operations at or Above 3000 feet AGL,’’ Volpe
National Transportation 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/.
E:\FR\FM\05APR3.SGM
05APR3
17258
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
departure and enroute procedures for
aircraft operations above the mixing
height. As some of the commenters
noted, the mixing height for some areas
can vary and some SIPs and TIPs
identify a specific mixing height to be
used. Therefore, EPA’s final rule (40
CFR 93.153) exempts as de minimis
aircraft emissions above the specific
mixing height identified in the SIP or
TIP. If no mixing height is identified in
the SIP or TIP, the Federal agency can
use 3,000 feet AGL as a default mixing
height. The list of exemptions under 40
CFR 93.153(c)(2)(xxii) has been updated
in this final rule to reflect this policy.
F. What are some of the clarifications to
the existing regulations that are being
finalized?
1. The EPA is clarifying in 40 CFR
93.150 the General Conformity
evaluation for treatment of emissions
from actions with 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 establishing procedures
in 40 CFR 93.153 to follow in extending
the 6-month conformity exemption for
actions taken in response to an
emergency.
3. The EPA is revising (40 CFR
93.158) the procedures that can be used
to demonstrate conformity with the
applicable SIP when the SIP does not
contain an attainment demonstration or
when the emissions from the Federal
action are projected beyond the period
of the SIP. In addition, EPA is adding a
new section (40 CFR 93.162) to establish
procedures for demonstrating
conformity beyond the time period
covered by the SIP or TIP.
4. The EPA is revising the review
process (40 CFR 93.155) to require
Federal agencies to notify tribal
governments in the nonattainment or
maintenance area of General Conformity
evaluations.
5. The EPA is clarifying the definition
(40 CFR 93.152) of several terms used in
the regulations.
6. The EPA is including specific
language throughout the regulations to
identify the role of Indian Tribes and
TIPs in the General Conformity
evaluation.
erowe on DSK5CLS3C1PROD with RULES3
VI. Detailed Discussion of the Final
Revisions to and Clarifications of the
General Conformity Regulations
A. 40 CFR Part 51, Subpart W—
Determining Conformity of General
Federal Actions to State or Federal
Implementation Plans
In 1990, the CAA was amended to
include a provision in section 176(c)(4)
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
that required States 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) 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.
The EPA does not interpret this
provision as prohibiting States or Tribes
from voluntarily adopting and
submitting General Conformity
implementation plans consistent with
EPA regulations. Therefore, EPA is
revising 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 (§§ 51.850
through 51.860) 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 repeated the requirements found in
40 CFR part 93, subpart B. The EPA is
deleting 40 CFR 51.850, and §§ 51.852
through 51.860 since those sections
merely repeated the language in 40 CFR
93.150 and §§ 93.152 through 93.160
and is including a requirement in 40
CFR 51.851(a) that the General
Conformity SIP or TIP, if adopted, must
meet the requirements in 40 CFR part
93, subpart B.
In addition, EPA is restructuring
§ 51.851.
1. The EPA is dividing paragraph (b)
of 40 CFR 51.851 into four paragraphs—
(b), (c), (d), and (e):
a. Paragraph (b) now states that until
EPA approves the General Conformity
SIP, Federal agencies must meet the
requirements of 40 CFR part 93, subpart
B.
b. Paragraph (c) states 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
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
the SIP or TIP and any other portions of
40 CFR part 93, subpart B if not
contained in the approved SIP or TIP. In
addition, paragraph (g) states that any
conformity requirements in an existing
implementation plan remain
enforceable until the State submits and
EPA approves a revision to the
applicable State implementation plan to
specifically remove the conformity
requirements. Since there is no longer a
requirement for SIPs 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
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 equally to non-Federal
as well as Federal entities.
2. The EPA is adding a new provision
in § 51.851(f), which allows States or
Tribes to include in their SIP or TIP a
list of actions that are ‘‘presumed to
conform.’’ For example, the State may
identify the emissions from a certain
type and size of construction activities
that it presumes will conform.
Comment: Several commenters
supported EPA’s proposal to make the
adoption and submittal of the General
Conformity SIP optional. One
commenter believed that the
elimination of the conformity SIP
requirement in § 93.151 leaves a gap
regarding the enforcement of mitigation
measures.
The commenter noted that under the
language in the new provision, there is
no State or Federal enforceability if the
State withdraws its conformity SIP or
otherwise fails to retain a requirement
that written commitments to undertake
and implement mitigation measures are
obligations of the SIP. Another
commenter supported the requirements
for States to develop conformity SIPs.
Response: The EPA is revising its
regulations to be consistent with the
revised requirements of the CAA. In
2005, the CAA was revised to eliminate
the requirement that a State must adopt
a conformity SIP. If a State does not
have a conformity SIP, then Federal
agencies must conduct their evaluation
under the requirements of 40 CFR
E:\FR\FM\05APR3.SGM
05APR3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES3
93.150–93.165. These requirements are
essentially the same as the requirements
contained in the conformity SIPs.
Therefore, there would be little
difference in the enforceability of the
regulations. Mitigation measures are
included in the SIP or TIP. A conformity
SIP is not needed to include the
mitigation measures in the SIP or TIP.
They are included in the SIP to attain
or maintain the ambient air quality
standards. Section 93.160 has been
changed by deleting the term ‘‘General
Conformity Regulations’’ to ensure this
fact is clear.
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 making two revisions to § 93.150.
First, EPA is deleting the language in
paragraph (c) of that section and
reserving that paragraph. Second, EPA
is adding a new paragraph (e) to the
section to State that if an action occurs
in more than one nonattainment area,
that each area must be evaluated
separately.
In paragraph (c) of the 1993
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 under way 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) was
outdated and not necessary at this time.
In the new paragraph (e) in § 93.150,
EPA is clarifying the regulations to State
specifically that conformity
determinations must be made for each
nonattainment or maintenance area in
which emissions from the Federal
action occur. 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 in
multiple States. Emissions from an
action at such facilities could extend
across the nonattainment or
maintenance area boundaries. Some
Federal actions could result in direct or
indirect emissions in non-contiguous
areas, or even nationwide, that are
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
above the de minimis thresholds and
affect multiple nonattainment or
maintenance areas. The 1993
regulations did not specify how actions
or projects affecting multiple areas
should be addressed. Therefore, EPA
added paragraph (e) to state that an
action’s emissions in each area would
be treated as if they result from separate
actions.
The EPA clarified that 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
SIP 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—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 did not
change the purpose of the section, but
is revising the section to clarify its
wording. The 1993 regulations included
statements about the stringency of the
SIP compared to the requirements in
subpart B of part 93. The EPA is
deleting 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 revising 12 of the definitions,
adding 11 new terms, and deleting one
term, and clarifying the scope of an
existing definition as follows:
Applicability analysis. The EPA is
adding this new term to describe the
process of determining if the Federal
agency must conduct a conformity
determination for its action.
Applicable implementation plan or
applicable SIP. The EPA is making two
minor revisions to the definition. First,
PO 00000
Frm 00007
Fmt 4701
Sfmt 4700
17259
EPA is correcting the citation for the SIP
approval and second, EPA is clarifying
the definition by adding a parenthetical
phrase to clarify that the term includes
an approved TIP. The requirements for
eligible Tribes are found in 40 CFR 49.6.
Area-wide air quality modeling
analysis. The EPA is clarifying this
definition by making a minor wording
change and by including photochemical
grid model in the definition. Also, EPA
is adding 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 1993 regulations’ definition of
‘‘caused by’’ is that the emissions would
not have occurred in the absence of the
Federal action. 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,
approved, or funded by a Federal
agency meets this test and should be
included in the conformity evaluation.
Therefore, EPA is clarifying that
construction emissions are part of the
total direct and indirect emissions from
an action.
Comment: In the January 8, 2008,
proposal, EPA solicited comment on
whether construction emissions in
general or short-term construction
emissions should be exempt from the
regulations. In addition, EPA solicited
comment on what should be considered
short-term construction emissions (1 to
5 years). The majority of commenters on
this issue objected to exempting
construction emissions. They noted that
construction emissions can contribute
significantly to particulate matter (PM)
exceedances, especially off-road vehicle
emissions. Some believed that ignoring
these emissions might drop a project
below the de minimis threshold and
result in unmitigated emissions and the
exposure of local residents to significant
levels of pollutants such as diesel
exhaust. However, some commenters
thought that construction emissions
should be exempted. They noted that
construction emissions only peak for a
short time and that a disproportionate
amount of time in the conformity
process is spent on addressing very
short-term construction-related
emissions. They also pointed out that
construction emissions are generally not
included in NSR or Transportation
Conformity evaluations. Of the
commenters that thought construction
emissions should be exempt, some
thought they should be exempt for 5
E:\FR\FM\05APR3.SGM
05APR3
erowe on DSK5CLS3C1PROD with RULES3
17260
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
years while others thought they should
be exempt for only 2 years.
Response: The EPA agrees with the
majority of commenters on this issue
that construction emissions can
contribute significantly to exceedances
of the NAAQS, particularly exceedances
of the PM standards. Unlike the
construction activities associated with
Transportation Conformity and NSR
projects, construction activities
associated with General Conformity
actions vary widely in type. For
example, General Conformity is
concerned about localized impacts of
the direct and indirect impacts of
particular action or projects, as reflected
in case-by-case analysis of emissions
from specific actions, while
Transportation Conformity is primarily
concerned with the regional impacts of
long-term use of the roads, as reflected
in analysis of regional transportation
processes, and secondarily concerned
with short-term and localized impacts.
Also, NSR specifically does not apply to
emissions from mobile sources, which
includes most construction
equipment—no such restriction is found
in General Conformity. Moreover, as
explained above, EPA believes that
emissions from construction activities
initiated, approved, or funded by a
Federal agency would not have occurred
in the absence of the Federal action and
thus meet the ‘‘caused by’’ definition
included in the general conformity
regulations. For these reasons, EPA
believes that it is important that
construction emissions should be
considered as part of the General
Conformity process. EPA also believes
that other flexibilities in the revised rule
will help with planning for, and
addressing, construction emissions in
the General Conformity process. These
flexibilities include allowing alternative
mitigation schedules and including
construction emissions in a facility
emission budget.
Also, EPA is clarifying 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.
Confidential business information
(CBI). In §§ 93.155 and 93.156, EPA is
clarifying how CBI used in the
conformity determination is to be
handled. To support those provisions,
EPA is adding 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
adding a new term to describe the
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
decision that a Federal agency official
makes in determining that the action
will conform with the SIP, TIP or FIP.
Conformity evaluation. The EPA is
adding a new definition to describe the
entire conformity analysis process from
the applicability analysis through the
conformity determination, if necessary.
Continuing program responsibility. In
the 1993 regulations, EPA used the term
‘‘emissions that a Federal agency has a
continuing program responsibility for.’’
That term was awkward and confusing.
The EPA is shortening the term to the
‘‘continuing program responsibility’’ and
reformatting the definition to make it
clearer.
Continuous program to implement.
This term was used in the 1993
regulations but was not defined.
Therefore, EPA is adding 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 revising
the definition of direct emissions to
include a requirement that the
emissions must be reasonably
foreseeable. This revision reflects EPA’s
policy as set forth in the July 1994
implementation guidance that direct
emissions must be reasonably
foreseeable. (General Conformity
Guidance: Questions and Answers,
USEPA, OAQPS, Page 6, Question 2,
July 13, 1994).
Emission Inventory. This term is used
but not defined in the 1993 regulations.
Therefore, EPA is adding a definition of
this term.
EPA. Since some States have
Environmental Protection Agencies,
EPA is adding ‘‘U.S.’’ in the definition to
clarify that the regulations refer to the
U.S. Environmental Protection Agency.
Indirect emissions. EPA is revising 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.
In addition, EPA is revising the
definition of ‘‘indirect emissions’’ to
clarify what is meant by ‘‘the agency can
practically control’’ and ‘‘for which the
agency has continuing program
responsibility.’’ This clarification
represents EPA’s long standing position
that Congress did not intend for
conformity to apply to ‘‘cases where,
although licensing or approving action
PO 00000
Frm 00008
Fmt 4701
Sfmt 4700
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,
November 30, 1993). (General
Conformity Guidance: Questions and
Answers, USEPA, OAQPS, Page 6,
Question 2, July 13, 1994).
Comment: One commenter believes
that excluding emissions over which the
Federal agency does not have
continuing program responsibility is
unlawful. The commenter believes that
the original definition of ‘‘caused by’’ is
practical because the conformity
determination will be made in the
context of an Environmental Impact
Statement (EIS) for such major Federal
projects and NEPA requires an
assessment of the expected development
and reasonably foreseeable impacts
associated with such development. The
commenter noted that if the agency with
authority to approve these expansions
lacks the continuing programmatic
responsibility to control the use of
facilities approved by the agency, then
the proposed activity should not be
approved.
The commenter believes that the
proposed rule definition has the
potential for allowing massive increases
in emissions that is anticipated as a
result of port expansions in some of the
nation’s most polluted metropolitan
areas. The commenter also noted that
the NEPA may also create authority to
adopt environmental mitigation plans as
part of an agency’s programmatic
responsibility.
Response: The exclusion of emissions
over which the Federal agency does not
have a continuing program
responsibility is related to indirect
emissions for the General Conformity
analysis and does not affect the analysis
required for NEPA review. EPA is not
changing the requirements of that
provision; EPA is only clarifying the
language contained in it. Since 1993, the
‘‘indirect emissions’’ definition has been
limited to those emissions for which
‘‘the Federal agency * * * will maintain
control over due to continuing
programmatic responsibility.’’
Accordingly, EPA’s reformatting of the
language in this revision does not
change the practical impact of this
definition, and the commenter’s
suggestion that the definition should
include emissions over which the
Federal agency does not have control
would greatly expand the program
beyond what EPA believes that the law
intended. In any event, since EPA did
not propose to expand the program to
E:\FR\FM\05APR3.SGM
05APR3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES3
include emissions over which a Federal
agency does not have control, it cannot
go final with such an expansion in this
rule.
Local air quality modeling analysis.
The EPA is revising 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 making
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 revising 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 1993
regulations used the term ‘‘mitigation
measure’’ and had a section specifying
the requirements for a mitigation
measure; however the regulations did
not define the term. The EPA is defining
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 1993
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
1993 regulations define precursors for
both ozone and PM–10. Since the PM2.5
standard was promulgated after the
General Conformity Regulations, the
original regulations did not include the
precursors for PM2.5. EPA recently
amended the regulations (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). The EPA
defined the precursors of PM2.5 as
follows:
1. Sulfur dioxide (SO2) is a regulated
pollutant in all PM2.5 nonattainment and
maintenance areas.2
2 While sulfur dioxide must be addressed in
general conformity determinations for PM2.5, 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 in transportation
conformity 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
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
2. Nitrogen oxides (NOX) are regulated
pollutants in all PM2.5 nonattainment
and maintenance areas unless both the
State/Tribe and EPA determine that they
are not.
3. Volatile organic compounds (VOC)
and ammonia (NH3) are not regulated
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 revising the term
‘‘direct emissions’’ to limit the emissions
to those which can be reasonably
foreseeable. Therefore, EPA is revising
the term ‘‘reasonably foreseeable’’ to
include ‘‘direct emissions.’’
Regionally significant action. As
discussed in the revisions to 93.153(i)
below, EPA is deleting the requirement
that conformity determinations are
required for actions that would
normally be exempt if those actions are
considered regionally significant.
Therefore, EPA is deleting the definition
of the term.
Restricted information. As discussed
in §§ 93.155 and 156 on reporting and
public participation, EPA is specifying
how restricted information used in the
conformity determination is to be
handled. To support those revisions,
EPA is adding 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.
Comment: One commenter requested
that EPA state that emission data be
specifically excluded for the definition
of ‘‘restricted information.’’
Response: The EPA agrees that
emission data generally can not be
considered ‘‘restricted information.’’
Under EPA policy emission data cannot
be considered as ‘‘confidential business
information.’’ Only in rare
circumstances where data are contained
in documents classified as sensitive
information to which access is restricted
by law or regulation to particular classes
of persons and a formal security
clearance is required to handle or access
the classified data would emission data
from a government facility be ‘‘restricted
information.’’ In the situations where
restricted information is used as part of
the conformity evaluation, EPA will
work with the appropriate Federal, State
and tribal agencies to ensure an
its decision regarding treatment of sulfur dioxide in
transportation conformity on the de minimis
amount of on-road emissions 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).
PO 00000
Frm 00009
Fmt 4701
Sfmt 4700
17261
adequate review of the conformity
evaluation.
Take or start the Federal action. The
EPA is adding 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 redesignated as nonattainment. The EPA
is defining this term as the date the
decision-maker signs a document such
as a grant, permit, license or approval.
Otherwise, EPA is defining the term as
the date the Federal agency physically
starts the action that requires the
conformity evaluation.
Tribal implementation plan (TIP). The
EPA is adding a definition for TIP to
mean plans adopted and submitted by
federally recognized Indian Tribes.
E. 40 CFR 93.153—Applicability
Analysis
The EPA is clarifying 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 previously established by
law.
1. The EPA is revising 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 making technical
changes to paragraph (a) of § 93.153.
The technical correction in section
93.153(a) is to update the reference to
the transportation conformity
regulations. Section 93.153(a) currently
states that the transportation conformity
regulations are codified at 40 CFR part
51 subpart T, but EPA deleted
transportation conformity criteria and
procedures from 40 CFR part 51 subpart
T a number of years ago. (62 FR 43779)
Accordingly, section 93.153(a) has been
revised to refer to the transportation
conformity criteria and procedures now
codified at 40 CFR part 93 subpart A.3
EPA is not finalizing the proposed
changes to paragraph (b). Following
proposal of changes to this paragraph
EPA realized that the minor wording
changes we had proposed (adding the
word ‘‘criteria’’ before the word
‘‘pollutant’’ and ‘‘or precursor’’ after the
3 While we did not issue a proposal or provide
an opportunity for public comment for this minor
correction to the rule, we believe such actions are
unnecessary because this minor revision in no way
changes substantive conformity procedures
described in the general conformity rule but merely
updates the reference to the proper location of the
transportation conformity regulations in the CFR.
E:\FR\FM\05APR3.SGM
05APR3
erowe on DSK5CLS3C1PROD with RULES3
17262
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
word to clarify the paragraph) had been
accomplished by changes made to this
section in a July 17, 2006 regulatory
action (71 FR 40426). Therefore, EPA is
making no changes to this paragraph
from the current regulatory language.
3. The EPA is revising the table in
sub-paragraph (b)(1) to include all
nonattainment areas in the Ozone
Transport Region. In 1993, when the
General Conformity Regulations were
promulgated, all nonattainment areas in
the Ozone Transport Region were
classified pursuant to Table 1 in CAA
section 181(a)(1) as marginal or above
for the 1-hour ozone NAAQS. When
EPA later designated areas for the 8hour 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 pursuant to
Table 1. However, the decision to place
certain areas only under subpart 1 was
vacated by the decision in South Coast
Air Quality Management District v. EPA,
472 F.3d 882 (DC Cir. 2006). Although
there are currently no areas classified
under subpart 1, the Court left open the
door that EPA may be able to justify
such action in the future. Accordingly,
EPA is revising the table in
§ 93.153(c)(1) to ensure that the General
Conformity requirements would apply
to any area placed in the subpart 1 in
the future by changing the classification
from ‘‘Marginal and moderate nonattainment areas inside an ozone
transport region’’ to ‘‘other nonattainment areas inside an ozone
transport region.’’
4. The EPA is adding a new subparagraph (xxii) to § 93.153(c)(2) to
clarify the exemptions for aircraft
emissions above the mixing height for
the area. Specifically, EPA is exempting
aircraft emissions above the mixing
height identified in the applicable SIP,
TIP or FIP. Where the SIP does not
contain a specific mixing height, EPA is
establishing a default mixing height of
3000 feet AGL. In the January 2008
proposal, EPA had proposed to exempt
all aircraft emissions above 3000 feet
AGL.
Comment: Several commenters
representing State and local air quality
agencies objected to excluding the
emissions from aircraft above 3000 feet
above ground level. They noted that the
mixing height varies and can be as high
as 4,500 feet AGL during the ozone
season and that pollutants emitted at
middle and high altitudes can travel
long distances. They also noted that
pollution levels were below predicted
levels following September 12, 2001
when aircraft were grounded.
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
Other commenters representing the
airports and the airline industry
supported the exemption emission from
aircraft above 3000 feet AGL. They
noted that the FAA study supports the
conclusion that aircraft operations at or
above 3,000 feet AGL have a minimal
effect on ground level pollutant
concentrations. The commenters also
noted that flights over almost all major
U.S. airports must be at least 7000 feet
AGL; therefore, any commercial aircraft
operating at 3000 feet would most likely
either be landing or taking off. The
commenters also noted that the FAA
study concluded that any increase in
ground level concentrations of CO and
hydrocarbon (HC) due to mixing was
negligible.
A Federal agency commenter believes
that the exemption for air traffic control
activities should not be restricted by
altitude. The commenter noted that the
proposal for exempting aircraft
operations above 3,000 feet AGL is
much narrower than what was
presented in the preamble to the 1993
General Conformity rule as an example
of an action that is exempt from the
General Conformity requirements—‘‘air
traffic control activities and adopting
approach, departure and enroute
procedures for air operations.’’
Response: EPA agrees that the aircraft
emissions above the mixing height do
not significantly affect ground level
concentrations and acknowledges that
the mixing height can vary from one
area to another. Accordingly, in those
areas where the applicable SIP or TIP
specifies a mixing height, EPA is
requiring the specified mixing height to
be used. However, in those areas where
the SIP or TIP does not specify a mixing
height, EPA is allowing the Federal
agencies to use 3,000 feet AGL as a
default mixing height. This conclusion
is supported by the FAA study. In
addition, 3,000 feet AGL is commonly
used as an estimate of the average
maximum afternoon mixing height
across the country and most air quality
models use 3,000 feet AGL as the
default mixing height. However, we also
note that the FAA study showed that
some areas have mixing heights lower
than 3,000 feet AGL, so we have added
regulatory language to sub-paragraph
(xxii) to allow Federal agencies to use a
different mixing height if they can
demonstrate that emissions at and above
that height are de minimis. As a general
matter, it is in the reasoned discretion
of the Federal agency to decide which
methods and analysis it will use when
determining whether this exemption or
any other provision applies to the
emissions from its activity, including
making an applicability determination
PO 00000
Frm 00010
Fmt 4701
Sfmt 4700
under section 93.153(b), finding
emissions result in no increase under
section 93.153(c)(2), or concluding
emissions are presumed to conform
under section 93.153(f).
5. The EPA is revising paragraph
(d)(1) of § 93.153 to exempt emissions
covered by a NSR permit for minor
sources. The 1993 regulations exempt
emissions covered by a NSR permit for
major sources but not for minor sources.
EPA concluded at that time that the
purposes of the General Conformity
review would be adequately met by the
major source NSR review, and that
additional review would not be
necessary. The EPA now believes that
minor source NSR provides similar
review, and that 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.
Accordingly, we are revising
§ 93.153(d)(1) to also exempt emissions
covered by minor source NSR permits
issued pursuant to the general
permitting authority provided by
section 110(a)(2)(c) of the CAA.
Comment: The majority of
commenters agreed with the proposal to
exempt stationary sources permitted
under the NSR program. They believed
the review to be redundant and
unnecessary.
Some commenters disagreed with
exempting minor sources. One
commenter thought that EPA should not
exempt activities with emissions less
than the major source threshold from
conformity review unless some basis
can be established that the cumulative
emissions from such sources are truly
de minimis with respect to the statutory
conformity tests. The commenter
suggests that EPA substitute a SIP-based
program for establishing a budget for
minor sources in place of the regionally
significant threshold. Several
commenters suggested that only NSR
permits which require offsets or are
offset on a programmatic basis should
be exempt from conformity. A few
commenters thought that, if EPA
exempts minor sources for the
conformity evaluation, it must first
clearly demonstrate that such
exemptions will not impede States’
ability to attain any standard.
Response: The EPA agrees that
requiring a conformity analysis for
emission covered by a minor source
NSR permit would be redundant and
provide little environmental benefit.
EPA believes that the permitting
authority has the responsibility to
ensure that the source will not interfere
with the SIP or otherwise interfere with
the State’s ability to attain the
E:\FR\FM\05APR3.SGM
05APR3
erowe on DSK5CLS3C1PROD with RULES3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
standards. Minor source NSR permits
are issued under a SIP-approved
program, so there has already been a
determination that the permitting
program will not contribute to a
violation of the NAAQS or delay the
attainment or maintenance of the
standards. Thus, by issuing a specific
permit under that program, the
authority is stating that the emissions
are accounted for in the SIP, effectively
providing the same assurances as a
conformity determination since Federal
agencies can demonstrate conformity for
an action by showing that the actions
will not cause a violation or interfere
with the SIP.
6. The EPA is deleting ‘‘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 amending 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, military mobilization, or other
situations (such as wildfire responses)
that an agency determines fit within the
definition of emergency found in
§ 93.152, 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 1993 regulations
provides Federal agencies with a
6-month 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 amending
§ 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 1993 regulations were not clear
about the number of additional
extensions permitted under § 93.153(e)
nor do those regulations provide any
procedures for agencies to follow in
deciding on the extension.
The EPA is not revising requirements
for the initial exemption for actions in
response to emergencies. The initial
governmental actions that are typically
commenced within hours or days in
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
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 adding requirements for Federal
agencies that want to extend the
exemption beyond the initial 6-month
period. First, EPA is requiring 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 requiring Federal agencies
to publish a notice within 30 days of
making the extension decision. The
notice must be published in a daily
general circulation newspaper for the
affected area. Finally, EPA is limiting
the maximum number of 6-month
extensions an agency may declare
without additional documentation on
their own to three. Thereafter, the
revisions require that the agency must
provide additional information
concerning the emergency conditions to
EPA and the State or Tribe.
8. The EPA is revising paragraphs (f),
(g), and (h) of § 93.153 to provide
Federal agencies clear guidance in
developing their list of actions that are
‘‘presumed to conform’’ and provide
requirements for the materials that must
be included in the documentation and
draft list. Specifically, EPA is adding
wording to paragraph (f) to specify
when and how more than one
‘‘presumed to conform’’ exception may
be taken for a Federal action; adding a
new paragraph (g)(3) to specify that
Federal agencies can list actions that are
for individual areas or SIPs or TIPs;
adding a sentence to paragraph (h)(1) to
specify the information that must be
included in the documentation; and
adding 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 revising paragraphs (f)
and (h) to include a reference to the new
paragraph (g)(3).
In promulgating the existing
regulations, EPA allowed 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’’ with applicable SIPs and TIPs.
Under the 1993 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
PO 00000
Frm 00011
Fmt 4701
Sfmt 4700
17263
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.
The EPA is adding sub-paragraph
(g)(3) to clarify that a presumption could
apply to 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 in that area 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 activity emissions that
are specific to a facility.
9. The EPA is deleting 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 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.
Comment: Some commenters
supported deletion of the regionally
significant provision noting that it is
unnecessary, not helpful in determining
whether a Federal action will conform
to the SIP, and is an administrative
burden. Other commenters believed that
the provision should be retained or
strengthened or a more appropriate
percentage of the area’s inventory be
used for the test. Some commenters also
pointed out that in light of the new
PM2.5 and 8-hour ozone standards,
certain Federal projects might become
‘‘regionally significant’’ in the near
future.
Response: EPA agrees that the
determination of whether actions with
emissions below the de minimis
emission levels are regionally
significant has been a burden to some
Federal agencies with little or no
environmental benefit. Analysis
discussed in the proposal showed that
the emission inventory for most
nonattainment and maintenance areas
well exceeded the ten times the de
E:\FR\FM\05APR3.SGM
05APR3
erowe on DSK5CLS3C1PROD with RULES3
17264
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
minimis emission levels for the area,
such that no emissions could actually be
regionally significant. Although several
commenters question whether the
regionally significant test might be
important for the new PM2.5 and 8-hour
ozone standards, they presented no
information to show that the de minimis
emission levels would exceed 10
percent of the inventory for potential
nonattainment areas for those standards.
10. In a revised paragraph (i) of
§ 93.153, EPA allows 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 facilitywide emission budget concept is found
in § 93.161.
11. Also in § 93.153(i), EPA identified
emissions from a prescribed fire
conducted under an approved smoke
management program as ‘‘presumed to
conform.’’ In the January 2008 proposal,
EPA asked for comments on two options
for allowing a presumption of
conformity for prescription fires. Option
1 would have allowed Federal agencies
to presume that the emissions from
prescribed burns will conform provided
the burning is conducted under a State
certified approved SMP or an equivalent
replacement EPA policy. Option 2
would have also allowed Federal
agencies, in the absence of a certified
SMP, to presume that emissions from
prescribed burns will conform provided
they obtain written permission from the
State and use BSMP.
Comment: The EPA received many
comments in support of the second
option, which allows Federal agencies
to determine, in absence of a certified
SMP, that prescription fires conducted
using BSMP are considered ‘‘presumed
to conform’’ to the SIP. Some
commenters noted that to be consistent
with the ‘‘Treatment of Data Influenced
by Exceptional Events’’ rule (72 FR
13559, March 22, 2007), if the State does
not certify a SMP, the exemption should
be for burns using State approved
BSMP. Many commenters also
supported the first option, noting that it
was reasonable to assume that any
action conducted in compliance with
the certified SMP would be in
compliance with the SIP. One
commenter thought that the
presumption of conformity for burns
conducted under BSMP is not
acceptable because BSMP are in no way
connected to air quality and will not
ensure that resulting emissions from a
prescribed burn would conform to the
SIP. This commenter also noted that the
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
use of SMP may be acceptable, but EPA
has not yet issued its final wildland fire
policy. Another commenter suggested
that if prescribed burns under certified
SMP or a BSMP are ‘‘presumed to
conform,’’ there needs to be a simple
way to flag the data from affected
monitors. Numerous commenters
recommended that the definition of
emergency include wildfires.
Response: After considering the
various practices and the comments
received, the EPA believes option 1
presented in the proposed rule is more
protective of the air quality than option
2. However, we also recognize that
prescribed fires employing BSMPs may
be able to meet a presumption of
conformity if such a presumption is
established by an agency following the
requirements of 93.153(g) or by a State
following the requirements of 51.851(f).
Under option 1, prescribed fires
conducted in compliance with a SMP
are ‘‘presumed to conform.’’ The purpose
of an SMP is to mitigate nuisance smoke
and public safety hazards, prevent
NAAQS violations, protect public
health, and address visibility impacts in
Class I areas. EPA also notes that SMPs
establish procedures and requirements
for minimizing emissions. EPA
recognizes that prescribed burns
employing BSMPs may be as protective
of air quality in areas where no SMP
exists. BSMPs can be connected to air
quality and may protect air quality as
outlined in the ‘‘Treatment of Data
Influenced by Exceptional Events’’ rule.
In order to assure the adequacy of the
BSMPs to meet the legal requirements of
the General Conformity program as
outlined in section 176, Federal agency
developed BSMPs must be publicly and
State reviewed as part of a presumed to
conform action under section 93.153(g)
or 51.851(f) of these regulations to
establish such a presumption. Because
the EPA chose not to require the
certification of the SMP under the final
‘‘Treatment of Data Influenced by
Exceptional Events’’ rule, EPA is also
removing the term ‘‘certified’’ from this
final General Conformity Rule. Finally,
EPA has identified wildfire response as
an example of an emergency event that
may be exempt from General
Conformity requirements under 93.153
(d)(2) and (e) if that agency determines
it fits within the definition of emergency
found in § 93.152.
12. As discussed above, EPA also
added a provision in § 93.153(i) to allow
a State or Tribe to adopt in their SIP or
TIP a list of actions it ‘‘presumes to
conform.’’
13. The EPA is revising paragraph (j)
of § 93.153 by deleting the reference to
regionally significant emissions, by
PO 00000
Frm 00012
Fmt 4701
Sfmt 4700
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 1993 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 deleted the regionally
significant test, therefore reference to it
is has been deleted from this paragraph.
For clarity, instead of referring to subparagraph (g)(1), EPA is repeating the
requirements in this paragraph.
14. The EPA is revising 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,
Congress added section 176(c)(6) to the
CAA to allow for a conformity grace
period for newly designated
nonattainment areas (Pub. L. 106–377).
That section establishes a 1-year grace
period following the effective date of the
final nonattainment designation for each
new or revised 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 defining the
term to mean that a Federal agency takes
an action when it signs a permit,
license, grant or contract or otherwise
physically 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 revising the title of this
section to clarify the purpose of the
section. In the 1993 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 revising the title
of the section to more closely describe
the section’s content.
2. The EPA is adding language to this
section to specifically state that the
E:\FR\FM\05APR3.SGM
05APR3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES3
conformity determination must meet the
requirements of this subpart.
G. 40 CFR 93.155—Reporting
Requirements
1. Since EPA is adding additional
sections to subpart B, it is revising the
references to those sections in § 93.155.
2. Consistent with EPA’s Tribal
Authority Rule (63 FR 7253), EPA is
providing federally-recognized Indian
tribal governments the same
opportunity to comment on draft
conformity determinations as given to
States. Therefore, EPA is requiring the
Federal agencies to notify all the
federally-recognized Indian tribal
governments in the nonattainment or
maintenance area.
3. The EPA is adding 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 allowing
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 10
regional Offices. This final notification
provision also corrects an inconsistency
between the proposed rule preamble
and the proposed regulation, which
stated that the EPA Office of Air Quality
Planning and Standards could be
contacted when the action would result
in emissions originating in
nonattainment or maintenance areas in
two or more EPA regions.
4. The EPA is adding 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 1993 General
Conformity Regulations do not contain
an explicit statement about protecting
restricted information from public
release. The interagency review and
public participation provisions in the
1993 regulations 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
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
limited to, classified materials.
Therefore, EPA is revising the regulation
to add explicit language concerning the
protection of restricted information. In
addition, conformity determinations
could, in part, be based upon restricted
information. The EPA is adding specific
language to the regulation to protect
restricted information in accordance
with each Federal agency’s policy and
regulations for the handling of restricted
information. The regulations would
allow State or EPA personnel with the
appropriate clearances to be able to
view the restricted information.
H. 40 CFR 93.156—Public Participation
1. The EPA is correcting the section
referenced in § 93.156. The 1993
regulations refer 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 providing an alternative
public notification procedure for actions
that cause emissions above the de
minimis levels in three or more EPA
regions. This corrects a mistake made in
the proposed rule preamble that stated,
‘‘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.’’ In
addition, this corrects an inconsistency
with the proposed regulation, which
stated that the alternative public
notification procedure is for actions that
have multi-regional or national impacts
in two or more regions. The 1993
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 affect a large
number of nonattainment and
maintenance areas. The notification
procedure for such an action could be
burdensome and inefficient. Therefore,
EPA is amending the rules 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 three or more nonattainment or
maintenance areas.
3. The EPA is adding 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.
PO 00000
Frm 00013
Fmt 4701
Sfmt 4700
17265
I. 40 CFR 93.157—Re-Evaluation of
Conformity
1. The EPA is revising the title of this
section to more appropriately describe
the section’s content. The 1993
regulations 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 to use in determining if
reevaluation is required. The EPA is
making 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 adding a new paragraph
(d) 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
original determination, the Federal
agency had to demonstrate that all the
emissions caused by the initial action
conformed to the SIP. Since conformity
determinations are only needed for
emissions that exceed the de minimis
levels, EPA has clarified in the rule that
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 (d) also deals with modifying
an action that the Federal agency
determined had 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
requiring Federal agencies to conduct a
conformity determination for the
modified action if the total emissions
(the emissions from the unmodified
action plus the increased emissions
resulting from the modification) equal
E:\FR\FM\05APR3.SGM
05APR3
17266
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES3
or exceed the de minimis levels for the
area. Thus, in both situations, all
emissions that exceed de minimis levels
are evaluated for conformity impacts,
either initially or after modification.
J. 40 CFR 93.158—Criteria for
Determining Conformity for General
Federal Actions
1. In § 93.158(a)(1), EPA is adding ‘‘or
precursor’’ after ‘‘any criteria pollutant’’
to clarify that Federal agencies must
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 allowing 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
regulation requires such emissions
offsets to be obtained through either an
approved SIP revision or an equally
enforceable commitment.
Comment: Commenters representing
Federal agencies, industry groups and
some State air quality agencies
supported the provision to allow offsets
from nearby nonattainment or
maintenance areas. Some of these
commenters suggested that additional
limits could be imposed on the use of
the out-of-area offsets. Several
commenters representing State air
quality agencies opposed the allowing
of offsets from other areas. The
commenters noted that EPA regulations
and Federal court rulings limit the area
from which emissions reductions can be
creditable for attainment
demonstrations. They also opposed
allowing offsets because conformity
generally applies to mobile source
emissions that are different from
stationary source emissions covered by
NSR.
Response: The EPA agrees that offsets
should be allowed in nearby
nonattainment areas in the same manner
as they are allowed under the NSR
program. We agree with the commenter
that EPA regulations and judicial
rulings place limits on the area from
which emissions reductions can be
creditable for attainment
demonstrations. The intent of those
limits is to ensure that the emissions
from the nearby nonattainment area
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
contribute to the violations, or have
contributed to violations in the past, in
the area in which the Federal action
takes place. This is consistent with the
overall revisions to this regulation.
Therefore, we are also recommending
that Federal agencies show that they
have met the requirements of
§ 93.158(a)(2)—that the emission offsets
originate from an area that contributes
to the violations, or have contributed to
violations in the past, in the areas with
the Federal action—by using the same
techniques EPA has approved by rule or
guidance for demonstrating contributing
emissions in other SIP-related
determinations, such as Reasonable
Further Progress, Rate of Progress, or
Attainment Demonstrations for a
particular pollutant or pollutant
precursor. By limiting the offsets to
areas that contribute or have contributed
to the nonattainment, EPA is narrowing
the potential offsets to areas that will
result in a benefit to the nonattainment
or maintenance area in which the
Federal action will take place.
3. In § 93.158(a)(2), (a)(3) and (a)(4),
EPA is revising 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 allowing
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 PM–10 for purposes of
identifying available tests to
demonstrate conformity.
4. In § 93.158(a)(3) and (5), EPA is
correcting two typographical errors. In
sub-paragraph (3), EPA is correcting
‘‘meet’’ to ‘‘meets’’ and in sub-paragraph
(5), EPA is changing ‘‘paragraph
(a)(30)(11)’’ to ‘‘paragraph (a)(3)(ii).’’
5. In § 93.158(a)(5)(iv)(A)(1), EPA is
deleting the reference to the year 1990
and replacing 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
1993 regulations, all the designations
were based on a 1990 date. Since EPA
promulgated the conformity regulations,
it has promulgated new 8-hour ozone
and PM2.5 standards and designated a
number of areas as nonattainment. By
changing the regulations to reference the
PO 00000
Frm 00014
Fmt 4701
Sfmt 4700
date when the area was designated as
nonattainment, EPA is allowing for the
General Conformity regulations to
address these new designations and any
future designations through
identification of appropriate inventory
levels. In addition, including the option
to allow EPA to set another year for the
baseline allows EPA and other Federal
agencies to work together to determine
if another baseline may be appropriate
for determining conformity of a
particular action, such as determining
that an agency can rely on one specific
baseline year for an action subject to
both the general and transportation
conformity regulations when those
regulations otherwise indicate
application of two different baseline
years.
6. Also in § 93.158(a)(5)(i), EPA is
revising the paragraph to allow Federal
agencies to make conformity
determinations 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 1993 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
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 from the Federal action, and
if necessary require additional controls
on the sources as necessary to meet air
quality needs.
7. The EPA is revising
§ 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 1993 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
E:\FR\FM\05APR3.SGM
05APR3
erowe on DSK5CLS3C1PROD with RULES3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
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 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 will
submit a SIP revision that includes an
enforceable commitment to account for
the emissions in future SIP revisions.
This approach will allow States and
Tribes flexibility in committing to
include the emissions from the Federal
action in the SIP covering the relevant
time period.
8. The EPA is revising
§ 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 setting 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. As noted above, including the
option to allow EPA to set another year
for the baseline allows EPA and other
Federal agencies to work together to
determine if another baseline may be
appropriate for determining conformity
of a particular action.
Finally, EPA is deleting another
alternate baseline year that no longer is
applicable in PM–10 areas. Specifically,
EPA is deleting in
§ 93.158(a)(5)(iv)(A)(3) the use of the
‘‘year of the baseline inventory in the
PM–10 applicable SIP.’’ EPA believes
that the deletion of this outdated
baseline year should not affect current
General Conformity determinations in
PM–10 nonattainment and maintenance
areas.
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
17267
K. 40 CFR 93.159—Procedures for
Conformity Determinations for General
Federal Actions
clearly provide for enforcement of those
commitments under the Federal
regulations.
1. EPA is changing § 93.159(b)(1)(ii) to
address when new motor vehicle
emissions factors models are used in
General Conformity determinations.
EPA is clarifying that the grace period
before such new models are used will be
3 months from EPA’s model release,
unless a longer grace period is
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
vehicle emissions factor models to be
between 3–24 months.
2. The EPA is revising § 93.159(b)(2)
and (c) to update the reference to the
Compilation of Air Pollutant Emission
Factors and 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 revising 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
requiring that if the SIP or TIP does not
specify an attainment demonstration
year then the analysis is conducted 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 if specified in the SIP
would be the appropriate year for the
conformity analysis.
4. The EPA is making a minor
wording revision to paragraph (d)(2) to
clarify the paragraph. The EPA is
replacing 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.
M. 40 CFR 93.161—Conformity
Evaluations for Installations With
Facility-Wide Emission Budget
The EPA is adding a new section to
the regulations to facilitate the use of a
facility-wide emission budget in
evaluating conformity. Although the
existing regulations do not preclude
States and Federal agencies from using
this approach, the regulations do not
specifically authorize its use. This
section for developing such a budget
would be in conjunction with a new
§ 93.153(i)(1), which provides a
mechanism for demonstrating that the
emissions are in conformance with the
SIP or TIP. This approach allows States
or Tribes and Federal agencies to
identify acceptable levels of emissions
from the facility for inclusion in the SIP
before starting the environmental review
for the actions and thereby expedite the
review of the Federal actions at the
facilities that do not exceed the
emission levels.
The EPA believes that this provision
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 development and use of a facilitywide emission budget 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, and adoption
of that budget into a SIP or TIP would
demonstrate that the area could meet its
air quality obligations with the
identified emission budget.
Comment: The majority of
commenters supported the concept of
the facility-wide emission budget
approach with the appropriate
consultation and input from the States.
Many noted that it will not interfere
with attainment of the NAAQS.
However, some commenters
disapproved of the budget approach and
expressed concern about a Federal
agency/airport being allowed to
establish their own budget without
having to do additional analysis.
While generally agreeing with the
approach, many commenters asked EPA
for clarifications. Several commenters
asked for clarification in the final rule
that this is voluntary for both the
L. 40 CFR 93.160—Mitigation of Air
Quality Impacts
The EPA is revising 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
that those commitments must be
fulfilled. EPA is adding text to state that
those commitments must be fulfilled to
PO 00000
Frm 00015
Fmt 4701
Sfmt 4700
E:\FR\FM\05APR3.SGM
05APR3
erowe on DSK5CLS3C1PROD with RULES3
17268
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
Federal agency and the States and the
States can opt to use the existing
General Conformity approach. In
addition, some commenters asked EPA
to include provisions requiring such
measures as periodic reporting of
emissions, anti-backsliding, and a
requirement to obtain offsets if the
budget is exceeded. Another commenter
requested that on-site pollution
prevention projects be required to occur
contemporaneously with any proposed
emission changes at the facility. Many
commenters requested that EPA clarify
the applicability of this provision to
non-Federal facilities (e.g., airports).
Response: The EPA agrees with most
of the commenters that the facility-wide
emissions budget approach will not
interfere with attainment of the NAAQS
and will provide flexibility to the
facilities in meeting the General
Conformity requirements. EPA believes
that this approach benefits both the air
regulatory agencies and the regulated
facilities. State air quality agencies
would benefit by having better emission
estimates, including growth estimates
from the installation and Federal
agencies would benefit by having the
General Conformity process
streamlined, reducing the amount of
time it takes to demonstrate conformity.
EPA is clarifying in the final rule that
this approach is completely voluntary
by both the State and the Federal
agency. If the State or Tribe agrees to
allow the facility to use the emission
budget approach, it must ensure that the
budget that it approves meets all
applicable air quality requirements such
as attainment deadlines and reasonable
further progress milestones. Thus, in
developing and approving such budgets,
we encourage the facilities and the State
or Tribe to consult with other agencies
or authorities as may be appropriate. For
example, we encourage consultation
with the local MPO if a facility-wide
emissions budget includes on-road
mobile emissions that might also be
included in an MPO’s regional
emissions analysis.
While the State or Tribe must approve
a facility-wide budget into the SIP or
TIP, once they have done so they cannot
compel an agency to demonstrate
conformity with another approach if the
Federal agency chooses to show
conformity with the approved facilitywide emission budget. Federal agencies
may use any approach to demonstrate
conformity provided for in the rule.
Facilities that are not federally
controlled or operated, but are subject to
Federal approvals, permits or funding
(such as airports and seaports) may
work with the State to establish facilitywide emissions budget that can be used
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
by a Federal agency to satisfy its General
Conformity responsibilities. The
approval by the State of a facility-wide
emissions budget into the SIP does not
relieve the State of any obligation to
meet any SIP or CAA requirements,
milestones or deadlines.
N. 40 CFR 93.162—Emissions Beyond
the Time Period Covered by the
Applicable SIP or TIP
The EPA is adding 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 allowing 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 either include the
emissions in the current SIP or TIP or
a commitment to account for the
emissions in future SIPs or TIPs. The
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 for the
affected sources of reasonably available
control technology (RACT), reasonably
available control measures (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
Mitigation measures and offsets are
used to reduce the impact of emission
increases from a project or action. To
alleviate 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 has decided to include
this interpretation in the regulations.
The EPA is adding a new section to
address the timing of offset and
mitigation measures. First, the section
PO 00000
Frm 00016
Fmt 4701
Sfmt 4700
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 new section would allow, under
special conditions and consistent with
CAA requirements, the State or Tribe to
approve other schedules for offsets or
mitigation measures. EPA is requiring
that emissions reductions used over an
alternate schedule must be consistent
with statutory requirements that new
violations are not created, the frequency
or severity of existing violations are not
increased, and timely attainment or
interim milestones are not delayed.
Therefore, when a State or Tribe
approves an alternative schedule for
emissions reductions, it is assuring that
the increased emissions that occur
during the period of the Federal action
do not violate any of the three Clean Air
Act requirements described above.
To ensure that these noncontemporaneous emission reductions
provide greater environmental benefits
in the long term, EPA is requiring that
the offset or mitigation ratios for
alternative schedules be greater than
one-for-one. Therefore, EPA is requiring
a ratio that is no less than the applicable
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.
Also, EPA believes that the mitigation
or offset compensation period should
not last indefinitely and is requiring that
the period should not exceed two times
the period of the under-mitigated
emissions. For example, a Federal
agency may be supporting 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).
Agreeing to allow the use of offsets or
mitigation measures in later years does
not exempt the State or Tribe from
timely 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
should be properly reflected in the SIP
or TIP, e.g., through a SIP revision.
E:\FR\FM\05APR3.SGM
05APR3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES3
Comment: Several commenters
representing Federal agencies, industry
and airports supported the flexibility in
the timing of offsets and mitigation
measures. The commenters believe that
EPA needs to clarify what entity would
determine whether the alternative time
period for mitigation would trigger the
three statutory factors for conformity
and how such entity would do so. One
commenter recommended that the State
or tribal agency responsible for the SIP
be the appropriate entity. Another
commenter requested that EPA clarify
the use of emission reduction credits in
such cases. In addition, a commenter
urges EPA to reduce the offset ratios to
no more than 1.2:1 in extreme
nonattainment areas and to provide a
fixed period of time for completing the
emissions reductions recommending a
5-year compensation period to be
included in the rule.
Some commenters representing State
and local air quality agencies objected to
the alternate schedule provision for
offsets. The commenters believe that
mitigation measures and offsets must be
contemporaneous and occur in the same
calendar year as the emission increases.
If EPA adopts the provision, the
commenters suggested additional
limitation on the use of the alternative
schedule, such as a 3-year maximum
time limit for the schedule and
requiring more than a one-for-one offset.
Response: The EPA believes the rule
should be finalized as proposed. This
will allow Federal agencies to work
with States or Tribes to develop an
alternative schedule for the emission
reductions in cases where a greater
environmental benefit can be obtained.
The requirement for the additional
reductions to meet the ratios in the
regulations ensures that the area is
receiving at least a minimum
environmental benefit consistent with
other CAA programs. Since State or
tribal approval is required for the
alternative schedule, those agencies
have the ability to ensure that the
alternative schedule not cause or
contribute to a violation of the SIP or
TIP. In addition, EPA has added
additional wording to clarify that the
State or Tribe is not compelled to
approve a proposed alternate schedule
for mitigation measures.
P. 40 CFR 93.164—Inter-Precursor
Offsets and Mitigation Measures
The EPA is adding a new section to
the regulations to allow the use of interprecursor 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
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
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 and an appropriate ratio of
precursor reductions has been
established. The 1993 General
Conformity regulations do not
specifically allow or prohibit interprecursor offsets and mitigation
measures. Therefore, EPA is revising the
regulations to allow such offsets or
mitigation measures if they are allowed
by a State or tribal 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.
Comments: Commenters from a wide
range of affiliations supported the
provision for inter-precursor offsets
with some conditions. The commenters
suggested that offsets should be allowed
only with adequate technical support
and appropriate ratios for interpollutant mitigation. Others thought
EPA should provide a guidance
document on what States may consider
as reasonable tradeoffs and procedures
for evaluating such tradeoffs at the same
time as the final rule publication. Many
believed the provisions should only be
implemented with the full involvement
and approval of the State, local or tribal
air quality agency. Some commenters
representing State air quality agencies
objected to the provision for interprecursor offsets but gave no reason for
the objection.
Response: The EPA believes that
allowing inter-precursor offsets will
allow facilities flexibility in meeting the
General Conformity requirements and
agrees to change the regulations to allow
for the trading of inter-precursor
emissions only if two conditions are
met. First, such trades must be allowed
by the State or Tribe in a SIP or TIP. The
State must already allow for interprecursor offsets or trading through a
SIP-approved NSR program,
transportation conformity program, or in
the attainment or reasonable further
progress (RFP) demonstration to ensure
conformance with a SIP or a TIP.
Second, the trade must be technically
justified and have demonstrated
environmental benefits. This technical
justification and demonstration should
be accomplished by showing that the
precursors are area specific and
appropriate ratios are identified in the
SIP. As needed, EPA will provide
PO 00000
Frm 00017
Fmt 4701
Sfmt 4700
17269
guidance on tradeoffs and procedures
for evaluating such tradeoffs.
Q. 40 CFR 93.165—Early Emission
Reduction Credit Program
The EPA is adding 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 for future actions
subject to the General Conformity
requirements. To expedite the project
level conformity process, EPA believes
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, while at the
same time meeting the goals of the SIP
and TIP.
The EPA is adding a new section,
§ 93.165, to the General Conformity
Regulations to define the requirements
of this program. Under the program,
Federal agencies or project proponents
(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 RFP
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 will be allowed to use
the credits to reduce the total of direct
and indirect emissions from a future
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 under this program.
In paragraph (a), EPA establishes the
ability for the State or Tribe and Federal
agency to create and use the emission
reduction credits.
In paragraph (b), EPA identifies the
criteria for creating the credits. The
E:\FR\FM\05APR3.SGM
05APR3
erowe on DSK5CLS3C1PROD with RULES3
17270
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
criteria are similar to the 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
precisely 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 alternate-fueled 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. However, the reductions must be
quantified before the credit is used to
support a conformity determination.
In paragraph (c), EPA establishes the
requirements for the use of the credits.
If the emission reduction credits are
created at the same facility and in the
same nonattainment or maintenance
area as the Federal action, the credits
can be used to reduce the total
emissions from the action. This may
allow the Federal agency to determine
the action conforms because the total
emissions are below the de minimis
levels for the area. 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 offsets 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 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 requiring that the credits be used
in the same year as they are generated
under the program. Such a restriction
would ensure consistency with the
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
other parts of the General Conformity
program. This does not mean that an
emission reduction strategy cannot
produce an annual stream of credits, but
does mean that the reduction credits
cannot be carried over to another year.
Although the emission reduction credits
must meet the criteria for use of offsets
or other mitigation measures, EPA is not
allowing the credits to be combined
with other program areas such as the
alternate schedules for mitigation
measures under § 93.163 or the interprecursor mitigation offset program
under § 93.164. At this time, EPA
believes that, because of the newness of
the emission reduction credit program
and the lack of available
implementation data, it is better to take
a conservative approach on
implementing the program to ensure
that it can be effectively implemented
and evaluated.
Comment: Most commenters
supported EPA’s proposal to allow the
use of emission reduction credits
(ERCs). One commenter thought that
EPA should clarify when the ERCs can
be used. Several commenters disagreed
with the proposal, citing concerns such
as violations of conformity, while
another was concerned about the
additional resources required to certify
the ERC and track them over time, and
avoidance of formal conformity
determinations. Still another commenter
thought that under § 93.165(b)(4) there
is no ability for States and the public to
enforce the measures relied upon to
generate emission reduction credits.
Response: The EPA believes that by
allowing early ERCs, Federal agencies
will be encouraged to develop emission
reduction programs before they are
needed as offsets for conformity
determinations. Since the emissions are
accounted for on an annual basis, the
unused credits would benefit the
environment. The emission reduction
programs could be implemented in
conjunction with the action requiring
the conformity determination.
Therefore, the use of ERC would not
encourage an agency to violate
conformity. In any event, under this
provision all Federal actions would
need applicable offsetting reductions by
the time the conformity determination
was made. EPA does not believe States
will be required to use more resources
since States and Tribes are only
required to verify the credits when they
are used in a conformity evaluation,
while the agency relying upon the
credits is required to document that
usage.
PO 00000
Frm 00018
Fmt 4701
Sfmt 4700
VII. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order (EO) 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.
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 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 are not required
to implement such a program and
would be relieved of the burden of
conducting and reviewing some, if not
all, of the General Conformity
determinations for the facility if they do
so. States are not required to implement
a program that would increase their
burden, and we assume they would not
choose to do so.
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
E:\FR\FM\05APR3.SGM
05APR3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
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
this final rule 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-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impact of this final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
This final rule will not impose any
significant requirements on small
entities, because the General Conformity
Regulations set requirements on Federal
agencies to show that their actions
conform to the appropriate State, tribal
or Federal implementation plan for
attaining clean air.
erowe on DSK5CLS3C1PROD with RULES3
D. Unfunded Mandates Reform Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, or tribal
governments or the private sector. The
action imposes no enforceable duty on
any State, local or tribal governments or
the private sector. Therefore, this action
is not subject to the requirements of
section 202 and 205 of the UMRA.
This action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. The
General Conformity Regulations set
requirements on Federal agencies to
show that their actions conform to the
appropriate State, tribal or Federal
implementation plan for attaining clean
air.
E. Executive Order 13132—Federalism
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. The General
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
Conformity Regulations set
requirements on Federal agencies to
show that their actions conform to the
appropriate State, tribal or Federal
implementation plan for attaining clean
air. Thus, Executive Order 13132 does
not apply to this action.
F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). They do not have a substantial
direct effect on one or more Indian
Tribes, since no Tribe has to
demonstrate conformity for their
actions. Furthermore, except for
allowing the Tribes to comment on draft
conformity determinations, these
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. Thus,
Executive Order 13175 does not apply
to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
EPA interprets EO 13045 (62 FR
19885, April 23, 1997) as applying only
to those regulatory actions that concern
health or safety risks, such that the
analysis required under section 5–501 of
the EO has the potential to influence the
regulation. This action is not subject to
EO 13045 because it does not establish
an environmental standard intended to
mitigate health or safety risks.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant energy
action’’ as defined in Executive Order
13211 (66 FR 28355, May 22, 2001),
because it is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy. The
General Conformity Regulations set
requirements on Federal agencies to
show that their actions conform to the
appropriate State, tribal or Federal
implementation plan for attaining clean
air. Further, we have concluded that
this rule is not likely to have any
adverse energy effects.
PO 00000
Frm 00019
Fmt 4701
Sfmt 4700
17271
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and 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.
This action does not involve technical
standards. Therefore, EPA did not
consider the use of any VCS.
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.
The EPA has determined that this
final rule will not have
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 revisions to the
regulations would revise procedures for
other Federal agencies to follow and
does not relax the progress toward
attainment and maintenance for the
NAAQS as required by individual SIPs
and TIPs 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.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
E:\FR\FM\05APR3.SGM
05APR3
17272
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective July 6, 2010.
VII. Statutory Authority
The statutory authority for this action
is provided by section 176(c) of the CAA
as amended (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: March 24, 2010.
Lisa P. Jackson,
Administrator.
For the reasons stated in the preamble,
title 40, chapter I of the Code of Federal
Regulations is amended as follows:
■
PART 51—REQUIREMENTS FOR
PREPARATION, ADOPTION, AND
SUBMITTAL OF IMPLEMENTATION
PLANS
1. The authority citation for part 51
continues to read as follows:
■
erowe on DSK5CLS3C1PROD with RULES3
Authority: 23 U.S.C. 101; 42 U.S.C. 7401–
7671q.
Subpart W—[Amended]
§ 51.850
[Removed and Reserved]
2. Remove and reserve § 51.850.
3. Section 51.851 is revised to read as
follows:
■
■
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
§ 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 or TIP, conformity
determinations shall be governed by the
approved (or approved portion of) State
or tribal 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 part 93 requirements not
contained in the State or Tribe
conformity provisions 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 timely attainment or
maintenance of the standard, meeting
the reasonable further progress
milestones or other requirements of the
Clean Air Act. Federal agencies can rely
on the list to determine that their
emissions conform with the applicable
SIP or TIP.
(g) Any previously applicable SIP or
TIP requirements relating to conformity
remain enforceable until EPA approves
PO 00000
Frm 00020
Fmt 4701
Sfmt 4700
the revision to the SIP or TIP to
specifically remove them.
§§ 51.852 through 51.860 [Removed
and Reserved]
■ 4. Remove and reserve §§ 51.852
through 51.860.
PART 93—DETERMINING
CONFORMITY OF FEDERAL ACTIONS
TO STATE TRIBAL OR FEDERAL
IMPLEMENTATION PLANS
5. The authority citation for part 93
continues to read as follows:
■
Authority: 42 U.S.C. 7401–7671q.
Subpart B—[Amended]
6. 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.
■ 7. 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 General Conformity
SIP revision allowed under 40 CFR
51.851. When EPA approves a State’s or
Tribe’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 or Tribe’s criteria and
procedures. The Federal conformity
regulations contained in this subpart
apply only for the portions, if any, of the
part 93 requirements not contained in
the State or Tribe conformity provisions
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.
■ 8. Section 93.152 is amended as
follows:
■ a. Adding in alphabetical order a
definition for ‘‘Applicability analysis.’’
■ b. Revising the definition of
‘‘Applicable implementation plan or
applicable SIP.’’
E:\FR\FM\05APR3.SGM
05APR3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
c. Revising the definition for
‘‘Areawide air quality modeling
analysis.’’
■ d. Adding the following definitions in
alphabetical order: ‘‘Confidential
business information (CBI),’’
‘‘Conformity determination,’’
‘‘Conformity evaluation,’’ ‘‘Continuing
program responsibility,’’ and
‘‘Continuous program to implement.’’
■ e. Revising the definition of ‘‘Direct
emissions.’’
■ f. Adding in alphabetical order a
definition for ‘‘Emission inventory.’’
■ g. Removing the definition for
‘‘Emissions that a Federal agency has a
continuing program responsibility for.’’
■ h. Revising the definition of ‘‘EPA.’’
■ i. Revising the definition of ‘‘Indirect
Emissions.’’
■ j. Revising the definition of ‘‘Local air
quality modeling analysis.’’
■ k. Revising the definitions for
‘‘Maintenance area’’ and ‘‘Metropolitan
Planning Organization (MPO).’’
■ l. Adding in alphabetical order a
definition for ‘‘Mitigation measure.’’
■ m. Revising the definition for
‘‘National ambient air quality standards
(NAAQS).’’
■ n. In the definitions for ‘‘Precursors of
a criteria pollutant,’’ revising paragraphs
(3)(i), (3)(ii) and (3)(iii).
■ o. Revising the definition for
‘‘Reasonably foreseeable emissions.’’
■ p. Removing the definition for
‘‘Regionally significant action.’’
■ q. Adding the following definitions:
‘‘Restricted information.’’
■ r. Adding 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.
erowe on DSK5CLS3C1PROD with RULES3
*
*
*
*
*
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
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
model to determine the effects of
emissions on air quality, for example, an
assessment using EPA’s community
multi-scale air quality (CMAQ)
modeling system.
*
*
*
*
*
Confidential business information
(CBI) means information that has been
determined by a Federal agency, in
accordance with its applicable
regulations, to be a trade secret, or
commercial or financial information
obtained from a person and privileged
or confidential and 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
that is used to demonstrate 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 means 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:
PO 00000
Frm 00021
Fmt 4701
Sfmt 4700
17273
(1) That are caused or initiated by the
Federal action and originate in the same
nonattainment or maintenance area but
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.
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.
*
*
*
*
*
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 (CO2), 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
E:\FR\FM\05APR3.SGM
05APR3
17274
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES3
(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
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 physically 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
and submitted by a federally recognized
Indian tribal government determined to
be eligible under 40 CFR 49.9 and the
plan has been approved by EPA.
■ 9. Section 93.153 is amended as
follows:
■ a. By revising the table in paragraph
(b)(1).
■ b. By adding paragraph (c)(2)(xxii).
■ c. By revising paragraphs (d)(1) and
(d)(2).
■ d. By revising paragraph (e)(2).
■ e. By adding paragraph (e)(3).
■ f. By revising paragraph (f).
■ g. By revising paragraph (g)
introductory text.
■ h. By adding paragraph (g)(3).
■ i. By revising paragraphs (h)
introductory text, (h)(1), (h)(2), and
(h)(4).
■ j. By revising paragraphs (i), (j), and
(k).
§ 93.153
*
Applicability analysis.
*
*
(1) * * *
*
*
Tons/year
Ozone (VOC’s or NOX):
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
Tons/year
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 the mixing height
specified in the applicable SIP or TIP.
Where the applicable SIP or TIP does
not specify a mixing height, the Federal
agency can use the 3,000 feet above
ground level as a default mixing height,
unless the agency demonstrates that use
of a different mixing height is
appropriate because the change in
emissions at and above that height
caused by the Federal action is de
minimis.
*
*
*
*
*
(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 110(a)(2)(c) and
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
Regional office(s), the affected State(s)
PO 00000
Frm 00022
Fmt 4701
Sfmt 4700
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 three 6month periods except where an agency:
(i) Provides information to EPA and
the State or Tribe 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, local, or tribal air quality agencies
responsible for the SIP(s) or TIP(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.
E:\FR\FM\05APR3.SGM
05APR3
erowe on DSK5CLS3C1PROD with RULES3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
(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 of
action qualifies it for the presumption;
(2) The Federal agency must notify
the appropriate EPA Regional Office(s),
State, local, and tribal 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 or Tribe 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 facilitywide emission budget.
(2) Prescribed fires conducted in
accordance with a smoke management
program (SMP) which meets the
requirements of EPA’s Interim Air
Quality Policy on Wildland and
Prescribed Fires or an equivalent
replacement EPA policy.
(3) Emissions for actions that the State
or Tribe identifies in the EPA-approved
SIP or TIP 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
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
shall apply to the action if EPA or a
third party shows that the action would:
(1) Cause or contribute to any new
violation of any standard in any area;
(2) Interfere with provisions in the
applicable SIP or TIP for maintenance of
any standard;
(3) Increase the frequency or severity
of any existing violation of any standard
in any area; or
(4) 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 or TIP for purposes
of:
(i) A demonstration of reasonable
further progress;
(ii) A demonstration of attainment; or
(iii) 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.
■ 10. 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.
■ 11. Section 93.155 is revised to read
as follows:
§ 93.155
Reporting requirements.
(a) A Federal agency making a
conformity determination under
§§ 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
PO 00000
Frm 00023
Fmt 4701
Sfmt 4700
17275
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 three 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.
■ 12. 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
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
E:\FR\FM\05APR3.SGM
05APR3
17276
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
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 three 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.
■ 13. Section 93.157 is revised to read
as follows:
erowe on DSK5CLS3C1PROD with RULES3
§ 93.157
Reevaluation of conformity.
(a) Once a conformity determination
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 (b) of this
section; or any modification to the
action does not result in an increase in
emissions above the levels specified in
§ 93.153(b). 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
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
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 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.
(d) If the Federal agency originally
determined 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.
■ 14. 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);
■ d. Adding paragraph (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 in accordance with
§ 93.161;
(2) For precursors of ozone, nitrogen
dioxide, or PM, the total of direct and
indirect emissions from the action are
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
PO 00000
Frm 00024
Fmt 4701
Sfmt 4700
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 or Tribe makes a determination as
provided in paragraph (a)(5)(i)(A) of this
section or where the State or Tribe
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’s or Tribe’s commitment under
paragraph (a)(5)(i)(B) of this section and
the State has submitted a SIP or TIP to
EPA covering the time period during
which the emissions will occur or is
scheduled to submit such a SIP or TIP
within 18 months of the conformity
determination, the State commitment is
automatically deemed a call for a SIP or
TIP 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 or Tribe commits
to revise the applicable SIP;
(D) Where a Federal agency made a
conformity determination based on a
State or tribal commitment under
paragraph (a)(5)(i)(B) of this section and
the State or Tribe has not submitted a
SIP covering the time period when the
emissions will occur or is not scheduled
to submit such a SIP within 18 months
of the conformity determination, the
State or Tribe 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
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
E:\FR\FM\05APR3.SGM
05APR3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
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
*
*
*
*
*
■ 15. Section 93.159 is amended as
follows:
■ a. Revising paragraphs (b)
introductory text and (b)(1)(ii);
■ b. Revising paragraphs (b)(2) and (c)
introductory text; and
■ c. Revising paragraph (d).
The revisions and additions read as
follows:
§ 93.159 Procedures for conformity
determinations of general Federal actions.
erowe on DSK5CLS3C1PROD with RULES3
*
*
*
*
*
(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
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 months before
the Federal Register notice of
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
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 the 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.
■ 16. 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
such commitments must be fulfilled.
(g) After a State or Tribe revises its
SIP or TIP and EPA approves that SIP
revision, any agreements, including
mitigation measures, necessary for a
conformity determination will be both
PO 00000
Frm 00025
Fmt 4701
Sfmt 4700
17277
State or tribal and federally enforceable.
Enforceability through the applicable
SIP or TIP will apply to all persons who
agree to mitigate direct and indirect
emissions associated with a Federal
action for a conformity determination.
■ 17. Subpart B is amended by adding
§ 93.161 to read as follows:
§ 93.161 Conformity evaluation for Federal
installations with facility-wide emission
budgets.
(a) The State, local or tribal agency
responsible for implementing and
enforcing the SIP or TIP can in
cooperation with Federal agencies or
third parties authorized by the agency
that operate installations subject to
Federal oversight 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.
(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
E:\FR\FM\05APR3.SGM
05APR3
17278
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
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.
■ 18. Subpart B is amended by adding
§ 93.162 to read as follows:
§ 93.162 Emissions beyond the time
period covered by the SIP.
If a Federal action would result in
total direct and indirect emissions above
the applicable thresholds 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 or Tribe to adopt
an emissions budget for the action for
inclusion in the SIP. The State or Tribe
must submit a SIP or TIP 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 or Tribe shall restrict a State’s or
Tribe’s ability to require RACT, RACM
or any other control measures within
the State’s or Tribe’s authority to ensure
timely attainment of the NAAQS.
■ 19. Subpart B is amended by adding
§ 193.163 to read as follows:
(3) The offset or mitigation measure
with emissions reductions in another
year will not:
(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 or Tribe
of an offset or mitigation measure with
emissions reductions in another year
does not relieve the State or Tribe of any
obligation to meet any SIP or Clean Air
Act milestone or deadline. The approval
of an alternate schedule for mitigation
measures is at the discretion of the State
or Tribe, and they are not required to
approve an alternate schedule.
■ 20. Subpart B is amended by adding
§ 93.164 to read as follows:
§ 93.164 Inter-precursor mitigation
measures and offsets.
Federal agencies must reduce the
same type of pollutant as being
increased by the Federal action except
the State or Tribe may approve offsets
or mitigation measures of different
precursors of the same criteria pollutant,
if such trades are allowed by a State or
Tribe in a SIP or TIP approved NSR
regulation, is technically justified, and
has a demonstrated environmental
benefit.
■ 21. Subpart B is amended by adding
§ 93.165 to read as follows:
erowe on DSK5CLS3C1PROD with RULES3
§ 93.163 Timing of offsets and mitigation
measures.
(a) The emissions reductions from an
offset or mitigation measure used to
demonstrate conformity must occur
during the same calendar year as the
emission increases from the action
except, as provided in paragraph (b) of
this section.
(b) The State or Tribe may approve
emissions reductions in other years
provided:
(1) The reductions are greater than the
emission increases by the following
ratios:
(i) Extreme nonattainment
areas ....................................
1.5:1
(ii) Severe nonattainment
areas ....................................
1.3:1
(iii) Serious nonattainment
areas ....................................
1.2:1
(iv) Moderate nonattainment
areas ....................................
1.15:1
(v) All other areas .................
1.1:1
(2) The time period for completing the
emissions reductions must not exceed
twice the period of the emissions.
§ 93.165 Early emission reduction credit
programs at Federal facilities and
installation subject to Federal oversight.
(a) Federal facilities and installations
subject to Federal oversight can, with
the approval of the State or tribal agency
responsible for the SIP or TIP 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 use them in accordance
with paragraph (c) of this section.
(b) Creation of emission reduction
credits.
(1) Emissions reductions must be
quantifiable through the use of standard
emission factors or measurement
techniques. If non-standard factors or
techniques to quantify the emissions
reductions are used, the Federal agency
must receive approval from the State or
tribal agency responsible for the
implementation of the SIP or TIP and
from EPA’s Regional Office. The
emission reduction credits do not have
to be quantified before the reduction
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
PO 00000
Frm 00026
Fmt 4701
Sfmt 4700
strategy is implemented, but must be
quantified before the credits are used in
the General Conformity evaluation.
(2) The emission reduction methods
must be consistent with the applicable
SIP or TIP attainment and reasonable
further progress demonstrations.
(3) The emissions reductions cannot
be required by or credited to other
applicable SIP or TIP provisions.
(4) Both the State or Tribe and Federal
air quality agencies must be able to take
legal action to ensure continued
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 or tribal air quality agency and the
EPA regional office for review. The
documentation must include a detailed
description of the emission reduction
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
E:\FR\FM\05APR3.SGM
05APR3
Federal Register / Vol. 75, No. 64 / Monday, April 5, 2010 / Rules and Regulations
erowe on DSK5CLS3C1PROD with RULES3
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.
VerDate Nov<24>2008
14:43 Apr 02, 2010
Jkt 220001
(5) Federal agencies must notify the
State or tribal air quality agency
responsible for the implementation of
the SIP or TIP and EPA Regional Office
PO 00000
Frm 00027
Fmt 4701
Sfmt 9990
17279
when the emission reduction credits are
being used.
[FR Doc. 2010–7047 Filed 4–2–10; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\05APR3.SGM
05APR3
Agencies
[Federal Register Volume 75, Number 64 (Monday, April 5, 2010)]
[Rules and Regulations]
[Pages 17254-17279]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7047]
[[Page 17253]]
-----------------------------------------------------------------------
Part III
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Parts 51 and 93
Revisions to the General Conformity Regulations; Final Rule
Federal Register / Vol. 75 , No. 64 / Monday, April 5, 2010 / Rules
and Regulations
[[Page 17254]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 93
[EPA-HQ-OAR-2006-0669; FRL-9131-7]
RIN 2060-AH93
Revisions to the General Conformity Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is revising its regulations relating to the Clean Air
Act (CAA) requirement that Federal actions conform to the appropriate
State, tribal or Federal implementation plan (SIP, TIP, or FIP) for
attaining clean air (``General Conformity''). EPA and other Federal
agencies have gained experience with the implementation of the existing
regulations, which were promulgated in 1993 (and underwent minor
revisions in 2006), and have identified several issues with their
implementation. In addition, in 2004, EPA issued regulations to
implement the revised ozone national ambient air quality standards
(NAAQS) and in 2007 issued regulations to implement the new fine
particulate matter standard. State and other air quality agencies are
in the process of developing revised plans to attain the new standards
and the revisions to the General Conformity Regulations will be helpful
to the State, Tribe, and local agencies in developing, and Federal
agencies in commenting, on the proposed SIPs revisions. This rule
revision will also facilitate Federal agency compliance with conforming
its activities to the SIPs thereby preventing violations of the NAAQS.
This rule revision provides for a timely and effective process for
Federal agencies and States and Tribes to ensure Federal activities are
incorporated in these 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 NAAQS or
interfere with the purpose of a SIP, TIP or FIP to attain or maintain
the NAAQS.
DATES: This action is effective on July 6, 2010.
ADDRESSES: EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2006-0669. All documents in the docket are
listed in the https://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information (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. Publicly available docket materials are available
either electronically in https://www.regulations.gov or in hard copy at
the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution
Avenue, Northwest, 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 EPA Docket Center is (202)
566-1742.
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 or Mr. H. Lynn Dail, Office of Air
Quality Planning and Standards, U.S. Environmental Protection Agency,
Mail Code C539-02, Research Triangle Park, NC 27711, phone number (919)
541-2363 or by e-mail at dail.lynn@epa.gov.
SUPPLEMENTARY INFORMATION:
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 seaports.
B. How is this preamble organized?
The information presented in this preamble is organized as follows:
Outline
I. General Information
A. Does this action apply to me?
B. How is this preamble organized?
C. When did EPA propose these revisions to the General
Conformity Regulations?
D. Where can I obtain additional information?
II. Background
A. What is General Conformity and how does it affect air
quality?
B. Why is EPA revising these regulations at this time?
III. How are the existing regulations implemented?
A. Applicability Analysis
B. Conformity Determination
C. Review Process
IV. Comments Submitted on the Proposed Rule
V. Summary of the Final Revisions and Clarifications of the General
Conformity Regulations
A. Overview of Revisions to the General Conformity Regulations
B. What Innovative and Flexible Approaches Are Being Finalized?
C. What Burden Reduction Measures Are Being Finalized?
D. What Revisions Provide Tools and Guidance for Transitioning
to New or Revised NAAQS?
E. What Revisions Are Being Finalized at the Request of Other
Agencies?
F. What Are Some of the Clarifications to the Existing
Regulations That Are Being Finalized?
VI. Detailed Discussion of the Final Revisions to and Clarifications
of the General Conformity Regulations
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--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. 40 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 Tribal Implementation Plan (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
VII. 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
K. Congressional Review Act
L. Judicial Review
VIII. Statutory Authority
[[Page 17255]]
C. When did EPA propose these revisions to the General Conformity
Regulations?
The EPA proposed the revised General Conformity Regulations in the
Federal Register on January 8, 2008 at 73 FR 1402.
D. Where can I obtain additional information?
In addition to being available in the docket, an electronic copy of
this final rule is also 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.
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 NAAQS or interfering with the purpose of a SIP, TIP,
or FIP.
In the CAA, Congress recognized that actions taken by Federal
agencies could affect State, Tribal, and local agencies' ability to
attain and maintain the NAAQS. In section 176(c) (42 U.S.C. 7506) of
the CAA, Congress established requirements 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 to 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 approval
actions, EPA published two sets of regulations to implement section
176(c). The Transportation Conformity Regulations, first published on
November 24, 1993 (58 FR 62188) and revised on July 1, 2004 at 69 FR
40004, May 6, 2005 at 70 FR 24280 and March 10, 2006 at 71 FR 12468,
and January 24, 2008 at 73 FR 4420, address Federal actions related to
highway and mass transit funding and approval actions. The General
Conformity Regulations, published on November 30, 1993 (58 FR 63214),
cover all other Federal actions.
B. Why is EPA revising these regulations at this time?
On July 17, 2006 at 71 FR 40420, EPA 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. 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. To address these issues, EPA
initiated a process to review, revise and streamline the regulations.
In addition, EPA is in the process of developing regulations to
implement the revised ozone standard and regulations to implement the
new particulate matter standard. In the near future, State and local
air quality agencies will be required to develop revised SIPs to attain
these new standards. Knowledge of the revised General Conformity
Regulations will be helpful to the State, Tribal, and local agencies in
the SIP development process as well as the Federal agencies in
commenting on the proposed SIP revisions. This rule revision will also
facilitate Federal agency compliance with conforming its activities to
the SIPs and thereby preventing violations of the NAAQS.
III. How are the existing regulations implemented?
Federal agencies and other parties involved in the conformity
process have found that in implementing the existing General Conformity
Regulations their process falls into 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.
The existing regulations do not specifically identify the roles of
Indian Tribes in the General Conformity process or the connection
between the regulations and TIPs. In the revised regulations, EPA has
specifically identified tribal agencies as stakeholders in the
conformity process such as requiring specific notification for any
federally recognized Tribes in the nonattainment or maintenance area
where the action is occurring. In addition, the revised regulations
also clarify that Federal actions must conform to any applicable TIP.
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 only to areas designated as nonattainment under
section 107 of the CAA and maintenance areas established under section
175A of the CAA. Therefore, only actions which cause emissions in
designated nonattainment and maintenance areas are subject to the
regulations. In addition, the regulations recognize that the vast
majority of Federal actions do not result in a 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 or more 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;
4. Whether the total direct and indirect emissions are below or
above the de minimis levels; and/or
5. Where the facility has an emission budget approved by the State
or Tribe as part of the SIP or TIP, the Federal agency determines if
the emissions from the proposed action are within the budget.
If the action will cause emissions above the de miminis in any
nonattainment or maintenance area and the action is not otherwise
exempt, ``presumed to conform,'' or included in the existing emissions
budget of the SIP or TIP, the agency must conduct a conformity
determination before it takes the action.
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
cause a new violation of the standard, or 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:
[[Page 17256]]
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, Tribe or local
agency responsible for the SIP or TIP 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 or Tribe to revise
the SIP or TIP 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 offsetting 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 1993
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)(FLM). 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 substantive
and procedural General Conformity requirements can result in an adverse
court decision if challenged.
IV. Comments Submitted on the Proposed Rule
The proposed rule on the ``Revisions to the General Conformity
Regulations'' was issued on January 8, 2008 (73 FR 1402). The EPA
received 65 letters from State and local governments, Federal agencies,
environmental groups, and private citizens commenting on the proposed
regulations. Some of the comments are discussed in section VI of this
notice as they were relevant to the detailed discussion of revisions.
The EPA has included a response to comments document which addresses
all of the timely comments received on the proposed rule in the docket
of this rulemaking action (See Docket No. EPA-HQ-OAR-2006-0669).
V. Summary of the Final Revisions and Clarifications of the General
Conformity Regulations
A. Overview of 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 in 40
CFR 93 subpart B (sections 150 to 160), it also promulgated 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 revising 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 deleting all of subpart W
except for Sec. 51.851. In the revision to Sec. 51.851, EPA is
requiring 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. The EPA added paragraph (f) to 40 CFR 51.851 to allow the
States and Tribes to develop their own ``presumed to conform'' list for
actions covered by their conformity SIPs or TIPs.
In 40 CFR part 93, subpart B, EPA is making specific revisions to
the regulations which (1) Clarify the process, (2) delete outdated or
unnecessary requirements, (3) authorize innovative and flexible
approaches, (4) reduce the paperwork burden, (5) provide transition
tools for implementing new standards, (6) address issues identified by
implementing agencies, and (7) provide a better explanation of
regulations and policies.
Several of the 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. This is discussed
in more detail in section VI below.
B. What Innovative and Flexible Approaches Are Being Finalized?
1. The EPA is adding 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,
may 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 could incorporate the facility-
wide emission budget into the applicable SIP or TIP and submit it to
EPA for approval. After EPA approves the SIP or TIP, any action at the
facility can be ``presumed to conform'' provided that the emissions
from the proposed action along with all other emissions at the facility
are within the EPA approved facility-wide emission budget 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. For example, 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.
2. The EPA is adding 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 established by
Congress in Federal Aviation Administration (FAA) Reauthorization Act
of 2003 for the Airport Early Emission Reduction Credit (AERC) program
and the guidance to implement that program. The revised regulations
provide a similar framework for other Federal agencies.
3. The EPA is adding a new section (40 CFR 93.164) to allow, with
certain limitations, the emission of one
[[Page 17257]]
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 adding a new section (40 CFR 93.163) to allow
alternate schedules for mitigating emissions increases. The mitigation
timing approach allows 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 can allow this approach to
accommodate short-term increases in emissions if they believe a
substantial long-term reduction in emissions will result from a Federal
action.
C. What Burden Reduction Measures Are Being Finalized?
1. The EPA is deleting the provision in the existing regulation (40
CFR 93.153) that requires Federal agencies to conduct a conformity
determination for regionally significant actions where the direct and
indirect emissions of any pollutant represent 10 percent or more of a
nonattainment or maintenance area's emissions inventory for that
pollutant, even though the total direct and indirect emissions from the
actions are below the de minimis emission levels or the actions are
otherwise ``presumed to conform''.
2. The EPA is adding in 40 CFR 93.153 new types of actions that
Federal agencies can include in their ``presumed to conform'' lists and
EPA is also permitting States or Tribes to establish in their General
Conformity SIPs or TIPs ``presumed to conform'' lists for actions
within their State or tribal area.
3. The EPA is finalizing an exemption in 40 CFR 93.153 for the
emissions from stationary sources permitted under the minor source New
Source Review (NSR) programs similar to the EPA's existing General
Conformity regulation which 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 adding a definition in the regulation (40 CFR 93.152)
for ``Take or start the Federal action'' to help Federal agencies
determine what, if any, conformity requirements apply when an area is
designated or re-designated as nonattainment.
2. The EPA is adding requirements (40 CFR 93.153(k)) for the
implementation of the statutory grace period for newly designated
nonattainment areas.
3. The EPA is adding alternate methods (40 CFR 93.162) to
demonstrate conformity for time periods beyond those covered by the SIP
or TIP. The EPA is also allowing 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 Finalized at the Request of Other Agencies?
1. As part of EPA's efforts to finalize an Air Quality Policy on
Wildland and Prescribed Fires, which was undertaken in consultation
with FLMs, EPA took comment on two possible approaches: To include a
presumption of conformity for (1) prescribed fires conducted in
accordance with a State certified smoke management programs (SMPs)
which meets the requirements of EPA's Interim Air Quality Policy on
Wildland and Prescribed Fires or an equivalent replacement EPA policy,
or (2) prescribed fires conducted in accordance with a State certified
SMPs which meets the requirements of EPA's Interim Air Quality Policy
on Wildland and Prescribed Fires or an equivalent replacement EPA
policy 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 planned burn employs State approved basic smoke management
practices (BSMP). EPA is finalizing option 1 to include a presumption
of conformity for prescribed fires that are conducted in compliance
with SMPs (40 CFR 93.153(i)(2)), with recognition that prescribed fires
employing BSMPs may be able to meet a presumption of conformity if such
a presumption is established by an agency following the requirements of
93.153(g) or by a State following the requirements of 51.851(f). In the
absence of such SMPs, we encourage States and Federal agencies to work
together to develop and finalize SMPs or to include prescribed fires
conducted in accordance with BSMPs as presumed to conform actions in
the applicable SIP. In addition, Federal agencies could undertake
actions in accordance with 40 CFR 93.153(f) and (g) to include
prescribed fires conducted in accordance with specific BSMPs as actions
that are presumed to conform.
2. The EPA is finalizing the proposal (40 CFR 93.158) 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 clarifying
the language in the regulation that states that nothing in these
regulations (40 CFR 93.155 and 40 CFR 93.156) requires the release of
materials and other information where disclosure is restricted by law.
Also, EPA is including a similar clarification for CBI.
4. Several Federal agencies and others involved in the General
Conformity process suggested that EPA should consider exempting
construction activity emissions from the conformity regulations
requirements (40 CFR 93.153). 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 these concerns 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 address construction emissions in the General Conformity
assessment. However, EPA is not finalizing an exemption for
construction emissions in the revisions and is instead affirming that
emissions from construction activities must be considered in a
conformity evaluation.
5. At the request of the FAA, EPA is codifying one of the examples
contained in the preamble to the existing General Conformity
Regulations (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 the average mixing height of 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
supports the example provided in EPA's initial preamble language for
air traffic control activities and adopting approach,
[[Page 17258]]
departure and enroute procedures for aircraft operations above the
mixing height. As some of the commenters noted, the mixing height for
some areas can vary and some SIPs and TIPs identify a specific mixing
height to be used. Therefore, EPA's final rule (40 CFR 93.153) exempts
as de minimis aircraft emissions above the specific mixing height
identified in the SIP or TIP. If no mixing height is identified in the
SIP or TIP, the Federal agency can use 3,000 feet AGL as a default
mixing height. The list of exemptions under 40 CFR 93.153(c)(2)(xxii)
has been updated in this final rule to reflect this policy.
---------------------------------------------------------------------------
\1\ Wayson, Roger, and Fleming, Gregg, ``Consideration of Air
Quality Impacts by Airplane Operations at or Above 3000 feet AGL,''
Volpe National Transportation 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/.
---------------------------------------------------------------------------
F. What are some of the clarifications to the existing regulations that
are being finalized?
1. The EPA is clarifying in 40 CFR 93.150 the General Conformity
evaluation for treatment of emissions from actions with 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 establishing procedures in 40 CFR 93.153 to follow in
extending the 6-month conformity exemption for actions taken in
response to an emergency.
3. The EPA is revising (40 CFR 93.158) the procedures that can be
used to demonstrate conformity with the applicable SIP when the SIP
does not contain an attainment demonstration or when the emissions from
the Federal action are projected beyond the period of the SIP. In
addition, EPA is adding a new section (40 CFR 93.162) to establish
procedures for demonstrating conformity beyond the time period covered
by the SIP or TIP.
4. The EPA is revising the review process (40 CFR 93.155) to
require Federal agencies to notify tribal governments in the
nonattainment or maintenance area of General Conformity evaluations.
5. The EPA is clarifying the definition (40 CFR 93.152) of several
terms used in the regulations.
6. The EPA is including specific language throughout the
regulations to identify the role of Indian Tribes and TIPs in the
General Conformity evaluation.
VI. Detailed Discussion of the Final Revisions to and Clarifications of
the General Conformity Regulations
A. 40 CFR Part 51, Subpart W--Determining Conformity of General Federal
Actions to State or Federal Implementation Plans
In 1990, the CAA was amended to include a provision in section
176(c)(4) that required States 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) 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. The EPA does not
interpret this provision as prohibiting States or Tribes from
voluntarily adopting and submitting General Conformity implementation
plans consistent with EPA regulations. Therefore, EPA is revising 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. 51.850 through 51.860) 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 repeated the
requirements found in 40 CFR part 93, subpart B. The EPA is deleting 40
CFR 51.850, and Sec. Sec. 51.852 through 51.860 since those sections
merely repeated the language in 40 CFR 93.150 and Sec. Sec. 93.152
through 93.160 and is including a requirement in 40 CFR 51.851(a) that
the General Conformity SIP or TIP, if adopted, must meet the
requirements in 40 CFR part 93, subpart B.
In addition, EPA is restructuring Sec. 51.851.
1. The EPA is dividing paragraph (b) of 40 CFR 51.851 into four
paragraphs--(b), (c), (d), and (e):
a. Paragraph (b) now states that until EPA approves the General
Conformity SIP, Federal agencies must meet the requirements of 40 CFR
part 93, subpart B.
b. Paragraph (c) states 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 any other portions of 40 CFR part 93, subpart B if not
contained in the approved SIP or TIP. In addition, paragraph (g) states
that any conformity requirements in an existing implementation plan
remain enforceable until the State submits and EPA approves a revision
to the applicable State implementation plan to specifically remove the
conformity requirements. Since there is no longer a requirement for
SIPs 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 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 equally to non-Federal as well as Federal
entities.
2. The EPA is adding a new provision in Sec. 51.851(f), which
allows States or Tribes to include in their SIP or TIP a list of
actions that are ``presumed to conform.'' For example, the State may
identify the emissions from a certain type and size of construction
activities that it presumes will conform.
Comment: Several commenters supported EPA's proposal to make the
adoption and submittal of the General Conformity SIP optional. One
commenter believed that the elimination of the conformity SIP
requirement in Sec. 93.151 leaves a gap regarding the enforcement of
mitigation measures.
The commenter noted that under the language in the new provision,
there is no State or Federal enforceability if the State withdraws its
conformity SIP or otherwise fails to retain a requirement that written
commitments to undertake and implement mitigation measures are
obligations of the SIP. Another commenter supported the requirements
for States to develop conformity SIPs.
Response: The EPA is revising its regulations to be consistent with
the revised requirements of the CAA. In 2005, the CAA was revised to
eliminate the requirement that a State must adopt a conformity SIP. If
a State does not have a conformity SIP, then Federal agencies must
conduct their evaluation under the requirements of 40 CFR
[[Page 17259]]
93.150-93.165. These requirements are essentially the same as the
requirements contained in the conformity SIPs. Therefore, there would
be little difference in the enforceability of the regulations.
Mitigation measures are included in the SIP or TIP. A conformity SIP is
not needed to include the mitigation measures in the SIP or TIP. They
are included in the SIP to attain or maintain the ambient air quality
standards. Section 93.160 has been changed by deleting the term
``General Conformity Regulations'' to ensure this fact is clear.
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 making two revisions to Sec. 93.150. First, EPA is deleting the
language in paragraph (c) of that section and reserving that paragraph.
Second, EPA is adding a new paragraph (e) to the section to State that
if an action occurs in more than one nonattainment area, that each area
must be evaluated separately.
In paragraph (c) of the 1993 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 under
way 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) was outdated and not
necessary at this time.
In the new paragraph (e) in Sec. 93.150, EPA is clarifying the
regulations to State specifically that conformity determinations must
be made for each nonattainment or maintenance area in which emissions
from the Federal action occur. 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 in multiple States. Emissions from an action at
such facilities could extend across the nonattainment or maintenance
area boundaries. Some Federal actions could result in direct or
indirect emissions in non-contiguous areas, or even nationwide, that
are above the de minimis thresholds and affect multiple nonattainment
or maintenance areas. The 1993 regulations did not specify how actions
or projects affecting multiple areas should be addressed. Therefore,
EPA added paragraph (e) to state that an action's emissions in each
area would be treated as if they result from separate actions.
The EPA clarified that 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 SIP 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--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 did not change the purpose of the section, but is revising the
section to clarify its wording. The 1993 regulations included
statements about the stringency of the SIP compared to the requirements
in subpart B of part 93. The EPA is deleting 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 revising 12 of the definitions, adding 11 new
terms, and deleting one term, and clarifying the scope of an existing
definition as follows:
Applicability analysis. The EPA is adding this new term to describe
the process of determining if the Federal agency must conduct a
conformity determination for its action.
Applicable implementation plan or applicable SIP. The EPA is making
two minor revisions to the definition. First, EPA is correcting the
citation for the SIP approval and second, EPA is clarifying the
definition by adding a parenthetical phrase to clarify that the term
includes an approved TIP. The requirements for eligible Tribes are
found in 40 CFR 49.6.
Area-wide air quality modeling analysis. The EPA is clarifying this
definition by making a minor wording change and by including
photochemical grid model in the definition. Also, EPA is adding an
example of the type of models that could be used for the area-wide air
quality modeling analysis.
Caused by. The basic test established by the 1993 regulations'
definition of ``caused by'' is that the emissions would not have
occurred in the absence of the Federal action. 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, approved, or funded by a
Federal agency meets this test and should be included in the conformity
evaluation. Therefore, EPA is clarifying that construction emissions
are part of the total direct and indirect emissions from an action.
Comment: In the January 8, 2008, proposal, EPA solicited comment on
whether construction emissions in general or short-term construction
emissions should be exempt from the regulations. In addition, EPA
solicited comment on what should be considered short-term construction
emissions (1 to 5 years). The majority of commenters on this issue
objected to exempting construction emissions. They noted that
construction emissions can contribute significantly to particulate
matter (PM) exceedances, especially off-road vehicle emissions. Some
believed that ignoring these emissions might drop a project below the
de minimis threshold and result in unmitigated emissions and the
exposure of local residents to significant levels of pollutants such as
diesel exhaust. However, some commenters thought that construction
emissions should be exempted. They noted that construction emissions
only peak for a short time and that a disproportionate amount of time
in the conformity process is spent on addressing very short-term
construction-related emissions. They also pointed out that construction
emissions are generally not included in NSR or Transportation
Conformity evaluations. Of the commenters that thought construction
emissions should be exempt, some thought they should be exempt for 5
[[Page 17260]]
years while others thought they should be exempt for only 2 years.
Response: The EPA agrees with the majority of commenters on this
issue that construction emissions can contribute significantly to
exceedances of the NAAQS, particularly exceedances of the PM standards.
Unlike the construction activities associated with Transportation
Conformity and NSR projects, construction activities associated with
General Conformity actions vary widely in type. For example, General
Conformity is concerned about localized impacts of the direct and
indirect impacts of particular action or projects, as reflected in
case-by-case analysis of emissions from specific actions, while
Transportation Conformity is primarily concerned with the regional
impacts of long-term use of the roads, as reflected in analysis of
regional transportation processes, and secondarily concerned with
short-term and localized impacts. Also, NSR specifically does not apply
to emissions from mobile sources, which includes most construction
equipment--no such restriction is found in General Conformity.
Moreover, as explained above, EPA believes that emissions from
construction activities initiated, approved, or funded by a Federal
agency would not have occurred in the absence of the Federal action and
thus meet the ``caused by'' definition included in the general
conformity regulations. For these reasons, EPA believes that it is
important that construction emissions should be considered as part of
the General Conformity process. EPA also believes that other
flexibilities in the revised rule will help with planning for, and
addressing, construction emissions in the General Conformity process.
These flexibilities include allowing alternative mitigation schedules
and including construction emissions in a facility emission budget.
Also, EPA is clarifying 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.
Confidential business information (CBI). In Sec. Sec. 93.155 and
93.156, EPA is clarifying how CBI used in the conformity determination
is to be handled. To support those provisions, EPA is adding 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 adding a new term to describe
the decision that a Federal agency official makes in determining that
the action will conform with the SIP, TIP or FIP.
Conformity evaluation. The EPA is adding a new definition to
describe the entire conformity analysis process from the applicability
analysis through the conformity determination, if necessary.
Continuing program responsibility. In the 1993 regulations, EPA
used the term ``emissions that a Federal agency has a continuing
program responsibility for.'' That term was awkward and confusing. The
EPA is shortening the term to the ``continuing program responsibility''
and reformatting the definition to make it clearer.
Continuous program to implement. This term was used in the 1993
regulations but was not defined. Therefore, EPA is adding 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 revising the definition of direct
emissions to include a requirement that the emissions must be
reasonably foreseeable. This revision reflects EPA's policy as set
forth in the July 1994 implementation guidance that direct emissions
must be reasonably foreseeable. (General Conformity Guidance: Questions
and Answers, USEPA, OAQPS, Page 6, Question 2, July 13, 1994).
Emission Inventory. This term is used but not defined in the 1993
regulations. Therefore, EPA is adding a definition of this term.
EPA. Since some States have Environmental Protection Agencies, EPA
is adding ``U.S.'' in the definition to clarify that the regulations
refer to the U.S. Environmental Protection Agency.
Indirect emissions. EPA is revising 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. In addition, EPA is revising the definition of
``indirect emissions'' to clarify what is meant by ``the agency can
practically control'' and ``for which the agency has continuing program
responsibility.'' This clarification represents 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, November 30, 1993). (General
Conformity Guidance: Questions and Answers, USEPA, OAQPS, Page 6,
Question 2, July 13, 1994).
Comment: One commenter believes that excluding emissions over which
the Federal agency does not have continuing program responsibility is
unlawful. The commenter believes that the original definition of
``caused by'' is practical because the conformity determination will be
made in the context of an Environmental Impact Statement (EIS) for such
major Federal projects and NEPA requires an assessment of the expected
development and reasonably foreseeable impacts associated with such
development. The commenter noted that if the agency with authority to
approve these expansions lacks the continuing programmatic
responsibility to control the use of facilities approved by the agency,
then the proposed activity should not be approved.
The commenter believes that the proposed rule definition has the
potential for allowing massive increases in emissions that is
anticipated as a result of port expansions in some of the nation's most
polluted metropolitan areas. The commenter also noted that the NEPA may
also create authority to adopt environmental mitigation plans as part
of an agency's programmatic responsibility.
Response: The exclusion of emissions over which the Federal agency
does not have a continuing program responsibility is related to
indirect emissions for the General Conformity analysis and does not
affect the analysis required for NEPA review. EPA is not changing the
requirements of that provision; EPA is only clarifying the language
contained in it. Since 1993, the ``indirect emissions'' definition has
been limited to those emissions for which ``the Federal agency * * *
will maintain control over due to continuing programmatic
responsibility.'' Accordingly, EPA's reformatting of the language in
this revision does not change the practical impact of this definition,
and the commenter's suggestion that the definition should include
emissions over which the Federal agency does not have control would
greatly expand the program beyond what EPA believes that the law
intended. In any event, since EPA did not propose to expand the program
to
[[Page 17261]]
include emissions over which a Federal agency does not have control, it
cannot go final with such an expansion in this rule.
Local air quality modeling analysis. The EPA is revising 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 making 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 revising 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 1993 regulations used the term ``mitigation
measure'' and had a section specifying the requirements for a
mitigation measure; however the regulations did not define the term.
The EPA is defining 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
1993 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 1993 regulations define
precursors for both ozone and PM-10. Since the PM2.5
standard was promulgated after the General Conformity Regulations, the
original regulations did not include the precursors for
PM2.5. EPA recently amended the regulations (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). The EPA defined the precursors of PM2.5 as
follows:
1. Sulfur dioxide (SO2) is a regulated pollutant in all
PM2.5 nonattainment and maintenance areas.\2\
---------------------------------------------------------------------------
\2\ While sulfur dioxide must be addressed in general conformity
determinations for PM2.5, 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 in transportation conformity 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 regarding treatment of sulfur dioxide in
transportation conformity on the de minimis amount of on-road
emissions of sulfur dioxide now and in the future, and on the
implementation of low sulfur gasoline beginning in 2004 and low
sulfur diesel fuel beginning in 2006. (70 FR 24283).
---------------------------------------------------------------------------
2. Nitrogen oxides (NOX) are regulated pollutants in all
PM2.5 nonattainment and maintenance areas unless both the
State/Tribe and EPA determine that they are not.
3. Volatile organic compounds (VOC) and ammonia (NH3)
are not regulated 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 revising the term ``direct emissions'' to
limit the emissions to those which can be reasonably foreseeable.
Therefore, EPA is revising the term ``reasonably foreseeable'' to
include ``direct emissions.''
Regionally significant action. As discussed in the revisions to
93.153(i) below, EPA is deleting the requirement that conformity
determinations are required for actions that would normally be exempt
if those actions are considered regionally significant. Therefore, EPA
is deleting the definition of the term.
Restricted information. As discussed in Sec. Sec. 93.155 and 156
on reporting and public participation, EPA is specifying how restricted
information used in the conformity determination is to be handled. To
support those revisions, EPA is adding 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.
Comment: One commenter requested that EPA state that emission data
be specifically excluded for the definition of ``restricted
information.''
Response: The EPA agrees that emission data generally can not be
considered ``restricted information.'' Under EPA policy emission data
cannot be considered as ``confidential business information.'' Only in
rare circumstances where data are contained in documents classified as
sensitive information to which access is restricted by law or
regulation to particular classes of persons and a formal security
clearance is required to handle or access the classified data would
emission data from a government facility be ``restricted information.''
In the situations where restricted information is used as part of the
conformity evaluation, EPA will work with the appropriate Federal,
State and tribal agencies to ensure an adequate review of the
conformity evaluation.
Take or start the Federal action. The EPA is adding 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 defining
this term as the date the decision-maker signs a document such as a
grant, permit, license or approval. Otherwise, EPA is defining the term
as the date the Federal agency physically starts the action that
requires the conformity evaluation.
Tribal implementation plan (TIP). The EPA is adding a definition
for TIP to mean plans adopted and submitted by federally recognized
Indian Tribes.
E. 40 CFR 93.153--Applicability Analysis
The EPA is clarifying 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 previously established by law.
1. The EPA is revising 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 making technical changes to paragraph (a) of Sec.
93.153. The technical correction in section 93.153(a) is to update the
reference to the transportation conformity regulations. Section
93.153(a) currently states that the transportation conformity
regulations are codified at 40 CFR part 51 subpart T, but EPA deleted
transportation conformity criteria and procedures from 40 CFR part 51
subpart T a number of years ago. (62 FR 43779) Accordingly, section
93.153(a) has been revised to refer to the transportation conformity
criteria and procedures now codified at 40 CFR part 93 subpart A.\3\
---------------------------------------------------------------------------
\3\ While we did not issue a proposal or provide an opportunity
for public comment for this minor correction to the rule, we believe
such actions are unnecessary because this minor revision in no way
changes substantive conformity procedures described in the general
conformity rule but merely updates the reference to the proper
location of the transportation conformity regulations in the CFR.
---------------------------------------------------------------------------
EPA is not finalizing the proposed changes to paragraph (b).
Following proposal of changes to this paragraph EPA realized that the
minor wording changes we had proposed (adding the word ``criteria''
before the word ``pollutant'' and ``or precursor'' after the
[[Page 17262]]
word to clarify the paragraph) had been accomplished by changes made to
this section in a July 17, 2006 regulatory action (71 FR 40426).
Therefore, EPA is making no changes to this paragraph from the current
regulatory language.
3. The EPA is revising the table in sub-paragraph (b)(1) to include
all nonattainment areas in the Ozone Transport Region. In 1993, when
the General Conformity Regulations were promulgated, all nonattainment
areas in the Ozone Transport Region were classified pursuant to Table 1
in CAA section 181(a)(1) as marginal or above for the 1-hour ozone
NAAQS. When EPA later designated 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 pursuant to Table 1. However, the decision to place certain
areas only under subpart 1 was vacated by the decision in South Coast
Air Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006).
Although there are currently no areas classified under subpart 1, the
Court left open the door that EPA may be able to justify such action in
the future. Accordingly, EPA is revising the table in Sec.
93.153(c)(1) to ensure that the General Conformity requirements would
apply to any area placed in the subpart 1 in the future by changing the
classification from ``Marginal and moderate non-attainment areas inside
an ozone transport region'' to ``other non-attainment areas inside an
ozone transport region.''
4. The EPA is adding a new sub-paragraph (xxii) to Sec.
93.153(c)(2) to clarify the exemptions for aircraft emissions above the
mixing height for the area. Specifically, EPA is exempting aircraft
emissions above the mixing height identified in the applicable SIP, TIP
or FIP. Where the SIP does not contain a specific mixing height, EPA is
establishing a default mixing height of 3000 feet AGL. In the January
2008 proposal, EPA had proposed to exempt all aircraft emissions above
3000 feet AGL.
Comment: Several commenters representing State and local air
quality agencies objected to excluding the emissions from aircraft
above 3000 feet above ground level. They noted that the mixing height
varies and can be as high as 4,500 feet AGL during the ozone season and
that pollutants emitted at middle and high altitudes can travel long
distances. They also noted that pollution levels were below predicted
levels following September 12, 2001 when aircraft were grounded.
Other commenters representing the airports and the airline industry
supported the exemption emission from aircraft above 3000 feet AGL.
They noted that the FAA study supports the conclusion that aircraft
operations at or above 3,000 feet AGL have a minimal effect on ground
level pollutant concentrations. The commenters also noted that flights
over almost all major U.S. airports must be at least 7000 feet AGL;
therefore, any commercial aircraft operating at 3000 feet would most
likely either be landing or taking off. The commenters also noted that
the FAA study concluded that any increase in ground level
concentrations of CO and hydrocarbon (HC) due to mixing was negligible.
A Federal agency commenter believes that the exemption for air
traffic control activities should not be restricted by altitude. The
commenter noted that the proposal for exempting aircraft operations
above 3,000 feet AGL is much narrower than what was presented in the
preamble to the 1993 General Conformity rule as an example of an action
that is exempt from the General Conformity requirements--``air traffic
control activities and adopting approach, departure and enroute
procedures for air operations.''
Response: EPA agrees that the aircraft emissions above the mixing
height do not significantly affect ground level concentrations and
acknowledges that the mixing height can vary from one area to another.
Accordingly, in those areas where the applicable SIP or TIP specifies a
mixing height, EPA is requiring the specified mixing height to be used.
However, in those areas where the SIP or TIP does not specify a mixing
height, EPA is allowing the Federal agencies to use 3,000 feet AGL as a
default mix