Current through Register Vol. 49, No. 6, March 15, 2024
This rule implemented section 176(c) of the Clean Air Act,
as amended (
42 U.S.C.
7506(c) ), and regulations
under 40 CFR 93, subpart B, with respect to the conformity of general federal
actions to the applicable implementation plan.
(1) Applicability.
(A) Conformity determinations for federal
actions related to transportation plans, programs, and projects developed,
funded, or approved under Title 23 U.S.C. or the Federal Transit Act ( 49
U.S.C. 1601 et seq.) must meet the procedures and criteria of
10 CSR
10-5.480 in lieu of the procedures set forth in this
rule.
(B) For federal actions not
covered by subsection (1)(A) of this rule, a conformity determination is
required for each criteria pollutant or precursor where the total of direct and
indirect emissions of the criteria pollutant or precursor in a nonattainment or
maintenance area caused by a federal action would equal or exceed any of the de
minimis rates in paragraph (1)(B)1. or paragraph (1)(B)2. of this rule.
1. For purposes of subsection (1)(B) of this
rule, the following rates apply in nonattainment areas (NAAs):
Tons/Year
|
Ozone (VOC or NOx):
|
Serious NAAs
|
Severe NAAs
|
25
|
Extreme NAAs
|
10
|
Other ozone NAAs outside an ozone transport
region
|
100
|
Other ozone NAAs inside an ozone transport
region:
|
VOC
|
NOx
|
100
|
Carbon monoxide: All NAAs
|
100
|
SO2 or
NO2: All NAAs
|
100
|
PM10:
|
Moderate NAAs
|
100
|
Serious NAAs
|
70 |
PM2.5:
|
Direct emissions
|
100
|
SO2
|
100
|
NOx (unless determined not to
be significant precursor)
|
100
|
VOC or ammonia (if determined to be significant
precursors)
|
100
|
Pb: All NAAs
|
25
|
2.
For purposes of subsection (1)(B) of this rule, the following rates apply in
maintenance areas:
Tons/Year
|
Ozone (NOx,
SO2, or NO2):
|
All Maintenance Areas
|
100
|
Ozone (VOCs):
|
Maintenance areas inside an ozone transport
region
|
50
|
Maintenance areas outside an ozone transport
region
|
100
|
Carbon monoxide: All Maintenance Areas
|
100
|
PM10: All Maintenance
Areas
|
100
|
PM2.5:
|
Direct emissions
|
100
|
SO2
|
100
|
NOx (unless determined not to
be significant precursor)
|
100
|
VOC or ammonia (if determined to be significant
precursors)
|
100
|
Pb: All Maintenance Areas
|
25
|
(C) The requirements of this rule do not
apply to the following federal actions:
1.
Actions where the total of direct and indirect emissions are below the
emissions levels specified in subsection (1)(B) of this rule;
2. The following actions which would result
in no emissions increase or an increase in emissions that is clearly below the
de minimis levels identified in subsection (1)(B) of this rule:
A. Judicial and legislative
proceedings;
B. Continuing and
recurring activities such as permit renewals where activities conducted will be
similar in scope and operation to activities currently being
conducted;
C. Rulemaking and policy
development and issuance;
D.
Routine maintenance and repair activities, including repair and maintenance of
administrative sites, roads, trails, and facilities;
E. Civil and criminal enforcement activities,
such as investigations, audits, inspections, examinations, prosecutions, and
the training of law enforcement personnel;
F. Administrative actions such as personnel
actions, organizational changes, debt management or collection, cash
management, internal agency audits, program budget proposals, and matters
relating to the administration and collection of taxes, duties, and
fees;
G. Routine, recurring
transportation of material and personnel;
H. Routine movement of mobile assets, such as
ships and aircraft, in-home port reassignments, and stations (when no new
support facilities or personnel are necessary) to perform as operational groups
or for repair or overhaul;
I.
Maintenance dredging and debris disposal where no new depths are necessary,
applicable permits are secured, and disposal will be at an approved disposal
site;
J. With respect to existing
structures, properties, facilities, and lands where future activities conducted
will be similar in scope and operation to activities currently being conducted
at the existing structures, properties, facilities, and lands; actions such as
relocation of personnel, disposition of federally-owned existing structures,
properties, facilities, and lands, rent subsidies, operation and maintenance
cost subsidies, the exercise of receivership or conservatorship authority,
assistance in purchasing structures, and the production of coins and
currency;
K. Granting of leases,
licenses such as for exports and trade, permits, and easements where activities
conducted will be similar in scope and operation to activities currently being
conducted;
L. Planning, studies,
and provision of technical assistance;
M. Routine operation of facilities, mobile
assets, and equipment;
N. Transfers
of ownership, interests, and titles in land, facilities, and real and personal
properties, regardless of the form or method of the transfer;
O. Designation of empowerment zones,
enterprise communities, or viticultural areas;
P. Actions by any of the federal banking
agencies or the federal reserve banks, including actions regarding charters,
applications, notices, licenses, the supervision or examination of depository
institutions or depository institution holding companies, access to the
discount window, or the provision of financial services to banking
organizations or to any department, agency, or instrumentality of the United
States;
Q. Actions by the board of
governors of the Federal Reserve System or any federal reserve bank to effect
monetary or exchange rate policy;
R. Actions that implement a foreign-affairs
function of the United States;
S.
Actions (or portions thereof) associated with transfers of land, facilities,
title, and real properties through an enforceable contract or lease agreement
where the delivery of the deed is required to occur promptly after a specific,
reasonable condition is met, such as promptly after the land is certified as
meeting the requirements of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), and where the federal agency does not
retain continuing authority to control emissions associated with the lands,
facilities, title, or real properties;
T. Transfers of real property, including
land, facilities, and related personal property from a federal entity to
another federal entity and assignments of real property, including land,
facilities, and related personal property from a federal entity to another
federal entity for subsequent deeding to eligible applicants;
U. Actions by the Department of the Treasury
to effect fiscal policy and to exercise the borrowing authority of the United
States; and
V. Air traffic control
activities and adopting approach, departure, and enroute procedures for
aircraft operations above the mixing height specified in the applicable State
Implementation Plan (SIP) or Tribal Implementation Plan (TIP). Where the
applicable SIP or TIP does not specify a mixing height, the federal agency can
use the three thousand feet (3,000') 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 below the de minimis levels identified in subsection
(1)(B) of this rule;
3.
Actions where the emissions are not reasonably foreseeable, such as the
following:
A. Initial Outer Continental Shelf
lease sales which are made on a broad scale and are followed by exploration and
development plans on a project level; and
B. Electric power marketing activities that
involve the acquisition, sale, and transmission of electric energy;
and
4. Actions which
implement a decision to conduct or carry out a program that has been found to
conform to the applicable implementation plan, such as prescribed burning
actions which are consistent with a land management plan that has been found to
conform to the applicable implementation plan.
(D) Notwithstanding the other requirements of
this rule, a conformity determination is not required for the following federal
actions (or portion thereof):
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 Clean Air Act (CAA)) or the prevention of
significant deterioration (PSD) program (Title I, part C of the CAA);
2. Actions in response to emergencies which
are typically commenced on the order of hours or days after the emergency or
disaster and, if applicable, which meet the requirements of subsection (1)(E)
of this rule;
3. Research,
investigations, studies, demonstrations, or training other than those exempted
under paragraph (1)(C)2. of this rule, where no environmental detriment is
incurred or the particular action furthers air quality research, as determined
by the department;
4. Alteration
and additions of existing structures as specifically required by new or
existing applicable environmental legislation or environmental regulations (for
example, hush houses for aircraft engines and scrubbers for air emissions);
and
5. Direct emissions from
remedial and removal actions carried out under CERCLA and associated
regulations to the extent such emissions either comply with the substantive
requirements of the PSD/NSR permitting program or are exempted from other
environmental regulation under the provisions of CERCLA and applicable
regulations issued under CERCLA.
(E) Federal actions which are part of a
continuing response to an emergency or disaster under paragraph (1)(D)2. of
this rule and which are to be taken more than six (6) months after the
commencement of the response to the emergency or disaster under paragraph
(1)(D)2. of this rule are exempt from the requirements of this rule only if-
1. The federal agency taking the actions
makes a written determination that, for a specified period not to exceed an
additional six (6) months, it is impractical to prepare the conformity analyses
which would otherwise be required and the actions cannot be delayed due to
overriding concerns for public health and welfare, national security interests,
and foreign policy commitments; or
2. For actions which are to be taken after
those actions covered by paragraph (1)(E)1. of this rule, the federal agency
makes a new determination as provided in paragraph (1)(E)1. of this rule and-
A. Provides a draft copy of the written
determinations required to affected U.S. Environmental Protection Agency (EPA)
regional office(s), the affected state(s) and/or air pollution control
agencies, and any federal recognized Indian tribal government in the
nonattainment or maintenance area. Those organizations must be allowed fifteen
(15) days from the beginning of the extension period to comment on the draft
determination; and
B. Within thirty
(30) days after making the determination, publishes a notice of the
determination by placing a prominent advertisement in a daily newspaper of
general circulation in the area affected by the action; and
3. If additional actions are
necessary in response to an emergency or disaster under paragraph (1)(D)2. of
this rule beyond the specified time period in paragraph (1)(E)2. of this rule,
a federal agency can make a new written determination as described in paragraph
(1)(E)2. of this rule for as many six (6)-month periods as needed, but in no
case shall this exemption extend beyond three (3) six (6)-month periods except
where an agency 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.
(F)
Notwithstanding other requirements of this rule, actions specified by
individual federal agencies that have met the criteria set forth in paragraphs
(1)(G)1. through (1)(G)3. of this rule and the procedures set forth in
subsection (1)(H) of this rule are presumed to conform, except as provided in
subsection (1)(J) of this rule. 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 paragraph (1)(B)1. or
(1)(B)2. of this rule.
(G) The
federal agency must meet the criteria for establishing activities that are
presumed to conform by fulfilling the requirements set forth in paragraphs
(1)(G)1. through (1)(G)3. of this rule.
1.
The federal agency must clearly demonstrate using methods consistent with this
rule that the total of direct and indirect emissions from the type of
activities which would be presumed to conform would not-
A. Cause or contribute to any new violation
of any standard in any area;
B.
Interfere with provisions in the applicable implementation plan for maintenance
of any standard;
C. Increase the
frequency or severity of any existing violation of any standard in any area;
or
D. Delay timely attainment of
any standard or any required interim emission reductions or other milestones in
any area including, where applicable, emission levels specified in the
applicable implementation plan for purposes of-
(I) A demonstration of reasonable further
progress;
(II) A demonstration of
attainment; or
(III) A maintenance
plan.
2. The
federal agency must provide documentation that the total of direct and indirect
emissions from such future actions would be below the emission rates for a
conformity determination that are established in subsection (1)(B) of this
rule, based, for example, on similar actions taken over recent years.
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.
(H) In
addition to meeting the criteria for establishing exemptions set forth in
paragraphs (1)(G)1. through (1)(G)3. of this rule, 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
CAA and the Metropolitan Planning Organization (MPO) and provide at least
thirty (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 subsection (1)(B) of this rule
in more than one (1) 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;
3. The federal agency
must document its responses to all the comments received and make the comments,
responses, and final list of activities available to the public upon request;
and
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 subsection (3)(H) of
this rule 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 facility-wide emission
budget;
2. Prescribed fires
conducted in accordance with a smoke management program which meets the
requirements of EPA's Interim Air Quality Policy on Wildland and Prescribed
Fires or an equivalent replacement EPA policy; and
3. 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 subsection (1)(F) or (1)(I) of this rule, an action
shall not be presumed to conform and the requirements of section (4),
subsection (1)(L), subsections (3)(A) through (3)(G), and subsections (3)(I)
through (3)(K) of this rule 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-
A. A demonstration of
reasonable further progress;
B. A
demonstration of attainment; or
C.
A maintenance plan.
(K) The provisions of this rule apply in all
nonattainment and maintenance areas except conformity requirements for
newly-designated nonattainment areas are not applicable until one (1) year
after the effective date of the final nonattainment designation for each
National Ambient Air Quality Standards (NAAQS) and pollutant in accordance with
section 176(c)(6) of the Act.
(L)
State Implementation Plan Revision. The federal conformity rules under 40 CFR
51, Subpart W and 40 CFR 93, Subpart B, in addition to any existing applicable
state requirements, establish the conformity criteria and procedures necessary
to meet the requirements of Clean Air Act section 176(c) until such time as
this rule is approved by EPA as an implementation plan revision. Following EPA
approval of this rule as a revision to the applicable implementation plan (or a
portion thereof), the approved (or approved portion of the) state criteria and
procedures will govern conformity determinations and the federal conformity
regulations contained in 40 CFR 93 will apply only for the portion, if any, of
the state's conformity provisions that is not approved by EPA. In addition, any
previously-applicable implementation plan requirements relating to conformity
remain enforceable until the state revises its applicable implementation plan
to specifically remove them and that revision is approved by
EPA.
(2) Definitions.
(A) Affected federal land manager-The federal
agency or the federal official charged with direct responsibility for
management of an area designated as Class I under the Clean Air Act (
42 U.S.C.
7472 ) that is located within one hundred
kilometers (100 km) of the proposed federal action.
(B) Applicability analysis-The process of
determining if the federal action must be supported by a conformity
determination.
(C) Applicable
implementation plan or applicable state implementation plan (SIP)-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) and which
implements the relevant requirements of the Act.
(D) Area-wide air quality modeling
analysis-An assessment on a scale that includes the entire nonattainment or
maintenance area using an air quality dispersion model or photochemical grid
model to determine the effects of emissions on air quality; for example, an
assessment using the U.S. Environmental Protection Agency's community
multi-scale air quality (CMAQ) modeling system.
(E) Cause or contribute to a new violation-A
federal action that-
1. Causes a new violation
of a national ambient air quality standard (NAAQS) at a location in a
nonattainment or maintenance area which would otherwise not be in violation of
the standard during the future period in question if the federal action were
not taken; or
2. Contributes, in
conjunction with other reasonably foreseeable actions, to a new violation of a
NAAQS at a location in a nonattainment or maintenance area in a manner that
would increase the frequency or severity of the new violation.
(F) Caused by, as used in the
terms direct emissions and indirect emissions-Emissions that would not
otherwise occur in the absence of the federal action.
(G) Confidential business
information-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)
).
(H) Conformity determination-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 rule.
(I)
Conformity evaluation-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 rule.
(J) Continuous program to implement-The
federal agency has started the action identified in the plan and does not stop
the actions for more than an eighteen (18)-month period, unless it can
demonstrate that such a stoppage was included in the original plan.
(K) Criteria pollutant or standard-Any
pollutants for which there is established a National Ambient Air Quality
Standard at 40 CFR 50.
(L) Direct
emissions-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.
(M)
Emergency-A situation where extremely quick action on the part of the federal
agencies involved is needed and where the timing of such federal activities
makes it impractical to meet the requirements of this rule, such as natural
disasters like hurricanes or earthquakes, civil disturbances such as terrorist
acts, and military mobilizations.
(N) Emission inventory-A listing of
information on the location, type of source, type and quantity of pollutant
emitted, as well as other parameters of the emissions.
(O) Emissions budgets-Those portions of the
total allowable emissions defined in a U.S. Environmental Protection
Agency-approved revision to the applicable implementation plan for a certain
date for the purpose of meeting reasonable further progress milestones or
attainment or maintenance demonstrations, for any criteria pollutant or its
precursors, specifically allocated by the applicable implementation plan to
mobile sources, to any stationary source or class of stationary sources, to any
federal action or class of action, to any class of area sources, or to any
subcategory of the emissions inventory. The allocation system must be specific
enough to assure meeting the criteria of section 176(c)(1)(B) of the Clean Air
Act. An emissions budget may be expressed in terms of an annual period, a daily
period, or other period established in the applicable implementation
plan.
(P) Offsets (Emission
offsets)-Emission reductions which are quantifiable, consistent with the
attainment and reasonable further progress demonstrations of the applicable
implementation plan, surplus to reductions required by, and credited to, other
applicable implementation plan provisions, enforceable under both state and
federal law, and permanent within the time frame specified by the
program.
(Q) Federal action-Any
activity engaged in by a department, agency, or instrumentality of the federal
government, or any activity that a department, agency, or instrumentality of
the federal government supports in any way, provides financial assistance for,
licenses, permits, or approves, other than activities related to transportation
plans, programs, and projects developed, funded, or approved under Title 23
U.S.C. or the Federal Transit Act ( 49 U.S.C. 1601 et seq.). Where the federal
action is a permit, license, or other approval for some aspect of a nonfederal
undertaking, the relevant activity is the part, portion, or phase of the
nonfederal undertaking that requires the federal permit, license, or
approval.
(R) Federal agency-A
federal department, agency, or instrumentality of the federal
government.
(S) Increase the
frequency or severity of any existing violation of any standard in any area-To
cause a nonattainment area to exceed a standard more often or to cause a
violation at a greater concentration than previously existed or would otherwise
exist during the future period in question, if the project were not
implemented.
(T) Indirect
emissions-Those emissions of a criteria pollutant or its precursors-
1. That are caused or initiated by the
federal action and originate in the same nonattainment or maintenance area but
may occur at a different time or place;
2. That are reasonably foreseeable;
and
3. That the federal agency can
practically control and will maintain control due to a continuing program
responsibility of the federal agency, including, but not limited to-
A. Traffic on or to, or stimulated or
accommodated by, a proposed facility which is related to increases or other
changes in the scale or timing of operations of such facility;
B. Emissions related to the activities of
employees of contractors or federal employees;
C. Emissions related to employee commutation
and similar programs to increase average vehicle occupancy imposed on all
employers of a certain size in the locality; or
D. Emissions related to the use of federal
facilities under lease or temporary permit. 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.
(U) Local air quality modeling analysis-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.
(V) Maintenance area-An area that was
designated as nonattainment and has been redesignated in 40 CFR 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.
(W) Maintenance plan-A revision to the
applicable Missouri State Implementation Plan, meeting the requirements of
section 175A of the Clean Air Act.
(X) Metropolitan planning organization
(MPO)-The policy board of an organization created as a result of the
designation process in
23 U.S.C.
134(d) and in
49 U.S.C.
5303. It is the forum for cooperative
transportation decision making and is responsible for conducting the planning
required under section 174 of the Clean Air Act.
(Y) Milestone-The meaning given in sections
182(g)(1) and 189(c)(1) of the Clean Air Act. It consists of an emissions level
and the date on which it is required to be achieved.
(Z) Mitigation measure-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.
(AA) National
Ambient Air Quality Standards (NAAQS)- Those standards established pursuant to
section 109 of the Act and defined by 40 CFR 50. It includes standards for
carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2)
or oxides of nitrogen (NOx), ozone, particulate matter
(PM10 and PM2.5), and sulfur
dioxide (SO2) or sulfur oxides
(SOx).
(BB)
National Environmental Policy Act (NEPA)-The National Environmental Policy Act
of 1969, as amended (
42 U.S.C.
4321 et seq.).
(CC) Nonattainment area (NAA)-Any geographic
area of the United States which has been designated as nonattainment under
section 107 of the Clean Air Act and described in 40 CFR 81.
(DD) Precursors of a criteria pollutant are-
1. For ozone, nitrogen oxides
(NOx), unless an area is exempted from
NOx requirements under section 182(f) of the Clean Air
Act, and volatile organic compounds (VOCs);
2. For PM10, those
pollutants described in the PM10 nonattainment area
applicable state implementation plan as significant contributors to the
PM10 levels; and
3. For PM2.5-
A. Sulfur dioxide
(SO2) in all PM2.5 nonattainment
and maintenance areas;
B.
NOx in all PM2.5 nonattainment
and maintenance areas unless both the state and U.S. Environmental Protection
Agency (EPA) determine that it is not a significant precursor; and
C. VOC and ammonia
(NH3) only in PM2.5 nonattainment
or maintenance areas where either the state or EPA determines that they are
significant precursors.
(EE) Reasonably foreseeable
emissions-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.
(FF) Regional water or wastewater
projects-Include construction, operation, and maintenance of water or
wastewater conveyances, water or wastewater treatment facilities, and water
storage reservoirs which affect a large portion of a nonattainment or
maintenance area.
(GG) Restricted
information-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.
(HH) Total of direct and indirect
emissions-The sum of direct and indirect emissions increases and decreases
caused by the federal action; that is, the net emissions considering all direct
and indirect emissions. Any emissions decreases used to reduce such total shall
have already occurred or shall be enforceable under state and federal law. The
portion of emissions which are exempt or presumed to conform under subsection
(3)(C), (D), (E), or (F) of this rule are not included in the total of direct
and indirect emissions, except as provided in subsection (3)(J) of this rule.
The total of direct and indirect emissions includes emissions of criteria
pollutants and emissions of precursors of criteria pollutants. The segmentation
of projects for conformity analyses when emissions are reasonably foreseeable
is not permitted by this rule.
(II)
Tribal implementation plan (TIP)-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 the
U.S. Environmental Protection Agency.
(JJ) Definitions of certain terms not
otherwise described or defined in this rule may be found in
10 CSR
10-6.020.
(3) General Provisions.
(A) Prohibition.
1. No department, agency, or instrumentality
of the federal government may engage in, support in any way, or provide
financial assistance for, license or permit, or approve any activity which does
not conform to an applicable implementation plan.
2. A federal agency must make a determination
that a federal action conforms to the applicable implementation plan in
accordance with the requirements of this rule before the action is
taken.
3. Notwithstanding any
provision of this rule, a determination that an action is in conformity with
the applicable implementation plan does not exempt the action from any other
requirements of the applicable implementation plan, the National Environmental
Policy Act (NEPA), or the CAA.
4.
If an action would result in emissions originating in more than one (1)
nonattainment or maintenance area, the conformity must be evaluated for each
area separately.
(B)
Federal Agency Conformity Responsibility. Any department, agency, or
instrumentality of the federal government taking an action subject to this rule
must make its own conformity determination consistent with the requirements of
this rule. In making its conformity determination, a federal agency must follow
the requirements in section (4), subsections (3)(C) through (3)(G), and
subsections (3)(I) through (3)(L) of this rule 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.
(C)
Public Participation.
1. Upon request by any
person regarding a specific federal action, a federal agency must make
available, subject to the limitation in paragraph (3)(C)5. of this rule, for
review its draft conformity determination under subsection (3)(B) of this rule
with supporting materials which describe the analytical methods and conclusions
relied upon in making the applicability analysis and draft conformity
determination.
2. A federal agency
must make public its draft conformity determination under subsection (3)(B) of
this rule by placing a notice by prominent advertisement in a daily newspaper
of general circulation in the areas affected by the action and by providing
thirty (30) days for written public comment prior to taking any formal action
on the draft determination. This comment period may be concurrent with any
other public involvement, such as occurs in the 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
subsection (1)(B) of this rule in three (3) or more of EPA's regions), the
federal agency, as an alternative to publishing separate notices, can publish a
notice in the Federal Register.
3. A federal agency must document its
response to all the comments received on its draft conformity determination
under subsection (3)(B) of this rule and make the comments and responses
available, subject to the limitation in paragraph (3)(C)5. of this rule, upon
request by any person regarding a specific federal action, within thirty (30)
days of the final conformity determination.
4. A federal agency must make public its
final conformity determination under subsection (3)(B) of this rule for a
federal action by placing a notice by prominent advertisement in a daily
newspaper of general circulation in the areas affected by the action within
thirty (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.
5. 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.
(D) Re-evaluation of Conformity.
1. Once a conformity determination is
completed by a federal agency, that determination is not required to be
re-evaluated if the agency has maintained a continuous program to implement the
action; the determination has not lapsed as specified in paragraph (3)(D)2. of
this rule; or any modification to the action does not result in an increase in
emissions above the levels as specified in subsection (1)(B) of this rule. If a
conformity determination is not required for the action at the time NEPA
analysis is completed, the date of the finding of no significant impact (FONSI)
for an Environmental Assessment, a record of decision (ROD) for an
Environmental Impact Statement, or a categorical exclusion determination can be
used as a substitute date for the conformity determination date.
2. The conformity status of a federal action
automatically lapses five (5) years from the date a final conformity
determination is reported under section (4) of this rule, unless the federal
action has been completed or a continuous program to implement the federal
action has commenced.
3. Ongoing
federal activities at a given site showing continuous progress are not new
actions and do not require periodic redeterminations so long as such activities
are within the scope of the final conformity determination reported under
section (4) of this rule.
4. 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 subsection (1)(B) of this rule and changes to the
action would result in the total emissions from the action being above the
limits in subsection (1)(B) of this rule, then the federal agency must make a
conformity determination.
(E) Criteria for Determining Conformity of
General Federal Actions.
1. An action
required under section (1) of this rule, to have a conformity determination for
a specific pollutant, will be determined to conform to the applicable
implementation plan if, for each pollutant that exceeds the rates in subsection
(1)(B) of this rule, or otherwise requires a conformity determination due to
the total of direct and indirect emissions from the action, the action meets
the requirements of paragraph (3)(E)3. of this rule, and meets any of the
following requirements:
A. 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
attainment or maintenance demonstration or reasonable further progress
milestone or in a facility-wide emission budget included in a SIP in accordance
with subsection (3)(H) of this rule;
B. For precursors of ozone, nitrogen dioxide,
or particulate matter (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 emission reductions so that
there is no net increase in emissions of that pollutant;
C. For any directly-emitted criteria
pollutant, the total of direct and indirect emissions from the action meet the
requirements-
(I) Specified in paragraph
(3)(E)2. of this rule, based on area-wide air quality modeling analysis and
local air quality modeling analysis; or
(II) Specified in subparagraph (3)(E)1.E. of
this rule and, for local air quality modeling analysis, the requirement of
paragraph (3)(E)2. of this rule;
D. For carbon monoxide or directly emitted
PM-
(I) Where the department determines that
an area-wide air quality modeling analysis is not needed, the total of direct
and indirect emissions from the action meet the requirements specified in
paragraph (3)(E)2. of this rule, based on local air quality modeling analysis;
or
(II) Where the department
determines that an area-wide air quality modeling analysis is appropriate and
that a local air quality modeling analysis is not needed, the total of direct
and indirect emissions from the action meet the requirements specified in
paragraph (3)(E)2. of this rule, based on area-wide modeling, or meet the
requirements of subparagraph (3)(E)1.E. of this rule; or
E. For ozone or nitrogen dioxide, and for
purposes of parts (3)(E)1.C.(II) and (3)(E)1.D.(II) of this rule, 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 subpart
(3)(E)1.E.(I)(a) of this rule or where the state or tribe makes a commitment as
provided in subpart (3)(E)1.E.(I)(b) of this rule.
(a) The total of direct and indirect
emissions from the action (or portion thereof) is determined and documented by
the department to result in a level of emissions which, together with all other
emissions in the nonattainment (or maintenance) area, would not exceed the
emissions budgets specified in the applicable SIP.
(b) The total of direct and indirect
emissions from the action (or portion thereof) is determined by the department
to result in a level of emissions which, together with all other emissions in
the nonattainment (or maintenance) area, would exceed an emissions budget
specified in the applicable implementation plan and the department makes a
written commitment to E PA which includes the following:
I. A specific schedule for adoption and
submittal of a revision to the applicable implementation plan which would
achieve the needed emission reductions prior to the time emissions from the
federal action would occur;
II.
Identification of specific measures for incorporation into the applicable
implementation plan which would result in a level of emissions which, together
with all other emissions in the nonattainment or maintenance area, would not
exceed any emissions budget specified in the applicable implementation
plan;
III. A demonstration that all
existing applicable implementation plan requirements are being implemented in
the area for the pollutants affected by the federal action, and that local
authority to implement additional requirements has been fully
pursued;
IV. A determination that
the responsible federal agencies have required all reasonable mitigation
measures associated with their action; and
V. Written documentation including all air
quality analyses supporting the conformity determination.
(c) Where a federal agency made a conformity
determination based on a state's or tribe's commitment under subpart
(3)(E)1.E.(I)(b) of this rule 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 eighteen (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 CAA, effective on the date
of the federal conformity determination and requiring response within eighteen
(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 subpart (3)(E)1.E.(I)(b) of this rule 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 eighteen (18) months of
the conformity determination, the state or tribe must, within eighteen (18)
months, submit to EPA a revision to the existing SIP committing to include the
emissions in the future SIP revision;
(II) The action (or portion thereof), as
determined by the MPO, is specifically included in a current transportation
plan and transportation improvement program which have been found to conform to
the applicable implementation plan under
10 CSR
10-5.480;
(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 violations in the
past, in the area with the federal action) through a revision to the applicable
SIP or an equally-enforceable measure that effects emission 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 E PA 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 paragraph (3)(F)4. of this rule) do not increase emissions with respect to
the baseline emissions, and-
(a) The baseline
emissions reflect the historical activity levels that occurred in the
geographic area affected by the proposed federal action during-
I. The most current calendar year with a
complete emission inventory available before an area is designated unless E PA
sets another year;
II. The emission
budget in the applicable SIP; or
III. The year of the baseline inventory in
the PM10 applicable SIP; and
(b) The baseline emissions are the total of
direct and indirect emissions calculated for the future years (described in
paragraph (3)(F)4. of this rule) using the historic activity levels (described
in subpart (3)(E)1.E.(IV)(a) of this rule) and appropriate emission factors for
the future years; or
(V)
Where the action involves regional water or wastewater projects, such projects
are sized to meet only the needs of population projections that are in the
applicable SIP.
2. The area-wide and local air quality
modeling analyses must-
A. Meet the
requirements in subsection (3)(F) of this rule; and
B. Show that the action does not-
(I) Cause or contribute to any new violation
of any standard in any area; or
(II) Increase the frequency or severity of
any existing violation of any standard in any area.
3. Notwithstanding any other
requirements of this section, an action subject to this rule will not be
determined to conform to the applicable implementation plan unless the total of
direct and indirect emissions from the action is in compliance or consistent
with all relevant requirements and milestones contained in the applicable
implementation plan, such as elements identified as part of the reasonable
further progress schedules, assumptions specified in the attainment or
maintenance demonstration, prohibitions, numerical emission limits, and work
practice requirements, and such action is otherwise in compliance with all
relevant requirements of the applicable implementation plan.
4. Any analyses conducted under this section
must be completed, and any mitigation requirements necessary for a finding of
conformity must be identified before the determination of conformity is
made.
(F) Procedures for
Conformity Determinations of General Federal Actions.
1. The analyses conducted under this rule
must be based on the latest planning assumptions.
A. All planning assumptions must be derived
from the estimates of current and future population, employment, travel, and
congestion most recently developed by the MPO or other agency authorized to
make such estimates, where available.
B. Any revisions to these estimates used as
part of the conformity determination, including projected shifts in geographic
location or level of population, employment, travel, and congestion, must be
approved by the MPO or other agency authorized to make such estimates for the
area.
2. The analyses
conducted under this rule must be based on the latest and most accurate
emission estimation techniques available as described below, unless such
techniques are inappropriate, the federal agency may obtain written approval
from the appropriate E PA 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.
A. For motor vehicle emissions, the most
current version of the motor vehicle emissions model specified by EPA and made
available for use in the preparation or revision of SIPs in the state must be
used for the conformity analysis as specified below-
(I) The E PA must publish in the Federal
Register a notice of availability of any new motor vehicle emissions model;
and
(II) A grace period of three
(3) months applies during which the motor vehicle emissions model previously
specified by E PA as the most current version may be used unless E PA 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 three (3) years
before the Federal Register notice of availability of the latest emission model
may continue to use the previous version of the model specified by
EPA.
B. For non-motor
vehicle sources, including stationary and area source emissions, the latest
emission factors specified by E PA in the "Compilation of Air Pollutant
Emission Factors" (AP-42,
http://www.epa.gov/ttn/chiefs/efpac)
must be used for the conformity analysis unless more accurate emission data are
available, such as actual stack test data from stationary sources which are
part of the conformity analysis.
3. The air quality modeling analyses
conducted under this rule must be based on the applicable air quality models,
databases, and other requirements specified in the most recent version of the
"Guideline on Air Quality Models" ( 40 CFR 51, Appendix W), unless-
A. The guideline techniques are
inappropriate, in which case the model may be modified or another model
substituted on a case-by-case basis or, where appropriate, on a generic basis
for a specific federal agency program; and
B. Written approval of the E PA regional
administrator is obtained for any modification or substitution.
4. The analyses conducted under
this rule 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:
A. 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;
B. The last year for which emissions are
projected in the maintenance plan;
C. 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
D. Any year for
which the applicable SIP specifies an emissions budget.
(G) Mitigation of Air Quality
Impacts.
1. Any measures that are intended to
mitigate air quality impacts must be identified (including the identification
and quantification of all emission reductions claimed) and the process for
implementation (including any necessary funding of such measures and tracking
of such emission reductions) and enforcement of such measures must be
described, including an implementation schedule containing explicit timelines
for implementation.
2. Prior to
determining that a federal action is in conformity, the federal agency making
the conformity determination must obtain written commitments from the
appropriate persons or agencies to implement any mitigation measures which are
identified as conditions for making conformity determinations.
3. Persons or agencies voluntarily committing
to mitigation measures to facilitate positive conformity determinations must
comply with the obligations of such commitments.
4. In instances where the federal agency is
licensing, permitting, or otherwise approving the action of another
governmental or private entity, approval by the federal agency must be
conditioned on the other entity meeting the mitigation measures set forth in
the conformity determination.
5.
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 section (4) of this rule and the
public participation requirements of subsection (3)(C) of this rule.
6. Written commitments to mitigation measures
must be obtained prior to a positive conformity determination and such
commitments must be fulfilled.
7.
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 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.
(H) Conformity Evaluation for Federal
Installations with Facility-Wide Emission Budgets.
1. 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 subparagraph
(3)(E)1.A. of this rule. The facility-wide budget must meet the following
criteria:
A. Be for a set time
period;
B. Cover the pollutants or
precursors of the pollutants for which the area is designated nonattainment or
maintenance;
C. Include specific
quantities allowed to be emitted on an annual or seasonal basis;
D. The emissions from the facility along with
all other emissions in the area will not exceed the emission budget for the
area;
E. 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;
F. Be submitted to EPA as a SIP revision;
and
G. The SIP revision must be
approved by EPA.
2. The
facility-wide budget developed and adopted in accordance with paragraph
(3)(H)1. of this rule can be revised by following the requirements in paragraph
(3)(H)1. of this rule.
3. 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 (3)(H)1. of this rule
are "presumed to conform" to the SIP and do not require a conformity
analysis.
4. 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 (3)(H)1. of this rule, the action must be
evaluated for conformity. A federal agency can use the compliance with the
facility-wide emissions budget as part of the demonstration of conformity,
i.e., the agency would have to mitigate or offset the emissions that exceed the
emission budget.
5. If the SIP for
the area includes a category for construction emissions, the negotiated budget
can exempt construction emissions from further conformity analysis.
(I) 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-
1. Demonstrate conformity with the last
emission budget in the SIP; or
2.
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 E
PA within eighteen (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 may restrict a state's
or tribe's ability to require Reasonably Available Control Technology (RACT),
Reasonably Available Control Measures (RACM), or any other control measures
within the state's or tribe's authority to ensure timely attainment of the
NAAQS.
(J) Timing of
Offsets and Mitigation Measures.
1. 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 (3)(J)2. of this
rule.
2. The state or tribe may
approve emissions reductions in other years provided
A. 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
|
B.
The time period for completing the emissions reductions cannot exceed twice the
period of the emissions; and
C. 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.
3. 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 CAA milestone or deadline. The approval of an
alternate schedule for mitigation measures is at the discretion of the state or
tribe, and are under no obligation to approve an alternate schedule.
(K) 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.
(L) Early
Emission Reduction Credit Programs at Federal Facilities and Installations
Subject to Federal Oversight.
1. 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 (3)(L)2. of this rule and can use them in accordance with
paragraph (3)(L)3. of this rule.
2.
Creation of emission reduction credits.
A.
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 E PA's regional office. The emission reduction credits
do not have to be quantified before the reduction strategy is implemented but
must be quantified before the credits are used in the general conformity
evaluation.
B. The emission
reduction methods must be consistent with the applicable SIP or TIP attainment
and reasonable further progress demonstrations.
C. The emissions reductions cannot be
required by or credited to other applicable SIP or TIP provisions.
D. 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.
E. The
emissions reductions must be permanent or have a specific time frame for the
reductions.
F. 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 E PA 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 sub-paragraphs
(3)(L)2.A. through (3)(L)2.E. of this rule.
3. Use of emission reduction credits. The
emission reduction credits created in accordance with paragraph (3)(L)2. of
this rule can be used, subject to the following limitations, to reduce the
emissions increase from a federal action at the facility for the conformity
evaluation.
A. 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 under section (1) of this
rule and as offsets or mitigation measures under subsection (3)(E) of this
rule.
B. 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 under section
(1) of this rule, but can be used to offset or mitigate the emissions under
subsection (3)(E) of this rule.
C.
Emissions reductions credits must be used in the same year in which they are
generated.
D. Once the emission
reduction credits are used, they cannot be used as credits for another
conformity evaluation. However, unused credits from a strategy used for one (1)
conformity evaluation can be used for another conformity evaluation as long as
the reduction credits are not double counted.
E. Federal agencies must notify the state or
tribal air quality agency responsible for the implementation of the SIP or TIP
and EPA Regional Office when the emission reduction credits are being
used.
(4) Reporting and Record Keeping.
(A) A federal agency making a conformity
determination under section (4), subsections (3)(B) through (3)(G), and
subsections (3)(I) through (3)(K) of this rule 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 CAA and the MPO, a thirty (30)-day
notice which describes the proposed action and the federal agency's draft
conformity determination on the action. 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 subsection (1)(B) of this
rule in three (3) 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 CAA and the MPO, within thirty (30)
days after making a final conformity determination under this rule.
(C) The draft and final conformity
determination will exclude any restricted information or confidential business
information. The disclosure of restricted information and confidential business
information is 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.
*Original authority: 643.050, RSMo 1965, amended 1972,
1992, 1993, 1995.