Current through September 21, 2024
(a) Prohibition.
(i) No department, agency or instrumentality
of the Federal Government shall 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.
(ii) A Federal agency must make a
determination that a Federal action conforms to the applicable implementation
plan in accordance with the requirements of this section before the action is
taken.
(iii) Reserved
(iv) Notwithstanding any provision of this
section, a determination that an action is in conformance 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.
(v) 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.
(b)
Definitions. Terms used but not defined in this section shall have the meaning
given them by the CAA and EPA's regulations (40 CFR Chapter 1), in that order
of priority.
"Affected Federal land manager"
means the Federal agency or the Federal official charged with direct
responsibility for management of an area designated Class I under the CAA
(42 U.S.C.
7472) that is located within 100 km of the
proposed Federal action.
"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 CAA, or
promulgated under section 110(c) of the CAA (Federal implementation plan), or a
plan promulgated or approved pursuant to section 301(d) of the CAA (Tribal
implementation plan or TIP) and which implements the relevant requirements of
the CAA.
"Areawide air quality modeling
analysis" means an assessment on a scale that includes the
entire nonattainment or maintenance area which uses an air quality dispersion
model or photochemical grid model to determine the effects of emissions on air
quality, for example, an assessment using EPA's community multi-scale air
quality (CMAQ) modeling system.
"CAA" means the Clean Air Act,
as amended.
"Cause or contribute to a new
violation" means a Federal action that:
(i) 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
(ii) 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.
"Caused by", as used in the
terms "direct emissions" and "indirect emissions," means emissions that would
not otherwise occur in the absence of the Federal action.
"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 section.
"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 section.
"Continuing program
responsibility" means a Federal agency has responsibility for
emissions caused by:
(i) Actions it
takes itself; or
(ii) 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.
"Criteria pollutant or
standard" means any pollutant for which there is established a
NAAQS at 40 CFR Part 50.
"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.
"Emergency" means 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 section, such as natural disasters like
hurricanes or earthquakes, civil disturbances such as terrorist acts and
military mobilizations.
"Emissions budgets" are those
portions of the applicable SIP's projected emission inventories that describe
the levels of emissions (mobile, stationary, area, etc.) that provide for
meeting reasonable further progress milestones, attainment, and/or maintenance
for any criteria pollutant or its precursors.
"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.
"Emissions offsets", for
purposes of Subsection (h), are emissions reductions which are quantifiable,
consistent with the applicable SIP attainment and reasonable further progress
demonstrations, surplus to 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.
"EPA" means the U.S.
Environmental Protection Agency.
"Federal action" means 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 non-Federal undertaking, the relevant activity is
the part, portion, or phase or the non-Federal undertaking that requires the
Federal permit, license, or approval.
"Federal agency" means, for
purposes of this section, a Federal department, agency, or instrumentality of
the Federal government.
"Increase the frequency or severity of any
existing violation of any standard in any area" means to cause
a nonattainment area to exceed a standard more often or to cause a violation at
a greater concentration than previously existed and/or would otherwise exist
during the future period in question, if the project were not
implemented.
"Indirect emissions" means
those emissions of a criteria pollutant or its precursors:
(i) 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;
(ii) That are reasonably
foreseeable;
(iii) That the Federal
agency can practically control; and
(iv) For which the Federal 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
CAA and has a maintenance plan approved under section 175A of the CAA.
"Maintenance plan" means a
revision to the applicable SIP, meeting the requirements of section 175A of the
CAA.
"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).
"Milestone" has the meaning
given in sections 182(g)(1) and 189(c)(1) of the CAA.
"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 CAA and include standards for carbon monoxide (CO), lead (Pb),
nitrogen dioxide (NO2), ozone, particulate matter
(PM10 and PM2.5), and sulfur
dioxide (SO2).
"NEPA" is the National
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
et seq.).
"Nonattainment area (NAA)"
means an area designated as nonattainment under section 107 of the CAA and
described in 40 CFR Part 81.
"Precursors of a criteria
pollutant" are:
(i)
For ozone, nitrogen oxides (NOx), unless an area is
exempted from NOx requirements under section 182(f) of
the CAA, and volatile organic compounds (VOC).
(ii) For PM10, those
pollutants described in the PM10 nonattainment area
applicable SIP as significant contributors to the PM10
levels.
(iii) For
PM2.5:
(A) Sulfur
dioxide (SO2) in all PM2.5
nonattainment and maintenance areas,
(B) 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
(C) 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.
"Regional water and/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.
"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
section.
"Total of direct and indirect
emissions" means the sum of direct and indirect emissions
increases and decreases caused by the Federal action; i.e., the "net" emissions
considering all direct and indirect emissions. The portion of emissions which
are exempt or presumed to conform under Subsections (c)(iii), (iv), (v), or
(vi) are not included in the "total of direct and indirect emissions." The
"total of direct and indirect emissions" includes emissions of criteria
pollutants and emissions of precursors of criteria
pollutants.
(c) Applicability.
(i) 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 Chapter 8, Section
4, in lieu of the procedures set forth in
this section.
(ii) For Federal
actions not covered by paragraph (i) of this subsection, 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 rates in paragraphs (ii)(A) or (B) of this subsection.
(A) For purposes of paragraph (ii) of this
subsection, the following rates apply in nonattainment areas (NAAs):
|
Criteria
Pollutant
|
Tons/Year
|
|
Ozone (VOCs or NOx):
|
|
|
Serious NAAs
|
50
|
|
Severe NAAs
|
25
|
|
Extreme NAAs
|
10
|
|
Other ozone NAAs outside an ozone transport
region:
|
100
|
|
Other ozone NAAs inside an ozone transport
region:
|
|
|
VOC
|
50
|
|
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 precursors)
|
100
|
|
VOC or ammonia (if determined to be significant
precursors)
|
100
|
|
Pb:
|
|
|
All NAAs
|
25
|
(B)
For purposes of paragraph (ii) of this subsection, the following rates apply in
maintenance areas:
|
Criteria
Pollutant
|
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 precursors):
|
100
|
|
VOC or ammonia (if determined to be significant
precursors):
|
100
|
|
Pb:
|
|
|
All maintenance areas
|
25
|
(iii) The requirements of this section shall
not apply to the following Federal actions:
(A) Actions where the total of direct and
indirect emissions are below the emissions levels specified in paragraph (ii)
of this subsection.
(B) Actions
which would result in no emissions increase or an increase in emissions that is
clearly de minimus:
(I) Judicial and
legislative proceedings.
(II)
Continuing and recurring activities such as permit renewals where activities
conducted will be similar in scope and operation to activities currently being
conducted.
(III) Rulemaking and
policy development and issuance.
(IV) Routine maintenance and repair
activities, including repair and maintenance of administrative sites, roads,
trails, and facilities.
(V) Civil
and criminal enforcement activities, such as investigations, audits,
inspections, examinations, prosecutions, and the training of law enforcement
personnel.
(VI) Administrative
actions such as personnel actions, organization 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.
(VII) The routine, recurring
transportation of material and personnel.
(VIII) Routine movement of mobile assets,
such as ships and aircraft, in home port reassignments and stations (when no
new support facilities or personnel are required) to perform as operational
groups and/or for repair or overhaul.
(IX) Maintenance dredging and debris disposal
where no new depths are required, applicable permits are secured, and disposal
will be at an approved disposal site.
(X) Actions, such as the following, 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; for example, 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.
(XI) The 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.
(XII) Planning, studies,
and provision of technical assistance.
(XIII) Routine operation of facilities,
mobile assets and equipment.
(XIV)
Transfers of ownership, interests, and titles in land, facilities, and real and
personal properties, regardless of the form or method of the
transfer.
(XV) The designation of
empowerment zones, enterprise communities, or viticultural areas.
(XVI) 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.
(XVII) Actions by the Board
of Governors of the Federal Reserve System or any Federal Reserve Bank
necessary to affect monetary or exchange rate policy.
(XVIII) Actions that implement a foreign
affairs function of the United States.
(XIX) 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.
(XX) 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.
(XXI) Actions by the
Department of the Treasury to effect fiscal policy and to exercise the
borrowing authority of the United States.
(XXII) Air traffic control activities and
adopting approach, departure, and enroute procedures for aircraft operations
above the mixing height specified in the applicable SIP. Where the applicable
SIP 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.
(C)
Actions where the emissions are not reasonably foreseeable, such as the
following:
(I) 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.
(II) Electric power marketing activities that
involve the acquisition, sale and transmission of electric energy.
(D) Actions which implement a
decision to conduct or carry out a conforming program such as prescribed
burning actions which are consistent with a conforming land management
plan.
(iv)
Notwithstanding the other requirements of this section, a conformity
determination is not required for the following Federal actions (or portion
thereof):
(A) 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 CAA) or the prevention of significant deterioration (PSD)
program (Title I, part C of the CAA);
(B) 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 (v) of this
subsection;
(C) Research,
investigations, studies, demonstrations, or training (other than those exempted
under paragraph (iii)(B) of this subsection), where no environmental detriment
is incurred and/or, the particular action furthers air quality research, as
determined by the State agency primarily responsible for the applicable
SIP;
(D) Alteration and additions
of existing structures as specifically required by new or existing applicable
environmental legislation or environmental regulations (e.g., hush houses for
aircraft engines and scrubbers for air emissions);
(E) 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.
(v) Federal
actions which are part of a continuing response to an emergency or disaster
under paragraph (iv)(B) of this subsection and which are to be taken more than
6 months after the commencement of the response to the emergency or disaster
under paragraph (iv)(B) of this subsection are exempt from the requirements of
this section only if:
(A) The Federal agency
taking the actions makes a written determination that, for a specified period
not to exceed an additional 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
(B) For actions which are to be taken after
those actions covered by paragraph (v)(A) of this subsection, the Federal
agency makes a new determination as provided in paragraph (v)(A) of this
subsection and:
(I) Provides a draft copy of
the written determinations required to affected 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 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.
(C) If
additional actions are necessary in response to an emergency or disaster under
paragraph (iv)(B) of this subsection beyond the specified time period in
paragraph (v)(B) of this subsection, a Federal agency can make a new written
determination as described in (v)(B) of this subsection for as many 6-month
periods as needed, but in no case shall this exemption extend beyond three
6-month periods except where an agency:
(I)
Provides information to EPA and the State stating that the conditions that gave
rise to the emergency exemption continue to exist and how such conditions
effectively prevent the agency from conducting a conformity
evaluation.
(vi) Notwithstanding other requirements of
this section, actions specified by individual Federal agencies that have met
the criteria set forth in either paragraphs (vii)(A), (vii)(B), or (vii)(C) of
this subsection and the procedures set forth in paragraph (viii) of this
subsection are "presumed to conform", except as provided in paragraph (x) of
this subsection. 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 (ii)(A) or (ii)(B) of this
subsection.
(vii) The Federal
agency must meet the criteria for establishing activities that are presumed to
conform by fulfilling the requirements set forth in either paragraphs (vii)(A),
(vii)(B), or (vii)(C) of this subsection:
(A)
The Federal agency must clearly demonstrate using methods consistent with this
section that the total of direct and indirect emissions from the type of
activities which would be presumed to conform would not:
(I) Cause or contribute to any new violation
of any standard in any area;
(II)
Interfere with provisions in the applicable SIP for maintenance of any
standard;
(III) Increase the
frequency or severity of any existing violation of any standard in any area;
or
(IV) Delay timely attainment of
any standard or any required interim emission reductions or other milestones in
any area including, where applicable, emission levels specified in the
applicable SIP for purposes of:
(1.) A
demonstration of reasonable further progress;
(2.) A demonstration of attainment;
(3.) A maintenance plan; or
(B) 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 paragraph (ii) of this subsection, based,
for example, on similar actions taken over recent years.
(C) 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) 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.
(viii) In addition
to meeting the criteria for establishing exemptions set forth in paragraphs
(vii)(A), (vii)(B), or (vii)(C) of this subsection, the following procedures
must also be complied with to presume that activities will conform:
(A) 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;
(B) The Federal agency must notify the
appropriate EPA Regional Office(s), State and local air quality agencies and,
where applicable, the agency designated under §174 of the CAA 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 (ii) of this subsection 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;
(C) The
Federal Agency must document its response to all the comments received and make
the comments, response, and final list of activities available to the public
upon request; and
(D) The Federal
agency must publish the final list of such activities in the
Federal Register.
(ix) Emissions from the following actions are
"presumed to conform":
(A) Actions at
installations with facility-wide emission budgets meeting the requirements in
Subsection (k) provided that the State has included the emission budget in the
EPA-approved SIP and the emissions from the action along with all other
emissions from the installation will not exceed the facility-wide emission
budget.
(B) 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.
(C) Emissions for actions that the State
identifies in the EPA-approved SIP as "presumed to conform".
(x) Even though an action would
otherwise be "presumed to conform" under paragraphs (vi) or (ix) of this
subsection, an action shall not be "presumed to conform" and the requirements
of Subsection (a), 40 CFR Part 93 .151, Subsections (d) through (j) and
Subsections (l) through (n) shall apply to the action if EPA or a third party
shows that the action would:
(A) Cause or
contribute to any new violation of any standard in any area;
(B) Interfere with provisions in the
applicable SIP 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 emissions reductions or other milestones in any area
including, where applicable, emission levels specified in the applicable SIP
for purposes of:
(I) A demonstration of
reasonable further progress;
(II) A
demonstration of attainment; or
(III) A maintenance plan.
(xi) The provisions of
this section 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 CAA.
(d) Federal
Agency Conformity Responsibility. Any department, agency, or instrumentality of
the Federal government taking an action subject to this section must make its
own conformity determination consistent with the requirements of this section.
In making its conformity determination, a Federal agency must follow the
requirements in Subsections (e) through (j) and Subsections (l) through (o) 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.
(e) Reporting Requirements.
(i) A Federal agency making a conformity
determination under Subsections (d) through (j) and Subsections (l) through (n)
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
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 (c)(ii) 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.
(ii) 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
section.
(iii) 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.
(f) Public Participation.
(i) Upon request by any person regarding a
specific Federal action, a Federal agency must make available, subject to the
limitation in paragraph (v) of this section, for review its draft conformity
determination under Subsection (d) with supporting materials which describe the
analytical methods and conclusions relied upon in making the applicability
analysis and draft conformity determination.
(ii) A Federal agency must make public its
draft conformity determination under Subsection (d) by placing a notice by
prominent advertisement in a daily newspaper of general circulation in the area
affected by the action and by providing 30 days for written public comment
prior to taking any formal action on the draft determination. This comment
period may be concurrent with any other public involvement, such as occurs in
the 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 (c)(ii) 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.
(iii) A Federal agency must document its
response to all the comments received on its draft conformity determination
under Subsection (d) and make the comments and responses available, subject to
the limitation in paragraph (v) of this subsection, upon request by any person
regarding a specific Federal action, within 30 days of the final conformity
determination.
(iv) A Federal
agency must make public its final conformity determination under Subsection (d)
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.
(v) 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.
(g) Reevaluation of Conformity.
(i) 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 (ii) of this
subsection; or any modification to the action does not result in an increase in
emissions above the levels specified in Subsection (c)(ii). If a conformity
determination is not required for the action at the time the 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.
(ii) The conformity status of a Federal
action automatically lapses 5 years from the date a final conformity
determination is reported under Subsection (e), unless the Federal action has
been completed or a continuous program to implement the Federal action has
commenced.
(iii) 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
(e).
(iv) 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 (c)(ii) and changes to the action would result in the
total emissions from the action being above the limits in Subsection (c)(ii),
then the Federal agency must make a conformity determination.
(h) Criteria for Determining
Conformity of General Federal Actions.
(i) An
action required under Subsection (c) to have a conformity determination for a
specific pollutant, will be determined to conform to the applicable SIP if, for
each pollutant that exceeds the rates in Subsection (c)(ii), 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 (iii)
of this subsection, 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's attainment or maintenance
demonstration or reasonable further progress milestone or in a facility-wide
emission budget included in a SIP in accordance with Subsection (k);
(B) 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 emissions 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 meets the
requirements:
(I) Specified in paragraph (ii)
of this subsection, based on areawide air quality modeling analysis and local
air quality modeling analysis; or
(II) Meet the requirements of paragraph
(i)(E) of this subsection and, for local air quality modeling analysis, the
requirement of paragraph (ii) of this subsection;
(D) For CO or directly emitted PM:
(I) Where the State agency primarily
responsible for the applicable SIP determines that an areawide air quality
modeling analysis is not needed, the total of direct and indirect emissions
from the action meet the requirements specified in paragraph (ii) of this
subsection, based on local air quality modeling analysis; or
(II) Where the State agency primarily
responsible for the applicable SIP determines that an areawide 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 (ii) of this subsection, based on
areawide modeling, or meet the requirements of paragraph (i)(E) of this
subsection; or
(E) For
ozone or nitrogen dioxide, and for purposes of paragraphs (i)(C)(II) and
(i)(D)(II) of this subsection, each portion of the action or the action as a
whole meets any of the following requirements:
(I) Where EPA has approved a revision to the
applicable implementation plan after the area was designated as nonattainment
and the State makes a determination as provided in paragraph (i)(E)(I)(1.) of
this subsection or where the State makes a commitment as provided in paragraph
(i)(E)(I)(2.) of this subsection:
(1.) The
total of direct and indirect emissions from the action (or portion thereof) is
determined and documented by the State agency primarily responsible for the
applicable SIP 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.
(2.) The total of direct and indirect
emissions from the action (or portion thereof) is determined by the State
agency responsible for the applicable SIP 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 SIP and the
State Governor or the Governor's designee for SIP actions makes a written
commitment to EPA which includes the following:
a. A specific schedule for adoption and
submittal of a revision to the SIP which would achieve the needed emission
reductions prior to the time emissions from the Federal action would
occur;
b. Identification of
specific measures for incorporation into the SIP 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 SIP;
c. A demonstration
that all existing applicable SIP 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;
d. A determination that the responsible
Federal agencies have required all reasonable mitigation measures associated
with their action; and
e. Written
documentation including all air quality analyses supporting the conformity
determination.
(3.) Where
a Federal agency made a conformity determination based on a State's commitment
under paragraph (i)(E)(I)(2.) of this subsection and the State has submitted a
SIP to EPA covering the time period during which the emissions will occur or is
scheduled to submit such a SIP within 18 months of the conformity
determination, the State commitment is automatically deemed a call for a SIP
revision by EPA under section 110(k)(5) of the CAA, effective on the date of
the Federal conformity determination and requiring response within 18 months or
any shorter time within which the State commits to revise the applicable
SIP;
(4.) Where a Federal agency
made a conformity determination based on a State commitment under paragraph
(i)(E)(I)(2.) of this subsection and the State 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 must,
within 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 SIP under Chapter 8, Section
4, or 40 CFR Part 93, Subpart A;
(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 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 redesignated or reclassified, the total of
direct and indirect emissions from the action for the future years (described
in Subsection (i)(iv)) do not increase emissions with respect to the baseline
emissions:
(1.) The baseline emissions reflect
the historical activity levels that occurred in the geographic area affected by
the proposed Federal action during:
a. The
most current calendar year with a complete emission inventory available before
an area is designated unless EPA sets another year; or
b. The emission budget in the applicable
SIP;
c. The year of the baseline
inventory in the PM10 applicable
SIP;
(2.) The baseline
emissions are the total of direct and indirect emissions calculated for the
future years (described in Subsection (i)(iv)) using the historic activity
levels (described in paragraph (i)(E)(IV)(1.) of this subsection) and
appropriate emission factors for the future years; or
(V) Where the action involves regional water
and/or wastewater projects, such projects are sized to meet only the needs of
population projections that are in the applicable
SIP.
(ii) The
areawide and/or local air quality modeling analyses must:
(A) Meet the requirements in Subsection (i);
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.
(iii) Notwithstanding any other
requirements of this subsection, an action subject to this section may not be
determined to conform to the applicable SIP 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 SIP, 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.
(iv) Any analyses
required under this subsection must be completed, and any mitigation
requirements necessary for a finding of conformity must be identified before
the determination of conformity is made.
(i) Procedures for Conformity Determinations
of General Federal Actions.
(i) The analyses
required under this section must be based on the latest planning assumptions.
(A) All planning assumptions must be derived
from the estimates of population, employment, travel, and congestion most
recently approved 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 urban area.
(ii) The analyses required under this section
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 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
available for use in the preparation or revision of SIPs in that State must be
used for the conformity analysis as specified in paragraphs (ii)(A)(I) and (II)
of this subsection:
(I) The EPA must publish
in the Federal Register a notice of availability of
any new motor vehicle emissions model; and
(II) A grace period of three 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 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 EPA in the "Compilation of Air Pollutant Emission
Factors" (AP-42) 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.
(iii) The air quality modeling analyses
required under this section 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" (Appendix W to 40 CFR Part 51), 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 EPA Regional
Administrator is obtained for any modification or substitution.
(iv) The analyses required under
this section 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 CAA;
or
(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.
(j) Mitigation of Air Quality
Impacts.
(i) Any measures that are intended to
mitigate air quality impacts must be identified and the process for
implementation and enforcement of such measures must be described, including an
implementation schedule containing explicit timelines for
implementation.
(ii) 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.
(iii) Persons or agencies voluntarily
committing to mitigation measures to facilitate positive conformity
determinations must comply with the obligations of such commitments.
(iv) 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.
(v) 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 Subsection (e) and the public participation
requirements of Subsection (f).
(vi) Written commitments to mitigation
measures must be obtained prior to a positive conformity determination and that
such commitments must be fulfilled.
(vii) After a State revises its SIP and EPA
approves that SIP revision, any agreements, including mitigation measures,
necessary for a conformity determination will be both State and federally
enforceable. Enforceability through the applicable SIP will apply to all
persons who agree to mitigate direct and indirect emissions associated with a
Federal action for a conformity determination.
(k) Conformity Evaluation for Federal
Installations with Facility-Wide Emission Budgets.
(i) The State or local agency responsible for
implementing and enforcing the SIP can in cooperation with Federal agencies or
third parties authorized by the agency that operate installations subject to
Federal oversight develop and adopt a facility-wide emission budget to be used
for demonstrating conformity under Subsection (h)(i)(A). 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;
(G) The SIP
revision must be approved by EPA.
(ii) The facility-wide budget developed and
adopted in accordance with paragraph (i) of this subsection can be revised by
following the requirements in paragraph (i) of this subsection.
(iii) 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 (i) of this subsection are "presumed to conform" to the
SIP and do not require a conformity analysis.
(iv) 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 (i) of this subsection, 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.
(v) If the SIP for the area
includes a category for construction emissions, the negotiated budget can
exempt construction emissions from further conformity analysis.
(l) 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:
(i) Demonstrate conformity with the last
emission budget in the SIP; or
(ii)
Request the State to adopt an emissions budget for the action for inclusion in
the SIP. The State must submit a SIP revision to EPA within 18 months either
including the emissions in the existing SIP or establishing an enforceable
commitment to include the emissions in future SIP revisions based on the latest
planning assumptions at the time of the SIP revision. No such commitment by a
State shall restrict a State's ability to require RACT, RACM or any other
control measures within the State's authority to ensure timely attainment of
the NAAQS.
(m) Timing of
Offsets and Mitigation Measures.
(i) 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 (ii) of this
subsection.
(ii) The State 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 must not exceed twice the period of the
emissions.
(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.
(iii) The approval by the State of an offset
or mitigation measure with emissions reductions in another year does not
relieve the State of any obligation to meet any SIP or CAA milestone or
deadline. The approval of an alternate schedule for mitigation measures is at
the discretion of the State, and they are not required to approve an alternate
schedule.
(n)
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 may approve offsets or mitigation measures of different precursors of the
same criteria pollutant, if such trades are allowed by a State in a SIP
approved NSR regulation, is technically justified, and has a demonstrated
environmental benefit.
(o) Early
Emission Reduction Credit Programs at Federal Facilities and Installation
Subject to Federal Oversight.
(i) Federal
facilities and installations subject to Federal oversight can, with the
approval of the State agency responsible for the SIP in that area, create an
early emissions reductions credit program. The Federal agency can create the
emission reduction credits in accordance with the requirements in paragraph
(ii) of this subsection and can use them in accordance with paragraph (iii) of
this subsection.
(ii) 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 agency responsible for the implementation of the SIP and from EPA'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 attainment and reasonable further progress
demonstrations.
(C) The emissions
reductions cannot be required by or credited to other applicable SIP
provisions.
(D) Both the State 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 the timeframe for the reductions must
be specified.
(F) The Federal
agency must document the emissions reductions and provide a copy of the
document to the State air quality agency and the EPA Regional Office for
review. The documentation must include a detailed description of the emission
reduction strategy and a discussion of how it meets the requirements of
paragraphs (ii)(A) through (E) of this subsection.
(iii) Use of Emission Reduction Credits. The
emission reduction credits created in accordance with paragraph (ii) of this
subsection 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 as required in Subsection
(c) and as offsets or mitigation measures required by Subsection (h).
(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 as required in Subsection
(c), but can be used to offset or mitigate the emissions as required by
Subsection (h).
(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
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
air quality agency responsible for the implementation of the SIP and EPA
Regional Office when the emission reduction credits are being used.
