[Federal Register: January 8, 2008 (Volume 73, Number 5)]
[Proposed Rules]
[Page 1401-1428]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ja08-22]
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Part II
Environmental Protection Agency
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40 CFR Parts 51 and 93
Revisions to the General Conformity Regulations; Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 93
[EPA-HQ-OAR-2004-0491; FRL-8511-6]
RIN 2060-AH93
Revisions to the General Conformity Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to revise its regulations relating to the
Clean Air Act (CAA) requirement that Federal actions conform to the
appropriate State, Tribal or Federal implementation plan for attaining
clean air (``general conformity''). EPA has only revised the General
Conformity Regulations once since they were promulgated in 1993 to
include de minimis emission levels for fine particulate matter and its
precursors (July 17, 2006). Over this period, EPA and other Federal
agencies have gained experience with the implementation of the existing
regulations and have identified several issues with their
implementation. In addition, in 2004 EPA issued regulations to
implement the revised ozone standard and in 2007 issued regulations to
implement the new fine particulate matter standard. These regulations
could affect the timing and process for general conformity
determinations. State and other air quality agencies are in the process
of developing revised plans to attain the new standards and the
proposed revisions to the General Conformity Regulations will be
helpful to the State, Tribe, and local agencies as well as the Federal
agencies in developing and commenting on the proposed SIP revisions.
This proposed rule revision provides for a streamline process for
Federal agencies and States and Tribes to ensure Federal activities are
incorporated in these State implementation plans (SIPs). Where that is
not possible it provides an efficient and effective process for Federal
agencies to ensure their actions do not cause or contribute to a
violation of the national ambient air quality standards (NAAQS) or
interfere with the purpose of a State, Tribal or Federal implementation
plan to attain or maintain the NAAQS.
DATES: Comments. Comments must be received on or before March 10, 2008.
Public Hearing. If anyone contacts EPA requesting a public hearing
by January 23, 2008, we will hold a public hearing. Additional
information about the hearing would be published in a subsequent
Federal Register notice.
ADDRESSES: Submit comments, identified by Docket ID No. EPA-HQ-OAR-
2004-0491, by one of the following methods:
http://www.regulations.gov. Follow the on-line instructions for
submitting comments.
E-Mail: a-and-r-docket@epa.gov.
Fax: (202) 566-9744.
Mail: Air and Radiation Docket and Information Center,
Environmental Protection Agency, Docket ID No. EPA-HQ-OAR-2004-0491,
Mail Code: 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
Please include duplicate copies, if possible.
Hand Delivery: General Conformity Revisions, Docket ID No.
EPA-HQ-OAR-2004-0491, Environmental Protection Agency Docket Center,
EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC.
Please include duplicate copies, if possible. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct comments to Docket ID No. EPA-HQ-OAR-2004-
0491. The EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is ``anonymous access'' systems, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
For additional instructions go to section I.B. of
the SUPPLEMENTARY INFORMATION section of this docket.
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov
or in hard copy at the Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 566-1742.
Public Hearing. If a public hearing is held at 9 a.m. in
Washington, DC, or at an alternate site nearby. Details regarding the
hearing (time, date, and location) will be posted on EPA's Web site at
http://www.epa.gov/oar/genconform_not later than 15 days prior to the
hearing date. People interested in presenting oral testimony or
inquiring as to whether a hearing is to be held should contact Ms. Pam
Long, Air Quality Planning Division, Office of Air Quality Planning and
Standards (C504-03), U.S. Environmental Protection Agency, Research
Triangle Park, NC 27711, telephone (919) 541-0641, fax number (919)
541-5509, e-mail address long.pam@epa.gov, at least 2 days in advance
of the public hearing (see DATES). People interested in attending the
public hearing must also call Ms. Long to verify the time, date, and
location of the hearing. The public hearing will provide interested
parties the opportunity to present data, views, or arguments concerning
the proposed action.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Coda, Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency, Mail Code
C539-02, Research Triangle Park, NC 27711, phone number (919) 541-3037
or by e-mail at coda.tom@epa.gov.
SUPPLEMENTARY INFORMATION:
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I. General Information
A. Does This Action Apply to Me?
Entities affected by this rule include Federal agencies and public
and private entities that receive approvals or funding from Federal
agencies such as airports and ports.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information claimed as CBI; a copy of the comment that does
not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 Code of
Federal Regulations (CFR) part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions. The agency may ask you to respond to
specific questions or organize comments by referencing a CFR part or
section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used. If you estimate potential costs
or burdens, explain how you arrived at your estimate in sufficient
detail to allow for it to be reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Where Can I Get a Copy of This Document and Other Related
Information?
In addition to being available in the docket, an electronic copy of
this proposal will also be available on the worldwide web. Following
signature by the EPA Administrator, a copy of this notice will be
posted at http://www.epa.gov/oar/genconform/regs.htm.
D. How Is This Preamble Organized?
The information presented in this preamble is organized as follows:
I. General Information
A. Does This Action Apply To Me?
B. What Should I Consider as I Prepare My Comments for EPA?
C. Where Can I Obtain Additional Information?
D. How Is This Preamble Organized?
II. Background
A. What Is General Conformity and How Does It Affect Air
Quality?
B. Why Is EPA Proposing Revisions to These Regulations at This
Time?
III. How Are the Existing Regulations Implemented?
A. Applicability Analysis
B. Conformity Determination
C. Review Process
IV. Summary of the Proposed Revisions to the General Conformity
Regulations
A. Categories of Proposed Revisions to the General Conformity
Regulations
B. What Innovative and Flexible Approaches Are Being Proposed?
C. What Streamlining and Burden Reduction Measures Are Being
Proposed?
D. What Revisions Provide Tools and Guidance for Transitioning
to New or Revised NAAQS?
E. What Revisions Are Being Proposed at the Request of Other
Agencies?
F. What Are Some of the Clarifications to the Existing
Regulations That Are Being Proposed?
V. Detailed Discussion of the Proposed Revisions
A. 40 CFR Part 51, Subpart W--Determining Conformity of General
Federal Actions to State or Federal Implementation Plans
B. 40 CFR 93.150--Prohibition
C. 40 CFR 93.151--State Implementation Plan (SIP) Revision
D. 40 CFR 93.152--Definitions
E. 40 CFR 93.153--Applicability Analysis
F. 40 CFR 93.154--Federal Agencies Responsibility for a
Conformity Determination
G. 40 CFR 93.155--Reporting Requirements
H. 40 CFR 93.156--Public Participation
I. 40 CFR 93.157--Re-evaluation of Conformity
J. 40 CFR 93.158--Criteria for Determining Conformity for
General Federal Actions
K. 40 CFR 93.159--Procedures for Conformity Determinations for
General Federal Actions
L. 401 CFR 93.160--Mitigation of Air Quality Impacts
M. 40 CFR 93.161--Conformity Evaluations for Installations With
Facility-Wide Emission Budget
N. 40 CFR 93.162--Emissions Beyond the Time Period Covered by
the Applicable SIP or TIP
O. 40 CFR 93.163--Timing of Offsets and Mitigation Measures
P. 40 CFR 93.164--Inter-Precursor Offsets and Mitigation
Measures
Q. 40 CFR 93.165--Early Emission Reduction Credit Program
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
VII. Statutory Authority
II. Background
A. What Is General Conformity and How Does It Affect Air Quality?
The intent of the General Conformity requirement is to prevent the
air quality impacts of Federal actions from causing or contributing to
a violation of the national ambient air quality standards (NAAQS) or
interfering with the purpose of a State implementation plan (SIP),
Tribal implementation plan (TIP) or Federal implementation plan (FIP).
In the CAA, Congress recognized that actions taken by Federal
agencies could affect State, Tribe, and local agencies' ability to
attain and maintain the NAAQS. Congress added section 176(c) (42 U.S.C.
7506) to the CAA to ensure Federal agencies proposed actions conform to
the applicable SIP, TIP or FIP for attaining and maintaining the NAAQS.
That section requires Federal entities to find that the emissions from
the Federal action will conform with the purposes of the SIP, TIP or
FIP or not otherwise interfere with the State's or Tribe's ability to
attain and maintain the NAAQS.
The CAA Amendments of 1990 clarified and strengthened the
provisions in section 176(c). Because certain provisions of section
176(c) apply only to highway and mass transit funding and approvals
actions, EPA published two set of regulations to implement section
176(c). The Transportation Conformity Regulations, first published on
November 24, 1993 (58 FR 62188) and recently revised on July 1, 2004 at
69 FR 40004, May 6, 2005 at 70 FR 24280 and March 10, 2006 at 71 FR
12468, address Federal actions related to highway and mass transit
funding and approval actions. The General Conformity Regulations,
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published on November 30, 1993 (58 FR 63214), cover all other Federal
actions.
B. Why Is EPA Proposing Revisions to These Regulations at This Time?
The EPA recently revised the General Conformity Regulations to
include de minimis emission levels for particulate matter with an
aerodynamic diameter equal to or less than 2.5 microns
(PM2.5) and its precursors (July 17, 2006 at 71 FR 40420).
Otherwise, EPA has not revised the General Conformity Regulations since
they were promulgated in 1993. Since that time, EPA and other Federal
agencies have gained experience with the implementation of the existing
regulations and have identified several issues with their
implementation. Therefore, EPA initiated a process to review, revise
and streamline the regulations. In addition, EPA has recently issued
regulations to implement the revised ozone standard (69 FR 23951, April
30, 2004 and 70 FR 71612, November 29, 2005) and regulations to
implement the new particulate matter standard (72 FR 20586, April 25,
2007). These regulations could affect the timing and process for
general conformity determinations. State and local air quality agencies
are in the process of developing revised SIPs to attain the new
standards and knowledge of the proposed revisions to the General
Conformity Regulations may be helpful to the State, Tribal, and local
agencies as well as the Federal agencies in developing and commenting
on the proposed SIP revisions.
III. How Are the Existing Regulations Implemented?
The existing regulations do not specifically identify the roles of
Indian Tribes nor the applicability of the regulations to TIPs.
Federal agencies and other parties involved in the conformity
process have found that in implementing the existing General Conformity
Regulations their process falls in to three phases: (A) Applicability
analysis, (B) Conformity determination, and (C) Review process. Besides
ensuring that the Federal actions are in conformance with the SIP, the
regulations encourage consultation between the Federal agency and the
State or local air pollution control agencies before and during the
environmental review process.
A. Applicability Analysis
The National Highway System Designation Act of 1995, (Pub. L. 104-
59) added section 176(c)(5) to the CAA to limit applicability of the
conformity programs to areas designated as nonattainment under section
107 of the CAA and maintenance areas under section 175A of the CAA
only. Therefore, only actions in designated nonattainment and
maintenance areas are subject to the regulation. In addition, the
regulations recognize that the vast majority of Federal actions do not
result in significant increase in emissions and, therefore, include a
number of exemptions such as de minimis emission levels based on the
type and severity of the nonattainment problem.
In the applicability analysis phase, the Federal agency determines:
1. Whether the action will occur in a nonattainment or maintenance
area;
2. Whether one of the specific exemptions apply to the action;
3. Whether the Federal agency has included the action on its list
of ``presumed to conform'' actions; or
4. Whether the total direct and indirect emissions are below or
above the de minimis levels.
Under the current regulations, the applicability analysis phase
requires Federal agencies to determine if the action is considered
``regionally significant,'' i.e., equal to or greater than ten percent
of the area's emission inventory for the pollutant. If the action is
regionally significant, Federal agencies must conduct a conformity
determination for the action even though the emissions caused by the
action are below the de minimis levels, the action is presumed to
conform or the action is otherwise exempt.
B. Conformity Determination
When the applicability analysis shows that the action must undergo
a conformity determination, Federal agencies must first show that the
action will meet all SIP control requirements such as reasonably
available control measures, and the emissions from the action will not
interfere with the timely attainment of the standard, the maintenance
of the standard or the area's ability to achieve an interim emission
reduction milestone. Federal agencies then must demonstrate conformity
by meeting one or more of the methods specified in the regulation for
determining conformity:
1. Demonstrating that the total direct and indirect emissions are
specifically identified and accounted for in the applicable SIP,
2. Obtaining a written statement from the State or local agency
responsible for the SIP documenting that the total direct and indirect
emissions from the action along with all other emissions in the area
will not exceed the SIP emission budget,
3. Obtaining a written commitment from the State to revise the SIP
to include the emissions from the action,
4. Obtaining a statement from the metropolitan planning
organization (MPO) for the area documenting that any on-road motor
vehicle emissions are included in the current regional emission
analysis for the area's transportation plan or transportation
improvement program,
5. Fully offset the total direct and indirect emissions by reducing
emissions of the same pollutant or precursor in the same nonattainment
or maintenance area, or
6. Conducting air quality modeling that demonstrates that the
emissions will not cause or contribute to new violations of the
standards, or increase the frequency or severity of any existing
violations of the standards. Air quality modeling cannot be used to
demonstrate conformity for emissions of ozone precursors or nitrogen
dioxide (NO2). As stated in EPA's proposal of the current
regulations (58 FR 13845), due to the complex interaction of the ozone
precursors, the regional nature of the ozone and NO2
problems, and limitations of current air quality models, it is not
generally appropriate to use an air quality model to determine the
impact on ozone or NO2 concentrations from a single emission
source or a single Federal action.
C. Review Process
As public bodies, Federal agencies must make their conformity
determinations through a public process. The General Conformity
Regulations require Federal agencies to provide notice of the draft
determination to the applicable EPA Regional Office, the State and
local air quality agencies, the local MPO and, where applicable, the
Federal land manager(s). In addition, the regulations require Federal
agencies to provide at least a 30-day comment period on the draft
determination and make the final determination public. State agencies
and the public can appeal the final determination in the U.S. Courts
system. Failure by a Federal agency to follow the technical and
procedural requirements can result in an adverse court decision.
IV. Summary of the Proposed Revisions to the General Conformity
Regulations
A. Categories of Proposed Revisions to the General Conformity
Regulations
In accordance with the requirements of section 176(c)(4)(C) of the
CAA, when EPA promulgated General Conformity Regulations in 1993 it
also promulgated
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regulations at 40 CFR part 51, subpart W (sections 850-860) which
required States to adopt and submit SIPs for General Conformity. In
August 2005, Congress passed the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) which
eliminated the requirement for States to adopt and submit General
Conformity SIPs. Therefore, EPA is proposing to revise its regulations
to make the adoption and submittal of the General Conformity SIP or TIP
optional for the State or Tribe.
Because 40 CFR part 51, subpart W (Sec. Sec. 51.850-51.860)
essentially duplicates the regulations promulgated at 40 CFR part 93,
subpart B (Sec. Sec. 93.150-93.160), EPA is proposing to delete all of
subpart W except for Sec. 51.851. In the proposed revision to Sec.
51.851, EPA would require that if a State or Tribe submits a General
Conformity SIP or TIP that it be consistent with the requirements of 40
CFR part 93, subpart B. In addition, EPA is proposing to add a
provision to 40 CFR 51.851 to allow the States and Tribes more
flexibility to streamline the conformity process conducted under their
SIP or TIP.
In 40 CFR part 93, subpart B, EPA is proposing to make only
specific revisions to the regulations which (1) clarify the process,
(2) delete outdated or unnecessary requirements, (3) authorize
innovative and flexible approaches, (4) streamline the process and
reduce the paperwork burden, (5) provide transition tools for
implementing new standards, (6) incorporate revisions requested by
other agencies, and (7) provide a better explanation of regulations and
policies.
Several of the proposed revisions encourage both the Federal
agencies and the States or Tribes to take actions in advance of the
project environmental review. Such advance action should speed the
review process for the individual projects and reduce the delays for
the project without impairing the environmental review. The EPA invites
comment on this approach.
B. What Innovative and Flexible Approaches Are Being Proposed?
1. The EPA is proposing to add a new section (40 CFR 93.161) to
allow for a facility-wide emission budget approach. Under this
voluntary arrangement, Federal agencies, in anticipation of future
major actions, could negotiate a facility-wide emission budget with the
appropriate State, Tribal, or local air quality agency responsible for
the SIP or TIP. The State, Tribal, or local agency would incorporate
the facility-wide emission budget into the applicable SIP or TIP and
submit it to EPA for approval. Once approved, minor actions under the
control of the facility where an applicability analysis results in a
determination that the emissions are below a de minimis threshold could
proceed with no conformity determination. Actions at the facility where
the emissions from an action under the facility's control equaled or
exceeded an applicable de minimis threshold could demonstrate that the
emissions from the proposed action along with all other emissions at
the facility are within the EPA approved facility-wide emission budget.
By using the facility-wide emission test, the action would be presumed
to conform and a conformity determination would not be necessary.
Alternatively, a facility with an approved facility-wide emission
budget could demonstrate conformity by the conventional methods
afforded in the General Conformity regulations.
2. The EPA is proposing a new section (40 CFR 93.165) to explicitly
incorporate the use of early emission reduction credits into the
regulations. The proposal reflects the provisions of the Airport Early
Emission Reduction (AERC) guidance developed in consultation with the
Federal Aviation Administration (FAA) and provides a similar framework
for other Federal agencies.
3. The EPA is proposing a new section (40 CFR 93.164) to allow,
with certain limitations, the emission of one precursor of a criteria
pollutant to be mitigated or offset by the reduction in the emissions
of another precursor of that pollutant.
4. The EPA is proposing a new section (40 CFR 93.163) to allow
alternate schedules for mitigating emissions increases. The mitigation
timing approach could allow some flexibility for Federal agencies and
States or Tribes to negotiate a program for some emissions mitigation
to occur in future years. States or Tribes could consider this approach
to accommodate short-term increases in emissions if there is a
substantial long-term reduction in emissions.
C. What Streamlining and Burden Reduction Measures Are Being Proposed?
1. The EPA is proposing to delete the provision in the existing
regulation which required Federal agencies to conduct a conformity
determination for regionally significant actions even though the total
direct and indirect emissions from the action were below the de minimis
emission levels.
2. The EPA is proposing additional categories of actions that
Federal agencies can include in their ``presume to conform'' lists and
EPA is also proposing to permit States or Tribes to establish in their
General Conformity SIPs or TIPs ``presume to conform'' lists for
actions within their State or Tribal area.
3. The EPA is proposing to exempt the emissions from stationary
sources permitted under the minor source new source review (NSR)
programs as EPA's existing General Conformity regulation already
provides for exemptions for emissions from major NSR sources.
D. What Revisions Provide Tools and Guidance for Transitioning to New
or Revised NAAQS?
1. The EPA is proposing to revise the language in the regulation
concerning conformity evaluations for existing action during a
transition to new nonattainment designations or to the revised
regulations.
2. The EPA is proposing requirements for the implementation of the
grace period for newly designated nonattainment areas.
3. The EPA is proposing alternate methods to demonstrate conformity
for time periods beyond those covered by the SIP or TIP.
4. The EPA is proposing to allow States or Tribes to include an
enforceable commitment in the SIP or TIP to address future emissions
from a Federal action.
E. What Revisions Are Being Proposed at the Request of Other Agencies?
1. Based on EPA's Interim Air Quality Policy on Wildland and
Prescribed Fires, which was developed in consultation with Federal land
managers, EPA is taking comment on two possible approaches: (1) To
include a presumption of conformity for prescribed fire use that are
conducted in compliance with certified smoke management plans (SMPs),
and (2) for prescribed fires conducted using State approved basic smoke
management practices.
2. The EPA is proposing to allow Federal agencies to obtain
emission offsets for general conformity purposes from another nearby
nonattainment or maintenance area of equal or higher nonattainment
classification provided the emissions from that area contribute to
violation of the NAAQS in the area where the Federal action is located
or in the case of maintenance areas, the emissions from the nearby area
contributed in the past to the violations in the area where the Federal
action is occurring.
3. At the request of several Federal agencies, EPA is proposing to
clarify the
[[Page 1406]]
language in the regulation that states that nothing in these
regulations requires the release of materials and other information
where disclosure is restricted by law. Also, EPA is proposing to
include a similar clarification for CBI.
4. Several Federal agencies and other parties involved in the
process suggested that EPA should consider exempting construction
activity emissions from the conformity regulations requirements.
Although the existing General Conformity Regulations do not
specifically mention construction emissions, they implicitly require
Federal agencies to include emissions from construction activities in
the conformity evaluation.
The EPA understands the concerns of the other Federal agencies and
in the discussion about the revision to the definition of ``caused
by,'' has identified a number of ways that Federal agencies can work
with the State, Tribe, and local agencies to ease the burden of
reviewing construction emissions. In addition, EPA is seeking comment
on the possibility of exempting short-term construction projects from
the General Conformity Regulations. One option would be to define
short-term emissions as lasting no more than 2 years. Another option
would be to define short-term emissions consistent with how they are
defined for Transportation Conformity. Currently under the
Transportation Conformity regulations, construction emissions are not
required to be included for construction that lasts no longer than 5
years at individual sites.
5. The FAA requested clarification of language in the General
Conformity preamble (58 FR 63229) that stated ``the EPA believes that
the following actions are illustrative of de minimis actions: * * * Air
traffic control activities and adopting approach, departure and enroute
procedures for air operations.''
The FAA conducted a study of ground level concentrations caused by
elevated aircraft emissions released above ground level (AGL) using
EPA-approved models and conservative assumptions.\1\ The study
concluded that aircraft operations at or above 3,000 feet AGL have a
very small effect on ground level concentrations and could not directly
result in a violation of the NAAQS in a local area. Consequently, this
study validates the EPA's initial preamble language for air traffic
control activities and adopting approach, departure and enroute
procedures for aircraft operations above 3,000 feet AGL are clearly de
minimis. Therefore, the list of exemptions under 40 CFR
93.153(c)(2)(xxii) has be updated in this proposal to reflect this
conclusion.
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\1\ Wayson, Roger, and Fleming, Gregg, ``Consideration of Air
Quality Impacts by Airplane Operations at or Above 3000 feet AGL,''
Volpe National Transportations Systems Center and FAA Office of
Environment & Energy, FAA-AEE-00-01-DTS-34, September 2000. http://www.faa.gov/regulations_policies/policy_guidance/envir_policy/
.
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F. What Are Some of the Clarifications to the Existing Regulations That
Are Being Proposed?
1. The EPA is proposing to clarify that if the action would result
in emissions originating in more than one nonattainment or maintenance
area, the emissions in each area would be treated as if they result
from a separate action.
2. The EPA is proposing to establish procedures to follow in
extending the 6-month conformity exemption for actions taken in
response to an emergency.
3. The EPA is proposing to revise the procedures that can be used
to demonstrate conformity with the applicable SIP.
4. The EPA is proposing to revise the review process to require
Federal agencies to notify Tribal governments in the nonattainment or
maintenance area.
5. The EPA is proposing to clarify the definition of several terms
used in the regulations.
6. The EPA is proposing to include specific language to identify
the role of Indian Tribes and TIPs.
VI. Detailed Discussion of the Proposed Revisions
A. 40 CFR Part 51, Subpart W--Determining Conformity of General Federal
Actions to State or Federal Implementation Plans
Section 176(c)(4) of the CAA specifies that EPA conformity
regulations include a requirement for a State to adopt and submit to
EPA for approval, a SIP to implement the provisions of section 176(c).
Section 6011 of SAFETEA-LU revised the conformity requirements in
section 176(c) of the CAA. Although most of the revisions affected the
Transportation Conformity requirements, section 6011(f) and (g) also
revised the General Conformity requirements. Specifically, section
6011(f) revised section 176(c)(4)(A) of the CAA by including a
requirement that the regulations must be periodically updated and by
deleting the requirement for the States to adopt and submit a General
Conformity SIP. Section 6011(g) requires EPA to revise its conformity
regulations by August 2007 to meet the revised requirements. The EPA
does not interpret this provision as prohibiting States or Tribes from
voluntarily adopting and submitting General Conformity implementation
plans. Therefore, EPA is proposing to revise 40 CFR 51.851 to make the
adoption and submittal of the General Conformity SIP optional for the
State and eligible federally-recognized Tribal governments.
In promulgating the General Conformity Regulations in 1993, EPA
published two sets of regulations: 40 CFR Part 51, subpart W
(Sec. Sec. 93.850 through 93.869) directed States to adopt and submit
General Conformity SIPs to EPA for approval and 40 CFR Part 93 subpart
B (Sec. Sec. 93.150 through 93.160) provided the requirements for
Federal agencies to follow in conducting their conformity evaluations
before EPA approved the General Conformity SIP for the area. Section 40
CFR 51.851 directed States to adopt SIPs meeting the requirements of 40
CFR part 51, subpart W. The other sections in subpart W repeat the
requirements found in 40 CFR part 93, subpart B. The EPA is proposing
to delete 40 CFR 51.850, and 51.852 through 860 since those sections
merely repeat the language in 40 CFR 93.150 and 93.152 through 160 and
include a requirement in 40 CFR 51.851(a) that the General Conformity
SIP or TIP must meet the requirements in 40 CFR part 93, subpart B.
In addition, EPA is proposing several revisions to Sec. 51.851.
1. The EPA is proposing to divide paragraph (b) of 40 CFR 51.851
into four paragraphs--(b), (c), (d), and (e):
a. Paragraph (b) stating that until EPA approves the SIP revision,
Federal agencies must meet the requirements of 40 CFR part 93, subpart
B.
b. Paragraph (c) stating that after EPA approves a SIP or TIP
meeting the requirement of 40 CFR part 93, subpart B, or portion
thereof, the Federal agencies must meet the requirements of the SIP or
TIP and portions of 40 CFR part 93, subpart B if not included in the
approved SIP or TIP. In addition, the proposed paragraph (c) states
that any conformity requirements in an existing implementation plan
remain enforceable until the state submits a revision to its applicable
implementation plan to specifically remove the conformity requirements
and that revision is approved by EPA. Since there is no longer a
requirement for State implementation plans to include conformity
requirements and the applicable statutes do not grant EPA additional
authorities to condition approval of a State's request to remove the
general conformity requirements from an implementation plan, it is
EPA's intent, once requested by a State, to expeditiously review and
approve implementation plan revisions that seek
[[Page 1407]]
to remove general conformity requirements.
c. Paragraph (d) contains the requirement that the SIP or TIP can
be no less stringent than 40 CFR part 93, subpart B.
d. Paragraph (e) contains the requirement that the SIP or TIP can
be no more stringent that the requirement in 40 CFR part 93, subpart B
unless the provisions apply to non-Federal as well as Federal entities.
2. The EPA is proposing to add a new provision in Sec. 51.851,
which allows States or Tribes to include in their SIP or TIP a list of
actions that are presumed to conform.
Since 40 CFR 51.850, 852 through 860 merely repeats the language in
40 CFR 93.150, 93.152 through 93.160, deleting Sec. Sec. 51.850, 852
though 860 and requiring the SIP or TIP to meet the requirements in
part 93 subpart B will not change the SIP or TIP requirements. However,
deleting the sections will reduce the confusion on the requirements in
the regulations by removing the duplicative language. In addition, EPA
can revise the general conformity requirements by revising only one set
of regulations. Although States or Tribes would have to revise any SIPs
or TIPs which are in place when EPA revises part 93 subpart B
regulations, this would not be an additional burden since they would
have to revise their SIP or TIP if EPA revised the part 51, subpart W
regulations.
By dividing paragraph (b) into four smaller paragraphs, EPA is
attempting to simplify the language to make the requirements more
understandable. The EPA did not change the requirements in paragraph
(b) of the existing regulations.
The proposal to allow the States or Tribes the flexibility to adopt
as part of the General Conformity SIP or TIP a list of actions that are
presumed to conform resulted from the desire of some States to reduce
the need to spend resources on reviewing actions which are known to
conform. Although States and Tribes are not obligated to adopt a
``presume to conform'' list as part of their General Conformity SIP, if
they do adopt a list they must include a list in their SIP or TIP.
B. 40 CFR 93.150--Prohibition
Section 93.150 establishes the general prohibition against Federal
agencies taking actions that do not conform with the SIP and
requirements for the Federal agencies to make the conformity
determinations following the procedures of subpart B of part 93. The
EPA is proposing to make two revisions to Sec. 93.150. First, EPA is
proposing to delete the language in paragraph (c) of that section and
reserves that paragraph. Second, EPA is proposing to add a new
paragraph (e) to the section to state that if an action occurs in more
that one nonattainment area that each area must be evaluated
separately.
In paragraph (c) of the existing regulations, EPA identified
categories of actions that were not subject to the regulations based on
environmental review for the action that was either completed or
underway at the time the regulations were promulgated. The paragraph
was based on the environmental reviews (either the conformity
determination or the National Environmental Policy Act (NEPA) analysis)
being completed in early 1994. Therefore, paragraph (c) is outdated and
is not necessary at this time.
In the new paragraph (e) in Sec. 93.150, EPA is specifically
proposing that conformity determinations must be made for each
nonattainment or maintenance area. The emissions from most Federal
actions or projects occur within one nonattainment or maintenance area,
however, some actions or projects could extend across area boundaries,
causing emissions in more than one area. A facility (for example, a
national park, military installation or an airport) could be located in
multiple counties or even in multiple States. Emissions from an action
at such facilities could extend across the nonattainment or maintenance
area boundaries. Some Federal actions, such as rulemaking or rail
merger approvals, could result in emissions in non-contiguous areas, or
even nationwide, affecting multiple nonattainment or maintenance areas.
The existing regulations do not specify how actions or projects
affecting multiple areas should be addressed. Therefore, EPA is
proposing that an action's emissions in each area would be treated as
if they result from separate actions. This would result in the need for
two or more separate applicability analysis and conformity
determinations where general conformity is applicable. The number of
conformity determinations would correlate to the number of
nonattainment or maintenance areas where the action results in direct
or indirect emissions originating in those areas. The analysis should
provide a comprehensive emissions inventory that includes a clear and
separate accounting or division of emissions by nonattainment or
maintenance area. For example, an action may occur in two nonattainment
areas, each with a 50 ton/year de minimis threshold. If the action
would result in total direct and indirect emissions of 55 tons/year,
but 30 tons/year are in one area and 25 tons/year the other area, the
action would not require a conformity determination since it would be
considered de minimis in both areas. If the action would result in
total direct and indirect emissions of 85 tons/year, but 60 tons/year
are in one area and 25 tons/year the other area, the action would
require a conformity determination in the areas with emission of 60
tons/year but the area with 25 tons/year would not need a conformity
determination since that portion of the action would be considered de
minimis in that areas. EPA is proposing emissions from actions be
treated separately for each nonattainment and maintenance area for the
following reasons:
1. Federal agencies demonstrate conformity to a SIP, TIP or FIP
that are developed on an area-specific basis and SIPs requirements may
vary from one area to another.
2. The General Conformity Regulations exemptions are also area-
specific. For example, the de minimis levels are based upon the type
and classification of the nonattainment or maintenance area.
3. Section 176(c)(5) of the CAA limits the applicability of the
conformity regulations to actions in nonattainment and maintenance
areas. Therefore, actions, which affect broad regions encompassing
several nonattainment, maintenance or attainment areas, must be
evaluated based only on the portions of the emissions in the
nonattainment and maintenance areas.
C. 40 CFR 93.151--State Implementation Plan (SIP) Revision
The main purpose of Sec. 93.151 is to specify that the regulations
in part 93 subpart B apply to Federal actions unless the State or Tribe
adopts and EPA approves a General Conformity SIP or TIP for the area.
The EPA is not proposing to change the purpose of the section, but is
proposing to revise the section to clarify its wording. The existing
regulations included statements about the stringency of the SIP
compared to the requirements in subpart B of part 93. The EPA is
proposing to delete those statements because they duplicate statements
in 40 CFR 51.851 which specifies the requirements for the SIP and TIP.
D. 40 CFR 93.152--Definitions
Section 93.152 provides the definition of terms used in the
regulations. The EPA is proposing to revise twelve of the definitions,
add eleven new terms and delete one term as follows:
[[Page 1408]]
Applicable implementation plan or applicable SIP. The EPA is
proposing two minor revisions to the definition. First, EPA is
proposing to correct the citation for the SIP approval and second, EPA
is proposing to clarify the definition by adding a parenthetical phrase
to clarify that the term includes an approved Tribal implementation
plan (TIP). The requirements for eligible Tribes are found in 40 CFR
49.6.
Applicability analysis. The EPA is proposing to add this new term
to describe the process of determining if the Federal agency must
conduct a conformity determination for its action.
Areawide air quality modeling analysis. The EPA is proposing to
clarify this definition by making a minor wording change and by
including photochemical grid model in the definition. Also, EPA is
proposing to add an example of the type of models that could be used
for the areawide air quality modeling analysis.
Caused by. The basic test established by the existing definition of
``caused by'' is that the emissions would not have occurred in the
absence of the Federal action (Title I, Section 176). Since the general
conformity regulations were promulgated in 1993, EPA has interpreted
the regulations to require a Federal agency to include construction
emissions in its conformity analysis. The EPA believes that emissions
from construction activities initiated by, approved or funded by a
Federal agency meets this test and should be included in the conformity
evaluation.
Some Federal agencies have suggested that since construction
emissions are generally excluded from consideration under the
transportation conformity and EPA's NSR programs, they should not be
included in the general conformity evaluation either. Furthermore, some
agencies pointed out, the emissions from construction activities are
not always explicitly included in some SIPs, so it is difficult to
demonstrate conformity for the emissions and should not factor into the
agencies' demonstrations of conformity to those SIPs. Finally, it has
been suggested that construction emissions are temporary and not long-
term contributors to the NAAQS violations and, therefore, may not be
truly reflective of a completed project's contribution to a
nonattainment or maintenance area's emissions budget.
In EPA's Transportation Conformity program (40 CFR 51.390 and part
93), construction emissions are generally not included in the
conformity evaluation. The Transportation Conformity Regulations (40
CFR 93.122(e)) do require the consideration of PM10 from
construction-related fugitive dust only in PM10
nonattainment and maintenance areas where the SIP identifies those
emissions as a contributor to the nonattainment problem. In such a
case, the regional PM10 emissions analysis must consider the
construction-related fugitive PM10 emissions and account for
them in the determination. The Transportation Conformity Regulations
(40 CFR 93.122(f)) do not require the consideration of such regional
PM2.5 emissions unless the area's SIP identifies
construction-related fugitive PM2.5 as a significant
contributor to the area's PM2.5 problem. In addition, the
Transportation Conformity Regulations (40 CFR 93.123(c)(5)) do not
require construction-related carbon monoxide (CO), PM10, and
PM2.5 emissions to be considered in project-level hot-spot
analyses (i.e., estimations of future localized CO, PM10 ,
and PM2.5 concentrations) unless those emissions will last
for more than 5 years at an individual site. In the NSR program, only
operational emissions from the source are required to be evaluated for
the permit and construction emissions are not generally included.
Since the General Conformity Regulations cover a wide variety of
actions and projects, the regulations were drafted to be general enough
to cover the differing circumstances. While a majority of Federal
actions and projects may not involve long-term construction activities,
some do. For example, increasing the depth of the navigable channel in
New York Harbor is expected to take 9 to 10 years to complete. In
addition, the States and local agencies can reasonably anticipate and
plan for construction emissions from highway and mass transit
activities based upon regional transportation plans and historic
activities. However, the States, Tribes and local agencies may not be
aware of other Federal activities requiring construction or may not be
easily able to estimate the emissions from the construction activities.
Therefore, the SIPs or TIPs may not adequately account for the
emissions from those activities.
In drafting and adopting a SIP and TIP, States, Tribes and local
agencies generally allow for some emissions from construction
activities either in a construction emission category or as part of
another category, such as off-road mobile or area sources. The emission
estimates for these categories are usually based upon historic activity
levels or on projected future activity levels. Therefore, if at the
time the SIP or TIP is being developed, the State, Tribe or local
agency knows about the future actions or projects at the facility, the
construction emissions can be incorporated into the SIP or TIP.
For the above reasons, EPA believes that emissions from
construction activities could in some circumstances interfere with the
SIP or TIP and is therefore not proposing to explicitly exclude all
construction emissions from the definition of emissions ``caused by''
the Federal action. However, this proposal provides several options to
allow Federal agencies and the States or Tribes to list construction
emissions as ``presume to conform'' or to exempt the emissions.
1. Once included in a SIP-approved facility-wide emission budget,
the construction emissions could be identified as exempt from the
general conformity requirements.
2. Under the new provisions for developing a list of ``presume to
conform'' actions, Federal agencies, States, or Tribes can demonstrate
that emissions from certain types of construction activities at a
facility would conform to the SIP.
3. Some States issue permits for construction emissions. These
permits are essentially minor source NSR permits and emissions covered
by them would be exempt.
Also, EPA is proposing to clarify that conformity is based on
annual emissions. Therefore, Federal agencies should estimate
construction emissions on an annual basis and would only have to
demonstrate conformity of construction emissions during the years when
the emissions occurred.
Currently under the Transportation Conformity regulations, project
level construction emissions are not required to be included for
construction that lasts no longer than 5 years at individual sites. EPA
also recognizes that construction activities are only temporary and for
some projects occur for short periods of time. Since these temporary
construction activities may last between 1 to 5 years, the EPA solicits
comments on whether to exempt emissions from short-term construction
activities as well as the appropriate definition of a short-term
project.
Confidential business information (CBI). In Sec. Sec. 93.155 and
93.156, EPA is also proposing to specify how CBI used in the conformity
determination is to be handled. To support those revisions, EPA is also
proposing to add a definition of CBI. The definition is based upon that
used to define CBI under the Freedom of Information Act.
Conformity determination. The EPA is proposing to add a new term to
describe the decision that a Federal agency
[[Page 1409]]
official makes in determining that the action will conform with the SIP
or TIP.
Conformity evaluation. The EPA is proposing to add a new definition
to describe the entire conformity process from the applicability
analysis through the conformity determination, if necessary.
Continuing program responsibility. In the existing regulations, EPA
defined the term ``emissions that a Federal agency has a continuing
program responsibility for.'' That term was awkward and confusing. The
EPA is proposing to shorten the term to the ``continuing program
responsibility'' and to reformat the definition to make it clearer.
Continuous program to implement. This term was used in the existing
regulations but was not defined. Therefore, EPA is proposing to add a
definition for this term. The definition would require the Federal
agency to have a program to implement the action. That program can
include a number of steps such as preparation of final design plans and
can also allow for seasonal shutdowns. The definition includes a
requirement that the action does not stop for more than 18 months
unless such a delay is included in the original plans for the action.
Direct emissions. The EPA is proposing to revise the definition of
direct emissions to include a requirement that the emissions must be
reasonably foreseeable. This requirement was unintentionally left out
of the definition when it was promulgated in 1993.
Emission Inventory. This term is used but not defined in the
existing regulations. Therefore, EPA is proposing to add this term to
the list.
EPA. Since some States have Environmental Protection Agencies, EPA
is proposing to add ``U.S.'' in the definition to clarify that the
regulations refer to the U.S. Environmental Protection Agency.
Indirect emissions. Some questions have arisen concerning whether
emissions generated outside a nonattainment area should be accounted
for when making a General Conformity determination for a Federal
action. EPA is proposing to revise the definition for indirect
emissions to clarify that only indirect emissions originating in a
nonattainment or maintenance area need to be analyzed for conformity
with the applicable SIP. Previous guidance regarding emissions
generated outside of nonattainment areas was issued by EPA in 1994,
prior to the 1995 statutory amendments to the CAA's conformity
provisions which made conformity applicable only with respect to
nonattainment and maintenance areas (42 U.S.C. 7506(c)(5)) and which
eliminated any need for EPA to issue attainment area conformity
regulations. The new definition clarifies that EPA interprets this
statutory amendment to mean that any indirect emissions originating in
an attainment or unclassifiable area do not need to be analyzed for
general conformity purposes.
``In addition to addressing emissions generated outside of
nonattainment areas, EPA proposes to revise the definition of
``indirect emissions'' to add the condition that emissions must be of
the type that ``the agency can practically control'' and for which
``the agency has continuing program responsibility.'' The addition of
this condition clarifies EPA's long standing position that Congress did
not intend for conformity to apply to ``cases where, although licensing
or approving action is a required initial step for a subsequent
activity that causes emissions, the agency has no control over that
subsequent activity, either because there is no continuing program
responsibility or ability to practically control.'' 58 FR 63,214,
63,221 (Nov. 30, 1993). The Supreme Court noted this long-held position
in ruling that the Department of Transportation was not required to
undertake a conformity review for its so-called ``Mexican trucks''
rule. DOT v. Public Citizen, 541 U.S. 752 773 (2004). Specifically, the
Supreme Court held that DOT's rule concerning safety regulations for
Mexican motor carriers operating within the United States interior did
not trigger conformity even though DOT approval was required for
Mexican trucks to cross the border into the United States. The Court
indicated, among other reasons, that DOT ``could not refuse to register
Mexican motor carriers simply on the ground that their trucks would
pollute excessively. (DOT) cannot determine whether registered carriers
actually will bring trucks into the United States, cannot control the
routes that carriers take, and cannot determine what the trucks will
emit. Any reduction in emissions that would occur at the hands of (DOT)
would be mere happenstance. It cannot be said that (DOT) `practicably
control[s]' or `will maintain control' over the vehicle emissions from
the Mexican trucks, and it follows that the emissions from the Mexican
trucks are not `indirect emissions.' '' Id. At 772-73.
Local air quality modeling analysis. The EPA is proposing to revise
the definition to include an example of the type of models that are
used in the local air quality modeling analysis.
Maintenance area. The EPA is proposing to make a minor wording
change to clarify the definition by citing the regulations and the
section of the CAA used to identify maintenance areas.
Metropolitan Planning Organization. The EPA is proposing to revise
its regulatory definition to make it more consistent with the statutory
definition in SAFETEA-LU, which was signed into law on August 10, 2005.
Mitigation measure. The existing regulations used the term
``mitigation measure'' and even had a section specifying the
requirements for a mitigation measure, however the regulations did not
define the term. The EPA is proposing to define a mitigation measure as
a method of reducing emissions of the pollutant at the location of the
action. This definition would distinguish a mitigation measure from an
offset.
National ambient air quality standards. In 1997, EPA promulgated
new NAAQS for both ozone and for fine particles. The definition in the
existing regulations is broad enough to cover the new ozone standard.
But, the definition did not cover the fine particle standard known as
PM2.5. Therefore, EPA is revising the definition of NAAQS to
include PM2.5.
Precursors of criteria pollutants. The existing regulations define
precursors for both ozone and PM10. Since the
PM2.5 standard was promulgated after the General Conformity
Regulations, the original regulations did not include the precursors
for PM2.5. Therefore, EPA recently amended the regulation
(July 17, 2006 at 71 FR 40420) to add PM2.5 precursors,
consistent with the proposed implementation program for the
PM2.5 standard (70 FR 65984).
1. Sulfur dioxide is a regulated pollutant in all PM2.5
nonattainment and maintenance areas.\2\
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\2\ Sulfur dioxide is not required to be addressed in
transportation conformity determinations before a SIP is submitted
unless either the state air agency or EPA regional office makes a
finding that on-road emissions of sulfur dioxide are significant
contributors to the area's PM2.5 problem. Sulfur dioxide
would be addressed after a PM2.5 SIP is submitted if the
area's SIP contains an adequate or approved sulfur dioxide motor
vehicle emissions budget. EPA based its decision on the de minimis
amount of on-road missions of sulfur dioxide now and in the future,
and on the implementation of low sulfur gasoline beginning in 2004
and low sulfur diesel fuel beginning in 2006. (70 FR 24283).
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2. Nitrogen oxides are a regulated pollutant in all PM2.5
nonattainment and maintenance areas unless both the State/Tribe and EPA
determine that it is not.
3. Volatile organic compounds (VOC) and ammonia are not regulated
[[Page 1410]]
pollutants in any PM2.5 nonattainment or maintenance area
unless either the State/Tribe or EPA determines that they are.
Reasonably foreseeable emissions. As discussed above, under
``direct emissions,'' EPA is proposing to qualify the term direct
emissions by stating that those emissions must be reasonably
foreseeable. Therefore, EPA is proposing to revise the term
``reasonably foreseeable'' to include ``direct emissions.''
Regionally significant action. As discussed in the revisions to
93.153(i) below, EPA is proposing to delete the regionally significant
requirement. Therefore, if EPA's proposed revision is promulgated,
there is no need to retain this definition.
Restricted information. As discussed in Sec. Sec. 93.155 and 156
on reporting and public participation, EPA, at the request of the
several Federal agencies is proposing to specify how restricted
information used in the conformity determination is to be handled. To
support those revisions, EPA is also proposing to add a definition of
restricted information. The definition is based upon applicable
Executive Orders, regulations and statutes pertaining to materials and
other information where disclosure is restricted by law.
Take or start the Federal action. The EPA is proposing to add a new
term to define the date when an action occurs or starts. This date is
important in determining what, if any, conformity requirements apply
when an area is designated or re-designated as nonattainment. The EPA
is proposing to define this term as the date the decision-maker signs a
document such as a grant, permit, license or approval. Otherwise, EPA
is proposing to define the term as the date the Federal agency
physically starts the action that requires the conformity evaluation.
Tribal implementation plan (TIP). The EPA is proposing to add a
definition for Tribal implementation plan to mean plans adopted and
submitted by Federally recognized Indian Tribes. Under the Tribal
Authority Rule (40 CFR part 49), certain Tribal bodies can adopt and
submit implementation plans to attain and maintain the NAAQS set by
EPA, but the Tribal bodies do not set their own ambient air standards.
The CAA allows tribes to obtain the authority to run CAA programs for
the regulation of ``air resources within the exterior boundaries of the
reservation or other areas within the tribe's jurisdiction'' [CAA
Section 301(d)(2)(B)]. Tribes have authority over all air resources
within the exterior boundaries of their reservation (including non-
Indian owned fee lands). For off-reservation areas, tribes must
demonstrate the basis for jurisdiction. In some cases there may be a
SIP and a TIP covering different portions of the same nonattainment
area. In such cases emissions from an action that originate in a
nonattainment or maintenance area that has both Tribal lands with a TIP
and State land requiring a SIP, the emissions would need to be
accounted for separately and the applicability and conformity analysis
would need to be done separately for the TIP and the SIP. Therefore,
EPA is proposing to add this definition to the regulation.
E. 40 CFR 93.153--Applicability Analysis
The EPA is seeking to clarify the process of determining if the
General Conformity requirements are applicable to a Federal action.
Although EPA is providing clarification on actions that are exempt or
presumed to conform in this regulation, nothing in this regulation is
intended to interfere with any exemptions established by law.
1. The EPA is proposing to revise the title of the section to
include the word ``analysis.'' The EPA believes that adding the word
would make the title more descriptive of the section's content.
2. The EPA is proposing to make a minor wording change to paragraph
(a) and (b) of Sec. 93.153. Paragraph (a) is revised to clarify the
proper citations under which the Transportation Conformity program is
authorized. In paragraph (b) EPA is proposing to add the word
``criteria'' before the word ``pollutant'' and ``or precursor'' after
the word to clarify the paragraph.
3. The EPA is proposing to revise the table in sub-paragraph (b)(1)
to include all nonattainment areas in the Ozone Transport Regions. In
1993, when the General Conformity Regulations were promulgated, all
nonattainment areas in the Ozone Transport Region were classified as
marginal or above for the 1-hour ozone NAAQS. However, in designating
areas for the 8-hour ozone NAAQS, some nonattainment areas were
identified as needing to meet only the requirements in subpart 1 of
Part D of Title I of the CAA and were not classified. Therefore, EPA is
proposing to revise the table in Sec. 93.153(c)(1) to cover the
subpart 1 areas by changing the category from ``Marginal and moderate
NAA's inside an ozone transport region'' to ``other NAA inside an ozone
transport region.''
4. In a separate notice EPA recently revised the tables in
paragraphs (b)(1) and (b)(2) by adding the de minimis emission levels
for PM2.5. In July 1997, EPA promulgated two new NAAQS (62
FR 38652) one for an 8-hour ozone standard and one for fine particulate
matter known as PM2.5. The new 8-hour and old 1-hour ozone
NAAQS address the same pollutant but differ with respect to the
averaging time, therefore, EPA retained the existing de minimis
emission levels for ozone precursors. Although PM2.5 is a
subset of PM10, it differs from the rest of PM10.
While the majority of ambient PM10 results from direct
emissions of the pollutant, a significant amount of the ambient
PM2.5 can result not only from direct emissions but also
from transformation of precursor and condensing of gaseous pollutants
in the atmosphere. Therefore, EPA in a separate action has added new de
minimis emission levels of 100 tons per year for the direct emissions
and precursors of PM2.5. For completeness, the full table
was updated to reflect this change.
5. The EPA is proposing to revise paragraph (d)(1) of Sec. 93.153
to exempt emissions covered by a NSR permit for minor sources. The
existing regulations exempt emissions covered by a NSR permit for major
sources but not for minor sources. Since the purpose of the conformity
program is to ensure that Federal actions do not interfere with the
SIP, TIP or FIP, in promulgating the existing regulations EPA
recognized that emissions covered by a major source NSR or prevention
of significant deterioration (PSD) permit already had been reviewed to
ensure that the emissions did not interfere with the SIP. Therefore,
the existing regulations exempt the emissions from sources permitted
under major source NSR or PSD programs. Since 1993, when the existing
regulations were promulgated, States and local agencies have adopted
NSR programs for minor sources as required by section 110(a)(2)(C) of
the CAA. These NSR programs for minor sources also ensure that
emissions from the sources (individually and collectively) will not
interfere with the SIP. Therefore, EPA is proposing to revise the
regulation to exempt emissions permitted under the EPA-approved NSR
programs for minor sources. The EPA believes this approach will reduce
the duplicate review of emissions under both minor source NSR and
conformity programs and treat all NSR permitted emissions the same way.
Although operating permits issued under title V of the CAA meet
some of the same requirements, EPA is not proposing to exempt the
emissions covered by those permits. The conformity program is similar
to the NSR program in that it evaluates new or
[[Page 1411]]
modified sources prior to construction, while the ``title V'' program
is basically for operating emissions at existing sources. Therefore,
the conformity evaluations for any project that also requires a title V
permit should occur before the title V permit is issued. The EPA does
note that if for some reason an operating permit covers the emissions,
a Federal agency may be able to use the permit to document that the
emissions are accounted for in the SIP.
6. The EPA is proposing to delete ``or natural disasters such as
hurricanes, earthquakes, etc.,'' and ``or disaster'' from paragraph
(d)(2) of Sec. 93.153 because they are unnecessary words. In Sec.
93.152 EPA defines an emergency, therefore the words in Sec. 93.153
describing an ``emergency'' are not necessary and may be confusing
since they do not include all types of emergencies.
7. The EPA is proposing to amend paragraph (e)(2) of Sec. 93.153
to provide procedures for reviewing an extension of the exemption from
making a conformity determination for actions related to responding to
an emergency. A Federal agency, in responding to an emergency event
such as a natural disaster, terrorist attack, or military mobilization,
may find it impractical to conduct a conformity evaluation on the
action before it must take the action. To address this situation, 40
CFR 93.153(d)(2) of the existing regulations provides Federal agencies
with a 6-month exemption from the requirement to undertake a conformity
analysis for actions taken in response to an emergency. The EPA
recognizes that in rare situations it may be impractical, even after 6
months, to conduct a conformity evaluation and is proposing to amend
Sec. 93.153(e) to allow the agencies to extend the exemption for
another 6 months. This section requires Federal agencies to make a
written determination that it is impractical to conduct an evaluation
for the action. The existing regulations are not clear about the number
of additional extensions permitted nor do the regulations provide any
procedures for agencies to follow in deciding on the extension.
EPA believes the only time that the extension of the 6-month
exemption has been used was in New York following the terrorist attack
of September 11, 2001. In responding to the shutdown of the Port
Authority Trans-Hudson line between New Jersey and New York, certain
Federal agencies sponsored a ferry service across the Hudson River. The
service lasted 2 years until the mass transit service was restored. The
Federal agencies continued with a series of 6-month extensions of the
General Conformity exemption. The Federal agencies did not know what
they had to do to invoke the provision and EPA and the State agencies
had to request permission to review the decision. In addition, the
public was not given notice of the decision to extend the exemption.
The EPA is not proposing to revise requirements for the initial
exemption for actions in response to emergencies. The initial
governmental actions which are typically commenced on the order of
hours or days in response to emergencies or disasters would still be
exempt from the General Conformity requirements for 6 months after the
commencement of the response to the emergency or disaster. However, EPA
is proposing requirements for Federal agencies that want to extend the
exemption beyond the initial 6-month period. First, EPA is proposing to
require the Federal agencies to allow EPA and the State 15 days to
review and provide comments on the draft written determination to
extend the exemption at the beginning of the extension period. Next,
EPA is proposing to require Federal agencies to publish a notice within
30 days of making the decision. The notice must be published in a daily
general circulation newspaper for the affected area. Finally, EPA is
proposing to limit the maximum number of 6-month extensions an agency
may declare on their own to three. Except in certain circumstances, the
EPA believes an agency should be able to plan for and conduct a
conformity evaluation for actions within the time allowed by three 6-
month extensions following the initial 6-month exemption (i.e., a total
of 2 years). In this regard, EPA acknowledges that there could be a
circumstance where an agency's action in response to an emergency may
need additional 6-month extensions beyond a 2 year timeframe and this
proposal does not limit the number of additional 6-month extensions to
the emergency provisions. In these cases, EPA is proposing that if more
than three extensions of the emergency provisions are needed, for all
subsequent 6-month extensions a Federal agency must provide information
to EPA and the State stating: (a) The conditions that gave rise to the
emergency exemption continue to exist, and (b) how such conditions
effectively prevent the agency from conducting a conformity evaluation.
8. The EPA is proposing to revise paragraphs (f), (g), and (h) of
Sec. 93.153 to permit Federal agencies more flexibility in developing
their list of actions that are ``presumed to conform'' and provide
requirements for the materials that must be included in the
documentation and draft list. Specifically, EPA is proposing to: Add a
paragraph to (f) to specify when and how more than one ``presumed to
conform'' exception may be taken for a Federal action; add a new
paragraph (g)(3) to specify that Federal agencies can list actions that
are for individual areas or SIPs or TIPs; add a sentence to paragraph
(h)(1) to specify the information that must be included in the
documentation; and add a sentence to paragraph (h)(2) to allow the
Federal agencies to notify EPA headquarters when the presumed to
conform actions would have multi-regional or national impacts. In
addition, EPA is proposing to revise paragraphs (f) and (h) to include
a reference to the new paragraph (g)(3).
In promulgating the existing regulations, EPA identified a number
of actions that were ``presumed to conform.'' The regulations also
allow Federal agencies to establish their own lists of actions that are
``presumed to conform.'' Under the existing regulations, Federal
agencies must justify the inclusion of the actions on their ``presumed
to conform'' list by either demonstrating: (1) That the actions will
not cause or contribute to an air quality problem or otherwise
interfere with the SIP, TIP, or FIP, or (2) that the actions will have
emissions below the de minimis levels. The Federal agencies must
provide copies of the proposed list to EPA, affected State and local
air quality agencies and MPOs. In addition, the agencies must provide
at least a 30-day public comment period and document its response to
all comments. The notice of the proposed and final list must be
published in the Federal Register.
Although EPA has worked with one Federal agency on its ``presumed
to conform'' list, no Federal agency has published such a list. One
issue that has given pause to Federal agency efforts to publish
presumed to conform lists is the potential for several presumed to
conform exemptions to be used in combination and result in unacceptable
cumulative air quality impacts. To address this issue, EPA is proposing
in Sec. 93.153(f) that actions specified in an individual Federal
agency's presumed to conform list may not be used in combination with
one another when the total direct and indirect emissions from the
combination of actions would equal or exceed any of the de minimis
thresholds in the General Conformity regulations. By doing this, EPA
believes it will ensure that the intent of presumed to conform
actions--namely reducing the analysis burden for actions that have
little or no direct or indirect
[[Page 1412]]
emissions--is met. For example, a Federal agency may undertake a
program or project with several connected actions that must be analyzed
under the environmental review requirements of NEPA. Several of those
actions may individually be listed on the agency's presumed to conform
list because those actions taken by themselves would typically have
emissions below de minimis levels. If the agency wishes to determine
the entire project or program will not require a conformity
determination because it is presumed to conform, it must first
determine, using the emissions predicted in establishing the presumed
to conform action that the emissions from the combination of actions
does not equal or exceed de minimis levels. Alternatively, the agency
could exclude the emissions from one presumed to conform action from
the applicability analysis and would only be required to perform an
applicability analysis and if required, a conformity determination on
the total direct and indirect emissions of the actions which are not
otherwise exempt.
The EPA believes that the use of a ``presumed to conform'' list is
an important tool for Federal agencies in reducing the review time for
Federal actions while still ensuring air quality goals are met. For
example a Federal land management agency could include on its list of
presumed to conform actions prescribed fire use where the agency has
formally committed to apply a list of basic smoke management practices
developed in cooperation with the affected State(s) and/or air
pollution control agencies or Tribal government.
EPA believes that an additional option could be added to the
regulations to aid Federal agencies in adopting their presumed to
conform list. The EPA is proposing to add sub-paragraph (g)(3) to
clarify that the presumption could be for one facility or for
facilities in a specified area and does not have to be nationally
applicable. For example, if the nonattainment area's SIP includes a
sector emission budget for construction activities, a facility may be
able to demonstrate that construction activities of a certain size or
type fits within the SIP's emission budget. With the concurrence of the
State or Tribe, the Federal agencies could publish a ``presumed to
conform'' list that includes the construction emissions at the specific
facility.
9. The EPA is proposing to delete the regionally significant test
included in paragraph (i) of Sec. 93.153. The existing regulations in
Sec. 93.152 define ``regionally significant'' as ``a Federal action
for which the direct and indirect emissions of any pollutant represent
10 percent or more of a nonattainment or maintenance area's emissions
inventory.'' 40 CFR 93.153(i) and (j) require conformity determinations
for all regionally significant actions, regardless of any exemptions or
presumptions of conformity based on other provisions in the
regulations.
The ``regionally significant'' action concept was proposed in the
1993 Notice of Proposed Rulemaking (58 FR13836) in order to ``capture
those actions that fall below the de minimis emission levels, but have
the potential to impact the air quality of the region.'' At that time,
EPA requested comments on whether the 10 percent level was appropriate.
In the discussion of comments in the preamble to the Final Rule (58 FR
63214), EPA reported that it received comments both in favor of and in
opposition to the ``regionally significant'' action concept. While many
respondents supported the concept, there was a diversity of opinions
regarding whether 10 percent was the most appropriate level. However,
EPA reported that no documentation was provided to support a different
level. Some respondents felt that the de minimis cut offs would
suffice. The EPA decided to retain both the concept and 10 percent
level in the final rule.
For a regionally significant action, the Federal agency must
conduct a full conformity determination even if the action would cause
total direct and indirect emissions below the de minimis levels. In
over 12 years since promulgation of the existing regulations, no action
has been determined to be regionally significant. The main reason that
actions with emissions below de minimis levels are not regionally
significant is that the emission inventory for almost all nonattainment
and maintenance areas greatly exceeds ten times the de minimis emission
levels. Review of the 1999 emission inventory shows that only six (one
ozone, two lead and three sulfur dioxide) of over 200 nonattainment
areas had emission inventories less than ten times the de minimis
levels.(See Evaluation of Potential Regionally Significant Areas Under
the General Conformity Regulations, Science Applications International
Corporation, March 2005, Docket Number OAR-2004-0491). In other words,
except for those six areas, an action with emissions below de minimis
levels would never be considered regionally significant.
Federal agencies have expressed concern that, in many cases,
demonstrating that a project is not regionally significant is difficult
and time consuming. First, the future total emission inventory for an
area may not be readily available since the SIP may not cover the time
period when the emissions will occur. In addition, most national
emission inventories are published 2 to 3 years after the ``inventory''
year, so if a Federal agency is comparing the action's emissions
against the most recent inventory they may be looking at an inventory
that is 3 to 5 years old.
The EPA is proposing to eliminate the provision. The EPA believes
that since Federal agencies have expended resources to demonstrate that
actions are not regionally significant and the existing provision has
not been triggered, eliminating the provision would streamline the
conformity regulations and have little or no environmental impact.
10. The EPA is proposing to replace paragraph (i) of Sec. 93.153
with a new paragraph to identify three additional groups of actions
that are presumed to conform. First, EPA is proposing to allow
installations with a facility-wide emission budget to presume that an
action at the installation will conform provided that the emissions
from that action along with all other emissions from the facility will
not exceed the budget. A more detailed discussion of the facility-wide
emission budget concept is found in Sec. 93.161.
Second, EPA is taking comment on allowing Federal agencies to
presume that the emissions from prescribed burns will conform provided
the burning is conducted under a State certified approved SMP. EPA is
also asking for comments on the approach of allowing Federal agencies
to presume that the emissions from prescribed burns conducted using
State approved basic smoke management practices in a nonattainment or
maintenance area conform with a SIP.
In May 1998, EPA worked with States and other Federal agencies to
develop and publish an interim policy on prescribed fires on wildlands.
(See Interim Air Quality Policy on Wildland and Prescribed Fires,
U.S.EPA, May 1998). To comply with the recommendations in the interim
policy, state air regulators and land managers should develop a
certified SMP which promotes regional coordination, and may include
real-time air quality monitoring. A State SMP establishes a basic
framework of procedures and requirements for managing smoke from a
prescribed fire managed for resource benefits. A SMP is typically
developed by a State or Tribe with cooperation and participation by
wildland managers, both public and private, and the general public. The
SMPs establish procedures
[[Page 1413]]
and requirements for minimizing emissions and managing smoke
dispersion. The goals of SMPs are to mitigate the nuisance and public
safety hazards (e.g., on roadways and at airports) posed by smoke
intrusions into populated areas; to prevent deterioration of air
quality and NAAQS violations; and to address visibility impacts in
mandatory Class I Federal areas.
Given the fundamental purpose of the SMP, EPA believes that it is
reasonable to assume that any action in compliance with the certified
SMP would be in conformance with the applicable SIP. Therefore, EPA is
taking comment on the approach to designate these actions as actions
presumed to conform. Federal agencies would not have to conduct a
conformity determination for those actions. The presumption to conform
is also based on the maintenance in stringency of the existing SMPs
where implemented or the implementation of new smoke management
programs or practices as identified above.
As reflected in the Interim Air Quality Policy on Wildland and
Prescribed Fires, States are provided flexibility on the structure of a
SMP. Thus, a SMP can be extensive and detailed, or simply identify the
basic smoke management practices for minimizing emissions, and
controlling impacts from a prescribed fire. The EPA's final rule on the
Treatment of Data Influenced by Exceptional Events published in the
Federal Register on March 22, 2007 (Volume 72, Number 55) states that
basic smoke management practices could include, among other practices,
steps that will minimize air pollutant emissions during and after the
burn, evaluate dispersion conditions to minimize exposure of sensitive
populations, actions to notify populations and authorities at sensitive
receptors and contingency actions during the fire to reduce exposure of
people at such receptors, identify steps taken to monitor the effects
of the fire on air quality, and identify procedures to ensure that
burners are using basic smoke management practices.
The Agency plans to begin revising its Interim Air Quality Policy
on Wildland and Prescribed Fires in 2007 as part of its overall Fire
Strategy. The Agency believes that the conditions for prescribed fires
that are presumed to conform should be conducted in accordance with
programs and practices which meet the requirements of EPA's Air Quality
Policy on Wildland and Prescribed Fires and those conditions should be
deliberated in the formation of the revised policy. To inform the
development of that policy, and the final revisions of this General
Conformity rule, EPA is also requesting comment on an additional
approach for allowing a presumption to conform for emissions from
prescribed fires conducted in the absence of a State certified SMP,
where the Federal agency submits a demonstration and obtains written
permission from the State prior to the burn that the planned burn
employs State approved basic smoke management practices. This approach
would thereby protect public health in nonattainment and maintenance
areas where a SMP has not been adopted, and allow Federal agencies the
flexibility needed to conduct necessary prescribed burning.
Finally, as discussed above, EPA is also proposing to allow a State
or eligible Tribe, on its own, to adopt in their SIP or TIP a list of
actions for facilities in its borders that it ``presumes to conform.''
11. The EPA is proposing to revise paragraph (j) of Sec. 93.153 by
deleting the reference to regionally significant emissions, by adding a
reference to paragraph (i) and by describing the criteria for requiring
a conformity determination for an action that otherwise would be
presumed to conform. The existing regulations state that an action
cannot be presumed to conform if it was regionally significant or did
not in fact meet the requirements of sub-paragraph (g)(1). As discussed
above, EPA has proposed to delete the regionally significant test,
therefore reference to it is proposed to be deleted from this
paragraph. For clarity, instead of referring to sub-paragraph (g)(1),
EPA is proposing to repeat the requirements in this paragraph.
12. The EPA is proposing to revise paragraph (k) of Sec. 93.153 to
incorporate the provisions of section 176(c)(6) of the CAA. (42 U.S.C.
7506(c)(6)). In November 2000 (Pub. L. 106-377), Congress added section
176(c)(6) to the CAA to allow for a conformity transition period for
newly designated nonattainment areas. That section establishes a 1-year
grace period following the effective date of the final nonattainment
designation of each NAAQS before the conformity requirements must be
met in the area. If an agency takes or starts the Federal action before
the end of the grace period, it must comply with the applicable pre-
designation conformity requirements. If an agency takes or starts the
Federal action after the end of the grace period, it must comply with
the post-designation conformity requirements. As discussed above in
describing the new term ``take or start the Federal action,'' EPA is
proposing to define the term to mean that a Federal agency takes an
action when it signs a permit, license, grant or contract or otherwise
starts the Federal action. From the time that an area is designated as
nonattainment, agencies will have a year to take or start the Federal
action. If the agency fails to take or start the Federal action during
the grace period, then it must re-evaluate conformity for the project
based on the requirements for the new designation and classification.
F. 40 CFR 93.154--Federal Agencies Responsibility for a Conformity
Determination
1. The EPA is proposing to revise the title of this section to
clarify the purpose of the section. In the existing regulations this
section is entitled broadly ``Conformity Analysis.'' Since the short
section only discusses the requirement for each Federal agency to make
its own determination, EPA is proposing to revise the title of the
section to more closely describe the section's content.
2. The EPA is proposing to add language to this section to
specifically state that the conformity determination must meet the
requirements of this subpart.
G. 40 CFR 93.155--Reporting Requirements
1. Since EPA is proposing to add additional sections to subpart B,
it is proposing to revise the references to those sections in Sec.
93.155.
2. Consistent with EPA Tribal Authority Rule (63 FR 7253), EPA is
proposing to provide federally-recognized Indian Tribal governments the
same opportunity to comment on draft conformity determinations as given
to States. Therefore, EPA is proposing to require the Federal agencies
to notify all the federally-recognized Indian Tribal governments in the
nonattainment or maintenance area. To assist other Federal agencies in
this notification, EPA is planning to place a list of the federally-
recognized Indian Tribal governments in each nonattainment or
maintenance areas on its General Conformity web site.
3. The EPA is proposing to add an alternative procedure for
notifying EPA when the action would result in emissions originating in
nonattainment or maintenance areas in three or more EPA regions.
Specifically, EPA is proposing to allow agencies to notify the EPA
Office of Air Quality Planning and Standards rather than each
individual Regional Office. A single contact point for EPA should be
more efficient for the other Federal agencies than notifying up to ten
Regional Offices.
[[Page 1414]]
4. At the request of the several Federal agencies EPA is proposing
to add a new paragraph to Sec. 93.155 to describe how restricted
information used to support conformity determinations should be handled
when provided to EPA, States and Tribal governments. The existing
General Conformity Regulation does not contain an explicit statement
about protecting restricted information from public release. The
interagency review and public participation provisions in the existing
regulation require Federal agencies to make available for review the
draft conformity determination with supporting materials that describe
the analytical methods and conclusions relied upon in making the
determination. Disclosure of classified information by a Federal
employee is a criminal offense (18 U.S.C. 1905). In addition, certain
unclassified information is privileged or otherwise protected from
disclosure. Therefore, several Federal agencies wanted to ensure that
the General Conformity Regulations clearly state that no agency or
individual was required to release restricted information including,
but not limited to, classified materials. Therefore, EPA is proposing
to revise the regulation to add explicit language concerning the
protection of restricted information. In addition, conformity
determinations could, in part, be based upon confidential information
received from business sources. The EPA is proposing to add specific
language to the regulation to protect CBI in accordance with each
Federal agency's policy and regulations for the handling of restricted
information and CBI. The regulations would allow State or EPA personnel
with the appropriate clearances to be able to view the restricted or
confidential business information.
H. 40 CFR 93.156--Public Participation
1. The EPA is proposing to correct the section referenced in Sec.
93.156. The existing regulations refers to Sec. 93.158. The correct
reference should be Sec. 93.154. Section 93.158 prescribes the
criteria for conducting a conformity analysis, while Sec. 93.154
requires Federal agencies to make the determination and references the
requirements in the other sections of subpart B.
2. The EPA is proposing to provide an alternative public
notification procedure for actions that cause emissions above the de
minimis levels in more than three nonattainment or maintenance areas.
The existing regulations require that the Federal agency publish a
notice in a daily newspaper of general circulation in the nonattainment
or maintenance area. Some Federal actions, such as rulemaking, affect a
large number of nonattainment and maintenance areas. The notification
procedure for such an action could be burdensome and inefficient.
Therefore, EPA is proposing to allow the Federal agencies to publish a
notice in the Federal Register if the action would cause emissions
above the de minimis levels in more than three nonattainment or
maintenance areas.
3. The EPA is proposing to also add a new paragraph to Sec. 93.156
to describe how restricted information and CBI used to support
conformity determinations should be handled in providing the
information to the public.
I. 40 CFR 93.157--Re-Evaluation of Conformity
1. The EPA is proposing to revise the title of this section to more
appropriately describe the section's content. The existing section is
entitled ``Frequency of Conformity Determinations.'' That title implies
that the general conformity requirements for Federal actions must be
reevaluated on a regular basis. However, the section states that
conformity must be reevaluated only if the determination lapses or the
action is modified, resulting in an increase in emissions.
2. If an action's emissions are below the de minimis levels or the
action is not located in a nonattainment or maintenance area, a
conformity determination is not required. Therefore, the Federal agency
would not have a date for the conformity determination. The EPA is
proposing minor wording changes in paragraphs (a) and (b) to clarify
that the date of a completed NEPA analysis, as evidenced by a signed
finding of no significant impact (FONSI) for an environmental
assessment, a record of decision (ROD) for an environmental impact
statement, or a record of a categorical exclusion can be used when a
conformity determination is not required.
3. The EPA is proposing to add two new paragraphs (d and e) to
Sec. 93.157 to clarify the requirements for needing to conduct a
conformity determination when the action is modified. Paragraph (d)
deals with modifying an action for which the Federal agency made a
conformity determination. In order to make the determination, the
Federal agency had to demonstrate that all the emissions caused by the
action conformed to the SIP. Therefore, the Federal agency does not
have to revise its conformity determination unless the modification
would result in an increase that equals or exceeded the de minimis
emission levels for the area. Paragraph (e) deals with modifying an
action that the Federal agency determined had emissions below the de
minimis level. Since the emissions from the unmodified action were
determined to be de minimis and not fully evaluated to determine
conformity, EPA is proposing the Federal agency conduct a conformity
determination if the total emissions (the emissions from the unmodified
action plus the increased emissions resulting from the modification)
equal or exceed the de minimis levels for the area. EPA seeks comment
on what actions should be considered to constitute ``modifications''
for purposes of conformity and under what conditions, if any, a
subsequent action should be considered to constitute a ``new'' action
versus modification of an action for which a previous de minimis
determination was made.
J. 40 CFR 93.158--Criteria for Determining Conformity for General
Federal Actions
1. In Sec. 93.158(a)(1), EPA is proposing to add ``precursor''
after ``any criteria pollutant'' to clarify that Federal agencies can
demonstrate conformity for the precursors of the criteria pollutants if
the precursor emissions are specifically identified and accounted for
in the applicable SIP, TIP or FIP.
2. In Sec. 93.158(a)(2) and (a)(5)(iii), EPA is proposing to allow
Federal agencies to obtain emission offsets for the General Conformity
requirements from a nearby nonattainment or maintenance area of equal
or higher classification, provided that the emissions from the nearby
area contribute to the violations of the NAAQS in the area where the
Federal action is located or, in the case of a maintenance area, the
emissions from the nearby area have contributed in the past to the
violations in the area where the Federal action is located. The
proposal would require such emissions offsets to be obtained through
either an approved SIP revision or an equally enforceable commitment.
This revision to the offset requirements would make the General
Conformity offset requirements consistent with the offset requirements
in section 173(c)(1) of the CAA for the Federal NSR program. It would
also provide the Federal agencies more flexibility in obtaining the
offsets in areas impacted by transport from nearby areas. In light of
increased knowledge concerning transport of pollutants into areas, EPA
solicits comments on whether to limit the offsets to nonattainment or
maintenance areas of equal or higher classifications, or permit broader
application to all nonattainment and maintenance areas.
[[Page 1415]]
3. In Sec. 93.158(a)(2), (a)(3) and (a)(4), EPA is proposing to
revise the regulations to address the precursors of PM2.5.
The EPA does not believe that the current models are adequate to
reasonably predict the project level impact of individual precursor
sources of ozone or PM2.5. Therefore, EPA is proposing to
allow Federal agencies to use modeling to demonstrate conformity only
for directly emitted pollutants. Precursors of PM2.5 will be
treated the same as precursors of ozone and direct emissions of
PM2.5 will be treated the same as CO and PM\10\. The EPA
solicits comment on this treatment of the precursors of
PM2.5.
4. In Sec. 93.158(a)(3) and (5), EPA is proposing to correct two
typographical errors. In sub-paragraph (3), EPA is proposing to correct
``meet'' to ``meets'' and in sub-paragraph (5), EPA is proposing to
change ``paragraph (a)(3(11)'' to ``paragraph (a)(3)(ii).''
5. In Sec. 93.158(a)(5)(i), EPA is proposing to delete the
reference to the year 1990 and replace it with a generic reference to
the most current calendar year with a complete emission inventory
available before an area is designated unless EPA sets another year. In
addition to requiring the conformity regulations, the CAA Amendments of
1990 required the designation of areas as nonattainment based on the
existing air quality data. Therefore, when EPA promulgated the existing
regulations in 1993, all the designations were based on a 1990 date.
Since EPA promulgated the conformity regulations, it has promulgated
new 8-hour ozone and PM2.5 standards and designated a number
of areas as nonattainment. By changing the regulations to reference the
date when the area was designated as nonattainment, EPA is allowing for
the new designations and any future designations.
6. Also in Sec. 93.158(a)(5)(i), EPA is proposing to revise the
paragraph to allow Federal agencies to make conformity determination
based upon a State's or Tribe's determination that the emissions from
the action along with all other emissions in the area would not exceed
the emission budget in the applicable SIP or TIP. Under the existing
regulations, States could only make such a determination if they had an
approved attainment demonstration or maintenance SIP. This revision
would allow the State or Tribe to make its determination based upon a
post-designation applicable SIP or TIP even though the plan does not
include an attainment demonstration. For example, the State or Tribe
could base their determination on an emission budget in an EPA approved
``Reasonable Further Progress'' plan. By adopting the budget and
submitting it as part of the SIP or TIP, the State or Tribe is treating
the Federal action like any other source in the area. When the State or
Tribal agency adopts the attainment or maintenance SIP or TIP, it will
have to consider the emissions, and if necessary require additional
controls on the sources. Specifically, EPA solicits comment on whether
demonstrating conformity to a budget in a milestone plan (in the
absence of an attainment demonstration) is adequate to ensure that the
emissions from the action will not interfere with the timely attainment
of the NAAQS.
7. Although not specified in the regulations, EPA believes that a
State operating permit under title V of the CAA or other air quality
operating permit can serve as documentation of the State's or Tribe's
determination.
8. The EPA is proposing to revise Sec. 93.158(a)(5)(i)(C) to allow
the State or Tribe to commit to including the emissions from the
Federal action in future SIPs. Under the existing regulations, Federal
agencies can demonstrate conformity by having the State commit to
revising the applicable SIP to include the emissions. If a State or
Tribe agrees to such a commitment, the State or Tribe must submit a SIP
revision within 18 months to include the emissions from the action and
to make other necessary adjustments in the SIP to accommodate those
emissions. However, the existing SIP or TIP, or a SIP or TIP required
to be submitted in 18 months, may not cover the same timeframe covered
by the conformity determination. For example, a SIP for a nonattainment
area that demonstrates attainment may only cover the period until the
attainment date while the conformity determination may cover emissions
for many years beyond that date. The State or Tribe may be submitting
future SIPs or TIPs to address either maintenance of the standard or to
address a continuing nonattainment problem that would cover the time
period of the emissions. The EPA's proposed revision to Sec.
93.158(a)(5)(i)(C) would continue to require States to revise the SIP
within 18 months of the conformity determination based upon a State's
or Tribe's commitment. However, if the existing SIP or TIP, or a SIP or
TIP due within 18 months, does not cover the time period of the
emissions, then the State or Tribe, in the SIP revision, can include an
enforceable commitment to account for the emissions in future SIP
revisions. This approach will allow States and Tribes flexibility in
committing to include the emissions from the Federal action in the SIP.
9. The EPA is proposing to revise Sec. 93.158(a)(5)(iv) to delete
the use of 1990 as the baseline year. As discussed above, when EPA
promulgated the existing General Conformity Regulations in 1993, the
designations and classifications were based upon the 1990 air quality
and emissions. Since 1993, EPA has promulgated new standards and
designated additional areas as nonattainment. Therefore, in many cases
the 1990 date for the baseline emission inventory is inappropriate. The
EPA is proposing to set the baseline year as the most current calendar
year with a complete emission inventory available before an area is
designated unless EPA sets another year.
In some cases, when EPA establishes a new level for a standard, an
area will have an existing SIP or TIP for the pollutant that serves as
the applicable SIP or TIP until a revised SIP or TIP is submitted by
the State or Tribe and approved by EPA. For example, in transition from
the 1-hour ozone standard to the 8-hour ozone standard, EPA revoked the
1-hour standard 1 year after the effective date of the 8-hour ozone
designation. Although EPA revoked the 1-hour standard, the existing
ozone SIP remains largely in place until it is replaced by the 8-hour
ozone SIP. The 1-hour ozone SIP is considered the applicable SIP until
it is replaced.
Finally, EPA is proposing to delete another alternate baseline year
that no longer is applicable in PM10 areas. Specifically, we
are proposing to delete in Sec. 93.158(a)(5)(iv)(A)(3) the use of the
``year of the baseline inventory in the PM10 applicable
SIP.'' EPA believes that the proposed deletion of this out-dated
baseline year should not affect current general conformity
determinations in PM10 nonattainment and maintenance areas.
K. 40 CFR 93.159--Procedures for Conformity Determinations for General
Federal Actions
1. EPA is proposing to change Sec. 93.159(b)(1)(ii) to make it
more consistent with when new motor vehicle emissions factors models
are used in general conformity determinations. EPA is proposing to
clarify that the grace period before such new models are used will be 3
months from EPA's model release or a longer grace period as announced
in the Federal Register. This is more consistent with 40 CFR 93.111 of
the transportation conformity rule that allows grace periods for new
motor
[[Page 1416]]
vehicle emissions factor models to be between 3-24 months.
2. The EPA is proposing to revise Sec. 93.159(b)(2) and (c) to
update the reference to the Compilation of Air Pollutant Emission
Factors and for the Guideline on Air Quality Modeling. EPA has released
updated versions of these documents since it promulgated the existing
regulations in 1993.
3. The EPA is proposing to revise paragraph (d)(1) to clarify that
analysis is first required for the attainment year specified in the
SIP. In some cases, such as SIPs for marginal ozone areas, an
attainment demonstration date was not required in the SIP. Therefore,
EPA is also proposing that if the SIP or TIP does not specify an
attainment demonstration year then the analysis is required for the
latest attainment year possible under the CAA. Since the CAA requires
the SIP demonstrate attainment as expeditiously as possible but no
later than the CAA mandated attainment date, it is possible that a SIP
or TIP could have an earlier attainment date. That earlier date would
be the appropriate year for the conformity analysis.
4. The EPA is proposing a minor wording revision to paragraph
(d)(2) to clarify the paragraph. The EPA is proposing to replace the
word ``farthest'' with ``last.'' The maintenance plans are developed
for a 10-year period and revised as necessary for the next 10-year
period. The purpose is for conformity to be evaluated for the last year
of the maintenance plan. The word ``last'' conveys that meaning.
L. 401 CFR 93.160--Mitigation of Air Quality Impacts
The EPA is proposing to revise paragraph Sec. 93.160(f) to clarify
its meaning. The regulations were meant to require that the mitigation
measures include a written commitment from the person or organization
reducing the emissions and those commitments must be fulfilled.
M. 40 CFR 93.161--Conformity Evaluations for Installations With
Facility-Wide Emission Budget
The EPA is proposing to add a new section to the regulations to
facilitate the use of a facility-wide emission budget in evaluating
conformity. Federal agencies have stated that they would like to
streamline the conformity process for individual actions or projects,
while States have expressed a desire for the conformity process to help
identify and reduce emissions at Federal installations. Although the
existing regulations do not preclude States and Federal agencies from
using this approach, the regulations do not specifically authorize its
use. This approach would be entirely voluntary on the part of the
Federal agency and would have to be approved by the State, Tribe or
local agency responsible for the SIP or TIP. For example, States can
currently adopt a facility-wide budget for a Federal installation as
part of the SIP. With such a budget, a Federal agency could easily
demonstrate conformity for an action at the installation provided the
emissions caused by the action along with all of the other emissions
subject to general conformity at the installation stays within the
budget. If the State or Tribe includes the emission budget in the SIP
or TIP, the emissions would be identified and accounted for in the SIP
or TIP. Alternatively, a State or Tribe could provide a letter to the
Federal agency stating that the emissions from the installation that
are within the budget conform to the SIP or TIP. This proposed section
for developing such a budget would in conjunction with a new Sec.
93.153(j) provide a mechanism for presuming that the emissions are in
conformance with the SIP or TIP. This approach allows State or Tribe
and Federal agencies to identify acceptable levels of emissions from
the installation before starting the environmental review for the
actions and for the agencies to expedite the review of the Federal
actions at the facilities.
Under this approach, a State, Tribe or local air quality agency
could work with the Federal agency, or a third party authorized by the
agency (e.g., an airport authority), who volunteers to develop a
facility-wide emission budget for an installation or facility. In
principle, at the time the States or Tribes agree to a budget, they
assume responsibility for ensuring that the emissions within the budget
will not interfere with the purpose of the SIP or TIP, and will be
included in future SIPs or TIPs. The budget would be for a set period
of time and near the end of that time the State, Tribe or local agency
and Federal agencies could revise the budget for the next time period.
For example, the State, Tribe or local agency and Federal agency could
develop annual budgets covering a 10-year period. Two years before the
end of the period, the budget would be reviewed and updated to cover
the next 10-year period. (This is the same procedure used for
maintenance plans under section 175A of the CAA. A maintenance plan is
developed for 10-years and 8 years into that plan a new plan is
developed for the next 10 years.) The budgets would be developed based
upon the latest estimates of emissions and growth in the activities at
the facility.
The State or Tribe would include the emission budget in the
existing SIP or TIP and use the budget for any future SIP or TIP
development. In including the emissions in the existing SIP or TIP,
States or Tribes can either identify categories in the existing SIP or
TIP that cover the emissions or can submit a revision to the SIP or TIP
to include the emissions. If unusual or unforeseen circumstances
warrant a revision, the State, Tribe or local agency and Federal agency
could agree to revise the budget. For example, if the State, Tribe or
local agency requires additional reductions to meet their attainment
objective or if the facility has unexpected growth, a revised budget
could be adopted into the SIP or TIP.
The EPA believes that the proposed program would encourage the
State, Tribe or local air quality agency and the Federal facilities to
develop an upfront emission budget for the facility, and the action or
project environmental review would be streamlined as long as the
facility remains within an established budget.
The program would be voluntary on the part of the Federal agency,
State, Tribe and local air quality agency. No party would be required
to participate. If the parties agreed to participate, an emission
budget would be established based upon specific guidance and documented
growth projections for the facility.
The emission budget approach would not be applicable to all
situations. For example, not all Federal actions or projects occur on
installations suitable for emission budgets (e.g., one-time actions on
non-Federal lands such as a short-term construction project may not
have facilities to have a budget). In addition, some installations with
budgets may on occasion take actions or have projects that would result
in the budget being exceeded. In these cases, or under any
circumstances, a Federal agency may determine applicability or
demonstrate conformity with the standard requirements contained in
Sec. Sec. 93.153 through 93.160 and 93.162 through 93.165 of the
General Conformity regulations. These requirements include, but are not
limited to, a State certifying emissions are included the SIP, a de
minimis determination or other exemption, project level mitigation,
offsetting emission reductions, or modeling. Therefore, having a
facility-wide emissions budget in the SIP would not limit an agency's
option for determining conformity, but adds an additional less
[[Page 1417]]
burdensome option for demonstrating conformity.
As discussed earlier in this preamble under the definition of
``caused by'', in developing the facility-wide emission budget, the
Federal agency generally would share its plans for construction at the
facility. As a result the State, Tribe or local agency could consider
the emissions from the construction in its SIP or TIP and they would
have three options for handling the construction emissions under the
general conformity program. First, they could include the emissions in
a facility-wide emission budget. Second, they could determine that the
construction emissions at the facility would be covered elsewhere in
the SIP or TIP (e.g., in the non-road mobile source budget or the area
source budget), and thus the emissions could be presumed to conform.
Finally, they could cover the construction emissions separately from
the emission budget and conduct a separate conformity evaluation for
those emissions.
Since the facility-wide emission budget would be used to develop
the SIP or TIP for the area, any Federal action at the installation
that remains within its budget would not interfere with the SIP or TIP.
By developing a facility-wide emission budget for the installation, the
Federal agency would generate a more accurate emission inventory for
the activities at the installations and provide the State, Tribe or
local agency with realistic growth projections for the installations.
The facility-wide emission budgets would encourage operators to
identify ways of reducing emissions and adopt control measures when
possible in order to allow for unforeseen growth.
N. 40 CFR 93.162--Emissions Beyond the Time Period Covered by the
Applicable SIP or TIP
The EPA is proposing to add a new section to address how Federal
agencies can demonstrate conformity for an action that causes emissions
beyond the time period covered by the SIP or TIP. First, EPA is
proposing to allow Federal agencies to demonstrate conformity using the
last emission budget in the SIP or TIP. If it is not practicable to
demonstrate conformity using that technique, then the Federal agency
can request the State or Tribe to provide an enforceable commitment to
include the emissions from the Federal action in a current or future
SIP or TIP emissions budget. In such a case, the State or Tribe would
be required to submit a SIP revision within 18 months to include the
emissions in the current SIP or TIP or committing to account for the
emissions in future SIPs or TIPs. The emissions included in the future
SIP should be based on the latest planning assumptions at the time of
the SIP revision. Although a State is committing to include the
emissions in the emissions budget for the SIP revisions, this
commitment does not prevent the State from requiring the use of RACT,
RACM or any other control measures within the State's authority to
ensure timely attainment of the NAAQS.
O. 40 CFR 93.163--Timing of Offsets and Mitigation Measures
The EPA is proposing to add a new section to address the timing of
offset and mitigation measures. First, the section generally requires
that the emission reductions for the offset and mitigation measures
must occur in the same calendar year as the emission increases caused
by the Federal action and that the reductions are equal to the
emissions increases. As an alternative, the proposed section would
allow, under special conditions and consistent with CAA requirements,
the State or Tribe to approve other schedules for offsets or mitigation
measures.
Mitigation measures and offsets are used to reduce the impact of
emission increases from a project or action. To minimize the impact of
the project's emissions, the emissions reductions from offsets or
mitigation measures should occur at the same time as the emission
increases from the project. In general, EPA has interpreted the
existing regulations to mean that the reductions must occur in the same
calendar year as the emission increases caused by the action because
the total direct and indirect emissions from an action are collated on
an annual basis. Therefore, EPA is proposing to include this
interpretation in the regulations.
For certain projects, however, it may be beneficial for the State
or Tribe to approve mitigation measures or offsets that do not provide
for emissions reductions equal to the emission increases for the
specific years, but provide net long-term air quality benefits. For
example, a project with relatively high short-term emissions, such as a
construction project, could be mitigated by converting older equipment
to electric or alternate fuels. The State or Tribe may find it
advantageous to allow a short period when the emissions are not fully
mitigated in return for permanent or the long-term emissions
reductions. Therefore, EPA is proposing to allow, under certain
conditions, the State and Federal agency to negotiate alternate
schedules for the implementation of the offsets and mitigation
measures. EPA believes that such emissions reductions should also have
substantial long-term attainment and maintenance benefits. EPA is also
proposing that emissions reductions used over an alternate schedule
would be consistent with statutory requirements that new violations are
not created, the frequency or severity of existing violations are not
increased, and timely attainment is not delayed.
To ensure these noncontemporaneous emission reductions provide
greater environmental benefits in the long term, EPA is proposing to
require that the offset or mitigation ratios be greater than one-for-
one. Therefore, EPA is proposing a ratio that is no less than the NSR
offset ratios for the area. These ratios are readily available and
already understood to be based on the severity of the nonattainment
problem for the area. In addition, EPA seeks comment on other
mechanisms that could be used to require greater than one-for-one
reductions for the offsets and mitigation measures that occur in later
years or alternatively if greater than one-for-one reductions should be
required.
Also, EPA believes that the mitigation or offset compensation
period should not last indefinitely and is proposing that the period
should not exceed two times the period of the under-mitigated
emissions. For example, a Federal agency may be approving a
construction project lasting 3 years in a serious nonattainment area
and that project will cause 150 tons per year of increased emissions;
the State or Tribe can approve mitigation measures or offsets which
reduce emissions by less than 150 tons per year provided the total
reduction over a 6-year period is equal to or more than 540 tons (150
tons per year times 3 years equals 450 tons times the offset/mitigation
ratio of 1.2 to 1 for serious nonattainment areas equals 540 tons).
Besides requesting comment on the concept of allowing the States or
Tribes to approve a longer time period for offsetting or mitigating the
emission increases, EPA is also seeking comment on the mechanism and
procedures used to permit/implement the concept. In addition, EPA is
seeking comment on the appropriate time period for the Federal agencies
to offset or mitigate the increased emissions. The EPA is requesting
comments on using longer compensation periods in excess of two times
the project period.
Agreeing to allow the use of offset or mitigation measures in later
years does not exempt the State or Tribe from meeting any of its SIP or
TIP obligations, such as reasonable further progress milestones or
attainment deadlines. Emissions reductions which accrue beyond the
compensation period
[[Page 1418]]
should be properly reflected in the SIP or TIP, e.g. through a SIP
revision.
P. 40 CFR 93.164--Inter-Precursor Offsets and Mitigation Measures
EPA is proposing to add a new section to the regulations to allow
the use of inter-precursor offset and mitigation measures where they
are allowed by the SIP. For example, some States and local air
districts have SIP-approved NSR regulations that allow new or modified
stationary sources to offset the increase in emissions of one criteria
pollutant precursor by reducing the emissions of another precursor of
the same criteria pollutant, provided there is an environmental benefit
to such an exchange. The existing General Conformity regulations do not
specifically allow or prohibit inter-precursor offsets and mitigation
measures. Therefore, EPA is proposing to allow such offsets or
mitigation measures if they are allowed by a State or Tribe NSR or
trading program approved in the SIP; provided they:
1. Are technically justified; and
2. have a demonstrated environmental benefit.
The ratio for the offsets must be consistent with SIP or TIP
requirements and EPA guidance.
The EPA recognizes that the evaluation of the inter-precursor
offsets may in some cases be difficult and seeks comments on how such
offsets or mitigation measures should be evaluated. The EPA expects to
use these comments in developing future guidance documents.
Q. 40 CFR 93.165--Early Emission Reduction Credit Program
The EPA is proposing to add a new section to the regulations to
establish an early emission reduction credit program for facilities
subject to the General Conformity Regulations. The existing regulations
require that the offsets and mitigation measures be in place before the
emissions increases caused by the Federal action occur. However,
emission reduction programs undertaken before the conformity
determination is made could be considered as part of the baseline
emissions and not available as offsets or mitigation measures. To
expedite the project level conformity process, Federal agencies and
project sponsors could benefit from the ability to reduce emissions in
advance of the time that the reductions are needed for a conformity
evaluation. Although the existing regulations do not address the
concept, The Port of Seattle and the Puget Sound Clean Air Agency
developed a program to implement early emissions reductions. In
addition, Congress authorized such a program for the General Conformity
program in the FAA reauthorization act signed in December 2003 (Vision
100--A Century of Aviation Reauthorization Act, Pub. L. 108-176). That
Act authorized FAA to approve funding of programs to reduce emissions
at the airports provided the State would issue emission reduction
credits that can be used for General Conformity determinations and NSR
offsets. On September 30, 2004, EPA issued guidance on the Airport
Emission Reduction Credit (AERC) program to implement the requirements
of the December 2003 Act (Guidance on Airport Emission Reduction
Credits for Early Measures Through Voluntary Airport Low Emission
Programs, U.S. EPA, Office of Air Quality Planning and Standards,
September 2004). Other Federal agencies may benefit from the
opportunity to reduce emissions prior to when the reductions are needed
to offset emission increases covered by the General Conformity program.
To clarify EPA's intent that this program be allowed for other
Federal actions, EPA is proposing to add a new section, Sec. 93.165,
to the General Conformity Regulations to define the requirements of
this program. Under the program, Federal agencies or interested third
parties (such as airport authorities) could identify emission control
measures and present the proposed reduction to the State, Tribe or
local air quality agency. If the measure met the criteria for an offset
(quantifiable; consistent with the applicable SIP attainment and
reasonable further progress demonstrations; surplus to the reductions
required by and credited to other applicable SIP provisions;
enforceable at both the State and Federal levels; and permanent within
the timeframe specified by the program) as well as all State, Tribe or
local requirements, the State, Tribe or local agency can approve the
measure as eligible to produce emission reduction credits. If credits
are issued, then a Federal agency can use the credits to reduce the
total of direct and indirect emissions from a proposed action. At the
time the credits are used the State, Tribe or local agency must certify
that the reductions still meet the criteria listed above. The credits