1
Issue
Papers
for
Revising
the
General
Conformity
Regulations
January
11,
2005
2
i
General
Conformity
Issue
Papers
ISSUE
PAGE
NO.

Innovative
and
Flexible
Approaches
............................................................................
1
Emission
Budget
Approach
.............................................................................................
3
Early
Emission
Reduction
Credits....................................................................................
7
Inter­
Precursor
Offsets..................................................................................................
11
Mitigation
Timing
.........................................................................................................
15
Streamlining
and
Burden
Reduction
.........................................................................
17
Regionally
Significant
Emissions
..................................................................................
19
Presume
to
Conform.....................................................................................................
23
Minor
Source
NSR
Permits
...........................................................................................
25
Transition
Tool
for
New
Standards
...........................................................................
27
Grandfathering
Provisions
in
the
Existing
Regulations
...................................................
29
Application
of
the
Grace
Period
for
New
Designations
..................................................
33
Harmonizing
Horizon
Years
..........................................................................................
37
SIP
Submittal
Timing
....................................................................................................
41
Revisions
Requested
by
Other
Agencies
....................................................................
43
Wildland
Fire
Policy......................................................................................................
45
Geographical
Limits
for
Offsets.....................................................................................
49
Revise
Emergency
Episode
to
Include
Military
Readiness..............................................
51
Protection
of
Classified
Materials
..................................................................................
55
ii
Clarification
of
Existing
Rules....................................................................................
57
Clarification
of
General
Conformity
Determination
Process
...........................................
59
Actions
Affecting
Multiple
Nonattainment/
Maintenance
Areas
......................................
63
Coverage
of
Construction
Emissions
.............................................................................
67
Offsite
Mobile
Source
Emissions
...................................................................................
73
Response
to
Emergency
Episodes..................................................................................
77
Definition
of
Terms
.......................................................................................................
79
Index
A:
List
of
Acronyms
............................................................................................
81
1
Innovative
and
Flexible
Approaches
2
3
Issue
Paper
on
Emission
Budget
Approach
Issue
Federal
agencies
would
like
to
streamline
the
conformity
process
for
individual
actions
or
projects,
while
States
expressed
a
desire
for
the
conformity
process
to
help
identify
and
reduce
emissions
at
Federal
installations.
Under
this
approach
the
States
would
adopt
a
facility­
wide
emission
budget
for
an
installation
subject
to
conformity
requirements
and
if
the
proposed
action
along
with
the
other
emissions
at
the
facility
would
be
within
the
budget,
the
action
or
project
could
be
presumed
to
conform.

Options
1.
Include
a
provision
in
the
General
Conformity
Regulations
that
allows
State
and
Federal
agencies
or
a
third
party
to
develop
facility­
wide
emission
budgets
for
Federal
installations
or
installations
subject
to
the
General
Conformity
Regulations.
If
the
emissions
from
the
Federal
action/
project
along
with
all
other
emissions
from
the
installation
do
not
exceed
the
budget,
then
the
action/
project
would
be
presumed
to
conform
2.
Do
not
include
the
provision
in
the
regulations.

Background
Federal
agencies
have
voiced
concerns
regarding
the
length
of
time
it
takes
to
conduct
a
conformity
determination,
their
inability
to
identify
emissions
in
the
State
Implementation
Plans
(
SIPs)
and
their
ability
to
receive
credit
for
implementing
emission
reduction
programs
at
the
facilities.
States,
on
the
other
hand,
are
not
always
aware
of
all
the
emissions
at
the
facilities,
have
information
on
the
potential
growth
at
the
facilities,
and
find
that
the
existing
General
Conformity
Regulations
do
not
effectively
control
the
growth
in
emissions
at
Federal
installations.

Concept
On
a
voluntary
basis,
a
State
or
local
air
quality
agency
working
with
a
Federal
agency
or
third
party
(
e.
g.,
an
airport
authority)
would
develop
facility­
wide
emission
budget
for
the
installations.
The
budget
would
be
for
a
set
period
of
time
and
near
the
end
of
that
time
the
State
and
agency
could
develop
a
budget
for
the
next
time
period.
For
example,
the
State
and
Federal
agency
(
or
third
party)
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.
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
activities
growth.
The
State
and
Federal
4
agency
(
or
third
party)
would
notify
Environmental
Protection
Agency
(
EPA)
and
the
public
and
take
comment
on
the
draft
budget
prior
to
adopting
the
final
budget.
The
State
would
agree
to
use
the
budget
for
any
future
SIP
development.
The
Federal
agencies,
or
the
facility
operator
acting
for
the
agency,
would
agree
to
periodically
(
e.
g.,
annually)
review
their
emissions
to
ensure
that
the
project
stays
within
the
emissions
budget.
If
the
total
direct
and
indirect
emissions
from
the
action
or
project
along
with
all
other
emissions
from
the
installation
do
not
exceed
the
budget,
then
the
action
or
project
would
be
"
presumed
to
conform."
If
unusual
or
unforeseen
circumstances
warrant
a
revision,
the
State
and
Federal
agency
could
agree
to
revise
the
budget.
For
example,
The
Piedmont
Triad
International
Airport
in
Greensboro,
NC
and
the
State
of
North
Carolina
had
developed
an
emission
budget
for
the
airport
in
the
1990'
s,
they
would
not
have
known
that
Federal
Express
would
decide
to
develop
a
hub
at
the
airport
and
the
budget
would
not
have
accounted
for
the
increase
in
air
and
ground
traffic
emissions.
Under
this
approach,
the
State
and
airport
sponsor
could
review
and
revise
the
budget
account
for
the
hub.

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.
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,
the
Federal
agencies
would
need
a
process
to
demonstrate
conformity.
Therefore,
a
program
similar
to
the
existing
regulation
would
still
be
necessary
In
developing
the
emission
budget,
the
Federal
agency
would
generally
reveal
its
plans
for
construction
at
the
facility.
As
a
result
the
State
could
consider
the
emissions
from
the
construction
in
its
SIP
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
emission
at
the
facility
would
be
covered
elsewhere
in
the
SIP,
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
form
the
emission
budget
and
conduct
a
separate
conformity
evaluation
for
those
emissions.

Since
the
emission
budget
would
be
used
to
develop
the
SIP
for
the
area,
any
Federal
action
at
the
installation
that
remains
within
its
budget
would
not
interfere
with
the
SIP.
By
developing
a
budget
for
the
installation,
the
Federal
agency
would
generate
a
more
accurate
emission
inventory
for
the
activities
at
the
installations
and
provide
the
State
with
realistic
growth
projections
for
the
installations.
The
emission
budgets
would
encourage
operators
to
identify
ways
of
reducing
emissions
and
adopt
control
measures
when
possible
in
order
to
allow
for
unforeseen
growth.

In
theory,
Federal
agencies
and
State
air
quality
agencies
could
implement
most
of
this
approach
on
a
case
by
case
basis
under
the
existing
regulations.
We
would
be
repackaging
the
requirements
and
providing
presumption
of
conformity
for
some
actions
where
conformity
would
be
easy
to
demonstrate.
For
example,
States
can
currently
adopt
a
facility
wide
budget
in
the
SIP
for
a
Federal
installation.
The
Federal
agency
responsible
5
for
the
installation
could
easily
demonstrate
conformity
for
actions
that
stay
within
the
budget
because
the
emissions
would
be
identified
and
accounted
for
in
the
SIP.
By
repackaging
the
approach
and
allowing
the
Federal
agencies
to
presume
that
the
action
conforms
would
encourage
its
use.

Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
Include
a
provision
in
the
General
Conformity
Regulations
that
allows
State
and
Federal
agencies
or
a
third
party
to
develop
facility­
wide
emission
budgets
for
Federal
installations
or
installations
subject
to
the
General
Conformity
Regulations.
If
the
emissions
from
the
Federal
action/
project
along
with
all
other
emissions
from
the
installation
do
not
exceed
the
budget,
then
the
action/
project
would
be
presumed
to
conform.

Pros:
a.
The
Federal
agency
or
installation
sponsor
would
have
a
budget
in
the
SIP
for
conformity
purposes.

b.
The
State
would
have
good
emission
estimates,
including
growth
estimates
from
the
installation
c.
The
installations
would
be
able
to
receive
credit
for
any
emission
reduction
programs
that
they
implement.
(
The
reductions
would
increase
the
difference
between
the
actual
emissions
and
the
budget.)

d.
For
commercial
installations,
e.
g.,
airports,
the
need
for
additional
emissions
controls
would
generally
be
tied
to
the
economic
cycle.
During
good
economic
times,
when
expansion
exceeds
projections,
more
controls
would
be
required;
during
poor
economic
times,
when
projections
are
not
being
met,
little
or
no
additional
controls
would
be
necessary.

e.
EPA
and
the
public
would
have
an
opportunity
to
comment
on
the
total
budget
for
the
installation.

f.
Since
projects
that
do
not
increase
the
facility
emissions
above
the
budget
the
project
can
be
presumed
to
conform
and
a
conformity
determinations
would
not
be
necessary.

g.
Installation
operators
would
be
encouraged
to
reduce
emissions
to
meet
their
budget.
This
could
result
in
the
adoption
of
innovative
control
techniques.

h.
The
10­
year
cycle
would
allow
the
facility­
wide
emission
budget
to
be
updated
based
upon
new
technology
and
planning
assumptions.

i.
Since
the
adoption
of
a
facility­
wide
emission
budget
would
be
voluntary
for
both
the
States
and
Federal
agencies,
they
would
not
be
forced
to
adopt
budgets
for
particular
installations.
6
j.
The
facility­
wide
budget
would
allow
the
installation
operators
maximum
flexibility
in
meeting
the
budget.

k.
Since
the
budgets
would
be
specific
to
installations,
States
would
be
better
able
to
determine
whether
construction
emissions
might
interfere
with
the
SIP.
If
the
construction
emissions
do
not
cause
a
problem
for
the
SIP,
then
they
could
be
exempt
from
the
conformity
determination.
In
addition,
the
State
and
Federal
agency
could
renegotiate
the
budget.

Cons:
a
Some
projects
may
not
receive
project
level
conformity
reviews.
However,
this
would
not
exempt
the
project
from
a
National
Environmental
Policy
Act
(
NEPA)
analysis.

b.
The
State
and
Federal
agencies
would
have
to
spend
time
up­
front
developing
the
emission
budget
and
then
review
and
update
that
budget
every
10
years.

2.
Do
not
include
the
provision
in
the
regulations
Pros:
a.
Ensures
that
each
project
will
be
reviewed
for
conformity
to
the
SIP.

b.
Federal
agencies
would
not
have
to
share
their
emission
inventories
with
the
State
before
the
project
requires
a
conformity
determination.

Cons:
a.
Federal
agencies
would
continue
to
have
problems
identifying
emissions
in
the
SIP
inventory
that
apply
to
the
facility.

b.
Individual
projects
would
have
to
undergo
conformity
evaluations
and
determinations.

c.
States
would
not
receive
as
much
information
on
the
emissions
and
projected
emissions
from
the
Federal
facility.

d.
There
is
no
certainty
that
the
budget
will
be
updated
in
a
timely
manner.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
1.
Include
a
provision
in
the
General
Conformity
Regulations
that
allows
State
and
Federal
agencies
or
a
third
party
to
develop
facility­
wide
emission
budgets
for
Federal
installations
or
installations
subject
to
the
General
Conformity
Regulations.
If
the
emissions
from
the
Federal
action/
project
along
with
all
other
emissions
from
the
installation
do
not
exceed
the
budget,
then
the
action/
project
would
be
presumed
to
conform.

The
work
group
also
discussed
having
the
State
submit
the
budget
to
EPA
for
an
adequacy
determination
if
the
budget
was
not
going
to
be
immediately
included
in
the
SIP.
7
Issue
Paper
on
Early
Emission
Reduction
Credits
Issue
To
expedite
the
project
level
conformity
process,
Federal
agencies
and
project
sponsors
want
to
be
able
to
reduce
emissions
in
advance
of
the
time
that
the
reductions
are
needed
for
a
conformity
evaluation.
Congress
has
authorized
such
a
program
in
the
FAA
reauthorization
act
signed
in
December
2003.

Options
1.
Revise
the
regulations
to
specifically
allow
Federal
installations
or
other
facilities
subject
to
the
General
Conformity
requirements
to
receive
credit
for
emission
reduction
measures
that
are
implemented
before
they
are
needed
for
a
conformity
determination.

2.
Revise
the
regulations
to
make
it
explicit
that
States
have
the
right
to
adopt
an
emission
reduction
credit
program
for
use
in
the
general
conformity
program.
The
program
would
be
consistent
with
the
Airport
Early
Emission
Reduction
Credit
Program.

3.
Leave
the
program
as
is
and
do
not
create
incentives
for
early
reductions.

Background
For
NSR
programs,
States
have
developed
emission
reduction
credit
programs
to
allow
offset
credits
to
be
banked
and
often
traded.
These
programs
allow
facilities
to
reduce
emissions
prior
to
the
time
that
the
reductions
are
needed
to
offset
emission
increases
from
new
or
modified
sources.

Some
Federal
facilities
would
like
to
have
the
opportunity
to
reduce
emissions
prior
to
when
the
reductions
are
needed
to
offset
emission
increases
covered
by
the
General
Conformity
program.
Although,
the
General
Conformity
Regulations
do
not
explicitly
allow
such
a
program,
the
2002
EPA
and
FAA
general
conformity
guidance
for
airports
encourages
such
programs
based
on
an
agreement
between
the
Puget
Sound
Clean
Air
Agency
and
the
Port
of
Seattle
for
the
Seattle
­
Tacoma
(
SeaTac
Airport)
program.
In
addition,
new
legislation,
passed
by
Congress
in
2003,
authorized
the
FAA
to
fund
emission
reduction
programs
at
commercial
service
airports
if
the
airports
receive
credits
for
the
emission
reductions
for
use
in
the
general
conformity
or
NSR
programs.
That
legislation
required
EPA
to
publish
a
guidance
document
to
implement
the
program.
EPA
released
the
guidance
entitled
"
Airport
Emission
Reduction
Credit
Guidance"
(
AERC
Guidance)
in
September
2004.
Other
Federal
agencies
have
expressed
a
desire
for
similar
type
programs.
8
Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
Revise
the
regulations
to
specifically
allow
Federal
installations
or
other
facilities
subject
to
the
General
Conformity
requirements
to
receive
credit
for
emission
reduction
measures
implemented
before
they
are
needed
for
a
conformity
determination.
The
regulations
would
be
based
upon
the
2004
AERC
guidance.

Pros:
a.
Creates
an
incentive
for
Federal
facilities
to
reduce
emissions,
which
results
in
cleaner
air
during
the
time
that
the
credits
are
not
used.

b.
Federal
facilities
can
implement
innovative
emission
reduction
techniques
and
determine
the
effectiveness
before
the
reductions
are
used
as
offsets
for
a
conformity
determination.

c.
Federal
agencies
will
have
one
national
program
to
develop
and
utilize
emission
reduction
credits
d.
Provides
more
authority
for
the
AERC
guidance.

Cons:
a.
States
would
not
be
able
to
tailor
the
programs
to
meet
State
needs.

b.
Credit
may
be
allowed
for
reductions
that
would
have
occurred
anyway.
The
facility
may
have
other
reasons
to
adopt
the
measures
and
therefore
the
credit
would
be
given
for
routine
business
reductions
2.
Revise
the
regulations
to
make
it
explicit
that
States
have
the
right
to
adopt
an
emission
reduction
credit
program
for
use
in
the
general
conformity
program.

Pros:
a.
Creates
incentive
for
Federal
facilities
to
reduce
emissions
resulting
in
cleaner
air
while
the
credits
are
not
used.

b.
Federal
facilities
can
implement
innovative
emission
reduction
techniques
and
determine
the
effectiveness
before
the
reductions
are
used
as
offsets
for
a
conformity
determination.

c.
States
would
be
able
to
tailor
the
programs
to
meet
the
State
needs.

Cons:
a.
Federal
agencies
would
have
to
work
with
individual
State
agencies
to
create
separate
programs
for
each
State
or
area.
This
could
lead
to
inconsistent
programs
across
the
country.

b.
Credit
may
be
allowed
for
reductions
that
would
have
occurred
anyway.
The
facility
may
have
other
reasons
to
adopt
the
measures
and
therefore
the
credit
would
be
given
for
routine
business
reductions
3.
Leave
the
program
as
is,
and
do
not
create
incentives
for
early
reductions.
9
Pros:
a.
Federal
agencies
will
be
less
likely
to
receive
credit
for
something
that
they
would
have
done,
regardless
of
the
possible
incentives.

Cons:
a.
May
undermine
the
AERC
guidance.

b.
Discourages
early
reductions
and
thus
hampers
air
quality
improvements
in
early
years.

c.
Federal
facilities
will
be
less
likely
to
implement
innovative
emission
reduction
techniques,
because
they
will
not
be
able
to
determine
their
effectiveness
before
the
reductions
are
used
as
offsets
for
a
conformity
determination.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
1.
Revise
the
regulations
to
specifically
allow
Federal
installations
or
other
facilities
subject
to
the
General
Conformity
requirements
to
receive
credit
for
emission
reduction
measures
implemented
before
they
are
needed
for
a
conformity
determination.
The
regulations
would
be
based
upon
the
2004
AERC
guidance.

The
work
group
also
recommended
that
we
include
a
statement
that
reductions
credits
could
be
used
at
another
Federal
facility
as
an
offset.
10
11
Issue
Paper
on
Inter­
Precursor
Offsets
for
Ozone
Areas
Issue
The
General
Conformity
rule
does
not
specifically
allow
Federal
agencies
to
offset
the
emission
of
precursor
criteria
pollutants
by
reducing
the
emission
of
another
precursor
even
though
many
State
and
local
air
districts
allow
such
offsets.

Options
1.
Retain
the
current
language.

2.
Revise
the
regulation
to
allow
inter­
precursor
offsets
where
it
is
technically
justified,
permitted
by
the
State/
local/
tribal
air
quality
agency,
and
has
an
environmental
benefit.
The
ratio
of
the
offsets
must
be
consistent
with
the
SIP
requirements
and
EPA
guidance.

Background
Tropospheric
(
ground­
level)
ozone
is
a
secondary
pollutant.
It
is
formed
in
the
atmosphere
from
emissions
of
precursors,
such
as
nitrous
oxide
(
NOx)
and
volatile
organic
compounds
(
VOCs).
Likewise,
PM2.5
can
also
be
formed
in
the
atmosphere.
In
developing
their
SIP,
states
generally
establish
or
will
establish
control
programs
for
precursor
pollutants.
Actions
taken
by
Federal
agencies
could
increase
one
of
the
precursors
while
reducing
the
other.
Federal
agencies
would
like
the
ability
to
receive
credit
for
reducing
one
precursor
towards
the
increase
in
emission
of
another
precursor.

Traditionally,
an
offset
involves
the
same
pollutant
or
pollutant
precursor.
In
developing
the
SIPs,
States
usually
focus
on
controlling
the
precursor
that
will
most
effectively
control
the
criteria
pollutant
and
in
the
ozone
program
EPA
has
allowed
States
to
trade
off
the
controls
of
one
precursor
for
controls
of
another.
For
example,
the
CAA
requires
that
States
meet
a
"
reasonable
further
progress"
requirement
of
reducing
the
VOC
emissions
by
3
percent
per
year
after
1996.
EPA
allows
States
to
substitute
NOx
reductions
for
some
or
all
of
the
VOCs
reductions.
The
substitution
is
not
made
on
a
oneto
one
basis,
but
based
on
the
ratio
needed
for
attainment.
PM2.5
is
also
a
secondary
pollutant
and
could
have
its
precursors
traded.

The
General
Conformity
rule
does
not
address
inter­
precursor
offsets.
Federal
agencies
favor
revising
the
rule
to
include
a
specific
authorization
of
inter­
precursor
offsets
where
it
is
allowed
by
local
air
districts.
The
agencies
argue
that
if
a
local
air
quality
district
finds
that
inter­
precursor
trading
will
not
interfere
with
its
SIP,
the
rule
should
authorize
such
an
approach.

Since
the
General
Conformity
rule
is
not
intended
to
be
overly
burdensome
to
Federal
agencies,
a
new
paragraph
could
be
added
to
allow
for
the
offsetting
of
one
precursor
by
12
reducing
the
emissions
of
another
where
local
or
State
air
quality
regulations
specifically
allow
such
offsets.

In
some
cases,
state
and
local
air
quality
agencies
have
established
unidirectional
interprecursor
trading
programs.
For
example,
a
NOx
reduction
may
be
used
to
offset
additional
VOC
emissions
under
these
unidirectional
programs,
but
a
VOC
reduction
may
not
be
used
to
offset
increases
in
NOx
emissions.
The
reasons
behind
these
restrictions
are
based
on
the
chemical
reaction
rates,
as
well
as
the
rate
at
which
each
pollutant
gets
consumed.
In
ozone
nonattainment
areas
that
are
termed
NOx­
limited,
any
increases
in
NOx
emissions
would
result
in
more
ozone
and
any
decreases
will
result
in
less
ozone.
Consequently,
inter­
precursor
trading
programs
in
a
NOx­
limited
area
must
prohibit
sources
from
increasing
NOx
emissions
by
using
VOC
emission
reduction
credits,
as
it
would
cause
the
ambient
air
quality
to
deteriorate.

The
offset
could
be
subject
to
the
limitations
of
the
NOx
substitution
policy
to
ensure
that
adequate
emission
reductions
are
obtained
for
the
offsets.

Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
Retain
the
current
language.

Pros:
a.
Retaining
current
language
would
ensure
that
the
offset
will
not
interfere
with
the
pollutant
mix
since
an
emission
increase
would
be
offset
by
emission
decreases
of
the
same
pollutant.

b.
Because
some
States
and
localities
do
not
allow
for
inter­
precursor
trading,
retaining
current
language
would
ensure
that
Federal
agencies
in
all
areas
are
treated
equally.

Cons:
a.
Trading
of
precursors
could
be
beneficial
to
the
environment.

b.
Not
allowing
inter­
precursor
trading
can
be
perceived
as
overly
burdensome,
especially
in
areas
where
States
and
local
districts
allow
the
practice.

2.
Revise
the
regulation
to
allow
inter­
precursor
offsets
where
it
is
technically
justified,
permitted
by
the
State/
local/
tribal
air
quality
agency,
and
has
an
environmental
benefit.
The
ratio
of
the
offsets
must
be
consistent
with
the
SIP
requirements
and
EPA
guidance
Pros:
a.
Allows
the
Federal
agencies
flexibility
in
offsetting
emission
increases.

b.
Could
improve
air
quality
by
ensuring
that
emissions
of
the
controlling
precursor
are
reduced.

Cons:
a.
Trading
of
precursor
pollutants
may
impact
ambient
air
quality
if
the
reductions
are
not
appropriately
balanced.

b.
Allowing
inter­
precursor
offsets
could
be
perceived
as
inequitable
since
some
States
do
not
allow
the
practice.
13
Staff
Recommendation
The
EPA
Work
Group
recommends
Option
2.
Revise
the
regulation
to
allow
interprecursor
offsets
where
it
is
technically
justified,
permitted
by
the
State/
local/
tribal
air
quality
agency,
and
has
an
environmental
benefit.
The
ratio
of
the
offsets
must
be
consistent
with
the
SIP
requirements
and
EPA
guidance.
14
15
Issue
Paper
on
Mitigation
Timing
Issue
We
have
generally
interpreted
the
existing
regulations
to
require
the
mitigation
measures
to
produce
a
contemporaneous
emissions
reduction
with
any
emission
increases.
However,
in
some
cases,
it
may
be
beneficial
to
environment
and
the
State
=

s
planning
process
to
allow
flexibility
in
the
timing
of
mitigation
measures.

Options
1.
Keep
mitigation
timing
requirements
the
same.
Require
contemporaneous
emission
reductions.

2.
Under
certain
conditions
allow
the
State
and
Federal
agency
to
negotiate
alternate
schedules
for
the
implementation
of
the
mitigation
measures.

Background
Mitigation
measures,
including
offsets,
are
used
to
reduce
the
impact
of
emission
increases
from
a
project/
action.
To
minimize
the
impact
of
the
project
emissions,
the
emission
reductions
from
the
mitigation
measures
should
occur
at
the
same
time
as
the
emission
increases
from
the
project.
In
general,
we
have
interpreted
the
current
regulations
to
mean
that
the
reductions
must
occur
in
the
same
calendar
year
as
the
increase
emissions
from
the
project.

For
certain
projects,
however,
it
may
be
beneficial
to
approve
mitigation
measures
that
do
not
provide
contemporaneous
emission
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
construction
project,
could
be
mitigated
by
converting
older
equipment
to
electric
or
alternate
fuels.
The
State
may
find
it
advantageous
to
allow
a
short
period
when
the
emissions
are
under
controlled
in
return
for
permanent
over
control
of
the
long
term
emissions.

Environmental
Impacts,
Pros,
and
Cons
of
the
Options
1.
Keep
mitigation
timing
requirements
the
same.
Require
contemporaneous
emission
reductions
Pros:
a.
Ensures
that
the
mitigation
measures
completely
offset
the
potential
emission
increases
each
year.
Cons:
a.
Limits
the
flexibility
for
States
and
Federal
agencies
to
demonstrate
conformity.

2.
Under
certain
conditions
allow
the
State
and
Federal
agency
to
negotiate
alternate
schedules
for
the
implementation
of
the
mitigation
measures.
For
non­
contemporaneous
16
emission
reductions
require
offset
ratios
consistent
with
the
NSR
offset
ratios
and
the
mitigation
payback
period
should
not
exceed
two
times
the
project
period.

Pros:
a.
Provides
flexibility
in
meeting
the
emission
control
requirements
to
make
a
conformity
determination
b.
Increase
potential
for
long­
term
environmental
benefits.

c.
The
alternate
mitigation
measures
may
be
more
cost
efficient.

Cons:
a.
Does
not
ensure
contemporaneous
offset
of
the
emission
increases
from
the
action/
project
by
the
Federal
agency.
The
State
may
need
to
obtain
additional
reductions
to
meet
the
SIP
obligations.

b.
It
is
difficult
to
track
and
enforce
mitigation
measures
that
extend
to
far
into
the
future.
This
concern
could
be
addressed
by
limiting
the
maximum
time
for
mitigation
measures.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
2.
Under
certain
conditions
allow
the
State
and
Federal
agency
to
negotiate
alternate
schedules
for
the
implementation
of
the
mitigation
measures.
For
non­
contemporaneous
emission
reductions
require
offset
ratios
consistent
with
the
NSR
offset
ratios
and
the
mitigation
payback
period
should
not
exceed
two
times
the
project
period.
17
Streamlining
and
Burden
Reduction
18
19
Issue
Paper
on
Regionally
Significant
Emissions
Issue
The
regionally
significant
provision
in
the
current
regulations
has
never
been
triggered.
However,
Federal
agencies
and
project
sponsors
expend
time
and
resources
to
determine
if
emissions
from
the
Federal
action
that
are
below
de
minimis
levels
are
still
regionally
significant.

Options
1.
Eliminate
the
provision.

2.
Redefine
"
regionally
significant
emissions"
so
that
it
applies
to
more
projects/
actions.
For
example,
the
definition
could
be
changed
to
1
or
5
percent
of
the
area's
emission
inventory.

3.
Limit
the
provision
to
a
specific
pollutant.
Since
the
ozone
nonattainment/
maintenance
areas
that
could
trigger
this
provision
are
rural
transport
areas
and
none
of
the
carbon
monoxide,
lead
or
nitrogen
dioxide
nonattainment/
maintenance
areas
have
emission
inventories
small
enough
to
activate
the
regionally
significant
provision,
the
provision
could
be
limited
to
PM
and
SO2
nonattainment/
maintenance
areas
only.

4.
Keep
the
present
provision
and
publish
a
list
of
areas
identifying
where
the
test
is
applicable.
EPA
could
publish
a
list
every
three
years
(
following
the
submission
of
the
triennial
emission
inventory
submission)
that
identifies
the
nonattainment/
maintenance
areas
with
total
emission
inventories
below
10
times
the
de
minimis
emission
levels.

Background
The
General
Conformity
rule
contains
three
references
to
regionally
significant
actions.
The
term
is
defined
in
section
93.152
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."
Paragraphs
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
20
significant
action
concept.
Some
respondents
felt
that
the
de
minimis
cut
offs
would
suffice.
While
many
respondents
supported
the
concept,
there
was
a
diversity
of
opinions
regarding
whether
ten
percent
was
the
most
appropriate
significance
level.
However,
EPA
reported
that
no
documentation
was
provided
to
support
a
different
level.
EPA
decided
to
retain
both
the
concept
and
10
percent
significance
level
in
the
final
rule.

Under
the
existing
regulations,
projects/
actions
with
emissions
below
the
de
minimis
levels
or
projects
that
are
"
presumed
to
conform"
can
be
considered
to
be
regionally
significant
if
the
emissions
from
the
project/
action
equals
or
exceeds
10
percent
of
the
nonattainment/
maintenance
areas'
emission
inventory
for
the
pollutant.
A
regionally
significant
project/
action
must
conduct
a
full
conformity
determination.
In
over
10
years
since
promulgation
of
the
existing
regulations,
no
project/
action
has
been
determined
to
be
regionally
significant.
The
main
reason
that
project/
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
levels.
Review
of
the
1996
emission
inventory
shows
that
only
six
(
one
O3
and
five
SO2)
nonattainment/
maintenance
areas
had
emission
inventories
less
than
ten
times
the
de
minimis
levels.
In
other
words,
except
for
those
six
areas,
a
project/
action
with
emissions
below
de
minimis
levels
would
never
be
considered
regionally
significant.
The
ozone
area
(
e.
g.,
Edmonson,
KY)
is
classified
as
a
rural
transport
area.
The
SO2
areas
had
major
point
sources
that
either
permanently
or
temporarily
shut
down.

The
purpose
of
the
regionally
significant
action
provision
was
to
ensure
that
exempt
actions
would
not
overwhelm
the
nonattainment
or
maintenance
area
by
significantly
increasing
the
emissions
in
the
area.
There
is
little
documentation
supporting
EPA's
selection
of
10
percent
of
the
area's
emission
inventory
as
the
threshold
for
a
regionally
significant
project/
action.

Federal
agencies
have
complained
that
in
many
cases
demonstrating
that
a
project
is
not
regionally
significant
is
difficult.
First,
the
total
emission
inventory
for
an
area
is
not
always
readily
available
and
they
have
to
track
it
down
for
a
lot
of
small
projects.
In
addition,
most
emission
inventories
are
published
two
to
three
years
after
the
specified
year,
so
the
Federal
agency
is
concerned
about
using
the
most
recent
inventory.

Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
Eliminate
the
provision.

Pros:
a.
Since
the
existing
provision
has
never
been
triggered,
eliminating
the
provision
streamlines
the
conformity
regulations
by
removing
a
provision
that
has
little
or
no
environmental
impact.

b.
Eliminating
the
provision
reduces
the
resource
burden
of
the
regulations.

Cons:
a.
There
could
be
the
perception
that
some
large
projects
could
be
approved
without
a
conformity
determination.
21
2.
Redefine
"
regionally
significant
emissions"
to
affect
more
projects/
actions.
For
example,
the
definition
could
be
changed
to
1
or
5
percent
of
the
area's
emission
inventory.

Pros:
a.
Could
make
the
regionally
significant
provision
more
meaningful
by
applying
it
to
smaller
sources.

Cons:
a.
A
change
to
5
percent
would
only
add
a
few
more
areas
in
which
de
minimis
emission
levels
would
exceed
the
regionally
significant
level
and
thus
would
have
little
impact
on
the
number
of
projects/
actions
required
to
conduct
a
full
determination.
A
change
to
1
percent
may
add
more
areas.

b.
There
is
little
justification
for
any
other
specific
percentage
number.

3.
Limit
the
provision
to
specific
pollutants.
Since
the
ozone
nonattainment/
maintenance
areas
that
could
trigger
this
provision
are
rural
transport
areas
and
none
of
the
carbon
monoxide,
lead
or
nitrogen
dioxide
nonattainment/
maintenance
areas
have
emission
inventories
small
enough
to
activate
the
regionally
significant
provision,
the
provision
could
be
limited
to
PM
and
SO2
nonattainment/
maintenance
areas
only.

Pros:
a.
It
would
eliminate
the
bulk
of
the
work
that
Federal
agencies
and
project
sponsors
currently
do
to
ensure
that
projects
are
not
regionally
significant.
At
the
same
time,
it
will
keep
the
regionally
significant
provision
for
PM
and
SO2.

Cons:
a.
There
are
no
PM
nonattainment
areas
with
emission
inventories
small
enough
to
activate
the
regionally
significant
provision.
The
SO2
nonattainment/
maintenance
areas
with
small
emission
inventories
are
most
likely
affected
by
transport
from
adjacent
areas.

b.
The
small
PM­
2.5
nonattainment
areas
are
likely
to
be
affected
by
transport.
Thus,
there
may
be
few
offsets
available
for
Federal
agencies
to
use
to
mitigate
the
emissions
from
their
actions.

4.
Keep
the
present
provision
and
publish
a
list
of
areas
where
applicable
identifying
upwind
areas
from
which
Federal
agencies
could
obtain
offsets.
EPA
could
publish
a
list
every
three
years
(
following
the
submission
of
the
triennial
emission
inventory
submission)
that
identifies
the
nonattainment/
maintenance
areas
with
total
emission
inventories
below
10
times
the
de
minimis
emission
levels.

Pros:
a.
Keeping
the
present
provision
will
ensure
that
all
exempt
projects
with
emissions
large
enough
to
impact
a
nonattainment/
maintenance
area
are
subject
to
a
conformity
determination.
Publishing
a
list
that
identifies
nonattainment/
maintenance
areas
with
total
emission
inventories
10
times
below
the
de
minimis
emission
levels
will
assist
Federal
agencies
in
targeting
projects
subject
to
the
regionally
significant
provisions.

b.
Identifying
the
source
areas
will
allow
Federal
agencies
to
find
offsets
for
the
emissions.
22
Cons:
a.
Regulations
remain
burdensome
as
Federal
agencies
are
subject
to
expend
resources
on
regulations
that
have
little
or
no
environmental
impact.

b.
Since
the
regionally
significant
provision
only
affects
small
nonattainment
and
maintenance
areas
subject
to
transport,
those
areas
would
have
few
(
if
any)
offsets
available
for
mitigating
Federal
actions.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
1.
Eliminate
the
provision.
23
Issue
Paper
On
The
Presume
to
Conform
Process
Issue
Federal
agencies
have
found
the
"
presume
to
conform"
process
in
the
existing
regulations
to
be
confusing
and
cumbersome.
The
have
asked
EPA
to
simplify
the
process.

Options
1.
Retain
the
existing
provisions
for
Federal
agencies
to
create
their
own
"
presumed
to
conform"
list.

2.
Add
additional
method
that
the
Federal
agencies
can
use
to
justifying
inclusion
of
an
action
on
their
"
presumed
to
conform"
list.
For
example,
allowing
the
Federal
agencies
to
demonstrate
that
the
emissions
from
that
type
of
action
are
included
in
the
SIP.

Background
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
list
of
actions
that
are
presumed
to
conform.
The
Federal
agency
must
justify
the
inclusion
of
the
action
on
the
list
by
either
demonstrating:
1)
that
the
actions
will
not
cause
or
contribute
to
an
air
quality
problem
or
otherwise
interfere
with
the
SIP,
or
2)
that
the
actions
will
have
emission
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
metropolitan
planning
organizations.
In
addition,
the
agencies
must
provide
at
least
a
30­
day
public
comment
period
and
document
it
response
to
all
comments.
The
notice
of
the
proposed
and
final
list
must
be
published
in
the
Federal
Register.

No
Federal
agency
has
published
it
won
list
of
"
presumed
to
conform"
actions.
Although
the
staff
from
several
agencies
have
talked
about
creating
such
a
list
only
the
Federal
Aviation
Administration
has
shared
a
draft
of
their
list
with
EPA.

Environmental
Impacts,
Pros,
and
Cons
of
the
Options
1.
Retain
the
existing
provisions
for
Federal
agencies
to
create
their
own
"
presumed
to
conform"
list.

Pros:
a.
Limits
the
actions
that
can
be
place
on
a
"
presumed
to
conform"
list
to
actions
with
emissions
that
are
below
the
de
minimis
levels
or
that
are
shown
not
to
cause
an
air
quality
problem.

Cons:
a.
Does
not
address
the
other
Federal
agencies
concerns.
24
2.
Add
additional
method
that
the
Federal
agencies
can
use
to
justifying
inclusion
of
an
action
on
their
"
presumed
to
conform"
list.
For
example,
allowing
Federal
agencies
to
demonstrate
that
the
emissions
from
that
type
of
action
are
included
in
the
SIP.

Pros:
a.
Provides
more
flexibility
to
the
agencies
in
justifying
the
inclusion
of
a
type
of
action
on
their
"
presumed
to
conform"
list.

b.
Activities
which
clearly
meet
the
State
emission
requirements
can
avoid
the
conformity
process.

Cons:
a.
Agencies
could
use
the
additional
categories
to
avoid
conformity.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
2.
Add
additional
method
that
the
Federal
agencies
can
use
to
justifying
inclusion
of
an
action
on
their
"
presumed
to
conform"
list.
For
example,
allowing
Federal
agencies
to
demonstrate
that
the
emissions
from
that
type
of
action
are
included
in
the
SIP.
25
Issue
Paper
on
Minor
Source
NSR
Permits
Issue
The
rule
in
section
93.153(
d)
exempts
emissions
from
major
new
or
modified
stationary
sources
permitted
under
NSR
or
the
Prevention
of
Significant
Deterioration
(
PSD)
programs.
However,
the
rule
does
not
exempt
emissions
permitted
under
a
minor
source
NSR
program.

Options
1.
Revise
the
regulations
to
exempt
all
emissions
permitted
under
NSR
programs
including
minor
source
NSR.

2.
Retain
the
current
language,
which
requires
the
inclusion
of
emissions
permitted
under
a
minor
source
NSR
program.

Background
The
purpose
of
the
Conformity
program
is
to
ensure
that
Federal
actions
do
not
interfere
with
the
SIP
or
the
State's
ability
to
attain
and
maintain
the
NAAQS.
In
promulgating
the
existing
General
Conformity
Regulations,
EPA
recognized
that
emissions
from
a
source
which
underwent
a
major
source
new
source
review
(
NSR)
or
PSD
permitting
process
were
already
reviewed
to
ensure
that
the
emissions
did
not
interfere
with
the
SIP.
Therefore,
the
regulations
exempt
the
emissions
from
sources
permitted
under
major
source
NSR
or
PSD
programs.
Since
the
time
the
existing
General
Conformity
Regulations
were
promulgated
in
1993,
some
States
and
local
agencies
have
adopted
minor
source
NSR
programs.
Since
these
minor
source
NSR
programs
provide
a
review
of
the
emissions
to
ensure
that
they
will
not
interfere
with
the
SIP,
Federal
agencies
asked
that
EPA
revise
the
regulation
to
exempt
minor
source
NSR
programs
as
well.

Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
Revise
the
regulations
to
exempt
all
emissions
permitted
under
NSR
programs
including
minor
source
NSR.

Pros:
a.
All
permitted
emissions
would
be
treated
the
same
way.

b.
Reduces
the
duplicate
review
of
emissions
under
both
minor
source
NSR
and
conformity
programs.

c.
Since
the
de
minimis
emission
levels
under
the
General
Conformity
Regulations
are
the
same
as
the
trigger
for
major
source
NSR
programs,
the
change
would
affect
only
a
limited
number
of
sources.
26
Cons:
a.
Emissions
permitted
under
the
minor
source
NSR
program
would
not
be
added
to
the
other
emissions
to
determine
if
the
de
minimis
levels
are
exceeded.

2.
Retain
the
current
language,
which
requires
the
inclusion
of
emissions
permitted
under
a
minor
source
NSR
program.

Pros:
a.
Ensures
a
review
of
all
minor
source
emissions.

Cons:
a.
Permitted
minor
source
emissions
are
reviewed
under
two
programs.

b.
The
additional
review
will
provide
little
environmental
benefit.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
1.
Revise
the
regulations
to
exempt
all
emissions
permitted
under
NSR
programs
including
minor
source
NSR.
27
Transition
Tools
for
the
New
Standards
28
29
Issue
Paper
on
Grandfathering
Provision
in
the
Existing
Regulation
Issue
The
General
Conformity
rule
contains
a
provision
that
grandfathers
projects/
actions
with
conformity
determinations
that
were
submitted
prior
to
March
15,
1994,
or
with
a
NEPA
analysis
that
was
completed
prior
to
January
31,
1994.
Another
provision
in
the
Rule
limits
the
life
of
a
determination
to
five
years
unless
the
agency
has
started
a
continual
program
to
implement
the
action.
Since
the
grandfathered
actions
will
be
ten
years
old
by
the
time
the
regulations
are
revised,
actions,
which
have
not
been
implemented,
are
beyond
the
five­
year
time
limit.
Thus,
it
would
be
inconsistent
to
allow
grandfathered
actions
under
the
initial
Rule
to
commence
without
a
conformity
determination.

Options
1.
Remove
the
grandfathering
provision
in
§
93.150(
c).

2.
Revise
§
93.150(
c)
to
grandfather
actions
if
the
ROD
for
the
EIS
or
the
FONSI
for
the
EA
is
dated
before
effective
date
of
regulatory
revisions
or
application
of
conformity
requirements
but
require
the
action
to
be
started
within
5
years
of
the
ROD
or
FONSI
to
retain
the
grandfathered
status.

3.
Retain
the
current
language
and
continue
to
exempt
projects/
actions
that
meet
the
requirements
of
Section
93.150
(
c)
even
if
they
have
not
begun
yet
or
have
not
been
completed.

4.
During
SIP
development
process
Federal
agencies
will
be
obligated
to
notify
the
State
of
"
grandfathered"
projects
and
States
will
account
for
the
"
grandfathered"
actions
in
the
SIP.

Background
For
Federal
actions
that
had
already
commenced
or
where
planning
activities
were
completed,
or
where
the
Federal
agency
conducted
a
general
conformity
analysis
before
the
regulations
were
promulgated,
EPA
provided
options
in
the
1993
General
Conformity
rule
for
"
grandfathering"
these
actions.
Section
93.150
(
c)
of
the
Rule
grandfathers
all
projects/
actions
where
a
NEPA
analysis
was
completed
prior
to
January
31,
1994,
or
where
a
conformity
analysis
was
completed
by
March
15,
1994.
Thus,
these
projects
are
not
subject
to
the
General
Conformity
rule
and
Federal
agencies
are
not
required
to
submit
a
conformity
determination.
However,
if
a
project
is
not
started
within
5
years
of
the
completion
of
the
NEPA
analysis,
a
supplemental
analysis
is
required.
Such
a
supplemental
analysis
would
mean
that
the
project
would
proceed
under
a
NEPA
analysis
that
was
finished
after
the
1994
deadlines.
30
Section
93.157
states
that
the
conformity
status
of
a
Federal
action
automatically
lapses
5
years
from
the
date
a
final
determination
is
reported
under
Section
93.155,
unless
the
action
has
been
completed
or
a
continuous
program
has
commenced
to
implement
the
action
within
a
reasonable
time.
Projects
which
were
grandfathered
under
the
1993
regulations
and
for
which
a
continuous
program
to
implement
has
not
commenced
no
longer
fall
within
the
5­
year
time
frame.

Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
Remove
both
Section
93.150(
c)
and
the
grandfathering
provision.

Pros:
a.
Ensures
that
all
projects/
actions
meet
the
five­
year
deadline,
which
ensures
that
emissions
will
not
impact
ambient
air
quality.

Cons:
a.
Federal
agencies
may
have
to
perform
or
update
a
conformity
analysis
for
projects/
actions
that
were
previously
exempt.

2.
Revise
§
93.150(
c)
to
grandfather
actions
if
the
ROD
for
the
EIS
or
the
FONSI
for
the
EA
is
dated
before
effective
date
of
regulatory
revisions
or
application
of
conformity
requirements
but
require
the
action
to
be
started
within
5
years
of
the
ROD
or
FONSI
to
retain
the
grandfathered
status.

Pros:
a.
Specifies
what
actions/
projects
qualify
for
the
grandfathering
and
for
how
long.

b.
Process
for
grandfathering
would
be
in
place
when
regulations
are
revised
or
new
areas
are
designated
as
nonattainment.

Cons:
a.
Would
eliminate
grandfather
protections
for
some
actions.

3.
Retain
the
current
language
and
continue
to
exempt
projects/
actions
that
meet
the
requirements
of
Section
93.150(
c)
even
if
they
have
not
started
or
have
not
been
completed.

Pros:
a.
Continues
to
exempt
projects/
actions
that
were
planned
at
the
time
of
the
initial
promulgation
of
the
Rule,
but
have
been
delayed
for
some
reason.

Cons:
a.
The
environment
surrounding
the
proposed
projects/
actions
may
have
changed
over
time.
Continuing
to
exempt
these
actions
would
not
be
logical
as
the
analyses
completed
prior
to
the
1994
deadlines
may
not
be
up
to
date
or
accurate.
Exempting
these
sources
may
have
a
negative
impact
on
ambient
air
quality
as
emissions
in
the
area
may
have
increased
in
the
interim.

4.
During
SIP
development
process
Federal
agencies
will
be
obligated
to
notify
the
State
of
"
grandfathered"
projects
and
States
will
account
for
the
"
grandfathered"
actions
in
the
SIP.
31
Pros:
a.
States
can
assure
that
the
"
grandfathered"
emissions
are
accounted
for
in
the
SIP.

b.
Federal
agencies
will
have
assurance
that
the
conformity
determinations
is
valid
for
5
years.

c.
States
will
only
have
to
look
back
for
5
years
to
determine
which
projects
are
grandfathered.

Cons:
a.
Federal
agencies
will
need
to
keep
abreast
of
the
SIP
development
process.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
2
&
4.
Revise
§
93.150(
c)
to
grandfather
actions
if
the
ROD
for
the
EIS
or
the
FONSI
for
the
EA
is
dated
before
effective
date
of
regulatory
revisions
or
application
of
conformity
requirements
but
require
the
action
to
be
started
within
5
years
of
the
ROD
or
FONSI
to
retain
the
grandfathered
status.
During
SIP
development
process
Federal
agencies
will
be
obligated
to
notify
the
State
of
"
grandfathered"
projects
and
States
will
account
for
the
"
grandfathered"
actions
in
the
SIP.
32
33
Issue
Paper
on
Application
of
the
Grace
Period
for
New
Designations
Issue
Section
176(
c)(
6)
of
the
Clean
Air
Act
(
CAA)
creates
a
grace
period
for
the
application
of
the
conformity
regulations.
The
act
states
that
conformity
"
shall
not
apply
with
respect
to
an
area
designated
nonattainment
under
section
107(
d)(
1)
until
1
year
after
that
area
is
first
designated
nonattainment
for
a
specific
national
ambient
air
quality
standard."
There
remains
a
need
for
clarification
on
how
and
when
the
conformity
requirements
apply
to
Federal
actions
in
newly
designated
nonattainment
areas.

Scenarios
A.
Existing
actions
­­
Federal
actions
with
a
completed
conformity
determinations
and/
or
final
NEPA
analyses,
as
evidenced
by
the
final
determination,
a
FONSI
for
an
environmental
assessment
(
EA),
or
a
ROD
for
an
environmental
impact
statement
(
EIS)
and
the
action
was
started
before
the
end
of
the
grace
period
would
be
grandfathered
and
a
conformity
determination
for
the
new
designated
area
would
not
be
required.

B.
Existing
determinations
­­
Federal
actions
with
current
(
i.
e.,
less
than
5
years
old),
completed
conformity
determinations
and/
or
final
NEPA
analyses,
as
evidenced
by
the
final
determination,
a
FONSI
for
an
environmental
assessment
(
EA),
or
a
ROD
for
an
environmental
impact
statement
(
EIS)
that
was
prepared
before
the
time
the
area
is
designated
nonattainment
but
the
action
starts
after
the
end
of
the
grace
period,
would
be
grandfathered
and
a
conformity
determination
for
the
new
designated
area
would
not
be
required.

C.
Future
determinations
­­
Federal
actions
with
conformity
determinations
and/
or
NEPA
analyses
that
will
be
completed
after
the
end
of
the
1­
year
grace
period
will
be
required
to
conduct
a
conformity
evaluation
for
the
newly
designated
area.

D.
Determinations
during
the
grace
period
­­
There
are
several
options
for
Federal
actions
with
conformity
determinations
or
the
NEPA
analysis
completed
during
the
1­
year
grace
period.

Options
for
Scenario
D
1.
Require
conformity
determinations
for
all
emissions
above
the
de
minimis
levels
that
occur
after
the
end
of
the
grace
period.

2.
Grandfather
(
subject
to
the
5­
year
limitation)
all
actions
where
the
conformity
determination,
ROD
for
an
EIS
or
FONSI
for
an
EA
are
completed
before
the
end
of
the
grace
period.
34
3.
Grandfather
actions
if
their
peak
emissions
occur
before
the
end
of
the
grace
period.

4.
Grandfather
actions
if
they
will
be
substantially
complete
before
the
end
of
the
grace
period.

5.
Allow
the
Federal
agencies
to
choose
which
conformity
requirements
they
will
meet
if
the
emissions
will
not
occur
until
after
the
end
of
the
grace
period.

Background
In
November
2000
(
P.
L.
106­
377),
Congress
added
the
grace
period
to
§
176(
c)
to
allow
for
a
transition
to
the
conformity
requirements
for
newly
designated
nonattainment
areas.
The
issue
was
raised
by
the
metropolitan
planning
organizations
(
MPOs)
who
asked
for
a
period
of
time
to
remodel
their
transportation
plans
before
conformity
requirements
applied.
Since
the
MPOs
re­
analyze
conformity
for
the
transportation
plans
every
3
years,
the
old
conformity
requirements
would
apply
to
the
end
of
the
grace
period
and
the
new
requirements
would
apply
thereafter.
However,
Congress
applied
the
provision
to
all
of
§
176(
c)
including
general
conformity.
Congress
provided
little
guidance
on
how
the
new
provision
should
be
implemented.

The
existing
regulations
have
a
grandfather
provision
that
exempts
actions
with
completed
conformity
determinations
or
NEPA
analyses.
Since
§
176(
c)
of
the
CAA
says
that
conformity
shall
not
apply
until
one
year
after
the
designations,
Federal
agencies
are
not
obligated
to
demonstrate
conformity
for
actions
that
take
place
before
that
date.
Likewise,
if
the
action
will
not
cause
emissions
above
the
de
minimis
levels
after
the
end
of
the
grace
period,
the
new
conformity
requirements
should
not
apply.
If
the
conformity
determination
or
the
NEPA
analysis
is
not
completed
before
the
end
of
the
grace
period,
the
new
requirements
would
apply.
However,
for
Federal
actions
with
conformity
determinations
or
NEPA
analyses
completed
during
the
grace
period
that
will
result
in
emissions
above
the
de
minimis
levels
after
the
end
of
that
grace
period,
there
is
no
clear
direction
on
which
conformity
requirements
apply.

Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
Require
conformity
determinations
for
all
emissions
above
the
de
minimis
levels
that
occur
after
the
end
of
the
grace
period.

Pros:
a.
This
option
will
provide
the
most
environmental
protection
by
requiring
a
conformity
evaluation
of
the
emissions
that
occur
after
the
end
of
the
grace
period.

b.
The
approach
is
simple
and
Federal
agencies
will
know
when
the
conformity
requirements
apply.

Cons:
a.
Requires
Federal
agencies
to
conduct
conformity
determination
for
actions
in
the
newly
designated
nonattainment
areas
before
the
end
of
the
grace
period.
35
b.
Neither
the
SIP
nor
the
emission
budget
will
be
available
to
use
to
demonstrate
conformity.
2.
Grandfather
(
subject
to
the
5­
year
limitation)
all
actions
where
the
conformity
determination,
ROD
for
an
EIS
or
FONSI
for
an
EA
are
completed
before
the
end
of
the
grace
period.

Pros:
a.
The
approach
is
simple
and
Federal
agencies
will
know
when
the
conformity
requirements
apply.

b.
A
project
with
a
conformity
determination
and
NEPA
analysis
near
completion
when
the
area
is
designated
nonattainment
will
not
have
to
start
a
new
analysis.

Cons:
a.
Projects
that
cause
significant
emissions
after
the
end
of
the
grace
period
will
not
have
a
conformity
determination.

b.
Federal
agencies
may
rush
the
completion
of
the
NEPA
analyses
to
avoid
conformity
determinations.

3.
Grandfather
actions
if
their
peak
emissions
occur
before
the
end
of
the
grace
period.

Pros:
a.
Conformity
requirements
will
be
based
on
when
the
peak
emissions
caused
by
the
project
will
occur.

b.
Long­
term
projects
will
generally
have
conformity
based
on
the
requirements
of
the
new
designation.

Cons:
a.
Federal
agencies
may
have
to
conduct
two
different
analyses
to
determine
which
requirements
apply.

b.
The
peak
emissions
may
occur
before
the
end
of
the
grace
period,
but
the
project
may
cause
significant
long­
term
emissions.

4.
Grandfather
actions
if
they
will
be
substantially
complete
before
the
end
of
the
grace
period.

Pros:
a.
Allows
flexibility
for
projects,
which
will
be
near
completion
at
the
time
the
grace
period
ends.

b.
Long­
term
projects
or
actions
would
have
to
undergo
conformity
determinations
based
on
the
requirements
for
the
newly
designated
areas.

Cons:
a.
Federal
agencies
may
have
to
conduct
two
different
analyses
to
determine
which
requirements
apply.

b.
EPA
would
have
to
define
the
term
"
substantially
complete."
36
5.
Allow
the
Federal
agencies
to
choose
which
conformity
requirements
they
will
meet
if
the
emissions
will
not
occur
until
after
the
end
of
the
grace
period.

Pros:
a.
Allows
Federal
agencies
flexibility
in
determining
which
conformity
requirements
apply
to
an
action.

Cons:
a.
Federal
agencies
may
be
inconsistent
in
the
application
of
the
conformity
regulations.
Many
agencies
will
likely
take
the
easiest
way
out,
instead
of
the
most
environmentally
protective
way.

b.
Without
specific
guidance
some
Federal
agencies
may
opt
not
to
follow
the
conformity
requirements
and
could
potentially
contribute
to
NAAQS
violations.

Staff
Recommendation
The
EPA
Work
Group
recommends
Options
2
&
5.
Grandfather
(
subject
to
the
5­
year
limitation)
all
actions
where
the
conformity
determination,
ROD
for
an
EIS
or
FONSI
for
an
EA
are
completed
before
the
end
of
the
grace
period
and
allow
the
Federal
agencies
to
choose
which
conformity
requirements
they
will
meet
if
the
emissions
will
not
occur
until
after
the
end
of
the
grace
period.
37
Issue
Paper
on
Harmonizing
Horizon
Years
Issue
Federal
agencies
have
difficulty
evaluating
conformity
for
projects/
actions
that
extend
beyond
the
time
period
covered
by
the
SIP.
Without
a
defined
SIP,
Federal
agencies
do
not
know
how
many
emissions
are
allowed
for
their
activities.

Options
1.
For
actions/
projects
that
extend
beyond
the
time
period
in
the
SIP,
allow
Federal
agencies
to
demonstrate
conformity
by
meeting
the
last
emission
budget
in
the
SIP.

2.
In
addition
to
option
1,
allow
the
State
and
Federal
agency
to
adopt
an
emission
budget
that
applies
to
the
emissions
period
of
the
action/
project.
The
State
would
include
the
emissions
in
the
SIP
applicable
at
the
time
of
submission.

3.
In
addition
to
option
1,
allow
the
State
and
Federal
agency
to
adopt
an
emission
budget
that
applies
to
the
emissions
period
of
the
action/
project.
However,
the
State
would
not
be
obligated
to
incorporate
the
budget
into
the
new
SIP
for
the
area.
If
the
State
did
not
incorporate
the
budget
into
the
SIP,
the
Federal
agency
would
"
re­
demonstrate"
when
the
State
adopts
the
SIP
budget.

4.
Do
not
revise
the
rules
to
address
this
issue.

Background
Emissions
from
some
projects/
actions
can
increased
over
time
due
to
growth
or
other
factors.
As
a
result
the
maximum
emissions
from
the
project/
action
could
occur
10
or
even
20
years
in
the
future.
Section
93.159(
d)(
2)
of
the
General
Conformity
Regulations
requires
Federal
agencies
to
evaluate
emissions
for
the
year
during
which
the
total
direct
and
indirect
emissions
are
expected
to
be
the
greatest.
In
many
cases,
that
year
will
occur
beyond
the
time
period
covered
by
the
SIP.
Without
a
projected
SIP
inventory
or
budget
for
that
year,
the
Federal
agency
cannot
demonstrate
that
the
action
will
not
interfere
with
the
SIP.

The
SIP
demonstrating
attainment
for
nonattainment
areas
generally
cover
the
period
up
to
the
attainment
date.
The
inventories
in
those
SIPs
generally
do
not
estimate
the
emissions
beyond
that
date.
After
an
area
has
attained
the
NAAQS,
the
State
adopts
a
maintenance
plan
covering
a
10
year
period.
In
both
of
these
cases,
it
is
likely
that
Federal
agencies
could
have
projects/
actions
with
indirect
emissions
extending
beyond
the
time
period
covered
by
the
SIP.
38
Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
For
actions/
projects
that
extend
beyond
the
time
period
in
the
SIP,
allow
Federal
agencies
to
demonstrate
conformity
by
meeting
the
last
emission
budget
in
the
SIP.

Pros:
a.
The
Federal
agency
will
have
a
specific
budget
to
use
in
demonstrating
conformity.

b.
By
meeting
the
last
emission
budget
in
the
SIP,
the
Federal
agency
should
not
interfere
with
the
SIP
process.

Cons:
a.
If
the
action/
project
emissions
grow
over
time,
it
may
be
difficult
or
impossible
for
the
Federal
agency
to
demonstrate
conformity.

b.
The
State
may
want
to
change
the
emission
budget
for
future
SIPs
c.
This
could
be
perceived
as
an
indirect
cap
on
airport
emissions.

2.
In
addition
to
option
1,
allow
the
State
and
Federal
agency
to
adopt
an
emission
budget
that
applies
to
the
emissions
period
of
the
action/
project.
The
State
would
include
the
emissions
in
the
applicable
SIP
at
the
time
of
submission.

Pros:
a.
For
facilities
that
are
expected
to
grow
over
time,
the
State
and
Federal
agency
can
factor
in
the
growth
rates
when
developing
the
budget
for
the
area.

b.
The
State
and
Federal
agencies
can
select
an
appropriate
time
frame
for
the
emission
budget
and
the
Federal
agency
can
demonstrate
conformity
for
that
time
period.

c.
The
approach
would
allow
Federal
agencies
or
project
sponsors
to
work
with
the
States
in
developing
line­
item
budgets
in
the
SIP.

Cons:
a.
It
is
not
feasible
to
develop
budgets
for
all
Federal
actions/
projects.

b.
State
may
not
know
what
the
allowable
emissions
should
be
until
the
SIP
is
developed.

3.
In
addition
to
option
1,
allow
the
State
and
Federal
agency
to
adopt
an
emission
budget
that
applies
to
the
emissions
period
of
the
action/
project.
However,
the
State
would
not
be
obligated
to
incorporate
the
budget
into
the
new
SIP
for
the
area.
If
the
State
did
not
incorporate
the
budget
into
the
SIP,
the
Federal
agency
would
"
redemonstrate
when
the
State
adopts
an
SIP
budget.

Pros:
a.
Does
not
force
the
State
to
commit
to
a
budget
before
it
develops
its
SIP.

b.
For
facilities
that
are
expected
to
grow
over
time,
the
State
and
Federal
agency
can
factor
in
the
growth
rates
when
developing
the
budget
for
the
area.
39
c.
The
State
and
Federal
agencies
can
select
an
appropriate
time
frame
for
the
emission
budget
and
the
Federal
agency
can
demonstrate
conformity
for
that
time
period
d.
The
approach
would
Federal
agencies
or
project
sponsors
to
work
with
the
States
in
developing
line­
item
budgets
in
the
SIP.

Cons:
a.
Creates
uncertainty
for
the
Federal
agencies
in
approving
or
funding
a
project.

b.
Federal
agencies
may
be
obligated
to
"
re­
demonstrate"
conformity
after
the
action
is
taken.
(
General
Conformity
is
normally
considered
a
one­
time
occurrence.)

c.
Federal
agencies
may
not
be
able
to
demonstrate
conformity
after
the
action
is
taken.

4.
Do
not
revise
the
rules
to
address
this
issue.

Pros:
a.
Reduces
the
number
of
regulatory
revisions.

Cons:
a.
Does
not
address
the
issue.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
1
&
2.
For
actions/
projects
that
extend
beyond
the
time
period
in
the
SIP,
allow
Federal
agencies
to
demonstrate
conformity
by
meeting
the
last
emission
budget
in
the
SIP.
In
addition,
allow
the
State
and
Federal
agency
to
adopt
an
emission
budget
that
applies
to
the
emissions
period
of
the
action/
project.
The
State
would
include
the
emissions
in
the
applicable
SIP
at
the
time
of
submission.
40
41
Issue
Paper
on
SIP
Submittal
Timing
Issue
In
demonstrating
conformity,
the
Federal
Agencies
can
have
the
State
commit
to
include
the
emissions
in
the
SIP.
If
the
State
makes
such
a
commitment,
the
General
Conformity
Regulations
require
the
State
to
submit
a
SIP
revision
to
EPA
within
18
months.
This
could
be
problematic
in
cases
where
the
State
is
not
required
until
after
the
18
month
period
has
expired.

Options
1.
If
a
SIP
is
in
place
or
require
to
be
submitted
before
18
months,
allow
the
State
18
months
to
submit
the
required
revision.
However,
if
the
emissions
from
the
proposed
action/
project
will
not
occur
until
after
a
scheduled
SIP
submission,
allow
the
State
to
include
the
emissions
in
the
scheduled
submission.

2.
Retain
the
current
18
months
for
all
State
commitments.

Background
The
current
regulations
allow
the
States
to
agree
to
include
the
emissions
in
their
SIP.
The
existing
regulations
require
States
to
submit
an
SIP
revision
within
18
months
if
they
agree
to
include
the
emissions
in
the
SIP.
Such
a
requirement
can
be
problematic
if
the
State
is
not
required
to
submit
a
new
SIP
for
the
years
covered
by
the
conformity
determination
until
well
after
the
18­
month
period
has
elapsed.

In
the
transition
to
the
new
8­
hour
ozone
NAAQS,
several
agencies
questioned
why
the
State
had
to
submit
a
SIP
with
in
18
months
for
the
conformity
determination
with
in
18
months
when
the
SIP
for
implementing
the
8­
hour
ozone
SIP
was
not
require
until
later.
For
example,
the
conformity
determination
for
the
O'Hare
International
Airport
is
scheduled
to
be
submitted
in
September
2005
and
the
State
plans
on
committing
to
including
the
emissions
in
their
SIP.
Thus,
the
State
would
have
to
submit
a
SIP
revision
in
March
2007
that
incorporates
the
emissions.
The
attainment
SIP
for
the
nonattainment
area
is
due
in
June
2007.
In
other
words
the
State
would
be
required
to
submit
a
revision
to
the
SIP
before
it
is
required
to
submit
the
SIP.

In
some
cases,
significant
emissions
from
an
action
may
not
occur
for
several
years
e.
g.,
8
to
10
years.
The
SIP
for
the
area
may
not
cover
that
period
of
time
or
the
State
may
make
significant
changes
in
the
SIP
before
ten.
For
example,
the
State
could
attain
the
NAAQS
and
be
designated
as
a
maintenance
area
before
the
emissions
would
occur.
42
Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
If
a
SIP
is
in
place
or
require
to
be
submitted
before
18
months,
allow
the
State
18
months
to
submit
the
required
revision.
However,
if
the
emissions
from
the
proposed
action/
project
will
not
occur
until
after
a
scheduled
SIP
submission,
allow
the
State
to
include
the
emissions
in
the
scheduled
submission.

Pros:
a.
The
State
would
not
have
to
submit
a
revision
before
the
SIP
is
required.

b.
Allows
the
State
to
address
future
emissions
in
future
SIP
covering
the
time
period
when
the
emissions
will
occur.

c.
The
action/
project
emissions
would
not
interfere
with
the
SIP
or
the
State's
ability
to
attain
the
NAAQS,
since
the
State
can
include
the
emissions
in
its
SIP.

d.
States
would
still
have
to
comply
with
the
18
month
SIP
call
if
there
was
a
SIP
in
place
and
the
increase
in
emissions
would
occur
before
a
scheduled
SIP
revision..

e.
Removes
confusion
about
the
SIP
submission
requirement.

Cons:
a.
In
some
cases,
it
allows
the
State
more
time
to
submit
it
SIP
revision.
.
b.
States
could
delay
their
SIP
submissions
for
a
significant
period
of
time.

c.
EPA
or
some
one
would
have
to
track
the
commitment
to
ensure
that
the
new
SIP
includes
the
emissions.

2.
Retain
the
current
18
months
for
all
State
commitments.

Pros:
a.
Makes
the
State
submit
the
SIP
revision
in
a
timely
manner.

Cons:
a.
Does
not
correct
the
problem.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
1.
If
a
SIP
is
in
place
or
require
to
be
submitted
before
18
months,
allow
the
State
18
months
to
submit
the
required
revision.
However,
if
the
emissions
from
the
proposed
action/
project
will
not
occur
until
after
a
scheduled
SIP
submission,
allow
the
State
to
include
the
emissions
in
the
scheduled
submission.
43
Revisions
Requested
by
Other
Federal
Agencies
44
45
Issue
Paper
on
Wildland
Fire
Policy
Issue
In
May
1998,
EPA
published
its
interim
policy
related
to
prescribed
burning
on
Federal
lands.
The
interim
policy
suggested
that
the
General
Conformity
Rule
include
an
alternative
method
for
demonstrating
conformity.
If
a
Federal
source
complies
with
the
requirements
in
the
interim
policy,
has
developed
a
certified
smoke
management
plan
(
SMP)
through
regional
coordination,
and
includes
realtime
air
quality
monitoring,
it
would
not
be
required
to
prepare
a
conformity
determination.
However,
the
certified
smoke
management
plan
must
document
that
the
plan
is
intended
to
satisfy
the
General
Conformity
determination
requirements.

Options
1.
Incorporate
the
alternative
method
(
interim
policy
compliance,
certified
SMP,
and
monitoring)
for
wildland
fires
into
the
General
Conformity
rule.

2.
Do
not
incorporate
the
alternative
method.

Background
The
memo
announcing
the
Interim
Air
Quality
Policy
on
Wildland
and
Prescribed
Fires
states:
"
EPA
urges
State
and
tribal
air
quality
managers
to
collaborate
with
wildland
owners
and
managers
to
mitigate
the
air
quality
impacts
that
could
be
caused
by
the
increase
of
fires
managed
to
achieve
resource
benefits."
EPA
especially
urges
them
to
develop
and
implement
at
least
basic
smoke
management
programs
(
SMP's)
when
conditions
indicate
that
such
fires
will
adversely
impact
the
public.
SMP's
establish
procedures
and
requirements
for
minimizing
emissions
and
managing
smoke
dispersion.
The
goals
of
SMP's
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.

"
In
exchange
for
States
and
tribes
pro­
actively
implementing
SMP's,
EPA
intends
to
exercise
its
discretion
not
to
redesignate
an
area
as
nonattainment
if
the
evidence
is
convincing
that
fires
managed
for
resource
benefits
caused
or
significantly
contributed
to
violations
of
the
daily
or
annual
PM2.5
or
PM10
standards.
Rather,
the
EPA
will
call
on
the
State
or
tribe
to
review
the
adequacy
of
the
SMP
in
collaboration
with
wildland
owners/
managers
and
make
appropriate
improvements
to
mitigate
future
air
quality
impacts.

"
The
policy
also
addresses
the
treatment
of
fire
emissions
to
meet
other
Clean
Air
Act
requirements,
such
as
prevention
of
significant
deterioration
and
conformity
of
Federal
46
activities
with
State
implementation
plans "
Section
IX.
A
of
the
interim
policy
addresses
General
Conformity
and
the
associated
Federal
actions
taken
within
a
nonattainment
or
maintenance
area.

The
General
Conformity
rules
require
a
Federal
agency
to
demonstrate
that
its
action
conforms
to
all
applicable
SIP
requirements
and
will
not
cause
or
contribute
to
NAAQS
violations.
The
demonstration
must
occur
before
a
project
is
initiated.
According
to
the
interim
policy,
the
demonstration
may
be
made
on
an
annual
basis
for
all
burns
within
the
air
shed
or
maintenance
area,
or
it
can
be
made
for
each
individual
fire
project
conducted
at
the
administrative
unit
(
Forest,
Park,
Refuge,
etc.).

The
interim
policy
proposed
that
the
General
Conformity
rules
allow
an
alternative
method
through
its
rulemaking.
The
interim
policy
states,
"
At
a
minimum,
EPA
believes
that
the
alternate
method
should
require
a
Federal
agency
to
document
that
its
fire
projects
are
managed
within
a
certified
SMP.
The
SMP
also
must
require
regional
coordination
(
cooperation
of
all
jurisdictions
in
an
airshed)
of
burn
plan
authorization
and
real­
time
air
quality
monitoring
at
sensitive
receptors,
when
warranted,
in
addition
to
the
basic
program
components
discussed
in
section
VI."
Section
VI
of
the
interim
policy
discusses
authorization
to
burn,
minimizing
air
pollutant
emissions,
smoke
management
components
of
burn
plans,
public
education
and
awareness,
surveillance
and
enforcement,
program
evaluation,
and
optional
air
quality
protection.

Environmental
Impact,
Pros,
and
Cons
of
the
Options
Error!
Reference
source
not
found.

1.
Incorporate
the
alternative
method
(
interim
policy
compliance,
certified
SMP,
and
monitoring)
for
wildland
fires
into
the
General
Conformity
rule.

Pros:
a.
Encourages
regional
coordination
as
an
alternative
to
a
conformity
determination.

b.
Will
help
to
establish
better
understanding
of
the
smoke
patterns
based
on
real­
time
air
quality
monitoring
c.
Allows
Federal
land
managers
to
establish
long­
term
plans
based
on
current
data.

Cons:
a.
Requires
the
additional
burden
of
real­
time
air
quality
monitoring
if
the
method
is
chosen.

b.
A
SMP
may
not
sufficiently
cover
the
atmospheric
interactions
leading
to
ozone
and
PM
formation,
so
additional
modeling
may
be
required
at
the
regional
level.

2.
Do
not
incorporate
the
alternative
method.

Pros:
a.
Requires
that
prescribed
burns
comply
with
the
current
SIP
and
nonattainment
area
designations.

b.
Does
not
require
regional
coordination
for
of
a
burn
plan
authorization.
47
Cons:
a.
Continues
the
burden
of
conformity
determinations
for
each
annual
burn
cycle.

b.
Does
not
encourage
regional
coordination
as
an
alternative
to
a
conformity
determination.

Staff
Recommendations
The
EPA
Work
Group
recommends
Option
1.
Incorporate
the
alternative
method
(
interim
policy
compliance,
certified
SMP,
and
monitoring)
for
wildland
fires
into
the
General
Conformity
rule.
48
49
Issue
Paper
on
Geographic
Limits
for
Offsets
Issue
The
General
Conformity
Regulations
allow
increased
emissions
from
a
Federal
action
to
be
offset
only
within
the
same
nonattainment
or
maintenance
area.
However,
other
offset
programs,
e.
g.,
the
NSR
program,
allow
the
use
of
offsets
from
adjacent
nonattainment
or
maintenance
areas
of
equal
or
higher
classification.
During
the
interagency
review
of
the
emission
trading
policy,
EPA
agreed
to
revise
the
General
Conformity
Regulations
to
be
consistent
with
the
NSR
rules.

Options
1.
Allow
the
use
of
offsets
within
the
same
nonattainment
or
maintenance
area,
as
well
as
within
adjacent
nonattainment
or
maintenance
areas
of
equal
or
higher
classification.

2.
In
addition
to
option
1,
for
actions/
projects
in
rural,
isolated
nonattainment
or
maintenance
areas,
allow
the
Federal
agency
to
obtain
the
offset
from
upwind
source
areas.

3.
In
addition
to
option
1,
allow
the
Federal
agencies
to
obtain
offsets
200
km
upwind
of
a
facility
for
NOx
and
100
km
upwind
of
a
facility
for
VOCs.

Background
The
offset
provisions
contained
in
the
General
Conformity
Regulations
are
based
on
the
offset
provisions
found
under
the
NSR
program.
The
General
Conformity
Regulations
were
originally
crafted
to
be
consistent
with
the
draft
NSR
Regulations.
The
draft
NSR
regulations
required
that
offsets
be
from
the
same
nonattainment
area.
However,
after
the
General
Conformity
Regulations
were
promulgated,
the
final
NSR
Regulations
were
published
and
allowed
the
use
of
offsets
from
the
same
area
or
from
a
adjacent
area
of
equal
or
higher
classification.

In
the
mid
1990'
s
several
Federal
agencies
requested
that
EPA
revise
the
General
Conformity
regulations
to
make
them
consistent
with
the
NSR
Rules.
They
reason
that
if
local
and
State
air
quality
regulations
specifically
allow
the
new
source
offsets
from
adjacent
areas,
then
the
General
Conformity
Regulations
should
also
allow
it.
EPA
agreed
with
their
request
and
committed
to
include
the
provision
in
the
next
revision
of
the
rule.

A
related
issue
is
the
problem
of
demonstrating
conformity
in
rural
isolated
nonattainment
or
maintenance
areas.
Those
areas
generally
have
low
emission
inventories
and
Federal
agencies
have
difficulties
obtaining
offsets
for
the
emissions
of
those
actions.

Environmental
Impact,
Pros,
and
Cons
of
the
Options
50
1.
Allow
the
use
of
offsets
within
the
same
nonattainment
or
maintenance
area,
as
well
as
within
adjacent
nonattainment
or
maintenance
areas
of
equal
or
higher
classification.

Pros:
a.
Revising
language
to
allow
offsets
from
adjacent
nonattainment
or
maintenance
areas
of
equal
or
higher
classification
would
make
the
rule
consistent
with
the
definition
in
the
NSR
program.

b.
Revising
the
offset
provision
would
fulfill
EPA
commitment.

Cons:
a.
Allow
offsets
from
adjacent
areas
may
result
in
an
increase
of
local
emissions
that
could
be
toxic.

2.
In
addition
to
option
1,
for
actions/
projects
in
rural
isolated
nonattainment
or
maintenance
areas,
allow
the
Federal
agency
to
obtain
the
offset
from
the
upwind
source
areas.

Pros:
a.
Allows
Federal
agencies
to
demonstrate
conformity
more
easily
in
rural
transport
areas
Cons:
a.
If
the
pollutant
reductions
occur
in
another
State,
there
may
be
difficulties
implementing
the
offsets.

3.
In
addition
to
option
1,
allow
the
Federal
agencies
to
obtain
offsets
200
km
upwind
of
a
facility
for
NOx
and
100
km
upwind
of
a
facility
for
VOCs
Pros:
a.
Allows
the
agency
a
greater
area
to
obtain
an
offset.

Cons:
a.
There
may
be
a
decreased
environmental
benefit.

b.
Reductions
in
upwind
attainment
areas
can
be
undone
by
new
sources
in
the
vicinity
that
are
not
required
to
offset
their
emission
increases.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
1.
Allow
the
use
of
offsets
within
the
same
nonattainment
or
maintenance
area,
as
well
as
within
adjacent
nonattainment
or
maintenance
areas
of
equal
or
higher
classification.
51
Issue
Paper
on
Revise
Emergency
Episode
to
Include
Military
Readiness
(
Proffered
by
the
Department
of
Defense)

Issue
The
conformity
regulations
do
not
offer
an
exemption
for
military
readiness
activities
taken
in
response
to
war,
a
declared
national
emergency,
or
during
military
disaster
relief
operations
unless
such
actions
meets
the
requirements
of
the
emergency
episode
exemption.
In
some
cases,
the
Department
of
Defense
(
DoD)
must
move
quickly
to
prepare
units
for
their
mission
and
may
not
be
able
to
conduct
conformity
analyses
for
their
actions.

Options
1.
Revise
the
definition
of
"
Emergency"
to
include
military
readiness
activities
and
provide
an
exemption
for
"
Military
Readiness
Activities."

2.
Do
not
include
military
readiness
activities
in
the
definition
of
"
Emergencies."

Background
SIPs
or
SIP
revisions
take
into
account
known
sources
of
air
emissions,
including
DoD
sources.
However,
response
to
situations
such
as
war,
national
emergencies
or
military
disaster
relief
operations
are
generally
not
known
is
advance
and
not
included
in
the
SIP.
When
faced
with
such
emergencies,
DoD
may
need
to
take
new
actions
that
will
result
in
emissions
above
de
minimis
levels,
and
the
emissions
may
not
conform
to
the
SIP.
A
sudden
ramp
up
on
flight
training
or
troop
training
in
a
nonattainment
area
could
raise
questions
about
conformity
obligations.
Also,
Homeland
Security
activities,
such
as
round
the
clock
air
surveillance
of
the
major
cities,
constitute
a
new
mission
for
some
airfields
and
could
raise
conformity
issues
if
the
level
of
flights
is
sufficient
enough.
Completion
of
a
conformity
determination
may
delay
DoD
actions.

EPA's
general
conformity
regulations
provide
an
exemption
for
actions
taken
in
response
to
emergencies
or
natural
disasters
that
are
commenced
on
the
order
of
hours
or
days
after
the
emergency,
40
CFR
51.853(
d)(
2)
and
93.153(
d)(
2).
A
Federal
agency
may
extend
this
exemption
for
6­
month
periods
as
part
of
a
continuing
response
to
the
emergency.
Id.
At
51.853(
e)
and
93.153(
e).
However,
that
exemption
may
not
apply
to
the
DoD
activities.

The
lack
of
an
exemption
from
conformity
for
military
readiness
activities
may
make
it
impossible
to
provide
the
optimal
training
or
conduct
the
optimal
testing
that
is
necessary
to
prepare
U.
S.
military
forces
for
their
mission.
52
Environmental
Impact,
Pros,
and
Cons
1.
Revise
the
definition
of
"
Emergency"
to
include
military
readiness
activities
and
provide
an
exemption
for
"
Military
Readiness
Activities"
by
amending
§
§
51.852
and
93.152
as
follows:

"
Emergency
means
a
situation
where
extremely
quick
action
on
the
part
of
the
Federal
Agencies
involved
is
needed
and
where
the
timing
of
such
Federal
activities
makes
it
impractical
to
meet
the
requirements
of
this
subpart.
Such
situations
include
activities
in
response
to
a
declaration
of
war;
declaration
of
a
national
emergency;
a
mobilization
or
presidential
Call­
up;
and/
or
any
other
defense
or
domestic
emergency,
including
enemy
attacks,
civil
disturbances,
terrorist
actions,
and/
or
natural
disasters."

And
by
adding
an
exemption
for
"
Military
Readiness
Activities"
in
§
§
51.853(
d)
and
93.153(
d)
as
follows:

(
i)
The
term
`
military
readiness
activities'
includes
all
training
and
operations
that
relate
to
combat,
and
the
adequate
and
realistic
testing
of
military
equipment,
vehicles,
weapons,
and
sensors
for
proper
operation
and
suitability
for
combat
use.
The
term
does
not
include
the
routine
operation
of
installation
operating
support
functions,
such
as
administrative
offices,
military
exchanges,
commissaries,
water
treatment
facilities,
storage,
schools,
housing,
motor
pools,
laundries,
morale,
welfare
and
recreation
activities,
shops,
and
mess
halls,
nor
the
operation
of
industrial
activities,
or
the
construction
or
demolition
of
such
facilities.

(
ii)
The
terms
`
combat'
or
`
combat
use'
include
all
forms
of
armed
conflict
and
operational
employment
as
well
as
those
support
functions
necessary
for
armed
conflict
and
operational
employment,
including
transportation
of
personnel,
weapons,
supplies,
ammunition
and
other
military
material
to
the
vicinity
of
actual
or
potential
armed
conflict;
intelligence
gather
in
support
of
actual
or
potential
armed
conflict;
command
of
and
communications
between
military
units;
and
similar
activities
necessary
for
the
successful
prosecution
of
armed
conflict,
whether
or
not
conducted
at
the
scene
of
actual
conflict.

Pros:
a.
DoD
would
not
have
to
conduct
conformity
analyses
when
responding
to
emergencies.

Cons:
a.
Significant
emission
increases
could
occur
at
military
facilities
without
a
conformity
determination.

2.
Do
not
include
military
readiness
activities
in
the
definition
of
"
Emergencies."

Pros:
a.
Actions
resulting
in
significant
emission
increases
will
be
reviewed
under
the
General
Conformity
Regulations
53
Cons:
a.
DoD
may
have
to
conduct
conformity
analyses
when
responding
to
emergencies.

Staff
Recommendation
The
EPA
Work
Groups
recommends
Option
2.
Do
not
include
military
readiness
activities
in
the
definition
of
"
Emergencies."
54
55
Issue
Paper
on
Protection
of
Classified
Materials
(
Prepared
by
the
Department
of
Defense)

Issue
The
General
Conformity
Rule,
40
CFR
Parts
51
and
93,
currently
contains
no
provision
protecting
classified
information
from
public
release.
The
Department
of
Defense
(
DoD)
recommends
that
such
a
provision
be
included
in
the
planned
revision
of
the
rule.

Background
Public
participation
is
required
under
sections
51.856
and
93.156
of
the
general
conformity
rule.
Those
sections
provide
that
at
the
request
of
any
person
"
the
Federal
agency
must
make
available
for
review
its
draft
conformity
determination
.
.
.
with
supporting
materials
which
describe
the
analytical
methods
and
conclusions
relied
upon
in
making
the
applicability
analysis."
A
newspaper
notice
must
inform
the
general
public
of
the
availability
of
both
the
draft
and
final
conformity
determinations.
In
addition,
public
release
of
information
may
be
required
subject
to
the
provisions
of
CAA
§
114.
For
example
42
U.
S.
C.
7414(
a)(
1)
authorizes
the
Administrator
to
require
persons
subject
to
CAA
requirements
to
maintain
certain
records,
and
section
7414(
c)
makes
these
records
generally
available
to
the
public.
Records
can
be
withheld
upon
a
satisfactory
showing
to
the
Administrator
that
such
information
would
divulge
trade
secrets.
Disclosure
of
confidential
information
by
a
federal
employee
is
a
criminal
offense.
18
U.
S.
C.
§
1905.
However,
confidential
information
is
defined
such
that
it
only
protects
trade­
secret
information
from
public
disclosure.
The
rule
does
not
extend
to
classified
information.

"
Classified
information,"
as
used
in
the
Classified
Information
Procedures
Act,
18
U.
S.
C.
A.
App.
3,
§
1(
a)
means
any
information
or
material
that
has
been
determined
by
the
United
States
Government
pursuant
to
an
Executive
Order,
statute,
or
regulation,
to
require
protection
against
unauthorized
disclosure
for
reasons
of
national
security
and
any
restricted
data,
as
defined
in
paragraph
r.
of
section
11
of
the
Atomic
Energy
Act
of
1954
(
42
U.
S.
C.
2014(
y)(
b)).
"
National
Security,"
as
used
in
this
Act,
means
the
national
defense
and
foreign
relations
of
the
United
States.
Title
18
provides
criminal
penalties
for
the
disclosure
of
classified
information,
which
is
defined
as
"
information,
which
at
the
time
of
a
violation
of
this
section,
is,
for
reasons
of
national
security,
specifically
designed
by
a
United
States
Government
Agency
for
limited
or
restricted
dissemination
or
distribution."
18
U.
S.
C.
§
798(
b).

EPA
has
included
protection
of
classified
information
in
other
CAA
programs.
In
the
promulgation
of
the
Risk
Management
Plan
(
RMP)
Rules,
40
CFR
Part
68,
the
issue
of
classified
information
was
addressed
by
EPA.
In
the
preamble
to
the
RMP,
EPA
states
"
It
is
not
reasonable
to
interpret
the
CAA
to
require
the
disclosure
of
classified
information
in
violation
of
criminal
law.
It
has
been
EPA's
long­
standing
policy
to
interpret
information
disclosure
provisions
in
its
statutes
as
being
consistent
with
national
security
law
to
the
56
maximum
extent
possible
and
to
require
such
information
be
maintained
in
accordance
with
the
originating
agency's
requirements.
Therefore,
EPA
is
promulgating
language
in
§
68.150(
d)
to
clarify
its
intent
with
respect
to
the
disclosure
of
classified
information
in
RMPs
by
specifically
exempting
classified
information
from
the
RMP
except
by
means
of
a
classified
annex
submitted
to
appropriately
cleared
Federal
or
state
representatives
with
proper
security
clearances."
61
Fed.
Reg.
31695,
(
June
20,
1996).

Option
1.
DoD
recommends
that
the
following
paragraphs
be
added
to
the
General
Conformity
Rule
to
clarify
the
treatment
of
classified
information:

§
51.852
and
93.152,
Definitions
"
Classified
Information,"
as
used
in
the
Classified
Information
Procedures
Act
18
U.
S.
C.
A.
App.
3,
§
1(
a).
means
any
information
or
material
that
has
been
determined
by
the
United
States
Government
pursuant
to
an
Executive
order,
statute,
or
regulation,
to
require
protection
against
unauthorized
disclosure
for
reasons
of
national
security
and
any
restricted
data,
as
defined
in
paragraph
r.
of
section
11
of
the
Atomic
Energy
Act
of
1954
(
42
U.
S.
C.
2014(
y)).
(
b)
"
National
Security,"
as
used
in
this
Act,
means
the
national
defense
and
foreign
relations
of
the
United
States.

§
51.
856(
e)
and
93.156(
e),
Public
Participation
Notwithstanding
the
provisions
of
§
51.856
[
or
93.156]
of
this
part,
the
draft
and
final
conformity
determination
shall
exclude
Classified
Information.
The
disclosure
of
Classified
Information
by
the
DoD
or
other
Federal
agencies
or
contractors
of
such
agencies
shall
be
controlled
by
applicable
laws,
regulations,
or
executive
orders
concerning
the
release
of
Classified
Information.
Subject
to
applicable
procedures
to
protect
Classified
Information
from
public
disclosure,
any
information
or
material
excluded
from
the
draft
or
final
conformity
determination
may
be
made
available
in
a
classified
annex
to
the
conformity
determination
for
review
by
Federal
and
state
representatives
who
have
received
the
appropriate
security
clearances.

Staff
Recommendation
The
EPA
Work
Groups
recommends
that
we
include
the
language
that
states
that
nothing
in
the
revised
regulations
require
the
divulging
classified
information
and
reference
the
Classified
Information
Procedures
Act.
57
Clarification
of
the
Existing
Rules
58
59
Issue
Paper
on
Clarification
of
General
Conformity
Determination
Process
Issue
The
General
Conformity
rule
does
not
contain
a
pollutant
specific
table
or
chart
with
step­
by­
step
instructions
on
how
to
perform
a
conformity
determination.
The
preamble
to
the
Rule
contains
a
table
summarizing
the
requirements
in
Section
93.158(
a),
however,
it
is
cumbersome
and
does
not
contain
step­
by­
step
instructions.
Federal
agencies
have
requested
that
EPA
include
a
clear,
pollutant
specific
step­
by­
step
table
or
chart
summarizing
the
regulatory
requirements
in
the
revised
rule.

Options
1.
Do
not
provide
guidance
either
in
the
rulemaking
package
or
separately
from
the
rule
making
package.

2.
Produce
a
separate
guidance
document
that
includes
a
step­
by­
step
table
or
flowchart.

3.
Provide
the
requested
guidance
in
the
preamble
to
the
rule
revision.

4.
Revise
the
General
Conformity
rule
to
clarify
the
process
that
could
include
a
stepby
step
table
or
chart.

Background
The
General
Conformity
regulations
apply
to
a
wide
variety
of
Federal
actions,
but
because
EPA
exempted
many
of
the
actions
through
the
de
minimis
emission
levels
and
other
exemptions,
most
agencies
do
not
routinely
conduct
determinations.
Most
agencies
and
project
sponsors
must
start
by
learning
the
requirements
before
they
can
start
their
evaluations.
Neither
EPA's
original
regulatory
package
nor
its
subsequent
guidance
have
provided
a
step­
by­
step
chart
for
the
Federal
agencies
and
project
sponsors
to
follow
in
evaluating
their
conformity
requirements.

Generally
Federal
agencies
divide
the
conformity
evaluations
process
into
two
phases.
The
"
applicability
analysis"
is
used
to
evaluate
whether
the
rules
are
applicable
to
the
action/
project
and
whether
or
not
a
full
determination
is
necessary.
If
a
determination
is
required,
then
the
"
conformity
determinations
process"
is
used
to
demonstrate
conformity
with
the
SIP
or
show
that
the
action/
project
will
not
interfere
with
the
State's
ability
to
attain
and
maintain
the
NAAQS.
In
the
applicability
analysis
most
of
the
steps
are
consistent
across
all
of
the
pollutants,
while
the
determination
process
is
more
pollutant
specific.
60
Many
Federal
agencies
have
noted
that
the
processes
for
applicability
analysis
demonstration
conformity
are
unclear.
The
General
Conformity
rule
does
not
provide
precise
guidance
with
a
step­
by­
step
table
or
flowchart.
However,
some
Federal
agencies
have
developed
internal
guidance
to
assist
their
facilities.

An
alternative
to
the
step­
by­
step
table
might
be
a
flowchart.
The
flowchart
would
help
the
Federal
facility
determine
whether
its
proposed
action
is
exempt
from
the
General
Conformity
rule
or
requires
full­
scale
determination.
However,
since
Federal
actions
cover
numerous
areas,
a
single
flowchart
may
become
cumbersome
if
it
covered
all
agencies
and
rules.

Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
Do
not
provide
guidance
either
in
the
rule
making
package
or
separately
from
the
rule
making
package.

Pros:
a.
Allows
other
Federal
agencies
to
develop
their
own
interpretation
of
EPA's
rule.

b.
Does
not
force
Federal
agencies
to
follow
strict
guidance
Cons:
a.
Does
not
provide
the
requested
guidance.

b.
Federal
agencies
will
differ
in
their
approaches
to
conducting
conformity
evaluations.

2.
Produce
a
separate
guidance
document
that
includes
a
step­
by­
step
table
or
flowchart.

Pros:
a.
The
separate
guidance
document
can
provide
more
details
on
the
process.

b.
Provides
the
requested
guidance
c.
Allows
the
guidance
to
be
more
detailed
and
cover
a
number
of
different
situations
d.
Reduces
the
material
in
the
Federal
Register
Cons:
a.
Guidance
would
not
be
included
in
the
Federal
Register
and
consequently,
may
not
carry
as
much
weight.

3.
Provide
the
requested
guidance
in
the
preamble
to
the
rule
revision.

Pros:
a.
Provides
the
requested
guidance
b.
Guidance
is
published
in
the
Federal
Register
Cons:
a.
Guidance
would
have
to
be
more
general
in
nature.

b.
Would
significantly
increase
the
Federal
Register
notice
length
61
c.
Would
be
more
restrictive
than
guidance
and
might
hamper
innovative
solutions.

4.
Revise
the
General
Conformity
rule
to
clarify
the
process
that
could
include
a
step­
bystep
table
or
chart.

Pros:
a.
Provides
the
requested
guidance
b.
Guidance
is
published
in
the
Federal
Register
Cons:
a.
Guidance
would
have
to
be
more
general
in
nature.

b.
Would
significantly
increase
the
Federal
Register
notice
length.

Staff
Recommendation
The
EPA
Work
Group
recommends
Options
2
&
3.
Produce
a
separate
guidance
document
that
includes
a
step­
by­
step
table
or
flowchart
and
provide
the
guidance
in
the
preamble
to
the
rule
revision,
if
it
can
be
done
without
too
much
shorthand.

The
work
group
discussed
the
use
of
an
expert
system
to
provide
the
guidance,
but
did
not
make
a
recommendation
on
its
use.
62
63
Issue
Paper
on
Actions
Affecting
Multiple
Nonattainment/
Maintenance
Areas
Issue
Some
Federal
actions
may
affect
more
than
one
nonattainment
or
maintenance
area.
The
current
regulations
established
de
minimis
emission
levels
and
offset
limitations
based
on
a
single
nonattainment
or
maintenance
area.
The
regulations
need
to
clarify
how
Federal
agencies
can
evaluate
conformity
if
the
action/
project
involves
more
than
one
nonattainment
or
maintenance
area.

Options
1.
Clarify
in
the
regulations
that
conformity
is
evaluated
separately
for
each
nonattainment/
maintenance
area.

2.
Revise
the
regulations
so
that
actions/
projects
with
emissions
in
adjacent
nonattainment/
maintenance
areas
must
be
considered
as
one
action/
project
meeting
the
requirements
of
the
higher
classification.
Actions/
projects
with
emissions
in
non­
adjacent
areas
would
have
separate
evaluations
for
each
area.

3.
Do
not
clarify
the
regulations,
but
keep
the
existing
policy.

4.
Revise
the
regulation
to
require
an
evaluation
for
the
whole
project
even
if
the
project
results
in
emissions
in
more
than
one
area.

Background
The
emissions
from
most
Federal
Actions/
projects
occur
within
one
nonattainment
or
maintenance
area.
However,
some
Federal
actions
or
projects
can
extend
across
nonattainment
or
maintenance
area
boundaries,
causing
emissions
from
an
action
or
project
to
impact
more
than
one
area.
For
example,
Federal
facilities
(
e.
g.,
some
national
parks
and
military
installations)
or
airports
may
be
located
in
multiple
counties
and
even
in
multiple
States.
Part
of
the
facility
may
be
located
within
a
nonattainment
or
maintenance
area
and
the
rest
may
be
in
another
nonattainment,
maintenance,
or
attainment
area.
In
addition,
some
Federal
actions/
projects
are
regional
and
even
national
in
scope.
The
current
regulations
do
not
specify
how
actions/
projects
affecting
multiple
areas
should
be
addressed.

Current
EPA
guidance
(
e.
g.,
for
the
Mexican
motor
carrier
case)
suggests
that
Federal
agencies
should
treat
emissions
in
each
nonattainment
and
maintenance
area
as
separate
actions/
projects.
This
policy
was
based
on
the
following
factors:

a.
The
General
Conformity
Regulations
exempts
actions/
projects
below
set
de
minimis
levels.
The
de
minimis
levels
are
based
upon
the
type
and
classification
of
64
the
nonattainment
or
maintenance
area.
Therefore,
they
can
vary
between
adjacent
areas.

b.
Section
176(
c)(
5)
of
the
CAA,
which
was
added
in
1995,
states
that
conformity
shall
apply
only
to
a
nonattainment
or
maintenance
area.

c.
SIPs
are
developed
on
an
area
basis.

d.
The
current
General
Conformity
Regulations
limit
the
geographic
area
for
offsets
to
the
same
nonattainment
or
maintenance
area.
Although
the
revision
of
the
regulations
will
likely
expand
that
area
to
adjacent
nonattainment
areas
of
equal
or
higher
classification,
the
requirements
for
actions/
projects,
which
cause
emissions
in
more
than
one
area,
are
not
clear.

Environmental
Impacts,
Pros,
and
Cons
of
the
Options
1.
Clarify
in
the
regulations
that
conformity
is
evaluated
separately
for
each
nonattainment/
maintenance
area..

Pros:
a.
Codifies
EPA
policy.

b.
Keeps
a
simple
approach
for
most
conformity
evaluations.

c.
Ensures
that
conformity
is
consistent
with
the
physical
conditions
of
each
different
nonattainment
area.

Cons:
a.
Allows
some
projects
to
split
emissions
between
nonattainment
areas
allowing
the
project/
action
to
fall
below
the
de
minimis
levels.

2.
Revise
the
regulations
so
that
actions/
projects
with
emissions
in
adjacent
nonattainment/
maintenance
areas
must
be
considered
as
one
action/
project
meeting
the
requirements
of
the
higher
classification.
Actions/
projects
with
emissions
in
non­
adjacent
areas
would
have
separate
evaluations
for
each
area.

Pros:
a.
Keeps
projects
that
cross
area
boundaries
from
splitting
emissions.

b.
Areas
affected
by
regional
or
national
actions/
projects
are
treated
separately.

c.
Provides
regulatory
guidance
d.
Keeps
simple
approach
for
most
conformity
evaluations.

e.
Ensures
that
conformity
is
consistent
with
the
physical
conditions
of
each
different
nonattainment
area.

Cons:
a.
Makes
the
regulations
more
complex.
65
3.
Do
not
clarify
the
regulations,
but
keep
the
existing
policy
Pros:
a.
Avoids
codification
of
the
policy
in
case
management
wants
to
make
policy
revisions.

b.
Keeps
simple
approach
for
most
conformity
evaluations.

c.
Ensures
that
conformity
is
consistent
with
the
physical
conditions
of
each
different
nonattainment
area.

Cons:
a.
Allows
some
projects
to
split
emissions
between
nonattainment
areas
so
as
to
fall
below
the
de
minimis
levels
b.
Does
provide
clear
direction
for
impacts
in
multiple
areas.

4.
Revise
the
regulations
to
require
an
evaluation
for
the
whole
project
even
if
the
project
results
in
emissions
in
more
than
one
area.

Pros:
a.
Requires
that
all
the
emissions
from
the
action
be
considered
Cons:
a.
Would
be
very
difficult
to
implement,
particularly
for
actions
that
have
national
impacts.

b.
May
be
inconsistent
with
§
176(
c)(
5).

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
1.
Clarify
in
the
regulations
that
conformity
is
evaluated
separately
for
each
nonattainment/
maintenance
area.
66
67
Issue
Paper
on
Coverage
of
Construction
Emissions
Issue
Construction
emissions
are
considered
to
be
part
of
the
"
total
direct
and
indirect"
emissions
from
a
project
and
must
be
considered
in
a
conformity
evaluation.
Other
programs
such
as
Transportation
Conformity
and
New
Source
Review
(
NSR)
generally
do
not
require
construction
emissions
to
be
included
in
the
project
review.

Options
1.
Exempt
construction
from
consideration
under
the
General
Conformity
rule,
but
require
Federal
agencies
to
comply
with
local
and
State
control
measures
for
construction
emissions.

2.
Retain
the
current
provision
so
that
the
General
Conformity
rule
continues
to
apply
to
construction
emissions.

3.
Retain
the
provision
for
longer
construction
projects
(
e.
g.,
1
or
2
years)
and
exempt
shorter
construction
projects
provided
that
all
emission
control
requirements
for
construction
are
met.

4.
Exempt
construction
emissions
from
maintenance
areas
and
nonattainment
areas
classified
as
moderate
or
below,
while
retaining
the
current
provision
for
nonattainment
areas
classified
as
higher
than
moderate.

5.
If
the
State
adopts
an
emission
budget
for
the
Federal
installation,
or
other
installation
subject
to
the
conformity
regulations,
the
State
could
exempt
the
construction
emissions.

6.
Exempt
emissions
from
"
clean"
construction
equipment.

7.
Exempt
offsite
emissions
associated
with
construction
Background
Although
the
General
Conformity
Regulations
do
not
specifically
mention
construction
emissions,
they
implicitly
require
that
Federal
agencies
include
emissions
from
construction
activities
in
the
conformity
evaluation.
The
definitions
of
both
direct
emissions
and
indirect
emissions
encompass
all
emissions
that
are
caused
by
the
action.
Therefore,
when
the
Federal
action
includes,
or
results
in
construction
projects,
the
emissions
for
the
construction
activities
must
be
included
in
the
total
direct
and
indirect
emissions
of
the
action.
68
In
the
sister
Transportation
Conformity
program
(
40
CFR
93.100­
149),
construction
emissions
are
generally
excluded
from
determinations.
The
Transportation
Conformity
Regulations
require
the
consideration
of
PM­
10
from
construction­
related
fugitive
dust
only
in
PM­
10
nonattainment
and
maintenance
areas
where
the
SIP
identifies
those
emissions
as
a
contributor
to
the
nonattainment
problem.
In
such
a
case,
the
regional
PM­
10
emissions
analysis
must
consider
the
construction­
related
fugitive
PM­
10
emissions
and
account
for
the
level
of
construction
activity,
the
fugitive
PM­
10
control
measures
in
the
implementation
plan,
and
the
dust­
producing
capacity
of
the
proposed
activities.
Construction
emissions
do
not
have
to
be
included
in
carbon
monoxide
and
PM­
10
hotspot
analyses
(
i.
e.,
estimations
of
future
localized
CO
and
PM­
10
concentrations)
because
the
emissions
are
temporary.
Otherwise,
the
Transportation
Conformity
rule
only
requires
that
projects
comply
with
the
PM­
10
emissions
from
the
construction
activities
and/
or
normal
use
and
operation
associated
with
the
project.
Additionally,
the
NSR
program
does
not
require
the
consideration
of
construction
emissions.

Many
Federal
agencies
have
argued
that
construction
emissions
are
excluded
from
consideration
under
the
Transportation
Conformity
Regulations
and
should
be
treated
similarly
under
the
General
Conformity
Regulations.
Furthermore,
Federal
agencies
pointed
out
that
the
emissions
from
construction
are
not
included
in
some
SIPs,
so
they
should
not
factor
into
the
agencies'
demonstrations
of
conformity
to
those
SIPs.
Finally,
the
agencies
argued
that
construction
emissions
are
temporary
and
not
long­
term
contributors
to
the
National
Ambient
Air
Quality
Standards
(
NAAQS)
violations
and
are
therefore
not
truly
reflective
of
a
completed
project's
contribution
to
a
nonattainment/
maintenance
area's
emissions
budget.

The
General
Conformity
Regulations
covers
a
wide
variety
of
actions
and
projects.
Therefore,
the
rules
were
drafted
to
be
general
enough
to
cover
the
differing
circumstances.
While
a
majority
of
Federal
actions/
projects
do
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
7
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
State
and
local
agencies
may
not
be
aware
of
Federal
activities
requiring
construction
or
may
not
be
easily
able
to
estimate
the
emissions
from
the
construction.
Therefore,
the
SIPs
may
not
adequately
account
for
the
emissions
from
those
activities.

In
drafting
and
adopting
an
SIP,
States
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
sources.
The
emission
estimates
for
these
categories
are
usually
based
upon
historic
activity
levels
or
on
projected
future
activity
levels.
Therefore,
if
the
State
or
local
agency
knows
about
the
future
actions/
projects
at
the
Federal
facility
at
the
time
the
SIP
is
being
developed,
the
construction
emissions
can
be
incorporated
into
the
SIP.
If
the
construction
activities
comply
with
State
and
local
requirements,
those
emissions
can
then
be
"
presumed
to
conform."
69
Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
Exempt
construction
from
consideration
under
the
General
Conformity
rule,
if
the
Federal
agencies
to
comply
with
local
and
State
control
measures
for
construction
emissions.

Pros:
a.
From
an
administrative
viewpoint,
exempting
construction
emissions
streamlines
the
regulation
by
not
requiring
consideration
of
emissions.

b.
Keeping
the
requirement
to
make
construction
emissions
subject
to
local
and
State
control
measures
ensures
that
the
Federal
sponsor
would
comply
with
all
PM
and
dust
control
measures
in
the
SIP.
(
In
many
cases
on
non­
federal
land,
construction
emissions
are
already
subject
to
State/
local
regulations.)

Cons:
a.
The
construction
emissions
from
a
project
would
not
be
considered.

b.
Some
large
construction
projects
could
avoid
conformity
determinations.

2.
Retain
current
provision
so
that
the
General
Conformity
rule
continues
to
apply
to
construction
emissions.

Pros:
a.
This
approach
ensures
that
all
emissions
are
considered
during
a
conformity
determination
and
therefore
helps
to
prevent
violations
of
the
NAAQS.

Cons:
a.
The
requirement
to
consider
construction
emissions
in
conformity
determinations
is
perceived
as
burdensome
and
inequitable
to
Federal
agencies
because
these
emissions
are
exempt
under
other
programs.

3.
Retain
the
provision
for
longer
construction
projects
(
e.
g.,
1,
2,
3,
or
5
years)
and
exempt
shorter
construction
projects
provided
that
all
emission
control
requirements
for
construction
are
met.

Pros:
a.
Smaller,
short­
term
construction
projects
eliminate
the
necessity
of
a
conformity
determination.

b.
Larger
projects
would
still
have
to
meet
the
conformity
requirements.

Cons:
a.
Larger
projects
would
not
be
exempt.

b.
Short
term
construction
projects
with
significant
emissions
would
not
be
reviewed.

c.
This
option
would
encourage
construction
activities
to
be
shortened,
which
could
result
in
higher
emission
levels
over
a
shorter
period
of
time.

4.
Exempt
construction
emissions
for
maintenance
areas
and
nonattainment
areas
classified
as
moderate
or
below,
while
retaining
the
current
provision
in
nonattainment
areas
classified
as
higher
than
moderate.
70
Pros:
a.
Construction
emissions
in
more
serious
nonattainment
areas
would
continue
to
be
reviewed.

b.
Projects
in
less
serious
nonattainment
areas
would
not
have
to
include
construction
emissions.
Thus
the
number
of
projects
in
those
areas
that
need
conformity
determinations
would
decrease.

Con:
a.
Major
projects
in
less
serious
nonattainment
areas
may
not
be
reviewed.

b.
Adds
more
confusion
to
the
regulations.

c.
Since
the
de
minimis
emission
levels
for
the
lower
classified
nonattainment
areas
are
100
tons
per
year,
many
construction
projects
are
already
exempt.

5.
If
the
State
adopts
an
emission
budget
for
the
Federal
facility,
or
other
facilities
subject
to
the
conformity
requirements,
the
State
could
exempt
the
construction
emissions.
Otherwise
the
current
requirements
to
review
construction
emissions
would
be
retained.

Pros:
a.
The
conformity
process
for
facilities
with
emission
budgets
would
be
streamlined.

b.
With
the
budget
process,
States
would
know
about
expected
construction
projects
and
could
account
for
the
emissions
in
the
SIP.

c.
Unexpected
projects
that
could
interfere
with
the
SIP
would
still
have
to
meet
the
conformity
requirements.

Cons:
a.
The
public
may
not
get
to
review
the
construction
emission
during
the
project
level
review
for
General
Conformity.

b.
For
Federal
actions
not
covered
by
facility
budgets
and
for
States
that
require
the
review,
construction
emissions
would
still
be
reviewed.

c.
Long
term
(
5
or
more
years)
construction
project
emissions
would
not
be
reviewed.

6.
Exempt
emissions
from
"
clean"
construction
equipment.

Pros:
a.
Would
encourage
Federal
facilities
to
require
the
use
of
clean
equipment
for
construction.

b.
eliminate
the
need
to
review
the
construction
emissions
using
low
emission
equipment.

Cons:
a.
Constructions
emissions
would
not
be
reviewed.

b.
The
Agency
would
need
to
identify
"
clean"
equipment.
71
7.
Exempt
offsite
emissions
associated
with
construction.

Pros:
a.
Allows
materials
to
be
delivered
to
the
site
from
the
most
economical
location.

b.
Most
offsite
mobile
source
emissions
will
be
covered
by
the
Transportation
Conformity
program.

Cons:
a.
Some
Federal
projects
may
involve
significant
offsite
emissions.

Staff
Recommendation
The
EPA
Work
Group
recommends
options
2
&
5.
Retain
current
provision
so
that
the
General
Conformity
rule
continues
to
apply
to
construction
emissions.
If
the
State
adopts
an
emission
budget
for
the
Federal
facility,
or
other
facilities
subject
to
the
conformity
requirements,
the
State
could
exempt
the
construction
emissions.
Otherwise
the
current
requirements
to
review
construction
emissions
would
be
retained.
72
73
Issue
Paper
on
Offsite
Mobile
Source
Emissions
Issue
Federal
sources
have
asked
EPA
to
clarify
(
1)
what
constitutes
an
offsite
emission,
(
2)
who
should
be
allowed
to
take
credit
for
an
offsite
emission
reduction,
and
(
3)
under
which
program
(
i.
e.,
general
conformity
or
transportation)
the
emission
reductions
are
credited.
In
addition,
agencies
have
asked
which
emissions
qualify
for
exemption,
and
which
non­
exempt
emissions
the
MPO
can
include
in
a
transportation
conformity
or
transportation
improvement
plan.

Options
1.
Maintain
the
existing
language
and
issue
a
guidance
document
clarifying
the
relationship
between
general
conformity
and
transportation
conformity.

2.
Revise
the
applicability
section
of
the
regulation
(
93.153)
to
clarify
that
highway
and
mass
transit
projects
subject
to
the
transportation
conformity
regulations
are
exempt
from
the
General
Conformity
Regulations
and
that
increased
emissions
not
covered
by
those
projects
must
be
included
in
total
direct
and
indirect
emissions
for
a
general
conformity
evaluation.
In
addition,
include
a
new
section
to
clarify
how
mitigation
measures
involving
offsite
emissions
will
be
handled.

3.
Remove
the
requirement
that
offsite
mobile
source
emissions
be
included
in
the
general
conformity
evaluation.

Background
The
existing
General
Conformity
Regulations
include
some
and
exempt
other
offsite
mobile
source
emissions.
The
regulations
exempt
emissions
from
actions
subject
to
the
Transportation
Conformity
Regulations
while
requiring
emissions
generated
from
motor
vehicle
trips
to
and
from
a
project
site
are
to
be
considered
indirect
emissions
and
included
in
the
conformity
evaluation.
For
example,
airport
expansion
projects
must
take
into
consideration
increased
travelers
driving
to
and
from
the
airport,
rather
than
just
increased
emissions
that
occur
on
airport
property,
unless
improved
access
to
the
airport
is
included
in
a
conforming
transportation
plan
or
transportation
improvement
plan.

One
way
of
demonstrating
that
the
offsite
motor
vehicle
emissions
conform
to
the
SIP
is
by
including
the
emissions
in
an
MPO
analysis
of
the
conforming
regional
transportation
plan
and
the
transportation
improvement
plans.
The
Federal
agency
demonstrating
conformity
can
rely
on
the
MPO's
findings
and
use
them
to
demonstrate
conformity
with
the
SIP.
Several
Federal
agencies
have
asked
that
the
revised
regulations
clarify
which
emissions
qualify
for
exemption,
as
well
as
when
those
emissions
have
to
be
accounted
for,
so
that
they
can
use
the
MPO's
analysis
to
demonstrate
conformity.
For
example,
many
Federal
installations
would
be
considered
regionally
significant
under
the
74
Transportation
Conformity
Regulations
and
their
emissions
are
included
in
regional
modeling.

Federal
agencies
have
argued
that
since
offsite
mobile
source
emissions
are
already
accounted
for
in
the
regional
emissions
analysis
performed
by
the
MPO,
they
are
covered
under
the
Transportation
Conformity
rule.
Furthermore,
Federal
agencies
believe
that
considering
offsite
mobile
source
emissions
under
both
Transportation
Conformity
and
General
Conformity
constitutes
"
double­
counting."

EPA
general
guidance
on
offsite
mobile
sources
not
covered
by
the
Transportation
Conformity
Regulations
states
that
commuting
and
other
trips
to
and
from
the
site
are
considered
as
indirect
emissions
and
must
be
included
if
they
are
reasonably
foreseeable
and
the
agency
maintains
control
over
them
through
a
continuing
program
responsibility.
For
example,
the
increased
emissions
caused
by
additional
employee
and
passenger
vehicles
commuting
to
the
airport
as
a
result
of
an
airport
expansion
would
be
considered
indirect
emissions
resulting
from
the
expansion.
In
this
example,
if
the
Federal
Highway
Administration
(
FHWA)
funded
airport
access
improvements
as
part
of
the
expansion,
then
the
emissions
from
the
traffic
to
and
from
the
airport
would
be
covered
under
Transportation
Conformity
and
exempt
under
General
Conformity.
If,
on
the
other
hand,
the
access
improvements
are
not
funded
by
FHWA,
but
the
MPO
includes
the
additional
traffic
in
its
modeling
to
demonstrate
compliance
with
the
mobile
source
emission
budget,
then
the
airport
can
use
the
MPO's
determinations
as
a
demonstration
of
conformity
for
that
portion
of
the
increased
emissions.

Federal
agencies
have
also
asked
EPA
to
clarify
how
an
agency
can
take
credit
for
offsite
transportation
control
measures
implemented
to
offset
onsite
emission
increases.
For
example,
if
a
DoD
fleet
switches
to
cleaner
fuels,
who
can
take
credit
for
the
offsets 
the
Federal
facility
that
obtains
the
offsets
for
the
reduction
or
the
MPO?
EPA
has
generally
not
taken
a
position
on
the
ownership
of
the
credits,
but
rather,
has
stated
that
it
is
up
to
the
State
and
Federal
agency
to
determine
who
owns
the
credits.

Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
Maintain
the
existing
language
and
issue
a
guidance
document
clarifying
the
relationship
between
general
conformity
and
transportation
conformity
Pros:
a.
Provides
guidance
without
changing
the
regulations.

b.
The
guidance
can
be
more
specific
than
the
regulation
Cons:
a.
Guidance
would
not
carry
as
much
weight
as
the
regulation.

b.
Some
confusion
on
the
relationship
between
general
conformity
and
transportation
conformity
may
still
occur.

2.
Revise
the
applicability
section
of
the
regulation
(
93.153)
to
clarify
that
highway
and
mass
transit
projects
subject
to
the
transportation
conformity
regulations
are
exempt
from
75
the
General
Conformity
Regulations
and
that
increased
emissions
not
covered
by
those
projects
must
be
included
in
total
direct
and
indirect
emissions
for
a
general
conformity
evaluation.
In
addition,
include
a
new
section
to
clarify
how
mitigation
measures
involving
offsite
emissions
will
be
handled.

Pros:
a.
Provides
clarity
on
the
inclusion
of
the
emissions
in
the
general
conformity
evaluation.

b.
Provides
assurance
that
the
offsite
mitigation
measures
can
be
used
to
offset
increased
onsite
emissions.

Cons:
a.
Regulation
may
not
be
as
flexible
as
a
guidance
document
and
may
not
cover
all
circumstances.

3.
Remove
the
requirement
that
offsite
mobile
source
emissions
be
included
in
the
general
conformity
evaluation.

Pros:
a.
Provides
a
clear
distinction
on
which
emissions
must
be
included
in
the
general
conformity
evaluation.

b.
Reduces
burden
on
Federal
agencies
Cons:
a.
Significant
emissions
from
Federal
actions
may
not
be
subject
to
either
General
Conformity
or
the
Transportation
Conformity
Regulations.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
1.
Maintain
the
existing
language
and
issue
a
guidance
document
clarifying
the
relationship
between
general
conformity
and
transportation
conformity.
76
77
Issue
Paper
on
Response
to
Emergency
Episodes
Issue
The
General
Conformity
Regulations
allows
a
6­
month
exemption
for
actions
in
response
to
emergencies
such
as
terrorist
attacks,
hurricanes
and
earthquakes.
The
Federal
agency
can
extend
the
exemption
period
for
up
to
6
months
if
it
makes
a
written
determination
stating
that
it
is
impractical
to
prepare
the
conformity
analysis,
which
would
otherwise
be
required,
and
that
the
action
cannot
be
delayed
due
to
overriding
concerns
for
public
health
and
welfare,
national
security
interest
or
foreign
policy
commitments.
There
are
no
requirements
for
EPA
or
State
review
or
comment
on
the
determination
nor
is
the
Federal
agency
required
to
notify
the
public
about
the
determination.
The
regulations
do
not
specify
how
many
6­
month
extensions
the
Federal
agencies
can
use.

Options
1.
Include
a
requirement
for
a
15­
day
EPA/
State
review
of
a
draft
determination
and
require
the
Federal
agency
to
publish
a
notice
within
30
days
of
making
the
determination.

2.
Specify
the
maximum
number
of
6­
month
extensions
for
which
a
Federal
Agency
can
request
exemption
(
only
1
extension
for
total
of
1
year
exemption,
or
a
maximum
of
3
extensions
for
2
years
exemption,
etc.).

3.
Do
not
revise
the
regulations.

Background
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.
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
determination.
In
addition,
the
public
was
not
given
notice
of
the
determination.

In
responding
to
the
shutdown
of
the
Port
Authority
Trans­
Hudson
(
PATH)
line
between
New
Jersey
and
New
York,
the
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
exemption.

Environmental
Impact,
Pros,
and
Cons
1.
Include
a
requirement
for
a
15­
day
EPA/
State
review
of
a
draft
determination
and
require
the
Federal
agency
to
publish
a
notice
within
30
days
of
making
the
determination.
78
Pros:
a.
Allows
the
EPA
and
State
agencies
to
comment
on
the
draft
determination.

b.
Provides
notice
to
the
public
about
the
determination.

c.
Is
not
overly
restrictive
on
the
Federal
agency
Cons:
a.
Delays
the
determination
by
requiring
time
for
review
and
comment.

b.
Does
not
allow
the
public
to
comment
on
the
determination.

2.
Specify
the
maximum
number
of
6­
month
extensions
for
which
a
Federal
Agency
can
request
exemption
(
a
maximum
of
2
extensions
for
1
year,
a
maximum
of
4
extensions
for
2
years,
etc.).

Pros:
a.
Prevents
agencies
from
indefinitely
delaying
a
conformity
determination.

b.
Allows
Federal
agencies
a
reasonable
time
to
respond
to
emergencies.

Cons:
a.
Limits
flexibility
of
Federal
agencies
in
responding
to
an
emergency
3.
Do
not
revise
the
regulations.

Pros:
a.
Allows
flexibility
to
agencies
responding
to
emergencies.

Cons:
a.
Does
not
address
the
confusion
in
the
existing
regulations.

b.
Could
allow
agencies
to
delay
the
conformity
evaluation
indefinitely
Staff
Recommendation
The
EPA
Work
Group
recommends
options
1
&
2.
Include
a
requirement
for
a
15­
day
EPA/
State
review
of
a
draft
determination
and
require
the
Federal
agency
to
publish
a
notice
within
30
days
of
making
the
determination.
In
addition,
specify
the
maximum
number
of
6­
month
extensions
for
which
a
Federal
Agency
can
request
exemption
(
a
maximum
of
2
extensions
for
1
year,
a
maximum
of
4
extensions
for
2
years,
etc.).
79
Issue
Paper
on
Definition
of
Terms
Issue
The
General
Conformity
Regulations
uses
several
terms
which
are
not
defined
in
the
regulations.
In
addition,
Federal
agencies
have
used
different
terms
to
describe
activities
related
to
the
conformity
determinations.
As
a
result,
communication
between
agencies
has
been
hampered
and
the
lack
of
definitions
has
created
confusion
about
the
implementation
of
the
regulation.

Options
1.
Add
the
definition
of
the
terms
listed
in
appendix
1
to
the
regulations.

2.
Do
not
define
additional
terms
in
the
regulations
Background
The
General
Conformity
Regulations
define
a
number
of
terms
in
§
93.152.
Even
though
"
conformity
determination"
is
used
in
the
regulations
it
is
not
defined
in
§
93.152.
This
has
lead
to
some
confusion
in
implementing
the
regulations.
Some
agencies
have
used
other
terms
to
describe
portions
of
the
conformity
determination
process
such
as
"
applicability
analysis"
to
describe
the
process
to
determine
if
a
full
conformity
determination
is
required.
Other
agencies
have
used
other
terms
to
describe
the
process.
Stakeholders
and
the
general
public
become
confused
when
different
terms
are
use
to
describe
the
same
process.

Stakeholders
have
proposed
that
we
define
or
redefine
the
following
terms:

Applicability
analysis
Conformity
determination
Conformity
evaluation
Emergency
Emission
budget
Emission
inventory
Exempt
actions
Offsets
Mitigation
measure
Presumed
to
conform
Reasonably
foreseeable
emissions
(
should
apply
to
direct
as
well
as
indirect
emissions.)

Environmental
Impact,
Pros,
and
Cons
of
the
Options
1.
Add
the
definition
of
the
terms
listed
in
appendix
1
to
the
regulations
80
Pros:
a
Reduce
confusion
and
improve
communications
Cons:
a.
Some
agencies
may
have
to
revise
their
terms.

2.
Do
not
define
additional
terms
in
the
regulations
Pros:
a.
Allows
agencies
to
use
their
own
terms
Cons:
a.
Continue
hampering
communications
and
adds
to
confusions
in
implementing
the
regulations.

Staff
Recommendation
The
EPA
Work
Group
recommends
Option
1.
Add
the
definition
of
the
terms
listed
in
appendix
1
to
the
regulations
81
Index
A:
A
List
of
Acronyms
AERC
Airport
Emission
Reduction
Credit
CAA
Clean
Air
Act
DoD
Department
of
Defense
EPA
Environmental
Protection
Agency
EA
Environmental
Analysis
EIS
Environmental
Impact
Statement
FAA
Federal
Aviation
Administration
FONSI
Finding
of
No
Significant
Impact
MPO
Metropolitan
Planning
Organization
NAAQS
National
Ambient
Air
Quality
Standards
NEPA
National
Environmental
Policy
Act
NOx
Nitrogen
Oxides
NSR
New
Source
Review
PATH
Port
Authority
Trans
Hudson
PM
Particulate
Matter
PSD
Prevention
of
Significant
Deterioration
RMP
Risk
Management
Planning
ROD
Record
of
Decision
SIP
SIP
State
Implementation
Plan
SMP
Smoke
Management
Plan
SO2
Sulfur
Dioxide
VOC
VOCs
Volatile
Organic
Compounds
