Response to Significant Comments on the Proposed

Revisions to the General Conformity Regulations

(January 8, 2008; 73 FR 1402)

Docket Number OAR-2006-0669

U.S. Environmental Protection Agency

January 2010

Table of Contents

  TOC \o "1-3" \h \z \u    HYPERLINK \l "_Toc251142408"  Glossary of
Terms	  PAGEREF _Toc251142408 \h  3  

  HYPERLINK \l "_Toc251142409"  1.0	Introduction	  PAGEREF _Toc251142409
\h  4  

  HYPERLINK \l "_Toc251142410"  2.0	Background	  PAGEREF _Toc251142410
\h  4  

  HYPERLINK \l "_Toc251142411"  3.0	Responses to Comments on the Revised
General Conformity Regulations	  PAGEREF _Toc251142411 \h  5  

  HYPERLINK \l "_Toc251142412"  Part 51 – Requirements for
Preparation, Adoption, and Submittal of Implementation Plans	  PAGEREF
_Toc251142412 \h  5  

  HYPERLINK \l "_Toc251142413"  §51.851  State implementation plan
(SIP) or tribal implementation plan (TIP) revision	  PAGEREF
_Toc251142413 \h  5  

  HYPERLINK \l "_Toc251142414"  Part 93- Determining Conformity of
Federal Action to State or Federal Implementation Plans	  PAGEREF
_Toc251142414 \h  6  

  HYPERLINK \l "_Toc251142415"  §93.150 Prohibition	  PAGEREF
_Toc251142415 \h  6  

  HYPERLINK \l "_Toc251142416"  §93.151  State implementation plan
(SIP) revision.	  PAGEREF _Toc251142416 \h  8  

  HYPERLINK \l "_Toc251142417"  §93.152  Definitions	  PAGEREF
_Toc251142417 \h  9  

  HYPERLINK \l "_Toc251142418"  §93.153  Applicability	  PAGEREF
_Toc251142418 \h  15  

  HYPERLINK \l "_Toc251142419"  §93.153 (b)	  PAGEREF _Toc251142419 \h 
15  

  HYPERLINK \l "_Toc251142420"  §93.153(c)(2) Treatment of aircraft
emissions during takeoffs and landings	  PAGEREF _Toc251142420 \h  17  

  HYPERLINK \l "_Toc251142421"  §93.153 (d)(1)  Minor new source review
(NSR) permit exemptions	  PAGEREF _Toc251142421 \h  18  

  HYPERLINK \l "_Toc251142422"  §93.153 (e) Emergency episodes	 
PAGEREF _Toc251142422 \h  19  

  HYPERLINK \l "_Toc251142423"  §93.153 (f), (g), and (h) Presumed to
conform	  PAGEREF _Toc251142423 \h  20  

  HYPERLINK \l "_Toc251142424"  §93.153 (i) and (j) Regionally
significant emissions	  PAGEREF _Toc251142424 \h  22  

  HYPERLINK \l "_Toc251142425"  §93.153 (i) Wildland fire	  PAGEREF
_Toc251142425 \h  23  

  HYPERLINK \l "_Toc251142426"  §93.153 (k)  Grace period for newly
designated nonattainment areas	  PAGEREF _Toc251142426 \h  24  

  HYPERLINK \l "_Toc251142427"  §93.154  Federal agency conformity
responsibility	  PAGEREF _Toc251142427 \h  25  

  HYPERLINK \l "_Toc251142428"  §93.155  Reporting requirements	 
PAGEREF _Toc251142428 \h  25  

  HYPERLINK \l "_Toc251142429"  §93.156  Public participation	  PAGEREF
_Toc251142429 \h  25  

  HYPERLINK \l "_Toc251142430"  §93.157  Reevaluation of conformity	 
PAGEREF _Toc251142430 \h  25  

  HYPERLINK \l "_Toc251142431"  §93.158  Criteria for determining
conformity of general federal actions	  PAGEREF _Toc251142431 \h  26  

  HYPERLINK \l "_Toc251142432"  §93.158 (a)(5)(i)(C)	  PAGEREF
_Toc251142432 \h  27  

  HYPERLINK \l "_Toc251142433"  §93.159  Procedures for conformity
determinations of general federal actions	  PAGEREF _Toc251142433 \h  28
 

  HYPERLINK \l "_Toc251142434"  §93.160  Mitigation of air quality
impacts	  PAGEREF _Toc251142434 \h  28  

  HYPERLINK \l "_Toc251142435"  §93.161  Conformity evaluation for
federal installations with facility-wide emission budgets	  PAGEREF
_Toc251142435 \h  28  

  HYPERLINK \l "_Toc251142436"  §93.162  Emissions beyond the time
period covered by the SIP	  PAGEREF _Toc251142436 \h  30  

  HYPERLINK \l "_Toc251142437"  §93.163  Timing of offsets and
mitigation measures	  PAGEREF _Toc251142437 \h  30  

  HYPERLINK \l "_Toc251142438"  §93.164  Inter-precursor mitigation
measures and offsets.	  PAGEREF _Toc251142438 \h  32  

  HYPERLINK \l "_Toc251142439"  §93.165 Early emission reduction credit
programs at federal facilities and installations subject to federal
oversight	  PAGEREF _Toc251142439 \h  33  

  HYPERLINK \l "_Toc251142440"  Since discrete emission reductions
credits are produced in one time period and used at a later time, they
generally would not meet the requirements for conformity.  Therefore ,
EPA is not including their use in the General Conformity program.	 
PAGEREF _Toc251142440 \h  34  

  HYPERLINK \l "_Toc251142441"  General Comments	  PAGEREF _Toc251142441
\h  34  

  HYPERLINK \l "_Toc251142442"  Transportation Conformity	  PAGEREF
_Toc251142442 \h  35  

 Glossary of Terms

AGL – Above Ground Level

BSMP – Basic Smoke Management Practices

CAA – Clean Air Act

CFR – Code of Federal Regulations

EIS – Environmental Impact Statement

EPA – Environmental Protection Agency

ERC – Emission Reduction Credit

FAA – Federal Aviation Administration

FIP – Federal Implementation Plan

FR – Federal Register

NAAQS – National Ambient Air Quality Standard

NEPA – National Environmental Policy Act

NFR – Notice of Final Rulemaking

NSR – New Source Review

OAQPS – EPA Office of Air Quality Planning and Standards

OCS – Outer Continental Shelf

NOx – Nitrogen Oxides

PM – Particulate Matter

PM2.5 – Fine particles that are 2.5 micrometers in diameter and
smaller

PM10 – Inhalable coarse particles that are larger than 2.5 micrometers
and smaller than 10 micrometers in diameter

RFP – Reasonable Further Progress

SAFETEA-LU – Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users

SIP – State Implementation Plan

SMP – Smoke Management Program

TIP – Tribal Implementation Plan

VOC – Volatile Organic Compounds

1.0	Introduction

This document, together with the notice of final rulemaking (NFR)
“Revisions to the General Conformity Regulations,” presents the
responses to significant comments received on the proposed revisions to
the General Conformity regulations.

2.0	Background

Section 176(c) was revised by the Clean Air Act (CAA) in 1990 to require
that federal actions conform to the appropriate state, tribal or federal
implementation plan for attaining clean air (“General Conformity”). 
The Environmental Protection Agency (EPA) issued the General Conformity
regulations in 1993. The General Conformity requirements are meant to
prevent air quality impacts of federally approved or funded activities
from causing or contributing to violations of the national ambient air
quality standards (NAAQS) in an area working to attain or maintain the
standards. On January 8, 2008, EPA proposed to revise its General
Conformity regulations. EPA has only revised the General Conformity
Regulations once since they were promulgated in 1993 to include de
minimis emission levels for fine particulate matter and its precursors
(July 17, 2006). Over this period, EPA and other federal agencies have
gained experience with the implementation of the existing regulations
and have identified several issues with that implementation. In
addition, in 2004 EPA issued regulations to implement the revised ozone
standard and in 2007 issued regulations to implement the new fine
particulate matter standard.  These regulations could affect the timing
and process for General Conformity determinations. State and other air
quality agencies are in the process of developing revised plans to
attain the new standards; the proposed revisions to the General
Conformity regulations will be helpful to the state, tribe, and local
agencies as well as the federal agencies in developing and commenting on
the proposed SIP revisions. The revised rule provides a streamlined
process for federal agencies and states and tribes to ensure federal
activities are incorporated in these state implementation plans (SIPs).
Where that is not possible, it provides an efficient and effective
process for federal agencies to ensure their actions do not cause or
contribute to a violation of the NAAQS or interfere with the purpose of
a state, tribal or federal implementation plan to attain or maintain the
NAAQS.  Specifically the revisions:

 

Clarify and streamline the applicability, conformity determination and
review processes, 

Delete outdated or unnecessary requirements, provide transition tools
for making conformity determinations for new NAAQS standards, 

Incorporate process improvements requested by federal agencies, and 

Further explain the General Conformity rules and policies. 

3.0	Responses to Comments on the Revised General Conformity Regulations

The following sections address the comment letters received by EPA on
the proposed revisions to the General Conformity regulations before the
close of the public comment period on March 10, 2008.  In all, EPA
received over 300 comments from 65 state, federal, or environmental
organizations.  The comment summaries and responses presented in this
document follow the proposed revisions as they were presented in the
Notice of Proposed Rulemaking.  Each section has a brief overview of
what EPA proposed, substantive comments received, and EPA’s responses.
 A list of commenters, including their docket numbers and organizations
they represent, is found in Appendix A.

Part 51 – Requirements for Preparation, Adoption, and Submittal of
Implementation Plans

§51.851  State implementation plan (SIP) or tribal implementation plan
(TIP) revision

What EPA proposed:  The EPA is revising 40 CFR 51.851 to make the
adoption and submittal of the General Conformity SIP optional for the
state and eligible federally-recognized tribal governments.  

In addition, EPA is adding a new provision in §51.851(f), which allows
states or tribes to include in their SIP or TIP a list of actions that
are presumed to conform. For example, the state may identify the
emissions from a certain type and size of construction activities that
it presumes will conform.  

Comment:  Several commenters supported EPA’s proposal to make the
adoption and submittal of the General Conformity SIP optional. One
commenter believed that the elimination of the conformity SIP
requirement in §93.151 leaves a gap regarding the enforcement of
mitigation measures.  The commenter noted that under the language in the
new provision, there is no state or federal enforceability if the state
withdraws its conformity SIP or otherwise fails to retain a requirement
that written commitments to undertake and implement mitigation measures
are obligations of the SIP.   

	Some commenters opposed allowing states to establish
presumed-to-conform lists.  One commenter thought this would allow
project sponsors to avoid compliance.   However, other commenters
supported allowing states to develop their own lists.  

Response:  In 1990, the CAA was amended to include a provision in
Section 176(c)(4) that required states to adopt and submit to EPA for
approval, a SIP to implement the provisions of section 176(c).  Section
6011 of the Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU) revised the conformity requirements
in section 176(c) of the CAA.  Although most of the revisions affected
the Transportation Conformity requirements, section 6011(f) also revised
the General Conformity requirements. Specifically, section 6011(f)
revised section 176(c)(4)(A) of the CAA by including a requirement that
the regulations must be periodically updated and by deleting the
requirement for the states to adopt and submit a General Conformity SIP.
 The EPA does not interpret this provision as prohibiting states or
tribes from voluntarily adopting and submitting General Conformity
implementation plans consistent with EPA regulations.  However, EPA does
believe that this revision prevents EPA from making submittal of a
General Conformity SIP mandatory.  Therefore, EPA is revising 40 CFR
51.851 to make the adoption and submittal of the General Conformity SIP
optional for state and eligible federally-recognized tribal governments.

The regulations require that if a state does not have conformity SIP,
then federal agencies must conduct their conformity evaluation under the
requirements of 40 CFR 93.150-165.  These requirements are essentially
the same as the requirements previously required to be contained in the
conformity SIPs.  Therefore, EPA believes there would be little
difference in the enforceability of the regulations.  The mitigation
measures used for the conformity evaluations have always been required
to be included in the attainment or maintenance SIP or TIP for the
particular pollutant or as part of a permit program under the SIP or
TIP, and not in the conformity SIP or TIP.  Therefore, if the conformity
SIPs are withdrawn the existing mitigation measures will not be
affected, and EPA believes that the absence of a state adopted
conformity SIP will not affect the enforcement of existing or future
mitigation measures.

Comment:  One commenter suggested that EPA needs to clarify the
relationship between the TIP and SIP and federal agency
responsibilities.   The commenter supported the proposed listing of
federally-recognized tribes for each nonattainment or maintenance area. 
The commenter noted that the list may need to provide contact
information on Tribes that may not live in the nonattainment or
maintenance area, but have “ancestral homeland” rights that may need
to be addressed.  The commenter suggested that EPA review 36 CFR
800.2(c)(2)(ii) to determine if the proposed regulation and preamble
text adequately address the “ancestral homeland” issue.

Response:  The EPA believes that the revised regulations provide a tribe
with approximately the same rights afforded state and local agencies in
evaluating the proposed conformity determinations, if the tribal land,
which would include land designated as “ancestral homeland,” is
located in the nonattainment or maintenance area affected by the action.
 If EPA has approved a tribal implementation plan for the area, the
federal agency action must conform to that plan as well as any
applicable SIP for the area.  The consultation under the General
Conformity Regulations does not relieve the federal agencies from other
required consultation such as required under 36 CFR 800.2(c)(2)(ii).

Part 93- Determining Conformity of Federal Action to State or Federal
Implementation Plans

§93.150 Prohibition

§93.150 (c) Categories of actions that were not subject to the
regulations at the time of promulgation in 1994

What EPA proposed:  Because paragraph (c) is outdated, EPA is deleting
the paragraph and reserving it for later use.  

Comment:  One commenter objected to the deletion of paragraph (c),
noting that the deletion would create an uncertain status for projects
that had been excluded under that provision.

Response: EPA established paragraph (c) of section 93.150 to identify
the criteria for grandfathering actions that were started before the
General Conformity Regulations were promulgated in 1993.  If the federal
agency with an action that has been grandfathered has not completed the
action or has not commenced a continuous program to implement the action
in the 16 years since the rules were promulgated, EPA believes that such
an action would need to be re-evaluated, given the lapse of time.   This
is consistent with the requirements included in section 93.157. 
Further, EPA believes actions that have been completed or are being
implemented would not be affected by the deletion of paragraph (c).

§93.150 (e)   Actions affecting multiple nonattainment or maintenance
areas.

What EPA proposed:  The EPA is clarifying in 40 CFR 93.150 the General
Conformity evaluation for treatment of emissions from actions with
emissions originating in more than one nonattainment or maintenance
area. EPA believes that emissions in each area would be evaluated as if
they resulted from separate actions.

Comment:  Some commenters supported the concept of evaluating areas
separately when an action results in emissions in more than one
nonattainment or maintenance area.  One federal representative commented
that this approach is the most equitable approach to regulatory agencies
as well as the project operators.  Another commenter supported the
proposal noting that it is similar to the Transportation Conformity
Regulations.  One commenter supported the proposal but requested
flexibility for times when a large number of nonattainment or
maintenance areas were involved.  Another commenter supported the
proposal but asked EPA to clarify the language regarding emissions
originating in attainment areas that might impact nonattainment areas.  

Other commenters expressed concern about requiring separate evaluations
for each area.  One commenter said this is not a minor change.  One
commenter suggested the project should be evaluated as a whole to
determine if the emissions exceed de minimis level; if emissions fall
below de minimis levels, no conformity evaluation would be required. 
Another commenter objected to “splitting” the emissions, suggesting
that this could allow a significant and unchecked increase in emissions
downwind.

Response:  Under the statutory requirements of CAA section 176,
emissions from federal actions that affect multiple nonattainment or
maintenance areas need to be evaluated to ensure that the action
conforms with the applicable implementation plans.  Since several of the
conformity requirements are specific to the individual nonattainment or
maintenance areas (e.g., de minimis emission levels and emissions
included in the SIP), federal agencies cannot evaluate the conformity of
their actions except on an individual area basis.  The EPA has allowed
some flexibility in the reporting requirements where the action would
affect a large number of areas.   However, EPA believes the evaluation
must include analysis of the individual areas to ensure that the action
conforms to the individual SIPs.  Under the CAA, only emissions in
nonattainment or maintenance areas are subject to the conformity
requirements.  Emissions originating from actions in attainment areas
are not subject to General Conformity requirements regardless of their
affect in a nonattainment or maintenance area.  In addition, EPA has
clarified that under the relevant regulations, only emissions that fit
within the definition of direct or indirect emissions (i.e., must be
reasonably foreseeable, practically controlled, and under continuing
program responsibility) and are above the de minimis thresholds need to
be considered. 

§93.151  State implementation plan (SIP) revision.

What EPA proposed:  In 1990, the CAA was amended to include a provision
in Section 176(c)(4) that required states to adopt and submit to EPA for
approval, a SIP to implement the provisions of section 176(c).  Section
6011 of Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU) revised the conformity requirements
in section 176(c) of the CAA.  Although most of the revisions affected
the Transportation Conformity requirements, section 6011(f) also revised
the General Conformity requirements. Specifically, section 6011(f)
revised section 176(c)(4)(A) of the CAA by including a requirement that
the regulations must be periodically updated and by deleting the
requirement for the states to adopt and submit a General Conformity SIP.
 The EPA does not interpret this provision as prohibiting states or
tribes from voluntarily adopting and submitting General Conformity
implementation plans consistent with EPA regulations.  However, EPA does
believe that this revision prevents EPA from making submittal of a
General Conformity SIP mandatory.  Therefore, EPA is revising 40 CFR
51.851 to make the adoption and submittal of the General Conformity SIP
optional for state and eligible federally-recognized tribal governments.

Comment:  Several commenters supported EPA’s proposal to make the
adoption and submittal of the General Conformity SIP optional. Others
disagreed, noting that the elimination of the conformity SIP requirement
in §93.151 would be an impermissible relaxation and would leave a gap
regarding the enforcement of mitigation measures.   The commenter noted
that under the language in the new provision, there is no state or
federal enforceability if the state withdraws its conformity SIP or
otherwise fails to retain a requirement that written commitments to
undertake and implement mitigation measures are obligations of the SIP.

Response:  The EPA is revising its regulations to be consistent with the
revised requirements of the CAA.  In 2005, the CAA was revised to
eliminate the requirement that a state must adopt a conformity SIP.  The
EPA’s original General Conformity Regulations required federal
agencies to comply with the state conformity SIP where applicable. 
Where there is no state conformity SIP, the regulations required the
federal agencies to demonstrate conformity under the provisions in 40
CFR Part 93.  We have not changed that those requirements.  EPA
regulations require the conformity SIPs and TIPs to include essentially
the same measure as the requirements in Part 93, therefore if a SIP is
withdrawn there would be little difference in the requirements for the
federal agencies or the enforceability of the regulations  and thus
would not be a relaxation of the requirements..  

As stated in response to comments on section 40 CFR 51.851, the
mitigation measures used for the conformity evaluations are required to
be included in the attainment or maintenance SIP or TIP for the
particular pollutant or as part of a permit program under the SIP or TIP
and not in the conformity SIP or TIP.  Therefore, if the conformity SIPs
are withdrawn the existing mitigation measures will not be affected and
EPA believes that the absence of a state adopted conformity SIP will not
affect the enforcement of existing or future mitigation measures.

§93.152  Definitions

EPA proposed revising 12 of the existing definitions, adding 11 new
terms, deleting one term, and clarifying the scope of an existing
definition.  The definitions that received comment are found below.

Applicability analysis

What EPA proposed:  The EPA is adding this new term to describe the
process of determining if the federal agency must conduct a conformity
determination for its action.

Comment:  A commenter suggested that EPA’s proposed definition lacks
specificity and appropriate detail.  The commenter notes that the
preamble more thoroughly defines applicability analysis than does the
rule.  The commenter suggests that at a minimum, the rule contain the
same wording as that found in the preamble.  However, the commenter
notes that neither the preamble nor the rule indicates the sort of
documentation and analysis required for a federal agency to establish
that the federal actions “total direct and indirect emissions are
below or above the de minimis levels.”

Response:   In the original promulgation, EPA established the term
“applicability analysis” to describe the activities that Federal
agencies or other affected parties undertake in determining if a
conformity determination is required.  The EPA is using the term to
clarify the steps in the process.  The specific requirements included in
the regulations and the discussion provided in the preamble are adequate
to describe the process.  

Under the original and revised regulations, federal agencies must
determine whether the direct and indirect emissions from federal actions
are below the de minimis levels.  As a general matter, it has always
been, and continues to be, in the reasoned discretion of the federal
agency to decide which methods and analysis it will use when determining
whether this or any other provision applies to the emissions from its
activity.  

Caused by

What EPA proposed:  The basic test established by the 1993
regulations’ definition of “caused by” is that the emissions would
not have occurred in the absence of the federal action. Since
promulgation of the General Conformity regulations in 1993, EPA has
interpreted the regulations to require a federal agency to include
construction emissions in its conformity analysis.  The EPA believes
that emissions from construction activities initiated, approved, or
funded by a federal agency meets this test and should be included in the
conformity evaluation.  Therefore, EPA is clarifying that construction
emissions are part of the total direct and indirect emissions from an
action.

Comment:  In the January 8, 2008 proposal, EPA solicited comment on
whether construction emissions in general or short-term construction
emissions should be exempt from the regulations.  In addition, EPA
solicited comment on what should be considered short-term construction
emissions (1 to 5 years).  The majority of commenters on this issue
objected to exempting construction emissions.  They noted:

That construction emissions can contribute significantly to particulate
matter (PM) exceedances, especially off-road vehicle emissions.  

That exempting construction emissions from General Conformity would be
in direct conflict with the Clean Air Act.  

That the effects of construction emissions are not necessarily
temporary.  

That ignoring these emissions might drop a project below the de minimis
threshold and result in unmitigated emissions and the exposure of local
residents to significant levels of pollutants such as diesel exhaust.  

Commenters supporting the exemption of construction emissions noted: 

That construction emissions only peak for a short time and that a
disproportionate amount of time in the conformity process is spent on
addressing very short-term construction-related emissions.  

That construction emissions are only a small percentage of a
nonattainment or maintenance area’s off-road emission budget and
generally not included in New Source Review (NSR) or Transportation
Conformity evaluations.  

That civil works projects are not inherently different from
transportation projects and are designed to minimize effects during
environmentally sensitive seasons and thus there is no air quality
reason for treating them differently. 

Of the commenters that thought construction emissions should be exempt,
some thought they should be exempt for 5 years while others thought they
should be exempt for only 2 years.  One commenter agreed that
construction emissions should be exempt noting that the General
Conformity and Transportation Conformity programs should be consistent
on the handling of construction emissions.  The commenter thought that
if EPA decides to include construction emissions in the conformity
evaluation, EPA should exempt short-term emissions of less than 2 years.
 This commenter requested EPA clarify how construction emissions are to
be handled under various programs such as the facility-wide emission
budget and the minor NSR permit.  One commenter suggested that the final
notice lists and explain the available options for handling construction
emissions including: incorporating them in advance into the SIPs.

Response:  The EPA agrees with the majority of commenters on this issue
that construction emissions can contribute to exceedances of the NAAQS,
particularly exceedances of the PM standards.  Unlike the construction
activities associated with Transportation Conformity and NSR projects,
construction activities associated with General Conformity actions vary
widely in type.  For example, General Conformity is concerned about
localized impacts of the direct and indirect impacts of particular
actions or projects, as reflected in case-by-case analysis of emissions
from specific actions, while Transportation Conformity is primarily
concerned with the regional impacts of long-term use of the roads, as
reflected in analysis of regional transportation processes, only
secondarily concerned with short-term and localized impacts.  Because of
the wide variety of actions covered by the General Conformity
regulations, it is not easy to characterize the relationship between the
construction and post construction emissions.   Also, NSR specifically
does not apply to emissions from mobile sources, which includes most
construction equipment -- no such restriction is found in General
Conformity. Moreover, as explained in the preamble to the final rule,
EPA believes that emissions from construction activities initiated,
approved, or funded by a federal agency would not have occurred in the
absence of the federal action and thus meet the “caused by”
definition included in the General Conformity regulations.  For these
reasons, EPA believes that it is important that construction emissions
be considered as part of the General Conformity process.  EPA also
believes that other flexibilities in the revised rule will help with
planning for and addressing construction emissions in the General
Conformity process.  These flexibilities include allowing alternative
mitigation schedules and including construction emissions in a facility
emission budget. 

Also, EPA is clarifying that conformity is based on annual emissions. 
Therefore, federal agencies should estimate construction emissions on an
annual basis and would only have to demonstrate conformity of
construction emissions during the years when those emissions occur.

Direct emissions

What EPA proposed:  EPA proposed to include a requirement that the
emissions must be reasonably foreseeable.  This was unintentionally left
out of the definition when the rules were promulgated in 1993.

 

Comment:  One commenter supported the proposal to include the phrase
“reasonably foreseeable” in the definition of direct emissions. 
Several other commenters did not support adding this phrase to the
definition.  One commenter noted that the revised definition does not
allow for potential changes in the direct emissions that may occur
during the course of the project.

Response: In promulgating the regulations in 1993, EPA discussed two
different approaches to the regulations.  First was the inclusive
approach that would have required federal agencies to include all
potential emissions that could have in any way resulted from the action,
regardless of whether the federal agency had any control over those
emissions.  The other approach was the exclusive approach that required
the federal agencies to address those emissions that resulted from the
action and over which it had control through a continuing program
responsibility.  EPA selected the exclusive approach.  EPA described two
types of emissions -- direct and indirect.  Direct emissions occur at
the time and place of the action, while indirect emissions occur at a
later time or removed in distance from the action.  EPA stated that the
indirect emissions had to be reasonably foreseeable.  Consistent with
the exclusive approach, it follows that EPA intended that both direct
and indirect emissions should be reasonably foreseeable and proposed to
add that phrase to the definition of direct emissions.  Since the
federal agency knows the time and place of the action, all or nearly all
emissions that result from the action at the time and place of the
action would be reasonably foreseeable to the agency.  Therefore, EPA
believes the addition of the language is consistent with the
implementation of the existing regulations and should have little-to-no
impact on the emissions subject to the conformity requirements.  

Indirect emissions

What EPA proposed:  The EPA is revising the definition for indirect
emissions to clarify that only indirect emissions originating in a
nonattainment or maintenance area need to be analyzed for conformity
with the applicable SIP.  In addition, EPA is revising the definition of
“indirect emissions” to clarify what is meant by “the agency can
practically control” and “for which the agency has continuing
program responsibility.” This clarification represents EPA's long
standing position that Congress did not intend for conformity to apply
to “cases where, although licensing or approving action is a required
initial step for a subsequent activity that causes emissions, the agency
has no control over that subsequent activity, either because there is no
continuing program responsibility or ability to practically control.”
58 FR 63,214 at 63,221 (November 30, 1993); see also General Conformity
Guidance: Questions and Answers, USEPA, Office of Air Quality Planning
and Standards (OAQPS), Page 6, Question 2 (July 13, 1994). 

Comment:  One commenter believes that excluding emissions over which the
federal agency does not have continuing program responsibility is
unlawful.  The commenter believes that the original definition of
“caused by” is practical because the conformity determination will
be made in the context of an Environmental Impact Statement (EIS) for
such major federal projects and National Environmental Policy Act (NEPA)
requires an assessment of the expected development and reasonably
foreseeable impacts associated with such development.  The commenter
noted that if the agency with authority to approve these expansions
lacks the continuing programmatic responsibility to control the use of
facilities approved by the agency, then the proposed activity should not
be approved.  The commenter also believes that the proposed rule
definition has the potential for allowing massive increases in emissions
that are anticipated as a result of port expansions in some of the
nations’ most polluted metropolitan areas. The commenter also noted
that NEPA may also create authority to adopt environmental mitigation
plans as part of an agency’s programmatic responsibility.

Response:  EPA is not changing the requirements of this provision in the
final rule – EPA is only clarifying the language contained in it. 
Since 1993, the “indirect emissions” definition has been limited to
those emissions for which “the federal agency…will maintain control
over due to continuing programmatic responsibility.”   Accordingly,
EPA’s reformatting of the language in this final rule does not change
the practical impact of this definition.  The commenter’s suggestion
that the definition should include emissions over which the federal
agency does not have control would greatly expand the program beyond
what EPA believes that the law intended.  Moreover, because EPA did not
propose to expand the program to include emissions over which a federal
agency does not have control, it cannot finalize such an expansion in
this rule.  Finally, EPA notes that the exclusion of emissions over
which the federal agency does not have a continuing program
responsibility is applicable to indirect emissions for the General
Conformity analysis and does not affect the analysis required for NEPA
review.  While federal agencies often conduct their General Conformity
analysis during their NEPA review and/or preparation of an EIS, the
General Conformity requirements are distinct from and different than
those requirements.  

Comment:  One commenter was concerned that the proposed definition would
not allow indirect emissions outside of the nonattainment or maintenance
area to be included in the emission estimates.

Response:  The 1995 amendment to the Clean Air Act section 176(c)
specifically limits conformity requirements to emissions in the
nonattainment or maintenance area.  Therefore, indirect emissions only
from the nonattainment or maintenance area are subject to conformity
requirements.

Comment:  One commenter supported the proposal to revise the definition
for indirect emissions to clarify that any indirect emissions
originating in an attainment or unclassifiable area do not need to be
analyzed for conformity purposes.  The commenter supported the proposed
provision that the indirect emissions must be of the type that the
“agency can practically control” and for which the agency has
“continuing program responsibility.  The commenter asked that the
revised rule clarify whether vessels are subject to conformity. 

Response: The EPA contends that emissions from vessels are the same as
other mobile sources and federal actions that affect vessels should
consider their emissions.  Since vessels are mobile sources and the rule
includes mobile sources as part of the direct and indirect emissions,
EPA does not believe that it is necessary to specifically identify
vessels as covered by the rule.

Maintenance area

What EPA proposed:  EPA is making a minor wording change to clarify the
definition by citing the regulations and the section of the CAA used to
identify maintenance areas.

Comment :  A commenter recommended that the definition of “maintenance
area” be consistent with the definition used in the transportation
conformity regulation.

Response:  The definition of maintenance area is consistent with the
definition of maintenance area in the Transportation Conformity
Regulations, and both refer to section 175A of the CAA, which is used to
identify maintenance areas.  

Restricted information 

What EPA proposed:  As discussed in §§93.155 and 156 on reporting and
public participation, EPA is specifying how restricted information used
in the conformity determination is to be handled.  To support those
revisions, EPA is adding a definition of restricted information.  The
definition is based upon applicable Executive Orders, regulations and
statutes pertaining to materials and other information where disclosure
is restricted by law.

Comment:  One commenter requested that EPA state that emission data be
specifically excluded from the definition of “restricted
information.”  

Response:  The EPA agrees that emission data generally can not be
considered “restricted information.”  Section 114(c) of the Clean
Air Act states that emission data cannot be considered as
“confidential business information.”  Only in rare circumstances
where data is contained in documents classified as sensitive information
to which access is restricted by law or regulation to particular classes
of persons and a formal security clearance is required to handle or
access the classified data would emission data from a government
facility be “restricted information.”  In the situations where
restricted information is used as part of the conformity evaluation, EPA
will work with the appropriate federal, state and tribal agencies to
ensure an adequate review of the conformity evaluation.

Mitigation measure

The EPA is defining a mitigation measure as a method of reducing
emissions of the pollutant at the location of the action.  This
definition would distinguish a mitigation measure from an offset.

Comment:  One commenter suggested adding the phrase “that utilizes
verified technology approved by EPA or other technology approved by the
state agency.”

Response: The EPA’s definition of mitigation measure is broad enough
to encompass many different approaches to reducing emissions including
innovative approaches that may not have been previously verified by
pollution control agencies.  EPA believes the addition of the suggested
language may inhibit the development of new and innovative approaches. 
EPA also notes that credit for the emission reductions from the
mitigation measures can be obtained only after the measure has been
verified.

§93.153  Applicability

Comment:  One commenter recommended that EPA revise the rule to
explicitly state that only Outer Continental Shelf (OCS) emissions that
originate in a nonattainment or maintenance area are subject to
conformity.

Response:  Generally, EPA considers the applicable nonattainment or
maintenance area to extend 3 miles from the state’s seaward boundary,
except in Texas and Florida where the  seaward boundary is 3 leagues
from the shore.   However, the EPA’s OCS Air Regulations in (40 CFR
55) require that sources within 25 miles of the state’s seaward
boundary must meet the same requirements as if the source was located on
shore.  The OCS Air Regulations apply to all applicable waters off the
US coastline, except for the coast of the Gulf of Mexico west of
Florida, where the US Department of the Interior, Mineral Management
Service regulations apply instead.  Therefore, federal actions covered
by the OCS regulations and located within 25 miles of a state’s
seaward boundary off a nonattainment or maintenance area would be
subject to conformity evaluation with regard to the implementation plan
for the applicable on-shore area.  For those actions in areas beyond 25
miles from the seaward boundary, the federal designation would apply
because EPA has never designated those areas as nonattainment and are
unclassified.  Thus, General Conformity does not apply to actions in
those areas because they do not meet the General Conformity
applicability requirement that the action must in a maintenance or
non-attainment area.

§93.153 (b) 

Comment:  One commenter asked EPA to address the anti-backsliding issue
since reclassifications of some areas for the new ozone standard would
allow actions in the area to have less stringent de minimis emission
levels.

Response: Under section 110(l) of the Clean Air Act, EPA cannot approve
a revision to a SIP if the revision would interfere with attainment or
maintenance of a NAAQS or any applicable requirements of the Act.  This
section has been called the anti-backsliding provision because it
prevents states from revising or dropping control requirements without
offsetting the lost emission reductions.  The promulgation of the new
ozone standards resulted in a lower classification for some areas and
thus the areas would be subject to less stringent requirements.  Under
the anti-backsliding provisions states would not be able to withdraw the
prior regulations unless they could demonstrate that those regulations
are not needed to attain and maintain the standard.  The General
Conformity provisions of the CAA do not contain a similar restriction on
backsliding, and EPA did not retain General Conformity as an
anti-backsliding requirement in our transition regulations for the
8-hour ozone standard, a decision that was upheld by the D.C. Circuit. 
See South Coast Air Quality Management Dist. v. EPA, 489 F.3d 1245, 1248
(D.C. Cir. 2007) (limiting the anti-backsliding findings to
transportation conformity budgets)  Accordingly, General Conformity
determinations made after the area has been reclassified would be based
upon the new area requirements and must demonstrate that the emissions
will not interfere with the attainment or maintenance of that standard. 
We believe that the de minimis emission levels based upon the area’s
new classification are adequate for that demonstration.

Comment:  Several commenters suggested that the PM2.5 de minimis level
should be reconsidered to be sure that the PM2.5 level is at least as
stringent as PM10.  One commenter noted that PM2.5 emissions, as a
subset of PM10 emissions, are always less than PM10 emissions and argued
that it is ineffective to have a threshold for PM2.5 that is higher than
PM10.  Another commenter suggested that the threshold for volatile
organic compounds (VOCs), nitrogen oxides (NOx), direct PM and sulfur
dioxide levels in table 93.153(b) for the 8 hour ozone standard and the
24 hour PM2.5 standards should be reduced.  

Response:  When EPA promulgated the PM2.5 de minimis emissions on July
17, 2006, (71 FR 40422) it noted in response to a similar comment that
“[t]he intent of the de minimis levels is to assure that the General
Conformity rule covers only major federal actions that are major sources
of emission. The Act in section 302(j) defines a major source as meaning
‘any stationary facility or source of air pollutants which directly
emits, or has the potential to emit, one hundred tons per year or more
of any air pollutant (including any major emitting facility or source of
fugitive emissions of any such pollutant, as determined by rule by the
Administrator).’ This definition provides a Congressional threshold
for a major source. As discussed in the preamble of the proposal, EPA is
using the same methodology to set the de minimis level for PM2.5 as it
did for the other NAAQS pollutants (with the exception of lead, which
had alternative de minimis levels in light of the unique nature of lead
emissions). This methodology is based on a level found in the statute as
defining major stationary sources of air pollution.” This methodology
was explained in the November 30, 1993 preamble to the promulgation of
the General Conformity Regulations (58 FR 63228).  Even though the
concentration levels for the standards have reduced, the definition of
major sources have not.   With regard to the suggestion that the general
conformity de minimis thresholds for various pollutants should be
reduced, such a change cannot be made since it was not included in the
proposed rule.  However, EPA retains the authority and discretion to
re-evaluate those standards in a future rulemaking as appropriate.  

Comment:  One commenter asked EPA to clarify that the nonattainment
status of an area be determined based on the 8-hour ozone standard, not
the 1-hour standard.

Response: The General Conformity regulations are designed to ensure that
federal actions do not interfere with the states and tribes ability to
attain and maintain the national ambient air quality standards.  The
conformity requirements apply to all applicable air quality standards
and federal actions must conform to the SIPs, TIPs or federal
implementation plans (FIPs) for the areas.  Although EPA has replaced
the 1-hour ozone standard with the 8-hour standard, many of the 1-hour
existing SIPs retain the 1-hour standard and those requirements remain
in place as a basis for addressing the 8-hour standard.  Accordingly, in
carrying out the conformity determination for a specific action, the
federal agency should apply the standard in place in the area(s) in
which the action will occur.   

Comment:  Several commenters opposed omitting the analysis of ultra fine
particles (PM1.0 and below)

Response: The General Conformity regulations are designed to ensure that
federal actions do not interfere with the states and tribes ability to
attain and maintain the national ambient air quality standards.  The
conformity requirements apply to all applicable air quality standards,
and federal actions must conform to the SIPs, TIPs or FIPs for those
standards that are applicable for the areas in which the action will
occur. Because the EPA has not promulgated an ultra fine particulate
standard, the specific analysis of ultra fine particles is not required
under the conformity program.  EPA also notes that ultra fine
particulates are included as part of the fine particulate (PM2.5 )
emissions that are required to be evaluated  under the current and
revised rules.  

§93.153(c)(2) Treatment of aircraft emissions during takeoffs and
landings 

What EPA proposed: EPA proposed revisions to the regulations that would
exempt aircraft emissions above 3000 feet above ground level (AGL) from
the General Conformity requirements. 

Comment:  Several commenters representing state and local air quality
agencies objected to excluding the emissions from aircraft above 3000
feet above ground level.  They noted that the mixing height varies and
can be as high as 4,500 feet AGL during the ozone season and that
pollutants emitted at middle and high altitudes can travel long
distances.  They also noted that pollution levels were below predicted
levels following September 12, 2001 when aircraft were grounded.   One
commenter added that many states know from experience that even above
3000 feet such emissions can have adverse impacts.  Another commenter
questioned the adequacy of the Federal Aviation Administration (FAA)
study upon which EPA relied in developing this exemption.

Other commenters representing the airports and the airline industry
supported the exemption emission from aircraft above 3000 feet AGL. 
They noted that the FAA study supports the conclusion that aircraft
operations at or above 3,000 feet AGL have a minimal effect on ground
level pollutant concentrations. The commenters also noted that flights
over almost all major U.S. airports must be at least 7000 feet AGL,
therefore, any commercial aircraft operating at 3000 feet would most
likely either be landing or taking off.  The commenters also noted that
the FAA study concluded that any increase in ground level concentrations
of CO and hydrocarbon (HC) due to mixing was negligible. 

A federal agency commenter believes that the exemption for air traffic
control activities should not be restricted by altitude.  The commenter
noted that the proposal for exempting aircraft operations above 3,000
feet AGL is much narrower than what was presented in the preamble to the
1993 General Conformity rule as an example of an action that may be
exempt from the General Conformity requirements – “air traffic
control activities and adopting approach, departure and enroute
procedures for air operations.”  

Response:  EPA agrees that the aircraft emissions above the mixing
height do not significantly affect ground level concentrations and
acknowledges that the mixing height can vary from one area to another. 
Accordingly, in those areas where the applicable SIP or TIP specifies a
mixing height to be used, EPA is requiring the specified mixing height
to be used in conformity determinations.  However, in those areas where
the SIP or TIP does not specify a mixing height, EPA is allowing the
federal agencies to use 3,000 feet AGL as a default mixing height.  This
conclusion is supported by the FAA study.  EPA also notes that 3,000
feet AGL is commonly used as an estimate of the average maximum
afternoon mixing height across the country and most air quality models
use 3,000 feet AGL as the default mixing height.  However, we also note
that the FAA study showed that some areas have mixing heights lower than
3,000 feet AGL, so in the final rule we have added regulatory language
to sub-paragraph (xxii) to allow federal agencies to use a different
mixing height if they can demonstrate that emissions at and above that
height are de minimis in the particular area.  We have also explained in
the preamble that it is in the reasoned discretion of the Federal agency
to decide which methods and analysis it will use when determining
whether this exemption or any other provision applies to the emissions
from its activity.  

With regard to the alleged inadequacies of the FAA study, EPA believes
that the study supports the conclusion that aircraft emissions above the
mixing height do not significantly affect ground level concentrations. 
The study was based on very conservative assumptions regarding the data
applied and the analysis performed, such that any particular concerns
with the data and analysis provided in the study do not rise to the
level of negating the usefulness of the study in our present rulemaking.

§93.153 (d)(1)  Minor new source review (NSR) permit exemptions 

What EPA proposed: EPA proposed to exempt the emissions from stationary
sources permitted under the minor source NSR programs as EPA’s
existing General Conformity regulation already provides for exemptions
for emissions from major NSR sources.

Comment:  The majority of commenters agreed with the proposal to exempt
stationary sources permitted under the NSR program.  They believed the
review to be redundant and unnecessary.  

Some commenters disagreed with exempting minor sources.  One commenter
said this was not a minor change to the regulations.  Another thought
that EPA should not exempt activities with emissions less than the major
source threshold from conformity review unless some basis can be
established that the cumulative emissions from such sources are truly de
minimis with respect to the statutory conformity tests.  The commenter
suggested that EPA substitute a SIP-based program for establishing a
budget for minor sources in place of the regionally significant
threshold.  Several commenters suggested that only NSR permits which
require offsets or are offset on a programmatic basis should be exempt
from conformity.  A few commenters thought that if EPA exempts minor
sources for the conformity evaluation, it must first clearly demonstrate
that such exemptions will not impede states’ ability to attain any
standard.  

Response:  The EPA agrees that requiring a conformity analysis for
emissions covered by a minor source NSR permit would be redundant and
provide little environmental benefit.  EPA believes that the permitting
authority has the responsibility to ensure that the source will not
interfere with the SIP or otherwise interfere with the state’s ability
to attain the standards.  Minor source NSR permits are issued under a
SIP-approved program, so there has already been a determination that the
permitting program will not contribute to a violation of the NAAQS or
delay the attainment or maintenance of the standards.  Moreover, as such
determinations are made with regard to all minor source permits issued
under the program, regardless of whether or not they required offset, we
do not think that the General Conformity exemption should apply only to
permit with offsets.      Thus, by issuing a specific permit under that
program, the authority is finding that the emissions are accounted for
in the SIP, effectively providing the same assurances as a conformity
determination since federal agencies can demonstrate conformity for an
action by showing that the actions will not cause a violation or
interfere with the SIP.  Therefore, in the final rule, EPA will exempt
the emissions from stationary sources permitted under both the minor and
major source NSR programs.  

§93.153 (e) Emergency episodes

What EPA proposed:  EPA proposed to amend paragraph (e)(2) to provide
procedures for reviewing the extension of time for making a conformity
determination for emissions from federal actions related to responding
to an emergency.

Comment:  Most commenters supported the clarification of the procedures
for extending the time for conducting a conformity determination for
emissions generated in actions responding to emergency events.  One
commenter thought that the rule should be revised to require that EPA
must approve extension requests beyond 2 years and also that the
extension should be circulated for public comment and that extensions
should be subject to judicial review.  Another commenter thought that
the 15 day period found in the proposal for review by the state and EPA
is not enough time for large and complex federal projects.  In addition,
this commenter was concerned that the exemption timeline would go past
the attainment years for the 8-hour ozone and PM2.5 NAAQS.  

Response:    The purpose of this exemption is to allow federal agencies
to respond quickly to emergencies without the need to propose and take
comment on their actions.   As a general matter, emergency events
include a natural disaster, terrorist attack, military mobilization, or
other situations (such as wildfire responses) that an agency determines
fit within the definition of emergency found in §93.152.  Given the
nature of such events, EPA recognizes that, in some cases, those
responses will result in additional emissions in nonattainment or
maintenance areas, however the actions are necessary to address the
aftermath of the emergency.  In most cases, the federal agency can
complete its action in a relatively short period of time, less than 6
months, but we note that in some cases, additional time is needed to
respond to the emergency.  For example, following the September 11, 2001
attack in New York, the subway service under the Hudson River was
interrupted.  Federal agencies took actions to provide ferry service
between New Jersey and Manhattan Island.  The federal agencies were
limited to the available ferries in the area and did not have the
ability to control the emissions from those ferries.  The ferry service
was required until the subway system could be reconstructed.  The 1993
regulations recognized the need for this exemption, and although those
regulations allowed for this exemption, they did not provide procedures
for extending the exemptions beyond the first 6 months.   EPA believes
that the revised regulations provide a balance between the need of
federal agencies to continue actions to respond to the emergencies and
the need to demonstrate conformity to the SIP or TIP.  Since the actions
are in response to an emergency, the state and tribal agencies should be
aware of the actions and should be able to quickly review the proposed
extension.  Requiring agencies to take public comment on the proposed
extension would add additional burden on the agencies in their attempt
to respond to the emergency and would not be feasible in the timeframes
available.  EPA agrees that if the emergency occurs near the deadline
for attaining an air quality standard, then there is a possibility that
the exemption could extend beyond the attainment deadline.  In those
rare cases where this would occur, EPA will work with the states, tribes
and other federal agencies to address the situation.  

§93.153 (f), (g), and (h) Presumed to conform

What EPA proposed:  EPA proposed to clarify how federal agencies should
develop their lists of actions that are “presumed to conform.”

Comment:  Some commenters agreed with the proposed clarification while
others opposed the development of agency presumed to conform lists.  One
commenter thought that if these lists were produced in cooperation with
the states, they could decrease administrative burden associated with
minor actions that have been shown to result in insignificant increases
in emissions.  One commenter suggested that a central location be
established where state agencies and the public could go to view actions
that have been approved that are presumed to conform.  Another commenter
supported the limitation on using a combination of measures that are on
an agency’s presumed-to-conform list if the combined emissions would
equal or exceed the de minimis levels.  One commenter thought that
public participation should be allowed and that there should be an
opportunity for judicial review.  The commenter asked EPA to explain in
the preamble how any such list may be challenged.

One commenter did not agree with allowing federal agencies to develop
presumed to conform lists.  The commenter thought that the federal
agencies would use the presumed to conform lists to avoid conformity
evaluations.  Further, the commenter believed that all contemporaneous
actions taken by a federal agency should be combined for the conformity
evaluation.  One commenter thought the proposed revision to the presumed
to conform section violated the Clean Air Act and was an unlawful
delegation of authority.

One commenter requested that EPA define what is meant by “clearly
demonstrate” that the emissions from the action are included in the
SIP.  

Response:  In the original General Conformity Regulations promulgated in
1993, EPA listed a number of actions that were exempt from General
Conformity review based on their de minimis emissions as well as actions
that were presumed to conform.  40 CFR §§ 93.153(c)(2)-(e); see also
58 FR at 63229-232.  Those exemptions and presumptions apply to all
agencies that undertake those actions and apply in all states where
those actions might occur.  At the same time, EPA recognized that
individual agencies might want to avoid repetitive conformity analyses
for actions that result in de minimis emissions.  .Therefore, EPA
allowed federal agencies to adopt their own “presumed to conform”
list by documenting that “certain types of future actions would be de
minimis.”  58 FR at 63232.  Specifically, § 93.153(g) requires
federal agencies to demonstrate that the total emissions from the
activities meet the requirements contained in CAA section 176(c)(1) and
are below the de minimis emissions levels established in the rule.  EPA
explained that experience from similar previous actions could form the
basis for that demonstration.  58 FR at 63232.  

The regulations provide a number of additional safeguards to insure that
these demonstrations are met.  Section 93.153(h) requires that the
federal agency follow certain procedures to provide notice of, take
comment on, respond to comment on, and finalize the list.  Accordingly,
these procedures allow the public, EPA, and relevant air quality
authorities to review the agency’s proposed list and accompanying de
minimis documentation.  In addition, the publication of the final
presumed to conform list in the Federal Register is a final agency
action subject to judicial review under the Administrative Procedures
Act.  And once such a list is promulgated, the public also has the
opportunity to rebut the agency’s application of the presumption to a
specific action.  See 58 FR at 63230 (noting that some actions are
exempt and others are “presumed to conform, with the presumption being
rebuttable”).  Finally, a presumed to conform list cannot be used to
violate the statutory requirements of General Conformity because the
regulations specifically bar an agency from relying on the presumed to
conform list if its application to a specific activity would not comply
with the criteria of CAA § 176(c)(1).  40 CFR §93.153 (f), (g)(1), and
(j).  

In revising the presumed to conform regulation, we have not changed the
basic process and safeguards provided in the original regulations, but
we have provided some clarification on how an agency can demonstrate
that a class of action could be presumed to conform.  In the revised
regulations, we have also allowed states to adopt their own presumed to
conform lists that all federal agencies within their jurisdiction could
use.  Allowing federal agencies or states to adopt their own presumed to
conform list is not an “unlawful” delegation of authority.   Federal
agencies have always had responsibility for complying with the General
Conformity requirements of CAA § 176(c)(1).   By providing agencies
with a process for developing a presumed to conform list, EPA is merely
following its statutory requirement to “promulgate, and periodically
update, criteria and procedures” that agencies can use in determining
conformity.  CAA § 176(c)(4).  In enacting the General Conformity
requirements, Congress included only the general requirement for EPA to
promulgate such regulations, but did not limit the scope of the
procedures or criteria that could be used to govern General Conformity
determinations.  See CAA §§ 176(c)(4) (A) & (D).  The ability to
develop and rely upon a presumed to conform list is simply another tool
EPA has provided for agencies to use in making those determinations, but
the lists are not a replacement for EPA’s General Conformity
regulations.  EPA has promulgated the criteria and procedures for
demonstrating conformity and clearly established the requirements
agencies must comply with in establishing a presumed to conform list,
such that all activities covered by such lists would be anticipated to
satisfy the statutory conformity requirements.  Further, EPA has
provided an additional process for rebutting the general presumption as
appropriate where case specific facts indicate that the conformity
criteria may not be met in a given instance.   Likewise, EPA’s
implementing regulations have always allowed states and tribes to
account for certain conforming emissions in their SIPs, and allowing
them to include a list of presumed to conform activities in their SIP is
just another way of providing for such accounting.   

EPA does not believe it is necessary to provide any additional process
for EPA oversight of the development of presumed to conform lists. 
Where federal agencies follow the procedures established in the rule for
developing their presumed to conform lists, EPA concludes that such
lists will satisfy the conformity provisions of the Act.  EPA, states
and the public can step in to participate in the development of presumed
to conform lists under the provisions of the regulations and can also
rebut the presumption in any particular instance as appropriate.  EPA
believes these processes are sufficient to satisfy the statute. 
Further, EPA does not believe the process for rebutting a presumption
imposes significant burdens on commenters beyond those involved in any
rulemaking.  The process of establishing the presumed to conform list
initially should exclude significant numbers of projects that might not
conform, and participating in the conformity process to reveal facts
rebutting a presumption of conformity in a given case is no different
from the burden any public commenter bears in commenting on a conformity
determination.  Thus, providing this process for federal agencies to
make the conformity process run smoother does not constitute an illegal
delegation of federal authority and does not violates the Clean Air
Act..

The concept of a central location to view the “presume-to-conform”
actions may be a reasonable approach if and when a number of agencies
develop lists.  Since at the present time only one agency has published
a list, such an approach is not necessary at this time. 

The EPA included the term “clearly demonstrate” in its 1993
regulations to mean that the demonstration is straightforward and
transparent.   

§93.153 (i) and (j) Regionally significant emissions 

What EPA proposed:  EPA proposed to remove requirements for federal
agencies to conduct conformity determinations for actions with emissions
below de minimis levels but that may be regionally significant actions
(those actions with emission greater than 10% of the emissions inventory
for the nonattainment area).  The proposal notes that these analyses
have been conducted for 12 years and never shown a federal action with
emissions below de minimis levels to meet the regionally significant
criterion. 

Comment:  Some commenters supported deletion of the regionally
significant provision noting that it is unnecessary, not helpful in
determining whether a federal action will conform to the SIP, and an
administrative burden.  Other commenters believed that the provision
should be retained or strengthened to a more appropriate percentage of
the area’s inventory.   Some commenters also pointed out that in light
of the new PM2.5 and 8-hour ozone standards, there may come a point in
the near future for federal projects that might become “regionally
significant.”  

Response:  EPA believes it is most beneficial to the overall conformity
program to delete the regionally significant provision  EPA believes
that determinations of whether actions with emissions below the de
minimis emission levels are regionally significant has been an
administrative burden to some federal agencies with little or no
environmental benefit.  Moreover, EPA believes that strengthening the
provision may add to the burden and add no benefit.  Analysis discussed
in the proposal showed that the emission inventory for most
nonattainment and maintenance areas well exceeded the ten times the de
minimis emission levels for the area, such that no de minimis emissions
could actually be regionally significant.  Although several commenters
question whether the regionally significant test might be important for
the new PM2.5 and 8-hour ozone standards, they presented no information
to show that the de minimis emission levels would exceed 10 percent of
the inventory for potential nonattainment areas for those standards.
However, EPA retains the authority and discretion to re-evaluate whether
such a test may be appropriate after those new standards are
established.  

§93.153 (i) Wildland fire  

What EPA proposed:  EPA asked for comment on allowing federal agencies
to presume that the emissions from prescribed burns will conform,
provided the burning is conducted under a state certified smoke
management program (SMP). EPA asked for comments on two approaches:

Prescribed fires conducted in compliance with a certified SMP are
presumed to conform. 

In absence of a certified SMP, prescribed fires conducted using Basic
Smoke Management Practices (BSMP) are presumed to conform.

Comment:  The EPA received many comments in support of the first option,
noting that it was reasonable to assume that any action conducted in
compliance with the certified SMP would be in compliance with the SIP. 
One commenter thought that the presumption of conformity for burns
conducted under BSMP is not acceptable because BSMP are in no way
connected to air quality and will not ensure that resulting emissions
from a prescribed burn would conform to the SIP.  One commenter also
noted that the use of SMPs may be acceptable, but EPA has not yet issued
its final wildland fire policy.  Another commenter suggested that if
prescribed burns under certified SMPs or a BSMP are presumed to conform,
there needs to be a simple way to flag the data from affected monitors. 
EPA also received a number of comments in support of the second option,
which allows federal agencies to determine, in absence of a certified
SMP, that prescribed fires conducted using BSMP are considered
“presumed to conform” to the SIP.  One commenter pointed out that
prescribed fires are not the reason most areas are designated
nonattainment.  Some commenters noted that to be consistent with the
Treatment of Data Influenced by Exceptional Events, if the state does
not certify a SMP, the exemption should be for burns using state
approved BSMP.  Another commenter suggested that SMP and BSMP were not
developed for nonattainment areas but to keep areas from becoming
nonattainment areas based solely on smoke from fires.  Finally, numerous
commenters recommended that the definition of emergency episode include
wildfires (unplanned ignitions).  

Response:  After considering the various practices and the comments
received, the EPA believes option 1 presented in the proposed rule is
more appropriate and protective of the air quality than option 2. 
Therefore, the final rule will contain the requirements under option 1. 
Under option 1, prescribed fires conducted in compliance with a SMP are
presumed to conform.  The primary purpose of a SMP is to reduce
emissions from prescribed burns, thus preventing deterioration of air
quality and NAAQS violations, mitigating visibility impacts in mandatory
Class I federal areas and mitigating the nuisance and public safety
hazards (e.g., on roadways and at airports) posed by smoke intrusions
into populated areas.  EPA also notes that SMPs establish procedures and
requirements for minimizing emissions.  EPA believes such purposes and
requirements are consistent with the underlying purpose of the General
Conformity program.  In addition, a SMP is only finalized after EPA and
the public have had a chance to review the specific provisions included
in it, thus providing another level of assurance that the program
complies with the statutory requirements found in CAA section 176.  EPA
does not believe that the second approach contains assurances that
emissions would not contribute to new violations or otherwise violate
those statutory requirements.

However, EPA recognizes that prescribed fires employing BSMPs may be as
protective of air quality in areas where no SMP exists, and thus
explains in the preamble that an agency may rely on BSMPs to meet a
presumption of conformity if such a presumption is established by an
agency following the requirements of 93.153(g) or by a state following
the requirements of 51.851(f), since those requirements assure the
adequacy of the BSMPs to meet the legal requirements of the General
Conformity program as outlined in section 176.  

Finally, EPA does not believe that the regulatory text specifically
needs to identify wildland fires as an emergency event that is exempt
from General Conformity, since responses to natural disasters are
already identified as exempt from conformity, but has added language to
the preamble identifying wildfire responses as the type of situation
that an agency may determine fits within the definition of emergency.

§93.153 (k)  Grace period for newly designated nonattainment areas

What EPA proposed:  The EPA is adding a requirement at 40 CFR 93.153(k)
for the implementation of the statutory grace period for newly
designated nonattainment areas.  From the time that an area is
designated as nonattainment, the statute provides that agencies will
have a grace period of one year to take or start the federal action
before the General Conformity requirements for the new designation are
effective.  If an agency takes or starts the federal action before the
end of the grace period, it must comply with the applicable
pre-designation conformity requirements.  If an agency takes or starts
the federal action after the end of the grace period, it must comply
with the post-designation conformity requirements. In describing the new
term “take or start the federal action,” EPA is defining the term to
mean that a federal agency takes an action when it signs a permit,
license, grant or contract, or otherwise physically starts the federal
action.  If the agency intends to but fails to take or start the federal
action during the grace period, then it must re-evaluate conformity for
the project based on the requirements for the new designation and
classification.

Comment:  Several commenters supported the proposal to provide a grace
period for the applicability of the General Conformity Regulations for
newly designated nonattainment areas.  One commenter recommended a 12
month grace period.  Another recommended that the time period align with
the 2-year grace period in the Transportation Conformity Regulations.  

Other commenters opposed the proposal, suggesting that granting a 12
month grace period for federal actions could allow a significant
increase in unmitigated emissions in an area newly designated as
nonattainment based on emissions at a level without the federal action. 
The commenters noted the grace period could serve as a loophole and
allow the implementation of a project that could further exacerbate the
air quality problem without accompanying offsets or mitigation measures.

Response: Congress established the one-year grace period when it revised
the Clean Air Act, and EPA is revising the rules to clarify this
statutory requirement.  Accordingly, the final rule will contain this
revision and cannot exclude or amend the statutory requirement.  The one
year grace period also applies to transportation conformity under the
statute.

§93.154  Federal agency conformity responsibility

Comment:  Several commenters support the revisions to the regulations
clarifying the handling of restricted information.  Commenters believe
that the definition of restricted information should state that
emissions data cannot be restricted.  Other commenters objected to the
proposed definition of restricted information saying that the definition
is redundant and unnecessary.  

Response:  EPA believes that a clarification in the final rule will
provide a clearer statement that restricted information does not have to
be disclosed.  Even though other statutes and regulations govern the
release of restricted information, EPA believes it is important to
reiterate that these regulations do not require the release of that
information.  EPA does agree that emission information cannot be
considered “restricted information” in most circumstances, but does
not agree that it needs to be stated in the regulation. 

§93.155  Reporting requirements

No comments were received on this section.

§93.156  Public participation

No comments were received on this section.

§93.157  Reevaluation of conformity

What EPA proposed:  The EPA is adding a new paragraph (d) to §93.157 to
clarify the need to conduct a new conformity determination when
modifying an action for which the federal agency previously made a
conformity determination.  

Comment:  The commenter does not believe that EPA needs to define
“modification” in the rule.  The commenter noted that EPA provided
the right amount of detail by stating that re-determination would be
required if emissions increased above the de minimis threshold.  If EPA
does include a definition for “modification” in the rule, the
commenter recommends that maintenance of actions previously determined
to be conforming actions be exempt.

Response: The EPA believes that providing the definition for
modification in the rule gives more clarity to the rule.  The final rule
will contain this definition.  With regard to the suggestion that the
final definition contain an exemption for previously determined
conforming actions, such a change cannot be made since it was not
included in the proposed rule.  Moreover, we do not believe there is a
basis for such an exemption – if there are no changes in the project
emissions, the original conformity determination would remain in effect,
but if there are changes to the project emissions, a revised
determination accounting for the change would be required in order to
conform with the requirements of CAA section 176(c).  If the conformity
determination has lapsed for the modification, then EPA believes that it
is appropriate for the federal agency to conduct a new conformity
evaluation.

  

§93.158  Criteria for determining conformity of general federal actions

What EPA proposed: In §93.158(a)(2) and (a)(5)(iii), EPA proposed to
allow federal agencies to obtain emission offsets for the General
Conformity requirements from a nearby nonattainment or maintenance area
of equal or higher classification.  The regulation requires such
emissions offsets to be obtained through either an approved SIP revision
or an equally enforceable commitment.

Comment:  Commenters representing federal agencies, industry groups and
some state air quality agencies supported the provision to allow offsets
from nearby nonattainment or maintenance areas.  Some of these
commenters suggested that additional limits could be imposed on the use
of the out-of-area offsets.  Several commenters representing state air
quality agencies opposed allowing offsets from other areas.  The
commenters noted that EPA regulations and federal court rulings limit
the area from which emissions reductions can be creditable for
attainment demonstrations.  They also opposed allowing offsets because
conformity generally applies to mobile source emissions that are
different from stationary source emissions covered by NSR.  

Another commenter supported a provision that would allow the conformity
determination to be based on compliance with a budget in reasonable
further progress (RFP) SIPs.  A commenter is concerned about the changes
that would allow a conformity determination based on an RFP budget for
years beyond the year for which the RFP demonstration exists.  The
commenter did not agree with the “flat line budget” approach
identified in the proposed rule.  The commenter believed there should be
an alternative approach where future emissions levels are identified for
the affected sources with collaboration with state and local agencies. 
A commenter noted that the role of using a photochemical model should be
clarified.

Response:  The EPA agrees that offsets should be allowed in nearby
nonattainment areas in the same manner that they are allowed under the
NSR program.  Accordingly, EPA is adding a requirement that the nearby
area contribute to the violations of the NAAQS in the area where the
federal action is located or, in the case of a maintenance area, the
emissions from the nearby area have contributed in the past to the
violations in the area where the federal action is located.  EPAs agree
with the commenter that EPA regulations and judicial rulings place
limits on the area from which emissions reductions can be creditable for
attainment demonstrations. The intent of those limits is to ensure that
the emissions from the nearby nonattainment area contribute to the
violations, or have contributed to violations in the past, in the area
in which the federal action takes place.  This is consistent with the
overall revisions to this regulation.  Therefore, we are requiring in
the final rule that federal agencies show that they have met the
requirements of §93.158(a)(2) -- that the emissions offsets originate
from an area that contributes to the violations, or have contributed to
violations in the past, in the areas with the federal action -- by using
the same techniques EPA approved by rule or guidance for demonstrating
contributing emissions in other SIP-related programs for a particular
pollutant or pollutant precursor.  By limiting the offsets to areas that
contribute or have contributed to the nonattainment, EPA is narrowing
the potential offsets to areas that will result in a benefit to the
nonattainment or maintenance area in which the federal action will take
place.  EPA also agrees that Transportation Conformity addresses mobile
sources, but the same is not true for General Conformity.  While there
are some actions subject to the General Conformity Regulations that
involve mobile sources only, a large number of other actions involve
stationary and mobile sources.

To conduct conformity evaluations for emissions that occur beyond the
period covered by the SIP or TIP, EPA stated that the federal agency
should use a flat line approach, ie, assume that the emissions allowed
in the last year of the SIP or TIP are continued.  As an alternative,
the federal agency can work with the state or tribe to allow greater
emission from the action.  In such a case, the state or tribe would have
to submit a revision to the SIP or TIP to account for those changes. 
This alternative would allow the flexibility while ensuring that the SIP
or TIP addresses the future emissions.

Emissions of primary pollutants (those pollutants emitted directly to
the atmosphere) can be effectively modeled to determine their affect on
specific areas.  However, the impact of precursor or secondary
pollutants (those pollutants formed in the atmosphere) are much more
difficult to model.  Therefore, we believe that it is appropriate to
limit the use of modeling the impact of photochemical models to
providing general information on the pollution levels in the area and
not use those models to predict the impact of specific precursor
emissions.  

§93.158 (a)(5)(i)(C)

What EPA proposed:  The EPA proposed to revise §93.158(a)(5)(i)(C) to
allow a state or tribe to commit to including the emissions from the
federal action in future SIPs. Under the existing regulations, federal
agencies can demonstrate conformity by having the state commit to
revising the applicable SIP to include the emissions. If a state or
tribe agrees to such a commitment, the state or tribe must submit a SIP
revision within 18 months to include the emissions from the action and
to make other necessary adjustments in the SIP to accommodate those
emissions.  However, the existing SIP or TIP, or a SIP or TIP required
to be submitted in 18 months, may not cover the same timeframe covered
by the conformity determination.  Accordingly, it was necessary to
expand the regulatory provision to also allow states to make commitments
for future revisions.  

Comment:  One commenter was concerned about allowing a state to make an
enforceable commitment to include the emission in future SIPs without
the consideration of potential impact on downwind states.

Response:  In some cases, the federal action can cause direct and
indirect emissions to be emitted over a number of years.  That can lead
the federal agency to address the impact of the emissions beyond the
time period cover by the SIP or TIP.  This revised provision addresses
the demonstration of conformity in such a situation.  When a state or
tribe makes an enforceable commitment to include the emission from the
federal action in a future SIP or TIP, it must evaluate those emissions
in conjunction with all other emissions in the area as part of the SIP
or TIP analysis.  Such an evaluation whould include local as well as
regional impacts, including downwind impacts.  Therefore, for
§93.158(a)(5)(i)(C) the final rule will allow a state or tribe to
commit to including the emissions from the federal action in future SIPs
on this basis. 

§93.159  Procedures for conformity determinations of general federal
actions  

No comments were received on this section.

§93.160  Mitigation of air quality impacts

No comments were received on this section.

§93.161  Conformity evaluation for federal installations with
facility-wide emission budgets

What EPA proposed: To allow federal facilities expecting to expand or
make modifications to negotiate a facility-wide emission budget in the
SIP with the applicable air pollution control agencies.  Actions taken
that do not exceed these budgets would not need a conformity
determination.  The use of this approach is strictly voluntary where a
state and federal agency agree to use it.

Comment:  The majority of commenters supported the concept of the
facility-wide emission budget approach with the appropriate consultation
and input from the states.  Many noted that it will not interfere with
attainment of the NAAQS.  However, some commenters disapproved of the
budget approach and expressed concern about a federal agency/airport
being allowed to establish its own budget without having to do
additional analysis.  One commenter noted that many activities involve
the prediction of future emissions but once the federal action has taken
place, the agency has limited control over these future emissions.

While generally agreeing with the approach, many commenters asked EPA
for clarifications.  Several commenters asked for clarification in the
final rule that this is voluntary for both the federal agency and the
states, and that states can opt to use the existing General Conformity
approach.  In addition, some commenters asked EPA to include provisions
requiring such measures as periodic reporting of emissions,
anti-backsliding, and a requirement to obtain offsets if the budget is
exceeded.  Another commenter requested that on-site pollution prevention
projects be required to occur contemporaneously with any proposed
emission changes at the facility.  Many commenters requested that EPA
clarify the applicability of this provision to non-federal facilities
(e.g., airports).

One commenter noted that a number of airports have worked with state and
local agencies to include their emissions in the SIP.  The commenter
believes that these facilities should be grandfathered.

Another commenter stated that 161(a)(3) should be revised to require
emission budgets for a pollutant be established for the same averaging
time as the emission inventory used in the attainment demonstration for
the pollutant.

A commenter believes that EPA should conduct a stakeholder discussion to
address how often facilities are required to prepare budgets and the
specific procedures and methodology that should be used to demonstrate
conformity.  The commenter also believes that the state should determine
the level of documentation needed to identify that the emissions for a
particular facility are in the SIP.

Response: The EPA agrees with most of the commenters that the
facility-wide emissions budget approach, including the requirement to
approve a facility-wide budget into the SIP or TIP, will not interfere
with attainment of the NAAQS and will provide flexibility to the
facilities in meeting the General Conformity requirements, while also
providing assurances that the budgeted actions will not interfere with
the applicable implementation plan.  EPA believes that this approach
benefits both the air regulatory agencies and the regulated facilities. 
State air quality agencies would benefit by having better emission
estimates, including growth estimates from the installation and federal
agencies would benefit by having the General Conformity process
streamlined, reducing the amount of time it takes to demonstrate
conformity.  EPA is clarifying in the final rule that this approach is
completely voluntary by both the state and the federal agency.  If the
state or tribe agrees to allow the facility to use the emission budget
approach, it must ensure that the budget that it approves meets all
applicable air quality requirements, such as attainment deadlines and
RFP milestones.   Accordingly, we are also encouraging the facilities
and the state or tribe developing and approving such budgets to consult
with other agencies or authorities as may be appropriate.  For example,
we encourage consultation with the local MPO if a facility-wide
emissions budget includes on-road mobile emissions that might also be
included in an MPO’s regional emissions analysis.  

While the state or tribe must approve a facility-wide budget into the
SIP or TIP, once they have done so, they cannot compel an agency to
demonstrate conformity with another approach if the federal agency
chooses to show conformity with the approved facility-wide emission
budget.  Federal agencies may use any approach to demonstrate conformity
provided for in the rule.  Facilities that are not federally controlled
or operated, but are subject to federal approvals, permits or funding
(such as airports and seaports) may work with the state to establish
facility-wide emissions budget that can be used by a federal agency to
satisfy its General Conformity responsibilities.  The approval by the
state of a facility-wide emissions budget into the SIP does not relieve
the state of any obligations to meet any SIP or Clean Air Act
requirements, milestones or deadlines.

Under the new section 93.161, the emission budget for the facility would
be developed and adopted under the procedures used for SIP or TIP
development.  The state or tribe would establish the appropriate
averaging time for the emission limitations, how often the budget should
be prepared and the methodology used to prepare the budget.  The level
of documentation for the budgets should be the same as required for any
SIP or TIP revision. Since the emission budget would be part of the SIP
or TIP, any exceedances of the budget can be addressed by actions by the
state, tribe or EPA under normal SIP/TIP enforcement procedures.  In
addition, if a facility exceeds its budget, the federal agency cannot
rely on that budget to demonstrate conformity.  Where a facility has
already negotiated a budget with the appropriate air quality agency, it
can work with that agency to have the budget adopted as part of the SIP
or TIP under the final rules and use it for future conformity
evaluations.

Finally, EPA is not specifying any periodic reporting requirements in
the final rules.  During the conformity evaluation, federal agencies
would have to determine whether there are adequate emissions in the
budget for the action under consideration.  If emissions were not
available, they could not use the budget to demonstrate conformity and
any reliance on a budget with an inadequate emissions could be addressed
using the relevant enforcement provisions noted above.  Moreover, there
is nothing in the final rules which would prohibit states and tribes
from conditioning their approval of the facility emissions budget on
some type of reporting requirement.

Comment:  One commenter felt that facilities with emission budgets
should be required to implement pollution prevention measures before
being allowed to use the approach.

Response:  The emission budget approach allows federal agencies to
manage their allotted budget by controlling emissions through various
means, including pollution prevention measures.  In adopting and
including the emission budget for the facilities in their SIP or TIP,
states or tribes should ensure that the budget represent good control
techniques at the facility, which may, but is not required, to include
pollution prevention measures. 

§93.162  Emissions beyond the time period covered by the SIP

No comments were received on this section.

§93.163  Timing of offsets and mitigation measures

What EPA proposed:  In general, EPA has interpreted the existing
regulations to mean that emission reductions from offsets and mitigation
measures must occur in the same calendar year as the emission increases
caused by the action, given that the total direct and indirect emissions
from an action are calculated on an annual basis. Therefore, EPA has
decided to include this interpretation in the regulations.  In addition,
EPA is adding a new section to this rule to address the timing of offset
and mitigation measures.  First, the section generally requires that the
emission reductions from the offsets and mitigation measures must occur
in the same calendar year as the emission increases caused by the
federal action and that the reductions must be equal to the emissions
increases.  As an alternative, the new section would allow, under
special conditions and consistent with CAA requirements, the state or
tribe to approve other schedules for offsets or mitigation measures. 
EPA is requiring that emissions reductions used over an alternate
schedule must be consistent with statutory requirements that new
violations are not created, the frequency or severity of existing
violations are not increased, and timely attainment or interim
milestones are not delayed.  Therefore, when a state or tribe approves
an alternative schedule for emissions reductions, it is assuring that
the increased emissions that occur during the period of the federal
action do not violate any of the three Clean Air Act requirements
described above.

To ensure that these non-contemporaneous emission reductions provide
greater environmental benefits in the long term, EPA is requiring that
the offset or mitigation ratios for alternative schedules be greater
than one-for-one.  Specifically, EPA is requiring a ratio that is no
less than the applicable NSR offset ratios for the area.  These ratios
are readily available and already understood to be based on the severity
of the nonattainment problem for the area.

Also, EPA believes that the mitigation or offset compensation period
should not last indefinitely and is requiring that the period should not
exceed two times the period of the higher emissions.  For example, a
federal agency may be supporting a construction project lasting 3 years
in a serious nonattainment area and that project will cause 150 tons per
year of increased emissions; the state or tribe can approve mitigation
measures or offsets which reduce emissions by less than 150 tons per
year provided the total reduction over a 6-year period is equal to or
more than 540 tons (150 tons per year times 3 years equals 450 tons
times the offset/mitigation ratio of 1.2 to 1 for serious nonattainment
areas equals 540 tons).

Agreeing to allow the use of offsets or mitigation measures in later
years does not exempt the state or tribe from timely meeting any of its
SIP or TIP obligations, such as RFP milestones or attainment deadlines. 
Emissions reductions which accrue beyond the compensation period should
be properly reflected in the SIP or TIP, e.g. through a SIP revision.

Comment:  Several commenters representing federal agencies, industry and
airports supported the flexibility in the timing of offsets and
mitigation measures.  The commenters believe that EPA needs to clarify
what entity would determine whether the alternative time period for
mitigation would trigger the three statutory factors for conformity and
how such an entity would do so.  One commenter recommended that the
state or tribal agency responsible for the SIP be the appropriate
entity.  Another commenter requested that EPA clarify the use of
emission reduction credits in such cases.  In addition, a commenter
urges EPA to reduce the offset ratios to no more than 1.2:1 in extreme
nonattainment areas and to provide a fixed period of time for completing
the emissions reductions recommending a 5-year compensation period to be
included in the rule. 

Some commenters representing state and local air quality agencies
objected to the alternate schedule provision for offsets.  The
commenters believe that mitigation measures and offsets must be
contemporaneous and occur in the same calendar year as the emission
increases.  If EPA adopts the provision, the commenters suggested
additional limitation on the use of the alternative schedule, such as a
3 year maximum time limit for the schedule and requiring more than a
one-for-one offset.

Response:  We believe that the approach for the alternative mitigation
schedule, as proposed, provides flexibility for federal agencies to
demonstrate conformity while providing some longer term environmental
benefits.  The rule requires that the nonattainment or maintenance areas
to meet the Clean Air Act requirements during the period of higher
emissions.  Therefore, states and tribes would not be able to approve
any flexibility schedule if the higher emissions would interfere with
their ability to make progress towards or attain the air quality
standards.  We believe that the increased uncertainty involved in the
longer mitigation period justifies the use of the higher offset ratios
and those ratios are consistent with other Clean air Act programs.  
Since state or tribal approval is required for the alternative schedule,
those agencies have the ability to ensure that the alternative schedule
not cause or contribute to a violation of the SIP or TIP.  In addition,
EPA has added additional wording to the final rule to clarify that the
state or tribe is not compelled to approve a proposed alternate schedule
for mitigation measures. 

§93.164  Inter-precursor mitigation measures and offsets.

What EPA proposed:  The EPA is adding a new section to the regulations
to allow the use of inter-precursor offset and mitigation measures where
they are allowed by the SIP.  The 1993 General Conformity regulations do
not specifically allow or prohibit inter-precursor offsets and
mitigation measures.  Therefore, EPA is revising the regulations to
allow such offsets or mitigation measures if they are allowed by a state
or tribe NSR or trading program approved in the SIP, provided they:

1. Are technically justified; and

2. Have a demonstrated environmental benefit.

The ratio for the offsets must be consistent with SIP or TIP
requirements and EPA guidance.

Comments:  Commenters from a wide range of affiliations supported the
provision for inter-precursor offsets with some conditions.  The
commenters suggested that offsets should be allowed only with adequate
technical support and appropriate ratios for inter-pollutant mitigation.
 Another commenter believes cross-pollutant offsets should be allowed. 
Others thought EPA should provide a guidance document on what states may
consider as reasonable tradeoffs and procedures for evaluating such
tradeoffs at the same time as the final rule publication.  Many believed
the provisions should only be implemented with the full involvement and
approval of the state, local or tribal air quality agency.  Some
commenters representing state air quality agencies objected to the
provision for inter-precursor offsets but gave no reason for the
objection.

Response:  The EPA believes that allowing inter-precursor offsets will
allow facilities flexibility in meeting the General Conformity
requirements and agrees to change the regulations to allow for the
trading of inter-precursor emissions only if two conditions are met. 
First, such trades must be allowed by the state or tribe in a SIP or
TIP.  The state must already allow for inter-precursor offsets or
trading through a SIP-approved NSR program, transportation conformity
program, or in the attainment or RFP demonstration to ensure conformance
with a SIP or a TIP.  Second, the trade must be technically justified
and have demonstrated environmental benefits. This technical
justification and demonstration should be accomplished by showing the
precursors are area specific and appropriate ratios are identified in
the SIP.  As needed, EPA will provide guidance on tradeoffs and
procedures for evaluating such tradeoffs. However, we do not believe
allowing cross-pollutants offsets would conform with the purposes of
General Conformity under CAA § 176(c)(1)(B), since getting offsets of
one criteria pollutant would not assure that the federal activity  was
not causing or contributing to a new violation, increasing the frequency
or severity of an exiting violation, or delaying attainment of any
standard for the pollutant actually emitted by the project (for example,
getting CO offsets would not lessen the impact of the NOx emissions from
a project).

§93.165 Early emission reduction credit programs at federal facilities
and installations subject to federal oversight

What EPA proposed:  The EPA is adding a new section to the regulations
to establish an early emission reduction credit program for facilities
subject to the General Conformity Regulations.  The existing regulations
require that the offsets and mitigation measures be in place before the
emissions increases caused by the federal action occur.  However, under
the existing regulations, emission reduction programs undertaken before
the conformity determination is made could be considered as part of the
baseline emissions and not available as offsets or mitigation measures
for future actions subject to the General Conformity requirements.  EPA
believes the air quality could improve sooner and federal agencies and
their project sponsors could benefit from the ability to reduce
emissions in advance of the time that the reductions are needed for a
conformity evaluation, while at the same time meeting the goals of the
SIP and TIP and expediting the project level conformity process. 

Comment:  Most commenters supported EPA’s proposal to allow the use of
emission reduction credits (ERCs).  One commenter thought that EPA
should clarify when the emission reduction credits can be used.  Several
commenters disagreed with the proposal, citing concerns such as
violations of conformity, the additional resources required to certify
the ERC and track them over time, avoidance of formal conformity
determinations, and the lack of ability for states and the public to
enforce the measures relied upon to generate emission reduction credits.
 One commenter suggested that the regulations allow for discrete
emission reduction credits to be used for short-term emission offsets.

Response:  The EPA believes that by allowing early ERCs, federal
agencies will be encouraged to develop emission reduction programs
before they are needed as offsets for conformity determinations.  Since
the emissions are accounted for on an annual basis, the unused credits
would benefit the environment.  The emission reduction programs could be
implemented in conjunction with the action requiring the conformity
determination.  Therefore, the use of ERC would not encourage an agency
to violate conformity, but instead would encourage compliance with the
specific goals of the program. In any event, under this provision, all
federal actions would need applicable offsetting reductions by the time
the conformity determination was made.  EPA does not believe states will
be required to use more resources since states and tribes are only
required to verify the credits at the time they are used in a conformity
evaluation, while the agency relying upon the credits is required to
document that usage.  Federal agencies would have to demonstrate that
the credits are still valid at the time that they are used. In addition,
there is no need to provide mechanisms to enforce the measures relied
upon to produce those credits because the agency’s conformity
determination cannot rely on ERCs that will be generated in the future
– any ERCs must be generated in advance of the conformity
determination and the agency must verify the validity of the credits in
the determination. 

Since discrete emission reductions credits are produced in one time
period and used at a later time, they generally would not meet the
requirements for conformity.  Therefore, EPA is not including their use
in the General Conformity program.

General Comments

Comment:  A few commenters disagreed with the proposed regulations,
opining that the revisions weaken an already weak rule.  One commenter
noted that federal agencies should be afforded no special opportunities
and may not do less than non-governmental entities.  One commenter
stated that EPA should withdraw the proposal and work with state and
local agencies along with other stakeholder groups to develop a General
Conformity rule that is consistent with the intent of the Clean Air Act.

Response: The proposed revisions to the General Conformity Regulations
do not weaken the rule –  they continue to carry out the requirements
of CAA section 176 while making implementation of the program more
efficient.  EPA deleted some requirements (such as the regionally
significant test) because they required federal agencies to expend
resources without demonstrated environmental benefit.  By eliminating
such provisions, EPA is allowing the federal agencies to use their
resources on items that have environmental benefits.  The General
Conformity Regulations do not exempt the federal agencies from other
requirements of the Act.  Therefore, these rules do not give special
opportunities to federal agencies or allow them to do less than
non-governmental entities.  EPA worked with a number of stakeholders
including state and local agencies, tribal agencies, other federal
agencies and industry associations in developing the revisions to the
regulations.

Comment:  One commenter noted that if many of the federal actions occur
in low income communities and communities of color and the emissions are
exempt from General Conformity analysis, the Agency may be violating
Executive Order 12898 related to Environmental/Public Interest/Public
Interest justice for federal actions.

Response:  The commenter did not present any data to demonstrate that
federal actions subject to the conformity requirements
disproportionately affect low income communities and communities of
color.  In addition, all federal agencies are subject to Executive Order
12898, so regardless of whether an agency is exempt from making a
conformity determination under these rules, that agency is not exempt
from their responsibility under the Executive Order to protect  those
communities.

Transportation Conformity

Comment:  Several commenters stated that transportation conformity does
not protect the population near roadways.  The commenters also stated
that transportation conformity does not protect children from
environmental health and safety risks under Executive order 13045.  The
commenter also urged EPA to implement regulations that protect the
health of adults.  

One commenter stated that transportation conformity needs to address the
impacts on local receptors and that EPA should set national standards
for carcinogens.  

Response: The EPA did not propose revisions to the Transportation
Conformity Regulations in this rulemaking, consequently these comments
are not germane to this rulemaking..  Additionally, General Conformity
Regulations are not designed to address transportation conformity
issues.  Both the General and Transportation Conformity programs are
designed to implement section 176(c) of the Clean Air Act.  That section
directs federal agencies not to interfere with the implementation of the
national ambient air quality standards.  The protection of children
health and population near roadways should be addressed in the
development of the state and tribal implementation plans.

Appendix A

List of Commenters

Docket ID	Commenter Name	Organization	Sector

09	Adriano Martinez	National Defense Council	Environmental/PI

66	Alan Dozier	GA Forestry Commission	State/local

55	Alice Edwards	AK DEC DAQ	State/local

63	Angelo Logan	East Yard Communities for Environmental Justice
Environmental/PI

11	anonymous

Citizen

12	anonymous

Citizen

13	anonymous

Citizen

14	anonymous

Citizen

15	anonymous

Citizen

16	anonymous

Citizen

17	anonymous

Citizen

64	B. Keith Overcash	NC DENR	State/local

22	B.Z. Karachiwala	Harris Co, TX Public Health and Environmental
Services	State/local

10	Barry Wallerstein	South Coast Air Quality Management District
State/local

40	Bill Becker	NACAA	State/local

46	Brock Nicholson, Lynne Liddington	NACAA	State/local

85	Dale Swedberg	North Central Washington Prescribed Fire Council	Land
mgmt

74	Dale Wade

Land mgmt

54	Dana Blume	Port of Houston Authority	Action proponent

32	Daniel C. Murray	ID DEM	State/local

50	Darryl Jones	SC Forestry Commission	State/local

72	David Lytle	Ohio DNR	Land mgmt

60	David Schanbacher	TX CEQ	State/local

93	Debbie Goettel	City of Richfield, MN	State/local

24	Donald Schregardus	DOD	Federal

57	Doug Voltolina	The Nature Conservancy FL Chapter	Environmental/PI

43	Elaine Chang	South Coast AQMD	State/local

27	Frank Santomauro	DOD USACE	Federal

45	George S. Aburn	MDE	State/local

67	Gerald Flannery	Commerce City, CO	State/local

80	Glenn Dowling	GA Wildlife Federation/GA Prescribed Fire Council	Land
mgmt

28	Jaelith Hall-Rivera	The Wilderness Society	Environmental/PI

52	Jessica Steinhilber	ACI-NA	Action proponent

86	Jim Elleson	WI Prescribed Fire Council	Land mgmt

30	John E. Putnam	Clark County (NV) Department of Aviation (CCDOA)
Action proponent

87	John Kirksey	TN Prescribed Fire Council	land mgmt

84	John Stivers	AL Prescribed Fire Council	Land mgmt

51	Kevin Kessler	WI DNR	State/local

73	L. Keville Larson	Larson & McGowin	Land mgmt

90	Larry D. Nance	AR Forestry Commission	Land mgmt

33	Larry Greene	SMAQMD	State/local

83	Latimore Smith	LA Prescribed Fire Council	Land mgmt

44	Laurel Kroack	IL EPA	State/local

65	Lewis Wallenmeyer	Clark County (Las Vegas) DAQEM	State/local

92	Linda Choate	City of Romulus, MI	State/local

76	Lisa Allen	MO Dept. of Conservation	Land mgmt

23	Lisa Beal	INGAA	Utility

82	Mark A. Melvin	National Coalition of Prescribed Fire Councils	Land
mgmt

38	Mary Uhl	State of NM Air Quality Bureau	State/local

42	Melinda Seely	Air/Fair	Environmental/PI

53	Michael Kapp	Complete Wildlife Conservation, Inc.	Environmental/PI

25	Nancy Wrona	Arizona DEQ	State/local

31	Nat Williams	The Nature Conservancy	Environmental/PI

34	Pamela F. Faggert	Dominion Energy	Utility

58	Robert Yuhnke	EDF	Environmental/PI

49	S. Paul Watts	SC Prescribed Fire Council	State/local

26	Sandra Silva	DOI FWS	Federal

75	Shannon Henry	PA Prescribed Fire Council	Land mgmt

48	Steven M. Taber	Chevelier, Allen & Lichman	State/local

81	Terry Sharpe	NC Prescribed Fire Council	Land mgmt

39	Thomas C. Edwards	Newport Beach and Costa Mesa	State/local

41	Thomas Fidler	PA DEP	State/local

61	Tim Pohle	Air Transport Association	Action proponent

47	Wib Owen	NC DENR	State/local

56	William O'Sullivan	NJ DEP	State/local

21	William R. Taylor	DOI MMS	Federal

36

NOISE	Environmental/PI

70

US DOT	Federal

88

MO DNR	State/local



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