1



## Response to Significant Comments on the Proposed Revisions to the General Conformity Regulations

(January 8, 2008; 73 FR 1402)

Docket Number OAR

- 200 6

- 0 669 U.S. Environmental Protection Agency

January 20102 

### Table of Contents Glossary of Terms

................................ ................................ ................................ ............... 3 1.0 Introduction

................................ ................................ ................................ ............. 4 2.0 Background

................................ ................................ ................................ ............. 4 3.0 Responses to Comments on the Revised General Conformity Regulations

........... 5 Part 51

– Requirements for Preparation, Adoption, and Submittal of Implem entation Plans

................................ ................................ ................................ ................................ 5 § 51.851 State implementation plan (SIP) or tribal implementation plan (TIP) revision

................................ ................................ ................................ ........................ 5 Part 93

- Determining Co nformity of Federal Action to State or Federal Implementation Plans

................................ ................................ ................................ ................................ 6 § 93.150 Prohibition

................................ ................................ ................................ ..... 6 § 93.151 State implementation plan ( SI P) revision.

................................ ................... 8 § 93.152 Definitions

................................ ................................ ................................ .... 9 § 93.153 Applicability

................................ ................................ .............................. 15 §93.153 (b)

................................ ................................ ................................ ................ 15 §93.153(c)(2) Treatment of aircraft emissions during takeoffs and landings

........... 17 §93.153 (d)(1) Minor new source review (NSR) permit exemptions

...................... 18 §93.153 (e) Emergency

episodes

................................ ................................ .............. 19 §93.153 (f), (g), and (h) Presumed to conform

................................ ......................... 20 §93.153 (i) and (j) Regionally significant emissions

................................ ................ 23 §93.153 (i) Wildland fire

................................ ................................ .......................... 23 §93.153 (k) Grace period for newl y designated nonattainment areas

..................... 25 § 93.154 Federal agency

conformity

responsibility

................................ .................. 25 § 93.155 Reporting requirements

................................ ................................ .............. 26 § 93.156 Public participation

................................ ................................ .................... 26 § 93.157 Reevaluation of conformity

................................ ................................ ....... 26 § 93.158 Criteria for determining conformity of general federal actions

................. 27 § 93.158 (a)(5)(i)(C)

................................ ................................ ................................ .. 28 §93.159 Procedures for conformity determinations of general federal actions

....... 29 § 93.160 Mitigation of air quality impacts

................................ ................................ 29 § 93.161 Conformity

evaluation for federal installations with facility

- wide emission budgets

................................ ................................ ................................ ...................... 29 § 93.162 Emissions bey ond the time period covered by the SIP

.............................. 31 § 93.163 Timing of offsets and mitigation measures

................................ ................ 31 § 93.164 Inter

- precursor mitigation measures and offsets.

................................ ....... 33 § 93.165 Earl y emission reduction credit programs at federal facilities and installations subject to federal oversight

................................ ................................ ... 34 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.
..... 35 General Comments

................................ ................................ ................................ .... 35 Transportation Conformity

................................ ................................ ....................... 363



### Glossary of Terms

AGL

– Above Ground Level BSMP

– Basic Smoke Management Practices CAA

– C lean Air Act CFR

– Code of Federal Regulations EI S

– 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 NO x – Nitrogen Oxides PM

– Partic ulate Matter PM 2.5 – Fine particles that are 2.5 micrometers in diameter and smaller PM 10 – Inhalable coarse particles that are larger than 2.5 micrometers and smaller than 10 micrometers in diameter RFP

– Reasonable Further Progress SAFETEA

- LU

– Safe, Acc ountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users SI P

– State Implementation Plan SMP

– Smoke Management Program TI P

– Tribal Implementation Plan VOC

– Volatile Organic Compounds4



### 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 G eneral C onformity regulations. 

### 2.0 Background Section 176(c) was revised by the Clean Air Act (CAA) in 1990 to require that f ederal actions conform to the appropriate s tate, tribal or f ederal implementation plan for attaining clean air ( “General C onformit y ” ). 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 fin e particulate matter and its precursors (July 17, 2006). Over this period, EPA and other f ederal agencies have gained experience with the implementation of the existing regulations and have identified several issues with th at implementation. In addition, i n 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 G eneral C onformity

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 s tate, tribe, and local agencies as well as the federal agencies in developing and commenting on the proposed SI P revisions. The revised rule provides a streamline d process for federal agencies and states and tribes to ensure f

ederal activities are incorporated in these state implementation plans (SI Ps). Where that is n ot possible, it provides an efficient and effective process for f ederal 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 mai ntain the NAAQS. Specificall y 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 NAA QS standards,

 Incorporate process improvements requested by f ederal agencies, and

 Further explain the G eneral C onformity rules and policies.5



### 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 r egulations 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. T he 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 respo nses. 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 SI P optional for the s tate 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 SI P or TIP a list of actions that are presumed to conform. For example, the state may

identify the emissions from a certain ty pe 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 SI P 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.
So me commenters opposed allowing states to establish presumed

- to

- conform lists. One commenter thought this would allow project sponsors to avoid complianc e. However, other commenters supported allowing states to develop their own list s
. Response: In1990, 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 SI P to implement the provisions of section 176(c). Section 6011 of the Safe, Accountable, Flexible, Efficient Transportation Equity

Act: A L egacy

for Users ( SAFETEA

- LU ) revised the conformit y requirements in s ection 176(c) of the CAA. Although most of the revisions affected the Transportation Conformity requirements, section 6011(f) also revised the General6

Conformity

requirements. Specificall y, section 6011(f) revised section 176(c)(4)(A) of the CAA by

including a requirement that the regulations must be periodically update d and by deleting the requirement for the states to adopt and submit a General Conformity SI P. The EPA does not interpret this provision as prohibiting states or tribes from voluntarily

adopting and submitting General Conformity implementation plans consi stent with EPA regulations. However, EPA does believe that this revision prevents EPA from making submittal of a General Conformit y S IP mandatory

. Therefore, EPA is revising 40 CFR 51.851 to make the adoption and submittal of the General Conformity SI P o ptional for state and eligible federally

- recognized tribal governments. The regulations require that i f a state does not have conformit y S IP , then federal agencies must conduct their conformity evaluation under the requirements of 40 CFR 93.150

- 165. Thes e requirements are essentially the same as the requirements previously required to be contained in the conformity SI Ps. Therefore, EPA believes there would be little difference in the enforceability of the regulations. The mitigation measures used for th e conformity

evaluations have alway s been required to be included in the attainment or maintenance SI P or TI P for the particular pollutant or as part of a permit program under the SI P or TIP , and not in the conformit y S IP or TI P. Therefore, if the conform ity 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 TI P and SI P and f

ederal agency

responsibilities. The commenter supported the proposed listing of f

ederally

- 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 determ ine if the proposed regulation and preamble text adequatel y 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 trib al land, which would include land designated as “ancestral homeland,” is located in the nonattainment or maintenance area affected b y 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 3 6 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 19947

What EPA p roposed: 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 identif y the criteria for grandfathering actions that were started before the General Conformity Regulations were promulgated in 1993. If the f ederal agency with an action that has been grandfathered has not completed the action or has not commence d 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, giv en the lapse of time. This is consistent with the requirements included in section 93.157. Further, EPA believes a ctions that have been completed or are being implemented would not be affected b y the deletion of paragraph (c). § 93.150 (e) Actions aff

ecting multiple nonattainment or maintenance areas. What EPA proposed: The EPA is clarifying in 40 CFR 93.150 the G eneral C onformity evaluation for treatment of emissions from actions with emissions originating in more than one nonattainment or maintenan ce area. EPA believes that emissions in each area would be evaluated as if they result ed from separate action s
. Comment: Some commenters supported the concept of evaluating areas separatel y when an action results in emissions in more than one nonattainme nt 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 Transportati on Conformity R egulations. 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 re garding 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 f ederal 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 conformit y requirements are specific to the individual nonattainment or8

maintenance areas (e.g., de minimis emission levels and emissions included in the SIP), fede ral 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 evaluati on must include analy sis of the individual areas to ensure that the action conforms to the individual SI Ps. 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 reasonabl y foreseeable, practicall y controlled, and under continuing program responsibility ) and are above the de minimis thresholds need to be considered

. § 93.151 State implementation plan ( SIP) revision.
Wh at 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, Effi cient Transportation Equity Act: A Legacy

for Users ( SAFETEA

- LU ) revised the conformity

requirements in s ection 176(c) of the CAA. Although most of the revisions affected the Transportation Conformity requirements, section 6011(f) also revised the General Conformity

requirements. Specificall y, section 6011(f) revised section 176(c)(4)(A) of the CAA by including a requirement that the regulations must be periodicall y updated and by deleting the requirement for the states to adopt and submit a General Confor

mity SIP. The EPA does not interpret this provision as prohibiting states or tribes from voluntaril y adopting and submitting General Conformity implementation plans consistent with EPA regulations. However, EPA does believe that this revision prevents EP A from making submittal of a General Conformity SI P 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: Se veral commenters supported EPA’s proposal to make the adoption and submittal of the General Conformity SI P optional. Others disagreed , noting that the elimination of the conformity SIP requirement in §93.151 would be an impermissible relaxation and would l eave 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 SI P 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 compl y with the state conformit y SI P where9

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 SI Ps and TI Ps to include essentially the same measure as the requirements in Part 93 , therefore if a SI P 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 secti on 40 CFR 51.851, the mitigation measures used for the conformity

evaluations are required to be included in the attainment or maintenance SI P or TI P for the particular pollutant or as part of a permit program under the SI P or TIP and not in the conformit y SI P or TIP. Therefore, if the conformity SI Ps 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 measure s.
§ 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 specificit y and appr opriate detail. The commenter notes that the preamble more thoroughly defines applicability

analy sis 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 no tes that neither the preamble nor the rule indicates the sort of documentation and anal ys is 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 anal ys is” to describe the activities that Federal agencies or other affected parties undertake in determining if a conformit y determination is required. The EPA is using the term to clarif

y 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 alway s been, and continues to be, in the reasoned discretion of the10

f ederal agency

to decide which methods and anal ysis it will use when determ ining whether this or an y 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 b y” is that the emissions would not have occurred in the absenc e of the federal action. Since promulgation of the G eneral C onformity regulations in 1993, EPA has interpreted the regulations to require a federal agency to include construction emissions in its conformity

anal ys is. The EPA believes that emissions from c onstruction 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 fro m an action.
Comment: Inthe 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 co nsidered short

- term construction emissions (1 to 5 y ears). The majority of commenters on this issue objected to exempting construction emissions. They noted: 1. That construction emissions can contribute significantly to particulate matter (PM) exceedances, especiall y off

- road vehicle emissions. 2. That exempting construction emissions from G eneral C onformity

would be in direct conflict with the Clean Air Act. 3. T hat the effects of construction emissions are not necessarily

temporary

. 4. That ignoring these em issions 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: 1. 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. 2. That construction emissions are onl y a small perce ntage of a nonattainment or maintenance area’s off

- road emission budget and generall y not included in N ew Source Review (NSR) or Transportation Conformity evaluations. 3. That civil works projects are not inherently different from transportation projects an d are designed to minimize effects during environmentally sensitive seasons and thus there is no air qualit y reason for treating them differentl y. Of the commenters that thought construction emissions should be exempt, some thought they

should be exempt for 5 y ears while others thought they should be exempt for only

2 y ears. 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 co nstruction emissions. The11

commenter thought that if EPA decides to include construction emissions in the conformity

evaluation, EPA should exempt short

- term emissions of less than 2 y ears. 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 list s and explain the available options for handling construction emissions including: incorporating them in advance into the SI Ps. Response: The EPA agrees with the majorit y of commenters on this issue that construction emissions can contribute to exceedances of the NAAQS, particularly exceedances of the PM standards. Unlike the construction activitie s associated with Transportation Conformity and NSR projects, construction activities associated with General Conformity

actions vary

widel y in type. For example, General Conformity is concerned about localized impacts of the direct and indirect impacts o f particular action s or projects, as reflected in case - by

- case analy sis of emissions from specific actions , while Transportation Conformity is primaril y concerned with the regional impacts of long

- term use of the roads , as reflected in anal ys is of regional transportation processes, only secondaril y concerned with short

- term and localized impacts. Because of the wide variet y of actions covered by the General Conformity r egulations, it is not eas y 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 ru le, EPA believes that emissions from construction activities initiated, approved, or funded b y a federal agency would not have occurred in the absence of the federal action and thus meet the “caused by ” definition included in the G eneral C onformity regulat ions. 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 cons truction 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 conformit y is based on annual em issions. Therefore, federal agencies should estimate construction emissions on an annual basis and would only have to demonstrate conformity of construction emissions during the y ears when th os e emissions occur.
Direct emissions What EPA proposed : EPA proposed to include a requirement that the emissions must be reasonabl y 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 “reaso nabl y foreseeable” in the definition of direct emissions. Several other commenters did not support adding this phrase to the definition. One commenter noted that the revised12

definition does not allow for potential changes in the direct emissions that may occur during the course of the project. Response: Inpromulgating the regulations in 1993, EPA discussed two different approache s to the regulations. First was the inclusive approach that would have required f ederal agencies to include all potential emi ssions that could have in an y way resulted from the action , regardless of whether the f ederal agency

had any control over those emissions. The other approach was the exclusive approach that required the f ederal agencies to address those emissions that res ulted from the action and over which it had control through a continuing program responsibility . EPA selected the exclusive approach. EPA described two ty pes 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 emission s had to be reasonabl y foreseeable. Consistent with the exclusive approach, it follows that EPA intended that both direct and in direct emission s should be reasonably foreseeable and proposed to add that phrase to the definition of direct emissions. Since the f ederal agency knows the time and place of the action , all or nearly all emission s that result from the action at the time and place of the action would be reasonabl y 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 o n the emissions subject to th e 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 anal yz ed for conformity wi th the applicable SIP. In addition, EPA is revising the definition of “indirect emissions” to clarify what is meant by

“the agency

can practicall y 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, O ffice of A ir Q uality P lanning and S tandards (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 definiti on of “caused b y” 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 d evelopment and reasonabl y 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 b y the agency , then the proposed activity should not13

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 authorit y to adopt environmental mitigation plans as part of an agency ’s programmatic responsibility

. Response: EPA is not changing the requirements of th is pro vision 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 res ponsibility .” Accordingl y, 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 bey ond 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 final ize such an expans ion 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 G eneral C onformity anal ys is and does not affect the analy sis r equired for NEPA review. While federal agencies often conduct their General Conformit y analysis during their NEPA review and/or preparation of an EI S, 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) spec ifically 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 pro posal 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 anal yz ed for conformity purposes. The commenter supported the proposed provision that the in direct emissions must b e of the ty pe 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 EP A contends that e missions 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 e missions, EPA does not believe that it is necessary to specifically

identify vessels as covered b y the rule.14

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 §§93.15 5 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 b y law.
Comment: One commenter requested that EPA state that emission data be specificall y excluded f

rom the definiti on of “restricted information.” Response: The EPA agrees that emission data generall y can not be considered “restricted information.” Section 114(c) of the Clean Air Act states that emission data cannot be considered as “confidential business informat ion.” Only in rare circumstances where data is contained in documents classified as sensitive information to which access is restricted b y law or regulation to particular classes of persons and a formal securit y 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 agenci es 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 me asure from an offset.
Comment: One commenter suggested adding the phrase “that utilizes verified technology

approved b y EPA or other technology approved b y the state agency.” Response : The EPA’s definition of mitigation measure is broad enough to encomp ass many different approaches to reducing emissions including innovative approaches that15

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 c redit for the emission reductions from the mitigation measures c an be obtained only after the measure has been verified. § 93.153 Applicability

Comment : One commenter recommended that EPA revise the rule to explicit ly state that only Outer Continental Shelf ( OCS ) emissions that originate in a nonattainment or maintenance area are subject to conformit y. Response: Generally , EPA considers the applicable nonattainment or maintenance area to extend 3 miles from the state’s seaward boundary , e xcept 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 with in 25 miles of the state’s seaward boundary must meet the same requ irements as if the source was located on shore. The O CS Air Regulations apply to all applicable waters of f 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 re gulations appl y instead . Therefore, federal actions covered b y 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 implementatio n plan for the applicable on

- shore area

. For those actions in areas beyond 25 miles from the seaward boundary , the federal designation would appl y 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

- backslidi ng 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 SI P 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 of

fsetting 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 no t 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.16

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) Accordingl y, 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 th e PM 2.5 de minimis level should be reconsidered to be sure that the PM 2.5 level is at least as stringent as PM 10 . One commenter noted that PM 2.5 emissions, as a subset of PM 10 emissions, are alway s less than PM 10 emissions and argued that it is ineffectiv e to have a threshold for PM 2.5 that is higher than PM 10 . Another commenter suggested that the threshold for volatile organic compounds ( VOCs ) , nitrogen oxides (NO x ) , direct PM and sulfur dioxide levels in table 93.153(b) for the 8 hour ozone standard and the 24 hour PM 2.5 standards should be reduced. Response : When EPA promulgated the PM 2.5 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 Ge neral Conformity rule covers onl y major f

ederal actions that are major sources of emission. The Act in section 302(j) defines a major source as meaning ‘an y s tationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of an y air pollutant (including an y m ajor emitting facilit y or source of fugitive emissions of an y such pollutant, as determined by rule b y the Administrator).’ This definition provides a Congressional threshold for a maj or source. As discussed in the preamble of the proposal, EPA is using the same methodology to set the de minimis level for PM 2.5 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 r egulations are designed to ensure that f ederal actions do not interfere with the states and tribes ability to attain and maintain the national ambient air quality

standards. The conformity requirements appl y to all applicable air quality standards and federal actions must conform to the SI Ps, TI Ps or federal implementation plans (FIPs) for the areas. Although EPA has replaced the 1

- hour ozone17

standard with the 8

- hour standard, man y of the 1

- hour existing SI Ps re tain the 1

- hour standard and those requirements re main in place as a basis for addressing the 8

- hour standard. Accordingl y, in carryi ng out the confo rmity 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 anal ys is of ultra fine particles (PM 1.0 and below) Respon se : The General Conformity r egulations are designed to ensure that f ederal actions do not interfere with the states and tribes ability to attain and maintain the national ambient air quality

standards. The conformity requirements appl y to all applicable a ir quality standards , and federal actions must conform to the SI Ps, TI Ps 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 anal ys is of ultra fine particles is not required under the conformity program. EPA also notes that u ltra fine particulates are included as part of the fine particulate ( PM 2.5 ) emission s 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 comme nters 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, an y 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 an y increase in ground level concentrations of CO and h ydrocarbon (HC) due to mixing was negligible. A federal agency

commenter believes that the exemption for air traffic control activities sh ould not be restricted by altitude. The commenter noted that the proposal for18

exempting aircraft operations above 3,000 feet AGLis much narrower than what was presented in the preamble to the 1993 G eneral C onformity rule as an example of an action that m ay

be exempt from the G eneral C onformity 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 signifi cantl y affect ground level concentrations and acknowledges that the mixing height can vary from one area to another. Accordingl y, in those areas where the applicable SIP or TI P specifies a mixing height to be used, EPA is requiring the specified mixing he ight to be used in conformit y determinations . However, in those areas where the SI P or TI P 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 anal ys is it will use when determining whether this exemption or any oth er 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 significantl y affect ground lev el concentrations. The study was based on very conservative assumptions regarding the data applied and the anal ys is performed, such that any particular concerns with the data and analy sis provided in the study do not rise to the level of negating the usef ulness of the stud y 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 alread y 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 b e 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 thr eshold 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 suggested19

that EPA substitute a SI P

- based program for est ablishing a budget for minor sources in place of the regionall y 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 anal ys is for emissio n s covered b y 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 SI P or otherwise interfere with th e state’s ability to attain the standards. Minor source NSR permits are issued under a SIP

- approved program, so there has alread y been a determination that the permitting program will not contribute to a violation of the NAAQS or delay the attainment or m aintenance 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 onl y 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, effectivel y providing the same assurances as a conformity

determination since federal agencie s can demonstrate conformity for an action by showing that the actions will not cause a violation or interfere with the SI P. Therefore, in the final rule, EPA will exempt the emissions from stationary sources permitted under both the minor and major sourc e 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 resp onding 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 bey ond 2 y ears 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 b y 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 y ears for the 8

- hour ozone and PM 2.5 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,20

EPA recognizes that, in some cases, those respons es will result in addition al emissions in nonattainment or maintenance areas, however the actions are necessary to address the aftermath of the emergency . In most cases, the federal agenc y can complete its action in a relativel y 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 acti ons 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 th e subway sy stem 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 bey ond the first 6 months. EPA b elieves 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 SI P or TI P. 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 respo nd 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 bey ond the attainment d eadline. 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 f ederal agenc ies 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 combine d 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 an y such list m ay

be challenged.
One commenter did not agree with allowing f ederal agencies to develop presumed to conform lists. The commenter thought that the f ederal agencies would use the presumed to conform lists to avoid conformity evaluations. Further, the comm enter believed that21

all contemporaneous actions taken by a f ederal 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 deleg ation of authority

. One commenter requested that EPA define what is meant by “clearl y demonstrate” that the emissions from the action are included in the SIP. Response: Inthe 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 appl y 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 anal ys es for actions that result in de minimis emissions. .Therefore, EPA allowed federal agencies to adopt their own “presume d to conform” list by

documenting that “certain t ypes 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 d emonstration. 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 , re spond 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 fina l 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”). Finall y, a presumed to conform list cannot be used to violate the statutory require ments of General Conformity because the regulations specifically

bar an agency

from rel yi ng 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, w e 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 presum ed to conform. In the revised regulations, we have also allowed states to adopt their own presume d to conform lists that all federal agencies within their jurisdiction could use. Allowing federal agencies or states to adopt their own presume d to conform list is not an “unlawful” delegation of authority

. Federal agencies have alway s had responsibility for complying with the General Conformity requirements of CAA § 176(c)(1). By22

providing agencies with a process for developing a presumed to conform list , EPA is merel y following its statutory requirement to “promulgate, and periodically update, criteria and procedures” that agencies can use in determining conformit y. CAA § 176(c)(4). In enacting the General Conformit y requirements, Congress included onl y 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 G eneral C onformity determinations. See CAA §§ 176(c)(4) (A) & (D). The ability to develop and rel y up on 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 dem onstrating conformity and clearly

established the requirements agencies must comply with in establishing a presumed to conform list, such that all activities covered b y 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 alway s allo wed states and tribes to account for certain conforming emissions in their SI Ps, 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 bey ond those involved in any rulemaking. The process of estab lishing 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 an y 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 approa ch is not necessary at this time.
The EPA included the term “clearl y demonstrate” in its 1993 regulations to mean that the demonstration is straightforward and transparent.23

§93.153 (i) and (j) Regionally significant emissions What EPA proposed: E PA proposed t o 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 anal ys es have been conducted for 12 y ears and never shown a federal action with emissions below de minimis levels to meet th e regionall y significant criterion.
Comment: Some commenters supported deletion of the regionall y significant provision noting that it is unnecessary , not helpful in determining whether a federal action will conform to the SI P, and an administrative burden. Other commenters believed that the provision should be ret ained or strengthened to a more appropriate percentage of the area’s inventory

. Some commenters also pointed out that in light of the new PM 2.5 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 regionall y significant provision EPA believes that determination s of whether actions with emissions below the de minimis emission lev els are regionall y 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. Anal ys is 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 PM 2.5 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 n onattainment areas for those standards. However, EPA retains the authorit y 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 con ducted under a state certified smoke management program (S MP ) . EPA asked for comments on two approaches:

1. Prescribed fires conduc ted in compliance with a certified S MP are presumed to conform. 2. In absence of a certified SMP, prescribed fires conducted using Basic Smoke Management Practices (BSMP) are presumed to conform.24

Comment: The EPA received man y comments in support of the fi rst option, noting that it was reasonable to assume that an y action conducted in compliance with the certified SMP would be in compliance with the SIP. One commenter thought that the presumption of conformit y for burns conducted under BSMP is not acceptab le 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 SI P. One commenter also noted that the use of SMP s may

be acceptable, but EPA has not y et issued its final wild land fire policy

. Another commenter suggested that if prescribed burns under certified SMP s 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 th e second option, which allows federal agencies to determine, in absence of a certified SMP, that prescri bed fires conducted using BSMP are considered “presumed to conform” to the SI P. 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 b y 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 b ecoming nonattainment areas based solely on smoke from fires. Finally , numerous commenters recommended that the definition of emergency episode include wild fires (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 fina l 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 roadway s 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 G eneral C onformity 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 assur ances 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 qualit y in areas where no SMP exists , and thus explains in the preamble that an agency may rel y on BSMPs to meet a presumption of conformit y if such a presumption is established by

an agency

following the requirements of 93.153(g) or b y 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 identify25

wildland fires as an emergency event that is exempt from General Conformity , since responses to natural disasters are alread y identified as exempt from conformity , but has added language to the preamble identifying wildfire responses as the t ype of situation that an agency may determine fits with in 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 nonattainm ent 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 effect ive . 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. I f an agency takes or starts the federal action after the end of the grace period, it mus t 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 otherwi se ph ysically 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 classificati on.
Comment: Several commenters supported the proposal to provide a grace period for the applicability

of the General Conformity Regulations for newl y designated nonattainment areas. One commenter recommended a 12 month grace period. Another recommende d that the time period align with the 2

- ye ar grace period in the Transportation Conformity Regulations. Other commenters opposed the proposal , suggesting that granting a 12 month grace period for f

ederal actions could allow a significant increase in unm itigated emissions in an area newl y designated as nonattainment based on emissions at a level without the f ederal action. The commenters noted the grace period could serve as a loophole and allow the implementation of a project that could further exacerba te the air quality problem without accompanying offset s or mitigation measures. Response: Congress established the one

- ye ar grace period when it revised the Clean Air Act , and EPA is revis ing the rules to clarify th is statutory requirement. Accordingl y, the final rule will contain this revision and cannot exclude or amend the statutory requirement. The one ye ar grace period also applies to transportation conformity under the statute. § 93.154 Federal agency conformity responsibility

Comment: Several co mmenters 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 commenters26

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 disclo sed. 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 need s to be stated in the regulation. § 93.155 Reporting requirements
No comments were received on this section. § 93.156 Public participation

No comments were rec eived 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 emissi ons 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 give s more clarit y 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 effec t, 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, the n EPA believes that it is appropriate for the federal agency to conduct a new conformity

evaluation.27

§ 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 fed eral agencies to obtain emission offsets for the General Conformity requirements from a nearb y nonattainment or maintenance area of equal or higher classification. The regulation requires such emissions offsets to be obtained through either an approved SI P 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 nearb y nonattainment or maintenance areas. Some of thes e 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 fede ral court rulings limit the area from which emissions reductions can be creditable for attainment demonstrations. They also opposed allowing offsets because conformit y generally applies to mobile source emissions that are different from stationary source emissions covered b y NSR. Another commenter supported a provision that would allow the conformit y determination to be based on compliance with a budget in reasonable further progress (RFP) SI Ps . A commenter is concerned about the changes that would all ow a conformit y determination based on an RFP budget for years beyond the ye ar 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 b e an alternative approach where future emissions levels are identified for the affected sources with collaboration with s tate and local agencies. A commenter noted that the role of using a photochemical model should be clarified. Response : The EPA agree s that offsets should be allowed in nearb y nonattainment areas in the same manner that they are allowed under the NSR program. Accordingl y, EPA is adding a requirement that the nearb y area contribute to the violations of the NAAQS in the area where the fe deral 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 judici al 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 contrib uted 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 require ments of §93.158(a)(2)

-- that the emission s 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 guid ance for demonstrating contributing emissions in other SI P

- 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 offset s to areas that will28

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 action s involve stationary and mobile sources. To conduct conformity

evaluations for emissions that occur bey ond the period cov ered b y the SI P or TIP, EPA stated that the federal agency should use a flat line approach, ie, assume that the emissions allowed in the last y ear of the SI P or TI P are continued. As an alternative, the federal agency can work with the state or tribe to a llow greater emission from the action. In such a case, the state or tribe would have to submit a revision to the SI P or TIP to account for those changes. This alternative would allow the flexibility while ensuring that the SIP or TI P addresses the future emissions. Emissions of primary

pollutants (those pollutant s emitted directly to the atmosphere ) can be effectivel y modeled to determine their affect on specific areas. However, the impact of precursor o r secondary pollutant s (those pollutant s 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 t o 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 s tate or tribe to commit t o including the emissions from the f ederal action in future SI Ps. Under th e existing regulations, f ederal agencies can demonstrate conformity by having the s tate commit to revising the applicable SI P to include the emissions. If a s tate or tribe agrees to such a commitment, the s tate or tribe must submit a SI P revision within 18 months to include the emissions from the action and to make other necessary adjustments in the SI P to accommodate those emissions. However, the existing SIP or TIP, or a SI P or TIP required to be submitted in 18 months, may not cover the same timeframe c overed b y the conformity

determination. Accordingl y, 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 s tate to make an enforceable commitment to include the emission in future SIPs without the consideration of potential impact on downwind s tates. Response: Insome cases, the federal action can cause direct and indirect emissions to be emitted over a number of y ears. That can lead the federal agency to address the impact of the emissions bey ond the time period cover b y the SI P or TIP. This revised provision addresses the demonstration of conformity in such a situation. When a state or tribe makes an enforceable commitment to includ e the emission from the federal action in a future SI P 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 whould29

include local as well as regional impacts , in cluding downwind impacts . Therefore, for §93.158(a)(5)(i)(C) the final rule will allow a s tate or tribe to commit t o including the emissions from the f

ederal action in future SI Ps on this basis. §93.159 Procedures for conformity determinations of genera l 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 pr oposed: 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 confo rmit y determination. Th e use of this approach is strictl y 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 consultati on 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 w ithout having to do additional anal ys is. One commenter noted that many activities involve the prediction of future emissions but once the f

ederal action has taken place , the agency has limited control over these future emissions. While generally

agreeing with the approach, man y 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 G eneral C onformity 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 contemporaneousl y 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 comme nter noted that a number of airports have worked with s tate and local agencies to include their emissions in the SI P. The commenter believes that these facilities should be grandfathered.30

Another commenter state d that 161(a)(3) should be revised to requi re 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 fac ilities are required to prepare budgets and the specific procedures and methodology

that should be used to demonstrate conformity . The commenter also believes that the s tate 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 SI P or TI P , will not interfere with atta inment of the NAAQS and will provide flexibility to the facilities in meeting the General Conformit y 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 b y having the G eneral C onformit y process streamlined, reducing the amount of time it takes to demonstrate conformity . EPA is clarifying in the final rule that this approach is completel y voluntary b y both the state and the federal agency . If the state or tribe agre es 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. Accordingl y, we are also encouraging the facilit ies 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 emi ssions that might also be included in an MPO’s regional emissions analy sis. While the state or tribe must approve a facility

- wide budget into the SI P or TI P, once they have done so , they

cannot compel an agency to demonstrate conformity with another app roach if the federal agency chooses to show conformity with the approved facilit y 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 approva l by the state of a facility

- wide emissions budget into the SI P 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 TI P 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 an y S IP or TI P revision. Since the emission budget would be part of the SI P or TI P, any exceedances of31

the budget can be addressed by actions by

the state, tribe or EPA under normal SI P/TI P enforcement procedures. In addition, if a facility exceeds its budget, the federal agency cannot rel y 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 SI P or TIP under the final rules and use it for future conformity

evaluations. Finally , EPA is not specifying an y periodic reporting requirements in the final rules. During the confo rmity

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 an y 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 ty pe of reporting requirement.

Comment : One commenter felt that facilities with emission budget s should be required to implement pollution prevention measures before being allowed to use the approach. Response : The emission budget appr oach allows federal agencies to manage their allotted budget b y controlling emissions through various means , including pollution prevention measures . In adopting and including the emission budget for the facilities in their SI P or TI P, states or tribes sh ould 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 sectio n. § 93.163 Timing of offsets and mitigation measures What EPA proposed: Ingeneral, 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 i ncreases caused b y 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 offset s and mitigation measures must occur in the same calendar year as the emission increases caused by the fede ral 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, the32

frequency or severit y of existing violations are not increased, and timely attainment or interim milestones are not delay ed. 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 o f 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 b e 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 readil y available and alread y 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 ye ars 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 y ear provided the total reduction over a 6

- ye ar period is equal to or more than 540 tons (150 tons per y ear times 3 y ears 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 y ears does not exempt the state or tribe from timely meeting any

of its SI P or TIP obligations, such as RFP mile stones or attainment deadlines. Emissions r eductions which accrue beyond the compensation period sho uld be properl y 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 agenc y responsible for the SIP be the appropriate entit y. 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 nonatta inment areas and to provide a fixed period of time for completing the emissions reductions recommending a 5

- ye ar compensation period to be included in the rule. Some commenters representing state and local air quality agencies objected to the alternate s chedule provision for offsets. The commenters believe that mitigation measures and offsets must be contemporaneous and occur in the same calendar y ear 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 ye ar maximum33

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 f or 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 uncertaint y involved in the long er mitigation period justif ies 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 TI P. 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 Gen eral Conformity regulations do not specificall y 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 tradi ng program approved in the SI P, provided they : 1. Are technicall y justified; and 2. Have a demonstrated environmental benefit. The ratio for the offsets must be consistent with SIP or TI P 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 comm enter 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 qualit y agency . Some commenters representing state air quality agencies objected to the provision for inter

- precursor offse ts 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 b y the state or tribe in a SIP or TIP. The state must alread y allow for inter

- precursor offsets or trading through a SI P

- approved NSR34

program, transportation confo rmity program, or in the attainment or RFP demonstration to ensure conformance with a SI P or a TI P. Second, the trade must be technically justified and have demonstrated environmental benefits. This technical justification and demonstration should be acco mplished by showing the precursors are area specific and appropriate ratios are identified in the SI P. As needed, EPA will provide guidance on tradeoffs and procedures for evaluating such tradeoffs. However, we do not believe allowing cross

- pollutants off sets 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 an y standard for the pollutant actually emitted b y 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 i nstallations subject to federal oversight What EPA proposed: The EPA is adding a new section to the regulations to establish an earl y emission reduction credit program for facilities subject to the General Confo rmity Regulations. The existing regulations require that the offsets and mitigation measures be in place before the emissions increases caused b y the federal action occur. However, under the existing regulations, emission reduction programs undertaken be fore 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 G eneral C onformity

requirements. EPA believes the air qualit y could impro ve 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. Se veral 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 abilit y 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 be nefit 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,35

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 m ore resources since states and tribes are onl y 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 th at 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 conformit y determination cannot rel y on ERCs that will be g enerated 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

generall y 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 th at the revisions weaken an already weak rule. One commenter noted that f ederal 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 wi th s tate and local agencies along with other stakeholder groups to develop a G eneral C onformity

rule that is consistent with the intent of the C lean A ir A ct. 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 mak ing implementation of the program more efficient. EPA deleted some requirements ( such as the regionall y significant test ) because they required federal agencies to expend resources wi thout 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 agencie s, other federal agencies and industry associations in developing the revisions to the regulations.
Comment : One commenter noted that if man y of the f ederal actions occur in low income communities and communities of color and the emissions are exempt fro m G eneral C onformity

anal ys is, the Agency

may be violating Executive Order 12898 related to Env ironmental /Public Interest/Public Interest justice for f ederal actions. Response : The commenter did not present an y data to demonstrate that federal actions subject to the conformit y 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 conformity36

d etermination 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 safet y risks under Executive order 13045. The commenter also urged EPA to implement regulations that protect the h ealth 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 Conform ity Regulations in this rulemaking, consequentl y these comments are not germane to this rulemaking.. Additionally, General Conformity Regulations are not design ed 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 r oadway s should be addressed in the development of the state and tribal implementation plans.37 Appendix A
List of Commenters

Docket ID Commenter Name Organization Sector 09 Adriano Martinez National Defense Council Environmental/PI 66 Alan Dozier GA For estry Commission State/local 55 Alice Edwards AK DEC DAQ State/local 63 Angelo Logan East Yard Communities for Environmental Justice Environmental/PI 11 anony mo us Citizen 12 anony mo us Citizen 13 anony mo us Citizen 14 anony mo us Citizen 15 anony mo u s Citizen 16 anony mo us Citizen 17 anony mo us 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 W allerstein South Coast Air Quality Management District Sta te/local 40 Bill Becker NACAA State/local
46 Brock Nicholson, Lynne

Liddington NACAA State/local 85 Dale Swedberg North Central Wa shington Prescribed Fire Council Land mgmt 74 Dale Wa de Land mgmt 54 Dana Blume Port of Houston Authority Action propone nt 32 Daniel C. Murray ID DEM State/local 50 Darryl Jones SC Forestr y Comm ission State/local 72 David Lytle Ohio DNR Land mgmt 60 David Schanbacher TX CEQ State/local 93 Debbie Goettel Cit y of Richfield, MN State/local 24 Donald Schregardus DOD Feder al 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 Flanner y Commerce City, CO State/local 80 Glenn Do wling GA Wi ldlife Federation/GA Prescribed Fire Council Land mgmt 28 Jaelith Hall

- Rivera The Wi lderness Society Environmental/PI 52 Jessica Steinhilber ACI

- NA Action proponent 86 Jim Elleson WI Prescribed Fire Council Land mgmt 30 John E. Putnam Clark Count y (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 9 0 Larry D. Nance AR Forestr y Comm ission Land mgmt 33 Larry Greene SMAQMD State/local38

Docket ID Commenter Name Organization Sector 83 Latim ore Smith LA Prescribed Fire Council Land mgmt 44 Laurel Kroack IL EPA State/local 65 Lewis W allenm ey er Clark County (Las Vegas) DAQEM State/local 92 Linda Ch oate Cit y of Romulus, MI State/local 76 Lisa Allen MO Dept. of Conservation Land mgmt 23 Lisa Beal INGAA Utilit y 82 Mark A. Melvin National Coalition of Prescribed Fire Councils Land mgmt 38 Mary Uhl State of NM Air Quality Bureau State/local 42 Melin da Seely Air/Fair Environmental/PI 53 Michael Kapp Complete Wi ldlife Conservation, Inc. Environmental/PI 25 Nancy W rona Arizona DEQ State/local 31 Nat W illiam s The Nature Conservancy Environmental/PI 34 Pam ela F. Faggert Dominion Energy Utilit y 58 Rob ert Yuhnke EDF Environmental/PI 49 S. Paul W atts SC Prescribed Fire Council State/local 26 Sandra Silva DOI FW S 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 Ti m Pohle Air Transport Association Action proponent 47 Wi b Owen NC DENR State/local 56 Wi lliam O'Sullivan NJ DEP St ate/local 21 Wi lliam R. Taylor DOI MMS Federal 36 NOISE Environmental/PI 70 US DOT Federal 88 MO DNR State/local