# Department of Environmental Quality

To protect, conserve and enhance the quality of Wyoming's environment for the benefit ofcurrent and future generations. Matthew H. Mead, Governor Todd Parfitt, Director



### December21, 2012

Mr. James 

### B. Martin Regional Administrator USEPA Region 8 159 5 Wynkoop Street Denver, CO 80202-1129 

### RE: State Implementation Plan Approval Request - Chapter 8, Nonattainment Area Regulations, Section 3, Conformity ofgeneral federal actions to state implementation plans, and Section 5, Incorporation 

### by reference (R-20) Dear Mr. Martin: CIO c

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### On October 5, 2012, the Environmental Quality Council ofthe Wyoming Departmentof Environmental Quality conducted a public hearingpursuantto 40 CFR51.102 to considerthe adoption ofrevisions and additions to the WyomingAir Quality Standards and Regulations (WAQSR). Revisions affecting the State ImplementationPlan (SIP) involve Chapter 8, NonattainmentAreaRegulations, Section 3, Conformity ofgeneral federal actions to state implementationplans, and Section 5, Incorporationby reference. Section 3 ofChapter 8, Conformity ofgeneral federal actions to state implementation plans, was revised to maintainconsistencywithfederal regulations. OnJuly 20, 2012, the Upper Green River Basin (UGRB) was effectively designated nonattainrnent for 8-hourozone and subjectto the General Conformity Rule. Underthe General Conformity Rule, federal agencies must workwiththe State inair quality nonattainment ormaintenance areas to ensure that federal actions conform to the initiatives established in the applicable SIP. The timely incorporation of these revised State rules into our applicable SIP will help keep federal actions in the UGRB moving forward while ensuring that those actions do not exacerbate existing, or cause additional violations, ofthe National Ambient Air Quality Standard (NAAQS) for 8-hour ozone. Section 5 ofChapter 8, Incorporationby reference, was addedto reference all CFRcitations in Chapter 8. Afterreviewing comments receivedbefore or during the hearing, the Council approved the proposed revisions on October 5, 2012. Pursuantto the Wyoming Administrative Procedures Act, the revisions were forwarded to the Governor's Office for approval andthentransmitted to the Secretary ofState's Office andbecame effective onDecember 19, 2012.

Herschler Building · 122 West 25th Street · Cheyenne, WY 82002 · http://deq.state.wy.us C".J 

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### Mr. James 

### B. Martin December 21, 2012 Page 2

Since all ofthe necessary State reviews and approvals havebeen secured, I am submitting one paper copy and one electronic copy (in .pdfformat onCD) oftherevisions to the State Implementation Plan. The electronic copy is an exact duplicate ofthe papercopy. The following administrative materials are included inthe plan submissionand have been attached for your review: 1. A copy ofthe stamped Certification Page bythe Secretary ofState indicatingthe effective date ofthe revisions. The Certification Page, whichhas been signedbythe Governor and Directorofthe Department ofEnvironmental Quality, documents the necessary legal authority under State lawto adopt and implementthe revised regulations and also provides evidence, along with the attachments listed below, that Wyoming followed all ofthe procedural requirements ofthe State's laws and constitution in conducting and completingthe adoption ofthe plan. Therules became effective December 19, 2012. 2. A May4, 2012 memorandum from John Carra,the presidingDirector ofthe Department ofEnvironmental Quality atthe time, to the Governor's Office requesting approval to proceed with the rulemaking. 3. An October 18, 2012 reviewfrom the Legislative Service Office, finding the revised regulations withinthe scope ofintent oflegislative authority. 4. A copy ofthe notices issued bythe Air Quality Divisionfor public hearings with a list ofnewspapers and dates ofpublication. 5. A copy ofthe Statement ofPrincipal Reasons thatwas adopted withthe rules.
6. A copy ofthe summary ofcomments and responses. 7. A list ofsignatures ofwitnesses present at the October 5, 2012 hearing as well as a copy ofthe agenda. 8. Two copies ofthe revised chapter, one copy showing whererevisions were made in underline and strikeout and a second copywith all the revisions incorporated. With this submission I am asking for Environmental Protection Agency approval ofthe revised State Implementation Plan for the State ofWyoming to include Chapter 8, NonattainmentArea Regulations, Section 3, Conformityofgeneral federal actionsto state implementation plans, and Section 5, Incorporationbyreference, ofthe Wyoming Air Quality Standards and Regulations as revised December 19,2012. Ifyou have any questions regarding this submittal, please feel free to contact Steven

### A. Dietrich, Air Quality Administrator, at 307-777-7391.

### Mr. James 

### B. Martin December21, 2012 Page 3

Sincerely,

Todd Parfitt Director Enclosures

cc: StevenA. Dietrich, Administrator, Air Quality Division w/o enc. Christine Anderson, Air Quality Division w/enc. Jeni Cederle, Air Quality Division w/enc. Carl Daly, EPARegion 8 w/o enc. Tim Russ, EPARegion 8 w/o en c.

## .. Certification Page Regular and Emergency Rules

# lo)~©~ow~rm 1111 DEC 1 9 2012 

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1. GenerallriformationF:

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### \;;·· -!-_ ,' '· ..**.~:** : -·-'· a. Agency/Board Name Seeanachedlistforreferences Department of Environmental Quality b. Agency/Board Address c. Agency/Board City 

# Id. Agency/Board Zip Code Herschler Building 2-E, 122 W. 25th Street Cheyenne 82002 e. NameofContact Person f. Contact Telephone Number Christine Anderson 307-675-5624 g. Contact EmailAddress 

# Ih. Adoption Date: tina.anderson@wyo.gov October 5, 2012 ; p.**,..,.rnf~\** ('..,.,.. 1" ,;,.,1!

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### ··_:._·**-~~-~,?;';('!:ii.t":\;_;{:·/.:':f.-E;~:~~-1!'::,.·:·** a. These rules are: 

### 0 Emergency Rules £Ahercom(]/eting_ allof Section2, proceedto Section5below} [!] Regular Rules b. Choose all that apply: 0 New Rules' [!1 Amended Rules U Repealed Rules • 'New·rulesmeansthe firstsetof regularrules tobepromulgatedbytheAgencyaherthe Legislatureadoptedanewstatutory provisionorsignificantlyamendedanexistingstatute. If'New,' provide the Enrolled Act numberand yearenacted:
c. Providethe ChapterNumber, and ShortTitle of Each Chapter being Created/Amended/Repealed (ifmore than 5chaptersarebeingcreated/amended/repealed.please use theAdditionalRule Informationform andattachitto thiscertification}

·. ChapterNumber: ShortTitle:

2 Ambient Standards ChapterNumber: ShortTitle: 3 General Emission Standards ChapterNumber: ShortTrtle: 5 National Emission Standards ChapterNumber: ShortTitle:

.· 8 Nonattainment Area Regulations ChapterNumber: ShortTitle: d. [!] The StatementofReasons Is attached to this certification.

e. Ifapplicable, describe the emergencywhich requires promulgation ofthese rules without providing notice or an opportunityfor apublic hearing:



### 3.State GovernmentNotice·ollntendedRulemakirig

·- ·. ... 

### < ·': .:},;> •.. '

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### . . .. a. Date on which the Notice of Intent containing all ofthe information required by W.S. 16-3-103(a)was filed with the Secretary or State: 

### August 1, 2012 b. Date on which the Notice of Intent and proposed rules in strike and underscore format were provided to the Legislative Service Office:

### A

. ugust1,2012
c. Date on which the Notice of Intent and proposed rules in strike and underscore formatwere provided to the Attorney General: 

## AUgUSt 

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## 12

# ..

4. PublicNotice·aflntendedRulemakinq ' · 

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## ..··.· .· . a. Noticewas mailed 45 days in advance to all persons who made atimely request foradvance notice. 1!1) Yes 

### 0 No 

### U N/A b. Apublic hearing was held on the proposed rules. [!] Yes 

### 0 No If"Yes:' Date: Time: October 5, 2012 9:00A.M.



# s.·FinalFilingh(Rules City: Cheyenne Location: Herschler Building Conference Room 863 122 W. 25th Street

a. Date on which the**~ertification** Page with original signatures and final rules were sentto theAttorney General's Office 

### O t 

### b 11 2012 forthe Governor's Signature: 

### c 0 

### er I b. Date on which final rules were sentto the Legislative Service Office:

## October 11

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## 2012

c. Date on which aPDF ofthe final rules was electronicallysentto the SecretaryofState:

## October 11

1 

## 2012**f--6~**

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### ,_-.·u-··--::;_,~ The undersigned certifies thatthe foregoing informatf<ln is correct.

·.-·_ _,.... Ihave reviewed these rules and determined thatthey: 1. Arewithin the scope ofthe statutory authoritydelegated to the adopting agency; 2. Appearto be within the scope ofthe legislative purpose ofthe statutory authority; and, ifemergency rules, 3. Are necessaryand that Iconcurin the finding that they are an emergency. Therefore, Iapprove the same.

.. :.

Distribution List: AttorneyGeneral 1. Statement of Reasons; 2. Original Certification Page; 3. Summary ofComments (regular rules); 4. Hard copy ofrules: clean and strike/underscore; and 5. Memo to Governor documenting emergency (emergency rules). 1. Statement of Reasons; 2. Copy ofCertification Page; 3. Summary ofComments (regular rules); 4. Hard copy of rules: clean and strike/underscore; 5. Electronic copy ofrules: clean and strike/underscore; and l



## sos 1. PDF ofclean copy of rules; and 2. Hard copy of Certification Page as delivered by the AG.

6. Memo to Governor documenting emergency (emergency rules).

# STA!.~~.~.~.~ING} Filed the I

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### i''l 0 Max Maxfield Secretary of State 2

# Department of Environmental Quality

To protect, conserve and enhance the qualityof Wyoming's environmentfor the benefit ofcurrent and future generations.

## S/'u);~i fl ·-

Matthew H. Mead, Governor John Corra, Director

To: Honorable MatthewH. Mead, Governor From: John V. Corra, Director, Department ofEnvironmental Quality

# .M/,k-- Subject:

Date: Priority: Summary: Proposed Rules for Chapters 2, 3, 5 and 8 (R-20) {)

## ~ Department ofEnvironmental Quality, Air Quality Division May 4, 2012 HIGH- Deadline for response is May 18,2012 Notice ofAgency Rulemaking TheAirQuality Division (Division) is proposing revisions to the WyomingAir Quality Standards and Regulations (WAQS&R) listed above. The following is a briefsummary ofthe proposed rule changes:

• Annual updates to sections to be adopted by reference from the 2011 Code ofFederal Regulations (CFR). Ifthe State does not adopt the most recent versions ofthese sections by reference, the rule still applies at the federal level. Adopting the federal regulations into the State rules allows for State enforcement. • Updates to the !-hourambient standards for N02and S02, and the 8-hour standard for ozone (03) to be consistent with the National Ambient Air Quality Standards (NAAQS). • Removal ofthe annual and 24-hour ambient standards for S02to be consistent with the NAAQS. This removal reduces the numberofstandards that sources have to comply with. • Designation ofthe 3-hour ambient S02 standard as a secondary standard to be consistent with the NAAQS. Itwas previously not stated in the rule whetherthis was a primary or secondary standard. • Removal ofthe general emission standards for sulfur oxides. This standard has become outdated and there are already otherregulations in place that are as stringent as, or more stringent, that will cover sulfur oxide emissions. • Removal ofthe National Emission Standards for Hazardous Air Pollutants (NESHAP)for boilers. The boiler rule that was adopted by reference has been superseded by a more recent rule. • The W AQS&R contains a general conformity rule that requires federal actions to fit within State efforts to regulate for nonattainment. The Division is bringingto the Environmental Quality Council (EQC) two options for the revision ofgeneral conformity: o Keepingthe State rule in place and revising the rule to be up to date with the federal requirements (Option I). o Removal ofthe rule from the WAQS&R, and allowing conformity to be handled at the federal level (Option 2). The proposed revisions can be seen in the attached draft rules. Specific information on the changes canbe found in the Statement ofPrincipal Reasons (SOPR). There are two attached draft SOPRs, one for each of the conformity options. Both SOPRs will be taken to the hearing, and the one that contains the EQC's chosen option will be presented for a signature. Chapter 2, Sections 3, 4, 6 and 12, Chapter 3, Sections 4 and 9, and Chapter 8, Sections 3 and 5 involve changes to the State Implementation Plan (SIP). The Wyoming Air Quality Advisory Board recommended that these revisions be taken forward through the rulemaking process at a public meeting held in Laramie, Wyoming on March 30, 2012.

Herschler Building · 122 West 25th Street · Cheyenne, WY 82002 · http://deq.state.wy.us**AD~'INIOUTREACH** ABANDONED MINES AIR QUALITY INDUSTRIAL SITING LAND QUALITY SOLID & HAZ. WASTE WATER QUALITY (307) 777·7758 (307)777-6145 (307) 777-7391 (307) 777-7369 t307) 777-7756 (307) 777-7752 (307) 777-7781 

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# t l IAgency ContactName: Agency ContactPhone: Agency ContactEmail: Christine Anderson 307-675-5624 tina.anderson@wyo.gov

Governor's Response Options (to be completed by Governor's Office):



# __ 1 __Agency may proceed. ---'\¥---Delaypublic comment and s0t-up meeting with

Signature: Governor's Counsel 

### If

no response has been receivedbythe 1

### dh workingday, the agencywillproceedwith these rules.

### Administrative Rule ReviewReport- ARR12-079 Legislative Service Office October 18, 2012 AGENCY DATE SUBMITTED: SUBJECT:

NATURE OF RULES: STATUTORY AUTHORITY: DepartmentofEnvironmental Quality October 11, 2012 Chapter 2

- Ambient Standards; Chapter 3

- General Emission Standards; Chapter 5 - National Emission Standards; Chapter 8- NonattainmentAreaRegulations Legislative and Procedural. W.S. 35-ll-112(a)(i) and 35-ll-202(a).

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO LSO: Apparently complete to date. SUMMARY OF RULES: These rules amend several chapters of the Department of Environmental Quality, Air Quality Division (AQD) Rules and Regulations. These standards conformto federal requirements as expressed in AQD's State ImplementationPlan (SIP) withthe Environmental Protection Agency (EPA). The rules contain technical descriptions ofallowable emissions of certain chemical compounds. Following is a summary of the rule revisions by chapter. Ifyou would like a copy ofthe rules in strike andunderline format, please contact LSO. Chapter 2 (Ambient Standards) Chapter 2 establishes standards of ambient air quality necessary to protect public health and safety. Section 3 (Ambient Standards for Nitrogen Oxide), Section 4 (Ambient Standards for Sulfur Oxide) Section 6 (Ambient Standards for Ozone) are amended. Section 12 is amended to state that all Code ofFederal Regulations (CFRs) cited in this chapterrevised or published as of July I, 2011 are incorporated by reference inthe rules. Chapter 3 (General Emission Standards) Chapter 3 establishes limits on the quantity, rate or concentration ofemissions ofair pollutants. Section 4 (Emission Standards for Sulfur Oxide) has beenremoved because the regulations were superseded by more updated regulations. Section 9 is amended to state that all Code ofFederal Regulations (CFRs) cited in this chapter revised or published as ofJuly 1, 2011 are incorporated by reference in the rules.l' 

### Chapter 5<National Emission Standards) Chapter 5 LTicorporated emission control regulations developed by the EPA for specific source categories. AQD incorporated the federal regulations into the state regulations to maintain administrative authority with regard to the standards. Section 3 (Emission Standards for Hazardous AirPollutants) is revisedto remove the incorporationby reference of40 CFRpart 63, Subpart DDDDD (National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, andInstitutionalBoilers and ProcessHeaters), whichhas beenvacated. Chapter 8(NonattainmentAreaRegulations) Chapter 8establishes regulations specific to areas not attaining theNational AmbientAir Quality Standards. These rules create anew Section 5which incorporates by reference all CFRs cited in Chapter 8and theirAppendices. FINDINGS: The rules appearto bewithinthe scope ofstatutory and legislativeintent. STAFF RECOMMENDATION: That the rules be placed on the Consent 

### list and be approved by Council as submittedby the agency.

2

# ~ai(L]~ MatthewD. Obrecht StaffAttorney

# ~tJ.~ GeraldW. Laska · StaffAttorneyNotice ofProposedRulemakingBefore The Environmental Quality Council By the DepartmentofEnvironmental Quality Air QualityDivision (AQD) The Environmental Quality Council (EQC) \Viii hold a public hearing beginning at 9:00 AM on October 5, 2012. The hearing will be held at the Herschler Building, Conference Room B63, 122 W. 25th Street, Cheyenne, Wyoming. The Wyoming Department ofEnvironmental Quality, Air Quality Division (AQD orDivision), will be bringing two proposed rulemakings before the EQC. The first proposed rulemaking will involve revising Wyoming Air Quality Standards and Regulations (WAQSR) Chapter 1, Common Provisions, Chapter 6, Permitting Requirements, and Chapter7, Monitoring Regulations. Modifications to these chapters incorporate language that will allow the State to permit for greenhouse gases. In addition, these changes are proposed to be consistent with the requirements established in the current Federal ImplementationPlan (FIP). Chapter 1, Sections 3 and 7, and Chapter 6, Sections 4 and 14, involve changes to the State Implementation Plan (SIP) to satisfy Clean Air Act (CAA) Sections 101, 114, 116, 301 and 307(d)(7)(B). After authorized in accordance with the 2012 State ofWyoming, Enrolled Act No. 16 (Senate File 0086), the AQD will submit these SIP changes to the Environmental Protection Agency (EPA) with the goal ofreplacing the current Greenhouse Gas FIP with a SIP. The secondproposed rulemaking will involve revising WAQSR Chapter 2, Ambient Standards, Chapter 3, General Emission Standards, Chapter 5, National Emission Standards, and Chapter 8, Nonattainment Area Regulations. Revisions to Chapter 2 consist ofupdating the ambient N02, S02, and ozone standards to be consistent with current federal regulations. Chapter 3, Section4, Emission standards for sulfur oxides, is being repealed and superseded by more updated regulations. Changes to Chapter 5 involve the removal of the vacated version of40 CFR part 63, Subpart DDDDD (Boiler MACT) from Section 3. Chapter 8, Section 3, Conformity ofgeneral federal actions to state implementationplans, is being revised to maintain consistency with the federal general conformityregulations. Chapter 2, Sections 3, 4, 6 and 12, Chapter 3, Sections 4 and 9, and Chapter 8, Sections 3 and 5, involve changes to the SIP to satisfy CAA Sections 108, 109, 110 and 176. The AQD will submit these SIP changes to the EPA. The notice for submitting written comments on the WDEQ/AQD proposed revisions was first published on August I, 2012. The \vntten commentperiod will close on September 17, 2012. Written comments will also become a part ofthe public record ifthey are signed by the commenter and submitted to Administrator, WDEQ/AQD, Herschler Building 2-E, 122 W. 25th Street, Cheyenne, Wyoming, 82002, or faxed to 307-777-5616. Copies ofthe public notice and the proposed rules are available for public inspection at the Department ofEnvironmental Quality, Air Quality Division, Herschler Building, 2nd Floor, 122 W. 25th Street, Cheyenne, Wyoming. Electronic copies are available at http://deq.state.\vv.us/agd/index.asp and the EQC website statedbelow. Ifyou have questions regarding the proposed rules, contact Christine Anderson, Air Quality Division, at 307-675-5624. The WDEQ/AQD will file an analysis ofthe comments received. The EQC has scheduled the public hearing on October 5, 2012. The EQC will consider the proposedrules, written comments, and the analysis ofcomments, along with any modifications proposed by the WDEQ/AQD to the draft rules. At the public hearing, oral statements that focus on the written comments, the DEQ's analysis ofcomments and issues raised bythe analysis will be accepted. Comments submitted during the comment period can be viewed at the EQC website: http://eqc.state.\VV.us/docket.htmunder the link titled "!2-21OJ and !2-2102". Any person wishing to use a digital presentation during their testimony before the EQC must provide a digital copy to the EQC no less than 3 days prior to the hearing unless you contact the EQC and request an extension for good cause. Failure to timely submit a digital copy will result in the person not being allowed to use the presentation during their testimony. The EQC may convene a meeting to deliberate and make a decision on these rules at the end ofthe hearing. The EQC also has the option to extend the public comment period on these rules. Ifthe comment period is extended, the extension will be posted on the Air Quality \vebsite as well as the website for the Environmental Quality Council http://deg.state.wv.us/eqc/index.asp.
In accordance with theAmericans with DisabilitiesAct, specialassistance oralternatz\·eformats willbemade m·ailable upon request for indi1·iduals with disabilities

# Environmental Quality Council Public Hearing October 5, 2012--Public Notice

Ne\Yspaper Date ofPublication Casper StarTribune August 1 and 2, 2012 Gillette News Record August 2, 2012 CodyEnterprise August 1, 2012 \VyomingTribune-Eagle August 2, 2012 RockSpringsDailyRocketMiner August 1, 2012

# I BEFORE THE ENVIRONMENTAL QUALITY COUNCIL STATE OF WYOMING 

# FILED OCT 052012

IN THE MATTEROF REVISIONS TO SECTIONS THREE, FOUR, SIX AND TWELVE OF CHAPTER TWO; REVISIONS TO SECTIONS FOURANDNINE OF CHAPTERTHREE; REVISIONS TO SECTION THREE OF CHAPTERFIVE; AND REVISIONS TO SECTIONS ONE, THREE AND FIVE OF CHAPTER EIGHT OF THE WYOMING AIR QUALITY STANDARDS AND REGULATIONS ) ) ) 

### ) ) ) ) ) 

### Jim

### _Ruby, Executive

### Secretary Environmental Quality Council



### STATEMENT OF PRINCIPAL REASONS FORADOPTION

1. The Environmental Quality Council, pursuantto the authority vested in it by the Wyoming Statutes 35-11-112 (a) (i), hasrevised orremoved the following chapters and sections to the Wyoming Air Quality Standards and Regulations. The following sections have beenrevised: Chapter2, Ambient Standards, Section 3, Ambient standards for nitrogen oxides, Section4, Ambient standards for sulfur oxides, Section 6, Ambient standards for ozone, and Section 12, Incorporationbyreference; Chapter 3, General Emission Standards, Section 9, Incorporationbyreference; Chapter 5, National Emission Standards, Section 3, National emission standards for hazardous airpollutants; and Chapter 8, Nonattainment AreaRegulations, Section 1, Introduction to nonattainment arearegulations, and Section 3, Conformityofgeneral federal actions to state implementationplans. Chapter 3, General Emission Standards, Section4, Emission standards for sulfuroxides, has been removed. Chapter 8, NonattainmentArea Regulations, Section 5, Incorporation byreference, has been added.

2. Section 35-11-202 (a) oftheEnvironmental Quality Act states that the Administrator, after consultation withthe Advisory Board, shall recommendto the Director such ambient air standards andregulations that maybe necessaryto prevent, abate, orcontrol pollution.

3. Section 35-11-202 (b) ofthe Act states that inrecommending such standards the Administrator shall consider all facts and circumstances bearing upon the reasonableness ofthe emissions involved including: (A) The character and degree ofinjury to, orinterference with the health andphysical well being ofthe people, animals, wildlife andplant life; (B) The social and economic value ofthe source ofpollution; (C) The priority oflocation inthe area involved; (D) The technical practicability and economic reasonableness ofreducing or eliminatingthe pollution; and (E) The social welfare and aesthetic value. Chapter2, Ambient Standards, Section 3, Ambient standards for nitrogen oxides, and Section4, Ambient standards for sulfuroxides, have beenrevised to bring the 1-hour annual ambient standardsupto date with theNational AmbientAir Quality Standards (NAAQS). Section 4, Ambient standards for sulfuroxides, has also beenrevised to remove the annual and 24-hour standards, and designate the 3-hour standard as a secondary standard in orderto maintain consistency with theNAAQS. Section 6, Ambient standards for ozone, has beenrevisedto bringthe 8-hourprimary and secondary standards up to date with the NAAQS. Section 12, Incorporationbyreference, was updated to adoptbyreference from the Code ofFederal Regulations (CFR) for July 1, 2011. The revisions to Section 3, Ambient standards for nitrogen oxides, Section4, Ambient standards for sulfuroxides, Section 6, Ambient standards for ozone, and Section 12, Incorporation by reference, involve changes to the State Implementation Plan (SIP).



### 1

### 4. Chapter 3, General Emission Standards, Section 4, Emission standards for sulfur oxides, has been removed. These regulations have been superseded by more updated regulations. Section 9, Incorporation by reference, was updated to adopt by reference from the CFR for July 1, 2011. Therevisions to Section 4, Emission standards for sulfur oxides, and Section 9, Incorporation by reference, involve changes to the SIP. 5. Chapter 5, National Emission Standards, Section 3, National emission standards for hazardous airpollutants, has been revised to remove vacated 40 CFRpart 63, Subpart DDDDD (Boiler MACT). The version ofSubpart DDDDD that was adopted by reference from the 2004 Federal Registerhas been supersededby a more recentrule. However, the more recentrule is currently underreconsideration, so it will notbe adopted by reference in this rulemaking. 6. Chapter 8, NonattainmentAreaRegulations, Section 1, Introduction to nonattainment area regulations, has beenrevised to reflect the addition ofSection 5, Incorporation by reference. Section 3, Conformity ofgeneral federal actions to state implementation plans, has been revised to maintain consistency withthe federal regulations. Section 5, Incorporationby reference, has been addedto reference all CFRcitations in Chapter 8. The revisions to Section 3, Conformity ofgeneral federal actions to state implementation plans, and Section 5, Incorporationby reference, involve changes to the SIP. The Council finds thatthese regulations are reasonable and necessary to accomplishthe policy and purpose ofthe ACT, as stated in W.S. 35-11-102, and thatthey have beenpromulgated in accordance with rulemaking provisions ofthe Wyoming Administrative Procedures Act. ': 

### Datedthis

__ -_·-_· '

__day

### of_(:_:c_.-_··~ __ ,

### 2012.

2 

### Hearing Examiner.- 

### gnedName Wyoming Environmental Quality Council

### plans. Draft419/12- Option 1 (State)



### WYOMING DEPARTMENT OFENVIRONMENTAL QUALITY AIR QUALITY DIVISION STANDARDS AND REGULATIONS 

### Nonattainment Area Regulations CHAPTERS 

### Section 3. Conformity ofgeneral federal actions to stateimplementation

(a) Prohibition. (i) No department, agency or instrumentality ofthe Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve any activity which does not conform to an applicable implementation plan. (ii) A Federal agency must make a determination that aFederal action conforms to the applicable implementation plan in accordance with the requirements of this section before the action is taken. (iii) [Reserved] Paragraph (ii) ofthis subsection, does not include Federal actions ·nrhere either: (A) ANational EnYironmental Policy Act (NEPA) analysis was completed as eYidenced by a final eA'Iironmental assessment (EA), environmental impact statement (EIS), or finding ofno significant impact**(FO~lSI)** 

### that ·nas prepared priorto January 31, 1994, (B) (I) Priorto January 31, 1994, an EA 'Nas commenced or a contract was awarded to de'lelop the specific environmental analysis, (II) Sufficient environmental analysis is completed by March 15, 1994 so that the Federal agency may determine that the Federal action is in conformity with the specific requirements and the purposes ofthe applicable SIP pursuantto the agency's affirmatiYe obligation under §

### 176(c) oftheClean Air Act (CAA), and (III) A written determination ofconformity under §

### 176(e) ofthe CAA has been made by the Federal agency responsible for the Federal action by March 15, 1994. (iv) Notwithstanding any provision ofthis section, adetermination that an action is in conformance with the applicable implementation plan does not exempt the

8-1Draft419112- Option 1 (State)

action from any other requirements ofthe applicable implementation plan, the National Environmental Policy Act CNEPAl, or the CAA. (v) Ifan action would result in emissions originating in morethan one nonattainment ormaintenance area. the conformitymust be evaluated for each area separately. (b) Definitions. Terms used but not defined in this

### f*H4 section shall have the meaning given them bythe CAA and EPA's regulations (40 CFRChapter I), in that order ofpriority. 

### "AffectedFederal/andmanager"means the Federal agency or the Federal official charged with direct responsibility for management ofan area designated Class I under the CAA (42 U.S.C. 7472) that is located within 100 km ofthe proposed Federal action. 

### "Apolicabilitv anafvsis" is the orocess ofdetermining ifyourFederal action must be supportedbya conformity determination. 

### "Applicable implementationplan orapplicable SIP" means the portion (or portions) ofthe SIP ormost recent revision thereof, which has been approved under-§ section IIO!klofthe CAA, or promulgated under-§ section llO(c) ofthe CAA (Federal implementation plan), or a plan promulgated or approved pursuant to 

### regulatioRs promulgated uRder §section 301(d) ofthe CAA (Tribal implementationplan orTIP) and which implements the relevant requirements ofthe CAA. 

### "Areawide airquality modelinganalysis" means an assessment on a scale that includes the entire nonattainment or maintenance area which uses an air quality dispersion model orphotochemical grid model to determine the effects ofemissions on air quality. for example. an assessmentusing EPA's communitymulti-scale air quality CCMAQ) modeling system. 

### "CAA" means the Clean Air Act, as amended. 

### "Cause or contribute to anew violation" means a Federal action that: (Ai) Causes a new violation ofa national ambient air quality standard (NAAQS) at a location in a nonattainment ormaintenance area which would otherwise not be in violation ofthe standard during the future period in question ifthe Federal action were not taken; or (Bill Contributes, in conjunction with other reasonably foreseeable actions, to a new violation ofa NAAQS at a location in a nonattainment or maintenance area in a manner that would increase the frequency or severity ofthe new violation.

8-2Draft4/9/12

- Option 1 (State)



### "Causedby", as used in the terms "directemissions" and "indirectemissions," means emissions that would not otherwise occur in the absence ofthe Federal action. 

### "Confidentialbusinessinformation CCBD"means information that has been determined bya Federal agency. in accordance with its applicable regulations. tobe a trade secret. or commercial orfinancial information obtainedfrom a person and privileged orconfidential and is exemptfrom required disclosure undertheFreedom of Information Act (5 U.S.C. 552Cb)(4)). 

### "Conformitv determination" is the evaluation (made after an applicability analysis is completed)that a Federal action conformsto the applicable implementation plan and meets the requirements ofthis section. 

### "Conformitv evaluation" is theentire process from the applicability analysis throughthe conformity determination that is used to demonstratethattheFederal action conforms to the requirements ofthis section. 

### "Continuingprogram responsibility"means a Federal agencyhasresponsibility for emissions causedby: (i) Actions it takes itself; or (ii) Actions ofnon-Federal entities thatthe Federal agency. in exercising its normal programs and authorities. approves. funds. licenses or permits. provided the agency can impose conditions onany portion ofthe action that could affectthe emissions. 

### "Continuousprogram to implement"means that the Federal agencyhas started the action identified in the plan and does not stopthe actions for morethan an 18-month period. unless it can demonstratethat such a stoppage was included in the original plan. 

### "Criteriapollutantorstandard" means any pollutant for which there is established a NAAQS at 40 CFRpart 50. 

### "Direct emissions"means those emissions ofa criteria pollutant or its precursors that are caused or initiated by the Federal action and originate in a nonattainment or maintenance area and occur at the same time and place as the action and arereasonably foreseeable. 

### "Emergency" means a situation where extremely quick action on the part ofthe Federal agencies involved is needed and where the timing ofsuch Federal activities makes it impractical to meet the requirements ofthis section, such as natural disasters like hurricanes or earthquakes, civil disturbances such as terrorist acts and military mobilizations.

8-3

### Response to Comments for Air Quality Division Rulemakings Before the Environmental Quality Council (EQC) on October 5, 2012



### 1. Basin Electric Power Cooperative, dated and received September 17, 2012 Comment Summary: BasinElectric supports the changes to the rule. Response: The Air Quality Division (AQD) appreciates the support. 2. Wyoming Mining Association (WMA), dated and received September 17, 2012 Comment Summary: WMA supports the proposed rules in general. WMA recommends that the EQC adopt the rules as written. WMA provided an explanation ofthe State stakeholder process that provides current authority. Response: The AQD appreciates the support. Comment Summary: WMA also has concerns with a future administration imposing fees on greenhouse gases and would like to incorporate wording in the Statement ofPrincipal Reasons that puts in writing that the Department ofEnvironmental Quality (DEQ) has no plans to collect fees for greenhouse gases. Response: John Corra, DEQ Director, has indicated publically that there are no plans to collect fees for greenhouse gas emissions. Furthermore, the legislation that has enabled the DEQ to go through the rulemaking process to allow for permitting ofgreenhouse gases restricts the Department from creating rules that are more stringentthan federal rules on greenhouse gas permitting. Since the federal rules do not require fee collection for greenhouse gas permitting, the State would not be allowed to collect fees for these emissions either. The proposedrules are silent on the topic offee collection, butthe Departmentbelieves that the underlying legislation will prevent any fee collection in the foreseeable future. IfEPA decides to collect fees at a future date, itwill take time for EPAto run through that public process, at whichtime DEQ and stakeholders will have an opportunity to discuss the issue further along with any budgeting concerns ofthe Division. 3. Petroleum Association ofWyoming (PAW), dated and received on September 17,2012 Comment Summary: PAW supports the rule changes, particularly those pertaining to greenhouse gases and nonattainrnent area regulations. Response: The AQD appreciates the support. Comment Summary: PAW also comments that it does not want the DEQ to collect fees for greenhouse gas emissions. Response: Please see response to WMA above on the subject offees.Draft4/9112- Option 1 (State)



### "Emissions budgets"

### are those portions ofthe applicable SIP's projected emission inventories that describe the levels ofemissions (mobile, stationary, area, etc.) that provide for meeting reasonable further progress milestones, attainment, and/or maintenance for any criteria pollutant or its precursors. "Emission inventory''

### means a listing ofinformation on the location. type of source. tvne and quantity ofpollutant emitted as well as otherparameters ofthe emissions.**"Emission~** 

### offsets", 

### for purposes of Subsection (h), are emissions reductions which are quantifiable, consistent with the applicable SIP attainment and reasonable further progress demonstrations, surplus to reductions required by, and credited to, other applicable SIP provisions, enforceable at both the State and Federal levels, and permanent within the timeframe specified by the program. "Emis-siens thata FedeMI

### agency Jzas a eentinuingpregram respensibility fer" 

### means emissions that are specifically caused ey an agency carrying out its authorities, and does not include emissions that occur due to subsequent activities, unless such activities are required eythe Federal agency. Where an agency, in performing its normal program responsibilities, takes actions itselfor imposes conditions that result in air pollutant emissions B)' a non Federal entitytaking subsequent actions, such emissions are covered by the meaning ofa continuing program responsibility. 

### "EPA" means the U.S. Environmental Protection Agency. "Federal action"

### means any activity engaged in by adepartment, agency, or instrumentality ofthe Federal government, or any activity that adepartment, agency or instrumentality ofthe Federal government supports in any way, provides financial assistance for, licenses, permits, or approves, other than activities related to transportation plans, programs, and projects developed, funded, or approved underTitle 23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.). Where the Federal action is apermit, license, or other approval for some aspect ofa non-Federal undertaking, the relevant activity is the part, portion, or phase orthe non-Federal undertaking that requires the Federal permit, license, or approval. "Federal agency" 

### means, for purposes ofthis section, a Federal department, agency, or instrumentality oftheFederal government. "Increase the frequency orseverity of any existing violation of any standardin any area"

### means to cause a nonattainment areato exceed a standard more often orto cause aviolation at a greater concentration than previously existed and/or would otherwise exist during the future period in question, ifthe project were not implemented. "Indirect emissions"

### means those emissions ofa criteria pollutant or its precursors #tat:

8-4Draft419112- Option 1 (State) (AD That are caused or initiated by the Federal action, 

### but may occur later iR time aRd/or may be farther remoYed iR distaRce from the actioR itselfbut are still reasoRably foreseeable, and originate in the same nonattainment ormaintenance area but occur at a differenttime orplace as the action: (ii) That are reasonably foreseeable: 

### (Biii) Thatthe Federal agency can 

### practicably practically control; and 

### will 

### maiRtaiR coRtrol o•t'er due to a coRtimliRg program respoRsibility ofthe Federal ageRcy. fiv) For which the Federal agencyhas continuing program responsibility. Forthe purooses ofthis definition. even ifa Federal licensing. rulemaking or other approving action is a required initial step for a subsequent activitythat causes emissions. such initial steps do notmean that aFederal agencycanpractically control any resulting emissions. ((Local air quality modeling analysis" means an assessment oflocalized impacts on a scale smallerthan the entire nonattainment or maintenance area, including, for example, congested roadways on a Federal facility. 

### iRtersectioRs aRd highways or transit terminals, which uses an air quality dispersion model (e.g

.. Industrial Source Complex Model orEmission and DispersionModel System) to determine the effects ofemissions on air quality. ((Maintenance area" means 

### aRy geographic regioR ofthe United States pre•,'iously desigRated RonattaiRmeRt pursuant to the CAA AmendmeRts of 1990 and subsequently redesigRated to attainmeRt subject to the requiremeRt to de,·elop a maiRteRaRce plan uRder §175A ofthe CAA. an areathat was designated as nonattainment and has been re-designated in 40 CFRpart 81 to attainment. meetingtheprovisions of section 107(d)(3)ffi) ofthe CAA and has a maintenance plan approved under section 175A ofthe CAA. ((Maintenanceplan"means a revision to the applicable SIP, meeting the requirements of-§ section 175A ofthe CAA. ((Metropolitan Planning Organization (MPO)" 

### is that orgaRization designated as beiRg respoRsible, together with the State, fur coRductiRg the contiRuing, cooperati\'e, aRd comprehensi>.·e plaRniRg process under 23 U.S.C. 134 and 49 U.S.C. 1607 meansthe policyboard ofan organization created as a result ofthe designation process in 23 U.S.C. 

### lli@.((Milestone" has the meaning given in 

### -§ sections l82(g)(1) and §189(c)(1) ofthe CAA. 

### A milestoRe coRsists ofaR emissioRs le\'el aRd the date OR which it is required to be achieYed.

8-5Draft4/9/12- Option 1 (State) 

### "Mitigation measure"means any method ofreducing emissions ofthe pollutant orits precursortaken at the location ofthe Federal action and used toreducethe impact oftheemissions ofthat pollutant caused bythe action. 

### "Nationalambient airquality standards (NAAQS)" are those standards established pursuant to§ section 109 ofthe CAA and include standards for carbon monoxide (CO), lead (Pb), nitrogen dioxide (N02), ozone, particulate matter (PM 10 and PMz 

### 5), and sulfur dioxide (S02). 

### "NEPA" is the National Environmental Policy Act of 1969, as amended (42 

# u.s.c. 4321**~·** 

### "Nonattainmentarea (NAA)" means any geographie area ofthe United States whieh has been an area designated as nonattainment under§ section 

### 1 07 ofthe CAA and described in 40 CFRpart 81. 

### "Precursors of a criteriapollutant"are: (AD For ozone, nitrogen oxides (NOx), unless an area is exempted from NOx requirements under§ section 182(f) ofthe CAA, and volatile organic compounds (VOC). 

### aHd (Bill For PM 10, those pollutants described in the PM 10 nonattainment area applicable SIP as significant contributors to the PM 10 levels. (iii) ForPMz 5_;_ (A) Sulfurdioxide (SOz) in all PMz 5 nonattainment and maintenance areas. (B) Nitrogen oxides in all PMz 5 nonattainment and maintenance areas unless both the State andEPA determinethat it is not a significantprecursor. and CC) Volatile organic compounds CVOC) and ammonia 

### CNH3) only in PMz 5 nonattainment ormaintenance areas where eitherthe State orEPA determines that they are significantprecursors. 

### "Reasonablyforeseeable emissions" are projected future direct and indirect emissions that are identified at the time the conformity determination is made; the location ofsuch emissions is known and the emissions are quantifiable as described and documented bythe Federal agency based on its own information and after reviewing any information presented to the Federal agency. 

### "Regional waterand/or wastewaterprojects" include construction, operation, and maintenance ofwater or wastewater conveyances, water orwastewater treatment

8-6Draft419/12- Option 1 (State) 

### facilities, and water storage reservoirs which affect a large portion ofa nonattainment or maintenance area. "Regifmu!ly significuntueti9n"

### means aFederal action for which the direct and indirect emissions ofany pollutant represent 10 percent or more ofa nonattainment or maintenance area's emissions inventory for that pollutant. "Restrictedinformation"

### is information that is privileged orthat is otherwise protected from disclosure pursuantto applicable statutes. Executive Orders. or regulations. Such information includes. but is not limited to: Classified national security information. protected critical infrastructure information. sensitive security information. and proprietarybusiness information. "TakeorstarttheFederalaction"

### means the date thatthe Federal agency signs or approves the permit license. grant or contractorotherwise physicallybeginsthe Federal action that requires aconformity evaluation underthis section. "Total of direct andindirect emissions"

### means the sum ofdirect and indirect emissions increases and decreases caused by the Federal action; i.e., the "net" emissions considering all direct and indirect emissions. The portion ofemissions which are exempt or presumed to conform under Subsections (c)(iii), (iv), (v), or (vi) are not included in the "total ofdirect and indirect emissions." The "total ofdirect and indirect emissions" includes emissions ofcriteria pollutants and emissions ofprecursors ofcriteria pollutants. (c) Applicability. (i) Conformity determinations for Federal actions related to transportation plans, programs, and projects developed, funded, or approved underTitle 23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.) must meet the procedures and criteria of Chapter 8, Section 4, in lieu ofthe procedures set forth in this section. (ii) For Federal actions not covered by paragraph (i) ofthis subsection, a conformity determination is required for each criteria pollutant orprecursorwhere the total ofdirect and indirect emissions ofthe criteriapollutant or precursor in a nonattainment or maintenance area caused by a Federal action would equal or exceed any oftherates in**paragraph~** 

### (ii)(A) or (B) ofthis subsection. (A) For purposes ofparagraph (ii) ofthis subsection, the following rates apply in nonattainment areas (NAAs):

Ozone (VOCs orNOx): Serious NAAs Severe NAAs Extreme NAAs Other ozone NAAs outside an

8-7 

### TonsNear 50 25 

### 10 t 

# r t t

### ozone transport region MargiAal aAd moderate NAAs iAside aA ozoAe traAsport regioA: Other ozone NAAs inside an ozone transport region: 

## voc NOx Carbon monoxide: All NAAs S02 orN02: PMIO:**PMzs~**



### Pb: All NAAs Moderate NAAs Serious NAAs Direct emissions**~** 

### N.Ox (unless determined notto be significant precursors) VOC or ammonia (ifdetermined to be significant precursors) All NAAs 

### 100

50 

### 100 100 100 100 70



### 25 Draft4/9112

- Option 1 (State)



### (B) For purposes ofparagraph (ii) ofthis subsection, the following rates apply in maintenance areas:

Ozone (NOx, S02 orN02): All Maintenance Areas Ozone (VOCs): Maintenance areas inside an ozone transport region Maintenance areas outside an ozone transport region Carbon monoxide: PMIO:**PMzs~** 

### All maintenance areas All maintenance areas Direct emissions**~** 

### N.Ox (unless determined notto be significantprecursors) YOC or ammonia (ifdetermined to be significant precursors) TonsNear 

### 100

50 

### 100 100 

### 100

8-8Draft419112- Option 1 (State)



### Pb: All maintenance areas 25 (iii) The requirements ofthis section shall not apply to the following Federal actions: (A) Actions where the total ofdirect and indirect emissions are below the emissions levels specified in paragraph (ii) ofthis subsection. (B) The 

### follo•Ning aActions which would result in no emissions increase or an increase in emissions that is clearly de minimus: (I) Judicial and legislative proceedings. (II) Continuing and recurring activities such as permit renewals where activities conducted will be similar in scope and operation to activities currently being conducted. (III) Rulemaking and policy development and issuance. (IV) Routine maintenance and repair activities, including repair and maintenance ofadministrative sites, roads, trails, and facilities. (V) Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, and the training oflaw enforcement personnel. (VI) Administrative actions such as personnel actions, organization changes, debt management or collection, cash management, internal agency audits, program budget proposals, and matters relating to the administration and collection oftaxes, duties and fees. (VII) The routine, recurring transportation ofmaterial and personnel. (VIII) Routine movement ofmobile assets, such as ships and aircraft, in home port reassignments and stations (when no new support facilities or personnel are required) to perform as operational groups and/or for repair or overhaul. (IX) Maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and disposal will be at an approved disposal site. (X) Actions, such as the following, with respect to existing structures, properties, facilities and lands where future activities conducted will be similar in scope and operation to activities currently being conducted at the existing structures,

8-9Draft4/9/12- Option 1 (State) properties, facilities, and lands; for example, relocation ofpersonnel, disposition of federally-owned existing structures, properties, facilities, and lands, rent subsidies, operation and maintenance cost subsidies, the exercise ofreceivership orconservatorship authority, assistance in purchasing structures, and the production ofcoins and currency. (XI) The granting ofleases, licenses such as for exports and trade, permits, and easements where activities conducted will be similar in scope and operation to activities currently being conducted. (XII) Planning, studies, and provision oftechnical assistance. (XIII) Routine operation offacilities, mobile assets and equipment. (XIV) Transfers ofownership, interests, and titles in land, facilities, and real and personal properties, regardless ofthe form or method ofthe transfer. (XV) The designation ofempowerment zones, enterprise communities, orviticultural areas. (XVI) Actions by any oftheFederal banking agencies or the Federal Reserve Banks, including actions regarding charters, applications, notices, licenses, the supervision or examination ofdepository institutions ordepository institution holding companies, access to the discount window, orthe provision of financial services to banking organizations or to any department, agency or instrumentality ofthe United States. (XVII) Actions by the Board ofGovernors ofthe Federal Reserve System or any Federal Reserve Banknecessaryto effect monetary or exchange rate policy. (XVIII) Actions that implement a foreign affairs function ofthe United States. (XIX) Actions (or portions thereof) associated with transfers ofland, facilities, title, and real properties through an enforceable contract or lease agreement where the delivery ofthe deed is required to occur promptly after a specific, reasonable condition is met, such as promptly after the land is certified as meeting the requirements ofthe Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and where the Federal agency does not retain continuing authority to control emissions associated with the lands, facilities, title, or real properties.

8-10Draft419112

- Option 1 (State) (XX) Transfers ofreal property, including land, facilities, and related personal property from a Federal entity to another Federal entity and assignments ofreal property, including land, facilities, and related personal property from a Federal entity to another Federal entity for subsequent deeding to eligible applicants. (XXI) Actions by the Department ofthe Treasury to effect fiscal policy and to exercise the borrowing authority ofthe United States. 

## CXXID Airtraffic control activities and adopting approach. departure. and enroute procedures for aircraft operations abovethe mixing height specified in the applicable SIP. Wherethe applicable SIP does not specify a mixing height. the Federal agency can use the 3.000 feet above ground level as a default mixing height. unless the agencydemonstratesthat use ofa different mixingheight is aporopriate becausethe change in emissions at and above that height causedbytheFederal action is 

### de minimis. (C) Actions where the emissions are not reasonably foreseeable, such as the following: (I) Initial Outer Continental Shelflease sales which are made on a broad scale and are followed by exploration and development plans on a project level. (II) Electric power marketing activities that involve the acquisition, sale and transmission ofelectric energy. (D) Actions which implement a decision to conduct or carry out a conforming program such as prescribed burning actions which are consistent with a conforming land management plan. (iv) Notwithstanding the otherrequirements ofthis section, a conformity determination is not required for the following Federal actions (or portion thereof): (A) The portion ofan action that includes major or minor new or modified stationary sources that require a permit underthe new source review (NSR) program (Section 110(a)(2)(C) and section 173 ofthe CAA) orthe prevention of significant deterioration (PSD) program (Title I, part C ofthe CAA); (B) Actions in response to emergencies or natural disasters such as hurricanes, earthquakes, etc., which are typically commenced on the order ofhours or days after the emergency or disaster and, ifapplicable, which meet the requirements of paragraph (v) ofthis subsection; (C) Research, investigations, studies, demonstrations, or training (other than those exempted under paragraph (iii)(B) ofthis subsection), where no

8-11Draft419112- Option I (State)

environmental detriment is incurred and/or, the particular action furthers air quality research, as determined by the State agency primarily responsible for the applicable SIP; (D) Alteration and additions ofexisting structures as specifically required by new or existing applicable environmental legislation or environmental regulations (e.g., hush houses for aircraft engines and scrubbers for air emissions); (E) Direct emissions from remedial and removal actions carried out under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and associated regulations to the extent such emissions either comply with the substantive requirements ofthe PSD/NSR permitting program or are exempted from other environmental regulation under the provisions ofCERCLA and applicable regulations issued under CERCLA. (v) Federal actions which are part ofa continuing response to an emergency or disaster under paragraph (iv)(B) ofthis subsection and which are to be taken more than 6 months after the commencement ofthe response to the emergency or disaster under paragraph (iv)(B) ofthis subsection are exempt from the requirements of this section only if: (A) The Federal agency taking the actions makes a written determination that, for a specified period not to exceed an additional 6 months, it is impractical to prepare the conformity analyses which would otherwise be required and the actions cannot be delayed due to overriding concerns for public health and welfare, national security interests and foreign policy commitments; or (B) For actions which are to be taken after those actions covered by paragraph (v)(A) ofthis subsection, the Federal agency makes a new determination as provided in paragraph (v)(A) ofthis subsection and: 

# en Provides a draft copy ofthe written determinations required to affected EPA Regional office(s). the affected State(s) and/or airpollution control agencies. and any Federal recognized Indian tribal government in the nonattainment or maintenance area. Those organizations mustbe allowed 15 days from the beginning ofthe extension period to comment on the draft determination: and (II) Within 30 days after makingthe determination. publish a notice ofthe determination by placing a prominent advertisement in a daily newspaper ofgeneral circulation in the area affected bythe action. (C) Ifadditional actions are necessary in response to an emergency or disasterunderparagraph (iv)(B) ofthis subsectionbeyond the specified time period in paragraph (v)(B) ofthis subsection. a Federal agency canmake a new written determination as described in (v)fB) ofthis subsection for as many 6-month periods as needed. but in no case shall this exemption extend beyond three 6-month periods exceptwhere an agency:

8-12Draft4/9/12

- Option I (State)

(I) Provides information to EPA and the State stating that the conditions that gave rise tothe emergency exemption continueto exist and how such conditions effectivelypreventthe agency from conductinga conformityevaluation. (vi) Notwithstanding other requirements ofthis section, actions specified by individual Federal agencies that have met the criteria set forth in eitherparagraphs (vii)(A), eF (vii)(B). or (viil(C) ofthis subsection and the procedures set forth in paragraph (viii) ofthis subsection are "presumed to conform", except as provided in paragraph (x) ofthis subsection. Actions specified by individual Federal agencies as "oresumed to conform"maynotbe used in combination with one anotherwhenthe total direct and indirect emissions from the combinationofactions would equal orexceed any ofthe rates specified in paragraphs {ii)(A) or (ii)ffi) ofthis subsection. (vii) TheFederal agency must meet the criteria for establishing activities that are presumed to conform by fulfilling the requirements set forth in eitherparagraphs (vii)(A), eF (vii)(B). or (viilCC) ofthis subsection: (A) The Federal agency must clearly demonstrate using methods consistent with this section that the total ofdirect and indirect emissions from the type of activities which would be presumed to conform would not: (I) Cause orcontribute to any new violation ofany standard in any area; (II) Interfere with provisions in the applicable SIP for maintenance ofany standard; (III) Increase the frequency or severity ofany existing violation ofany standard in any area; or (IV) Delaytimely attainment ofany standard orany required interim emission reductions or other milestones in any area including, where applicable, emission levels specified in the applicable SIP for purposes of: (1.) A demonstration ofreasonable further progress; (2.) A demonstration ofattainment; (3.) A maintenance plan; or (B) The Federal agency must provide documentation that the total ofdirect and indirect emissions from such future actions would be below the emission rates for a conformity determination that are established in paragraph (ii) ofthis subsection, based, for example, on similar actions taken over recent years.

8-13Draft419/12

- Option 1 (State)



### CC) The Federal agencymust clearly demonstrate thatthe emissions from the tvoe or category ofactions and the amount ofemissions from the action are included in the applicable SIP and the State. local. ortribal air quality agencies responsible for the SJP(s) provide written concurrencethat the emissions from the actions along with all other expected emissions in the area will not exceed the emission budget in the SIP. (viii) In addition to meetingthe criteria for establishing exemptions set forth in paragraphs (vii)(A), eF 

### (vii)(B). or (vii)(C) ofthis subsection, the following procedures must also be complied with to presume that activities will conform: (A) The Federal agency must identify through publication in the Federal Register its list ofproposed activities that are "presumed to conform" and the basis for the presumptions. The notice must clearly identifythetvoe and size ofthe action that would be "presumedto conform" and provide criteria for determining ifthe tvoe and size ofaction qualifies it for the presumption: (B) The Federal agency must notify the appropriate EPA Regional Office(s), State and local air quality agencies and, where applicable, the agency designated under §

### 174 ofthe CAA and the MPO and provide at least 30 days for the public to comment on the list ofproposed activities "presumed to conform". Ifthe "presumed to conform" action has regional ornational application (e.g

.. the action will cause emission increases in excess ofthe de minimis 

### levels identified in paragraph (ii)

### of this subsection in more than one ofEPA's Regions). the Federal agency. as an alternative to sending itto EPA Regional Offices. can send the draft conformitv determination to U.S. EPA. Office ofAir QualityPlanning and Standards: (C) 

### The Federal Agency must document its response to all the comments received and make the comments, response, and final list ofactivities available to the public upon request; and (D) The Federal agency must publish the final list ofsuch activities in the Federal Register. (ix) 1-iot•Nithstanding the other requirements ofthis section, when the total ofdirect and indirect emissions ofany pollutant from aFederal action does not equal or exceed the rates specified in paragraph (ii) ofthis subsection, but represents 10 percent or more ofanonattainment or maintenance area's total emissions ofthat pollutant, the action is defined as aregionally significant action and the requirements ofSubsection (a) 

### and Subsections (e) through U) 

### shall apply for the Federal action. Emissions from the following actions are "presumed to conform": CAl Actions at installations with facility-wide emission budgets meeting the requirements in Subsection (k) provided that the State has ·includedthe emission budget in the EPA-approved SIP and the emissions from the action along with

8-14Draft4/9112

- Option 1 (State)

all otheremissions from the installation will notexceed the facility-wide emission budget.
(B) Prescribed fires conducted in accordance with a smoke management program CSMPl which meets the requirements ofEPA's Interim Air Quality Policy on Wildland and Prescribed Fires oran equivalentreplacementEPA policy. (C) Emissions for actions that the State identifies in theEPAapproved SIP as "presumedto conform". (x) Where an action otherwise presumed to conform under paragraph (vi) ofthis subsection is a regionally significant action or does not in fact meet one ofthe criteria in paragraph (Yii)(A) ofthis subsection, that action shall not be presumed to conform and the requirements ofSubsection (a) and Subsections (e) through 

### U) shall apply for the Federal action. Eventhough an action would otherwisebe "presumedto conform" under paragraphs Cvil or fix) ofthis subsection. an action shall not be "presumedto conform" and the requirements ofSubsection Ca). 40 CFR93.151. Subsections (d) through (j) and Subsections (l)through (n) shall applytothe action if EPA ora third party shows that the action would: (A) Cause orcontribute to any new violation ofany standard in any area: (B) Interfere with provisions in the applicable SIP for maintenance ofany standard: CC) Increasethe frequency or severity ofany existingviolation of any standard in any area: or (0) Delaytimely attainment ofany standard orany required interim emissions reductions or othermilestones in any area including. where applicable. emission levels specified in the applicable SIP for purnoses of: (I) A demonstration ofreasonable further progress: (IJ) A demonstration ofattainment: or (III) A maintenance plan. (xi) The provisions ofthis section shall apply in all nonattainment and maintenance areas except conformity requirements for newly designated nonattainment areas are not applicable until 1year afterthe effective date ofthe final nonattainment designation for each NAAOS and pollutant in accordance with section 176(c)(6) ofthe CAA.

8-15

# J '**'~**
Draft4/9112- Option 1 (State) 

### (d) CoAformity AAalysis Federal Agency Conformity Responsibility. Any Federal department, agency, or instrumentality ofthe Federal government taking an action subject to this section must make its own conformity determination consistent with the requirements ofthis section. In making its conformity determination, aFederal agency must follow the requirements in Subsections (e) through (j) 

### and Subsections (J) 

### through (o) and must consider comments from any interested parties. Where multiple Federal agencies havejurisdiction for various aspects ofaproject, aFederal agency may choose to adopt the analysis ofanother Federal agency or develop its own analysis in orderto make its conformity determination. (e) Reporting Requirements. (i) AFederal agency making aconformity determination under 8ubsectioA (h) Subsections (d) through (j) 

### and Subsections (l)

### through (n) must provide to the appropriate EPA Regional Office(s), State and local air quality**agencies~** 

### federally-recognized Indian tribal government in the nonattainment ormaintenance area. and, where applicable, affected Federal Land Managers, the agency designated under-§ section 174 oftheCAA and the MPO, a 30-day notice which describes the proposed action and the Federal agency's draft conformity determination on the action. lfthe action has multi-regional ornational impacts (e.g

.. the action will cause emission increases in excess ofthe de minimis 

### levels identified in Subsection (c)(ii) in three or more ofEPA'sRegions). the Federal agency. as an alternative to sending itto EPA Regional Offices. can provide the notice to EPA's Office ofAir QualityPlanning and Standards. (ii) AFederal agency must notify the appropriate EPA Regional Office(s), State and local air quality agencies. any federally-recognized Indian tribal government in the nonattainment or maintenance area. and, where applicable, affected Federal Land Managers, the agency designated under-§- section 174 ofthe Clean Air Act and the MPO, within 30 days after making a final conformity determination under 8ubsectioA (h) this section. (iii) 

### The draft and final conformity determination shall exclude any restricted information or confidential business infonnation. The disclosure ofrestricted information and confidential business information shall be controlled bythe applicable laws. regulations. security manuals. or executive orders concerningthe use. access. and release ofsuch materials. Subjectto applicable proceduresto orotectrestricted information from public disclosure. any information ormaterials excluded from the draft or final conformity determination or supporting materials may be made available in a restricted information annexto the determination for review by Federal and State representatives who have received appropriate clearances to review the information. (f) 

### Public Participation. (i) Upon request by any person regarding a specific Federal action, a Federal agency must make available. subject to the limitation in paragraph (v) ofthis

8-16Draft4/9112- Option 1 (State)



### section. for review its draft conformity determination under Subsection (h) Subsection (d) with supporting materials which describe the analytical methods and conclusions relied upon in making the applicability analysis and draft conformity determination. (ii) AFederal agency must make public its draft conformity determination under Subsection (h) Subsection (d) by placing anotice by prominent advertisement in a daily newspaper ofgeneral circulation in the area affected by the action and by providing 30 days for written public comment prior to taking any formal action on the draft determination. This comment period may be concurrent with any otherpublic involvement, such as occurs in the NEPA process. Ifthe action has multi-regional or national impacts (e.g

.. the action will cause emission increases in excess ofthe 

### de minimis levels identified in Subsection (c)(ii) in three ormore ofEPA's Regions). the Federal agency. as an alternative to publishing separate notices. can publish anotice in the Federal Register. (iii) AFederal agency must document its response to a!l the comments received on its draft conformity determination under Subsection (h) Subsection (d) and make the comments and responses available, subjectto the limitation in paragraph (v) of this subsection. upon request by any person regarding a specific Federal action, within 30 days ofthe final conformity determination. (iv) AFederal agency must make public its final conformity determination under Subsection (h) Subsection (d) for a federal action by placing anotice by prominent advertisement in a daily newspaper ofgeneral circulation in the area affected by the action within 30 days ofthe final conformity determination. Ifthe action would have multi-regional or national impacts. the Federal agency. as an alternative. can publish the notice in the Federal Register. (v) The draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure ofrestricted information and confidential business information shall be controlled bythe applicable laws. regulations or executive orders concerningthe release ofsuch materials. (g) Frequency ofConformityDeterminations Reevaluation ofConformity. (i) Once aconformity determination is completed by aFederal agency. that determination is notrequired to be reevaluated ifthe agency has maintained a continuous orogram to implementthe action; the determination has not lapsed as specified in paragraph (ji) 

### ofthis subsection; orany modification to the action does not result in an increase in emissions above the levels specified in Subsection (c)Cii). Ifa conformity determination is not required for the action atthe time the NEPA analysis is completed. the date ofthe finding ofno significant impact CFONSQ for an Environmental Assessment. arecord ofdecision CRQD) for an Environmental Impact Statement. ora categorical exclusion determination can be used as asubstitute date for the conformity determination date.

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### (ii) The conformity status ofaFederal action automatically lapses 5years from the date afinal conformity determination is reported under Subsection (e), unless the Federal action has been completed or a continuous program to implementthe Federal action has commenced. has been commenced to implement that Federal action within a reasonable time. (iii) Ongoing Federal activities at a given site showing continuous progress are not new actions and do not require periodic redeterminations so long as such activities are within the scope ofthe final conformity determination reported under &ffis.S,ection (e). (ilioo 

### If, after the conformity determination is made, the Federal action is changed so that there is an increase in the total ofdirect and indirect emissions abo't'e the le-.'els in Subsection (c)(ii), anew conformity determination is required. Ifthe Federal agency originally determined through the applicability analysis that aconformitv determination was not necessary because the emissions for the action were belowthe limits in Subsection (c)(ii) and changes to the action would result in the total emissions from the action being above the limits in Subsection (c)Cii). then the Federal agency must make aconformity determination. (h) Criteria for Determining Conformity ofGeneral Federal Actions. (i) An action required under Subsection (c) to have aconformity determination for a specific pollutant, will be determined to conform to the applicable SIP if, for each pollutant that exceeds the rates in Subsection (c)(ii), or otherwise requires aconformity determination due to the total ofdirect and indirect emissions from the action, the action meets the requirements ofparagraph (iii) ofthis subsection, and meets any ofthe following requirements: (A) Forany criteria pollutant orprecursor, the total ofdirect and indirect emissions from the action are specifically identified and accounted for in the applicable SIP's attainment or maintenance demonstration orreasonable further progress milestone or in afacility-wide emission budget included in a SIP in accordance with Subsection (k); (B) For precursors ofozone, eF

### nitrogen dioxide, or PM. the total ofdirect and indirect emissions from the action are fully offset within the same nonattainment or maintenance area (ornearby area ofequal orhigher classification provided the emissions from that area contribute to the violations. orhave contributed to violations in the past. in the area with the Federal action) through arevision to the applicable SIP or a similarly enforceable measure that effects emissions reductions so that there is no net increase in emissions ofthat pollutant; (C) 

### For any di"rectly-emitted criteria pollutant, except ozone and nitrogen dioxide, the total ofdirect and indirect emissions from the action meets the requirements:

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- Option 1 (State)

(I) Specified in paragraph (ii) ofthis subsection, based on areawide air quality modeling analysis and local air quality modeling analysis; or (II) Meet the requirements ofparagraph (i)(E) ofthis subsection and, for local air quality modeling analysis, the requirement ofparagraph (ii) ofthis subsection; (D) For CO or directly emitted PM 10: (I) Where the State agency primarily responsible for the applicable SIP determines that an areawide air quality modeling analysis is not needed, the total ofdirect and indirect emissions from the action meet the requirements specified in paragraph (ii) ofthis subsection, based on local air quality modeling analysis; or (II) Where the State agency primarily responsible for the applicable SIP determines that an areawide air quality modeling analysis is appropriate and that a local air quality modeling analysis is not needed, the total ofdirect and indirect emissions from the action meet the requirements specified in paragraph (ii) ofthis subsection, based on areawide modeling, ormeet the requirements ofparagraph (i)(E) of this subsection; or (E) For ozone ornitrogen dioxide, and for purposes ofparagraphs (i)(C)(II) and (i)(D)(II) ofthis subsection, each portion ofthe action orthe action as a whole meets any ofthe following requirements: (I) Where EPA has approved a revision to an area's attainment or maintenance demonstration after 1990 the applicable implementation plan afterthe area was designated as nonattainment and the State makes a determination as provided in paragraph (i)(E)(I)(l.) ofthis subsection orwhere the State makes a commitment as provided in paragraph (i)(E)(I)(2.) ofthis subsection: (1.) The total ofdirect and indirect emissions from the action (or portion thereof) is determined and documented bythe State agency primarily responsible for the applicable SIP to result in a level ofemissions which, together with all other emissions in the nonattainment (or maintenance) area, would not exceed the emissions budgets specified in the applicable SIP. (2.) The total ofdirect and indirect emissions from the action (or portion thereof) is determined bythe State agency responsible for the applicable SIP to result in a level ofemissions which, together with all other emissions in the nonattainment (or maintenance) area, would exceed an emissions budget specified in the applicable SIP and the State Governor orthe Governor's designee for SIP actions makes a written commitmentto EPA which includes the following:

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a. A specific schedule for adoption and submittal ofa revision to the SIP which would achieve the needed emission reductions prior to the time emissions from the Federal action would occur; b. Identification ofspecific measures for incorporation into the SIP which would result in a level ofemissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed any emissions budget specified in the applicable SIP;

c. A demonstration that all existing applicable SIP requirements are being implemented in the area for the pollutants affected by the Federal action, and that local authorityto implement additional requirements has been fully pursued; d. A determination that the responsible Federal agencies have required all reasonable mitigation measures associated with their action; and

e. Written documentation including all air quality analyses supporting the conformity determination. (3.) Where a Federal agency made a conformity determination based on a State's commitment under paragraph (i)(E)(I)(2.) ofthis subsection and the State has submitted a SIPto EPAcovering the time period during which the emissionswill occur oris scheduled to submit such a SIP within 18 months of theconformity determination. the 

### 500ft-a State commitment is automatically deemed a call for a SIP revision by EPA under

# t section 110(k)(5) ofthe CAA, effective on the date ofthe Federal conformity determination and requiring response within 18 months or any shorter time within which the State commits to revise the applicable SIP; (4.) Where a Federal agency made a conformity determination based on a State commitmentunderparagraph (i)(E)(I)(2,) ofthis subsection and the Statehas not submitted a SIP coveringthe time period whenthe emissions will occur or is not scheduled to submit such a SIP within 18 months ofthe conformitv determination. the State must. within 18 months. submitto EPA a revision to the existing SIP committingto include the emissions in the future SIP revision. (II) The action (orportion thereof), as determined by the MPO, is specifically included in a current transportation plan and transportation improvement program which have been found to conform to the applicable SIP under Chapter 8, Section 4, or40 CFR part 93, Subpart A; (III) The action (or portion thereof) fully offsets its emissions within the same nonattainment or maintenance area Cor nearby areaofequal or higher classification provided the emissions from that area contributeto the violations. or have contributed to violations in the past. in the areawith the Federal action) through a

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revision to the applicable SIP or an equally enforceable measure that effects emissions reductions equal to or greaterthan the total ofdirect and indirect emissions from the action so that there is no net increase in emissions ofthatpollutant; (IV) Where EPA has not approved a revision to the relevant SIP attainment or maintenance demonstration since 1990 since the areawas redesignated orreclassified, the total ofdirect and indirect emissions from the action for the future years (described in Subsection (i)(iv)) do not increase emissions with respect to the baseline emissions: (1.) The baseline emissions reflect the historical activity levels that occurred in the geographic area affected bythe proposed Federal action during:

a. Calendaryear 1990, Themostcurrent calendar year with a completeemission inventory available before an areais designated unless EPA sets anotheryear: or b. The calendar yearthat is the basis for the classification (or, 'Nhere the classification is based on multiple years, the most representative year), ifa classification is promulgated in 40 CFR part 81, orTheemission budget in the applicable SIP:

c. The year ofthe baseline inventory in the PM1o applicable SIP; (2.) The baseline emissions are the total ofdirect and indirect emissions calculated for the future years (described in Subsection (i)(iv)) using the historic activity levels (described in paragraph (i)(E)(IV)(l.) ofthis subsection) and appropriate emission factors for the future years; or (V) Where the action involves regional water and/or wastewater projects, such projects are sized to meet onlythe needs ofpopulation projections that are in the applicable SIP. (ii) The areawide and/or local air quality modeling analyses must: (A) Meet the requirements in Subsection (i); and (B) Showthat the action does not: (I) Cause orcontribute to any new violation ofany standard in any area; or (II) Increase the frequency or severity ofany existing violation ofany standard in any area.

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(iii) Notwithstanding any other requirements ofthis subsection, an action subject to this section may not be determined to conform to the applicable SIP unless the total ofdirect and indirect emissions from the action is in compliance orconsistent with all relevant requirements and milestones contained in the applicable SIP, such as elements identified as part ofthe reasonable further progress schedules, assumptions specified in the attainment ormaintenance demonstration, prohibitions, numerical emission limits, and work practice requirements. (iv) Any analyses required underthis subsection must be completed, and any mitigation requirements necessary for a finding ofconformity must be identified before the determination ofconformity is made. (i) Procedures for Conformity Determinations ofGeneral Federal Actions. (i) The analyses required underthis section must be based on the latest planning assumptions.(A) All planning assumptions must be derived from the estimates ofpopulation, employment, travel, and congestion most recently approved by the MPO, or other agency authorized to make such estimates, where available. (B) Any revisions to these estimates used as part ofthe conformity determination, including projected shifts in geographic location or level ofpopulation, employment, travel, and congestion, must be approved bythe MPO or other agency authorized to make such estimates for the urban area. (ii) The analyses required under this section must be based on the latest and most accurate emission estimation techniques available as described below, unless such techniques are inappropriate. Ifsuch techniques are inappropriate. the Federal agencymay obtain afHl written approval 

### effrom the appropriate EPA Regional Administrator is obtained for aeymodification or substitution, they may be modified or ofanother technique substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific Federal agency program. (A) For motor vehicle emissions, the most current version ofthe motor vehicle emissions model specified by EPA and available for use in the preparation or revision ofSIPs in that State must be used for the conformity analysis as specified in paragraphs (ii)(A)(I) and (II) ofthis subsection: (I) The EPA must publish in the Federal Register a notice ofavailability ofany new motor vehicle emissions model; and (II) A grace period ofthree months shall apply during which the motor vehicle emissions model previously specified by EPA as the most current version may be used unless EPA announces a longer grace period in the Federal

8-22 ' I 

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# !
t ,, 

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## ! 

## t ' ! 1 

## 1 ! ' ! I 

# iDraft419/12

- Option 1 (State) Register. Conformity analyses for which the analysis was begun during the grace period or no more than 3 j'tffif5months before the Federal Register notice ofavailability ofthe latest emission model may continue to use the previous version ofthe model specified by EPA. (B) For non-motor vehicle sources, including stationary and area source emissions, the latest emission factors specified by EPA in the "Compilation ofAir Pollutant Emission Factors" (AP-42) must be used for the conformity analysis unless more accurate emission data are available, such as actual stack test data from stationary sources which are part ofthe conformity analysis. (iii) The air quality modeling analyses required under this section must be based on the applicable air quality models, databases, and other requirements specified in the most recent version ofthe "Guideline on Air Quality Models" (Appendix W to40 CFRpart 51). (Revised) (1986), iRcludiRg supplements (EPA publication RO. 450/2 78**~unless:** (A) The guideline techniques are inappropriate, in which case the model maybe modified or another model substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific Federal agencyprogram; and (B) Written approval ofthe EPA Regional Administrator is obtained for any modification or substitution. (iv) The analyses required under this section, eJwept SubsectioR (h)(i)(A), must be based on thetotal ofdirect and indirect emissions from the action and must reflect emission scenarios that are expected to occurunder each ofthe following cases: (A) The attainment year specified in the SIP. or ifthe SIP does not specify an attainment year. the latest attainment yearpossibleunderthe CAA: or (A.B.) The CAA maRdated attaiRmeRt year or, ifapplicable, the farthest last year for which emissions are projected in the maintenance plan; (BQ The year during which the total ofdirect and indirect emissions from the action is expected to be the greatest on an annual basis; and (GD) Any year for which the applicable SIP specifies an emissions budget. 

### U) Mitigation ofAir Quality Impacts. (i) Any measures that are intended to mitigate air quality impacts must be identified and the process for implementation and enforcement ofsuch measures must be described, including an implementation schedule containing explicit timelines for implementation.

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(ii) Priorto determining that a Federal action is in conformity, the Federal agency making the conformity determination must obtain written commitments from the appropriate persons or agencies to implement any mitigation measures which are identified as conditions for making conformity determinations. (iii) Persons or agencies voluntarily committingto mitigation measures to facilitate positive conformity determinations must comply with the obligations ofsuch commitments. (iv) In instances where the Federal agency is licensing, permitting or otherwise approvingthe action ofanother governmental orprivate entity, approval bythe Federal agency must be conditioned on the other entity meeting the mitigation measures set forth in the conformity determination. (v) When necessary because ofchanged circumstances, mitigation measures may be modified so long as the new mitigation measures continue to support the conformity determination. Any proposed change in the mitigation measures is subject to the reporting requirements ofSubsection (e) and the public participation requirements ofSubsection (f). (vi) The implementation plan revision required in 40 CFR part 51, Subpart W shall provide that wWritten commitments to mitigation measures must be obtained priorto a positive conformity determination and that such commitments must be fulfilled. (vii) After a State revises its SIP to adopt its general conformity rules and EPA approves that SIP revision, any agreements, including mitigation measures, necessary for a conformity determination will be both State and federally enforceable. Enforceability through the applicable SIP will apply to all persons who agree to mitigate direct and indirect emissions associated with a Federal action for a conformity determination. (k) ConformitvEvaluation for Federal Installations With Facility-Wide Emission Budgets. (i) The State orlocal agencyresponsible for implementing and enforcing the SIP can in cooperation with Federal agencies orthird parties authorized bythe agency that operate installations subject to Federal oversight develop and adopt a facility-wide emission budgetto beused for demonstrating conformity under Subsection fh){i)(A). The facility-wide budget mustmeet the following criteria: (A) Be for a settime period:
(B) Coverthe pollutants orprecursors ofthe pollutants for which the area is designated nonattainment ormaintenance:

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- Option 1 (State)



### CC) Include specific quantities allowed to be emitted on an annual or seasonal basis: (0) The emissions from the facility along with all otheremissions in the area will not exceed the emission budget for the area: (E) Include specificmeasures to ensure compliance with the budget. such as periodic reporting requirements orcompliance demonstration. when the Federal agency is taking an action that would otherwise require a conformity determination: (F) Be submitted to EPA as a SIP revision: (G) The SIPrevision must be approved byEPA. (ii) The facility-wide budget developed and adopted in accordancewith paragraph (i) ofthis subsection can be revised by following therequirements in paragraph (i) ofthis subsection. (iii) Total direct and indirect emissions from Federal actions in conjunction with all other emissions subject to General Conformityfrom the facility that do not exceed the facility budget adopted pursuantto paragraph (i) ofthis subsection are "presumedto conform"to the SIP and do notrequire a conformity analysis. Civ) Ifthetotal direct and indirect emissions from the Federal actions in conjunction with the otheremissions subjectto General Conformityfrom the facility exceed the budget adopted pursuant to paragraph (i) ofthis subsection. the action must be evaluated for conformity. A Federal agencycan usethe compliance with the facilitywide emissions budget as part ofthe demonstration ofconformity. i.e

.. the agency would have to mitigate or offsetthe emissions that exceed the emissionbudget. (v) Ifthe SIP for the area includes a category for construction emissions. the negotiated budget can exemptconstruction emissions from further conformity analysis. (1) Emissions Beyond theTime Period Coveredbythe SIP. Ifa Federal action would result in total direct and indirect emissions abovethe applicable thresholds which would be emittedbeyond thetime period covered bythe SIP. the Federal agencycan: (i) Demonstrate conformity with the last emission budget in the SIP: or (ii) Request the State to adopt an emissions budget for the action for inclusion in the SIP. The State must submit a SIP revision to EPAwithin 18 months either includingthe emissions in the existing SIP or establishing an enforceable commitment to include the emissions in future SIP revisions based on the latestplanning

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- Option 1 (State) assumptions at thetime ofthe SIP revision. No such commitment by a State shall restrict a State's abilityto require RACT. RACM orany othercontrol measures within the State's authority to ensure timely attainment ofthe NAAOS. (m) Timing ofOffsets and Mitigation Measures. (i) The emissionsreductions from an offset ormitigation measure used to demonstrate conformity must occurduringthe same calendar yearas the emission increases from the action except. as provided in paragraph 

### Oi) ofthis subsection. (ii) The State mayapprove emissionsreductions in otheryears provided: CA) Thereductions are greaterthan the emission increasesbythe following ratios:
(J) Extremenonattainment areas 1.5:1 (II) Severe nonattainment areas 1.3:1 (Ill) Serious nonattainment areas 1.2:1 CIV) Moderate nonattainment areas 1.15:1 (V) All other areas 1.1:1 (B) Thetime period for completingthe emissionsreductions must not exceed twice the period ofthe emissions. CC) The offset ormitigation measurewith emissions reductions in another year will not: (J) Cause orcontribute to a new violation ofany airquality standard: 

# em Increase the frequency or severity ofany existing violation ofany air quality standard: or (III) Delaythe timelyattainment ofany standard or any interim emissions reductions or othermilestones in any area. (iii) The approval bythe State ofan offset ormitigation measure with emissions reductions in anotheryeardoes not relieve the State ofany obligationto meet any SIP orCAA milestone ordeadline. Theapproval ofan alternate schedule for mitigation measures is atthe discretion ofthe State. and they are notrequired to approve an alternate schedule.

8-26Draft419/12- Option 1 (State) (n) Inter-precursorMitigation Measures and Offsets. Federal agencies must reduce the sametype ofpollutant as beingincreasedbytheFederal action exceptthe Statemay approve offsets ormitigation measures ofdifferent precursors ofthe same criteriapollutant. ifsuch trades are allowed bya State in a SIP approvedNSRregulation. is technicallyjustified. and has a demonstrated environmental benefit. (o) EarlyEmission Reduction Credit Programs at Federal Facilities and Installation Subjectto Federal Oversight. 

### Cil Federal facilities and installations subjectto Federal oversight can. with the approval ofthe State agencyresponsible for the SIP in that area. create an early emissions reductions creditprogram. TheFederal agency can createtheemission reduction credits in accordance with the requirements in paragraph (ii) ofthis subsection and can usethem in accordance with paragraph (iii) ofthis subsection. (ii) Creation ofEmissionReduction Credits. (A) Emissionsreductions mustbe quantifiable throughtheuse of standard emission factors ormeasurementtechniques. Ifnon-standard factors or techniques to quantifythe emissions reductions are used. the Federal agencymustreceive approval from the State agency responsible for the implementation ofthe SIP and from EPA'sRegional Office. Theemissionreduction credits do nothave to be quantified before the reduction strategyis implemented. but mustbequantified before the credits are used in the General Conformitv evaluation.
(B) The emission reduction methods mustbe consistent with the applicable SIP attainment and reasonable further orogress demonstrations. (C) The emissions reductions cannotbe required byor credited to otherapplicable SIP provisions. (0) Both the State and Federal air quality agencies mustbeableto take legal action to ensure continued implementation ofthe emissionreduction strategy. In addition. private citizens mustalso be able to initiate action to ensure compliance with the control requirement. (E) The emissions reductions mustbe permanent orthe timeframe for the reductions must be specified. (F) TheFederal agency must documentthe emissionsreductions and provide a copy ofthe document to the State airquality agency and theEPARegional Office for review. Thedocumentation must include a detailed description ofthe emission reduction strategy and a discussion ofhow it meets the requirements ofparagraphs (ii)(A) through (E) ofthis subsection.

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# I IDraft419112- Option 1 (State)

(iii) Use ofEmission Reduction Credits. The emission reduction credits created in accordance with paragraph 

### Cii) ofthis subsection can be used. subjectto the following limitations. to reduce the emissions increase from a Federal action at the facility for the conformity evaluation. (A) Ifthetechnique used to createthe emission reduction is implemented at the same facilitv as the Federal action and could have occurred in conjunction with theFederal action. then the credits can be used to reduce thetotal direct and indirectemissions usedto determinethe applicability ofthe regulationasrequired in Subsection (c) and as offsets ormitigation measures required by Subsection (h). (B) Ifthetechniqueused to createthe emissionreduction is not implemented at the same facility as theFederal action orcould not have occurred in conjunction with the Federal action. then the credits cannotbe used to reduce thetotal direct and indirect emissions usedto determinethe applicability oftheregulation as required in Subsection (c). but can be used to offset ormitigatethe emissions as required by Subsection (h). CC) Emissions reductions credits must be used in the same year in which they are generated. CD) Oncethe emissionreduction credits are used. they cannotbe used as credits for another conformity evaluation. However. unused credits from a strategyused for one conformity evaluation can be used for another conformity evaluation as long as thereduction credits are not double counted. (E) Federal agencies must notifythe State air quality agency responsible for the implementation ofthe SIP and EPARegional Officewhenthe emission reduction credits are being used. Section 5. Incorporation by reference. (a) Code ofFederal Regulations CCFR). All Code ofFederalRegulations fCFRs) cited in this chapter. including theirAppendices. revised and published as ofJuly 1. 2011. not including any later amendments. are incoroorated byreference. Copies of the Code ofFederal Regulations are available for public inspection and copies can be obtained at;cost from the Department ofEnvironmental Oualitv. Division ofAir Quality. 122 W. 25 Street. Cheyenne. Wyoming 82002. Copies ofthe CFRscan also be obtained at cost from Government Institutes. 15200 NBN Way. Building

### B. BlueRidge Summit. PA 17214.

8-28plans. 

### WYOMING DEPARTMENT OFENVIRONMENTAL QUALITY AIR QUALITYDIVISION STANDARDS AND REGULATIONS Nonattainment Area Regulations 

### CHAPTERS Section 3. Conformity ofgeneral federal actions to stateimplementation

(a) Prohibition. (i) No department, agency or instrumentality ofthe Federal Government shall engage in, support in any way or provide financial assistance for, license orpermit, or approve any activity which does not conform to an applicable implementation plan. (ii) A Federal agency must make a determination that a Federal action conforms to the applicable implementation plan in accordance with the requirements of this section before the action is taken. (iii) [Reserved] (iv) Notwithstanding any provision ofthis section, a determination that an action is in conformance with the applicable implementation plan does not exemptthe action from any other requirements ofthe applicable implementation plan, the National Environmental Policy Act (NEPA), orthe CAA. (v) Ifan action would result in emissions originating in more than one nonattainment or maintenance area, the conformity must be evaluated for each area separately. (b) Definitions. Terms used but not defined in this section shall have the meaning given them by the CAA and EPA's regulations (40 CFR Chapter I), in that order ofpriority. 

### ((AffectedFederal/andmanager"means the Federal agency orthe Federal official charged with direct responsibility for management ofan area designated Class I underthe CAA (42 U.S.C. 7472) that is located within I00 km ofthe proposed Federal action. 

### nApplicability analysis" is the process ofdetermining ifyour Federal action must be supported by a conformity determination. 

### nApplicable implementationplan orapplicableSIP"means the portion (or portions) ofthe SIP ormost recent revision thereof, which has been approved under

8-1section llO(k) ofthe CAA, orpromulgated under section IIO(c) ofthe CAA (Federal implementation plan), ora plan promulgated or approved pursuant to section 30l(d) of the CAA (Tribal implementation plan or TIP) and which implements the relevant requirements ofthe CAA. 

### "Areawide airquality modelinganalysis"means an assessment on a scale that includes the entire nonattainment or maintenance area which uses an airquality dispersion model orphotochemical grid model to determine the effects ofemissions on air quality, for example, an assessment using EPA's community multi-scale air quality (CMAQ) modeling system. 

### "CAA"means the Clean Air Act, as amended. 

### "Cause orcontributeto anew violation" means a Federal action that: (i) Causes a new violation ofa national ambient air quality standard (NAAQS) at a location in a nonattainment or maintenance area which would otherwise not be in violation ofthe standard during the future period in question ifthe Federal action were not taken; or (ii) Contributes, in conjunction with other reasonably foreseeable actions, to a new violation ofa NAAQS at a location in a nonattainment ormaintenance area in a mannerthat would increase the frequency or severity ofthe new violation. 

### "Causedby", as used in the terms "directemissions" and "indirect emissions," means emissions that would not otherwise occur in the absence ofthe Federal action. 

### "Confidentialbusiness information (CBI)"means information that has been determined by a Federal agency, in accordance with its applicable regulations, to be a trade secret, or commercial or financial information obtained from a person and privileged or confidential and is exempt from required disclosure under the Freedom of Information Act (5 U.S.C. 552(b)(4)). 

### ''Conformity determination" is the evaluation (made after an applicability analysis is completed) that a Federal action conformsto the applicable implementation plan and meets the requirements ofthis section. 

### "Conformity evaluation" is the entire process from the applicability analysis through the conformity determination that is used to demonstrate that the Federal action conforms to the requirements ofthis section. 

### "Continuingprogram responsibility"means a Federal agencyhas responsibility for emissions caused by: (i) Actions it takes itself; or

8-2(ii) Actions ofnon-Federal entities that the Federal agency, in exercising its normal programs and authorities, approves, funds, licenses orpermits, provided the agency can impose conditions on any portion ofthe action that could affect the emissions. 

### "Continuousprogram to implement"means that the Federal agency has started the action identified in the plan and does not stop the actions for more than an 18-month period, unless it can demonstrate that such a stoppage was included in the original plan. 

### "Criteriapollutantorstandard" means any pollutant for which there is established a NAAQS at 40 CFRpart 50. 

### "Direct emissions"means those emissions ofa criteria pollutant or its precursors that are caused or initiated bythe Federal action and originate in a nonattainment or maintenance area and occur at the sametime and place as the action and are reasonably foreseeable. 

### "Emergency" means a situation where extremely quick action on the part ofthe Federal agencies involved is needed and where the timing ofsuch Federal activities makes it impractical to meet the requirements ofthis section, such as natural disasters like hurricanes or earthquakes, civil disturbances such as terrorist acts and military mobilizations. 

### "Emissions budgets"are those portions ofthe applicable SIP's projected emission inventories that describe the levels ofemissions (mobile, stationary, area, etc.) that provide for meeting reasonable further progress milestones, attainment, and/or maintenance for any criteriapollutant or its precursors. 

### "Emission inventory"means a listing ofinformation on the location, type of source, type and quantity ofpollutant emitted as well as other parameters ofthe emissions. 

### "Emissions offsets", for purposes of Subsection (h), are emissions reductions which are quantifiable, consistent with the applicable SIP attainment and reasonable further progress demonstrations, surplus to reductions required by, and credited to, other applicable SIP provisions, enforceable at both the State and Federal levels, and permanent within the timeframe specified bythe program. 

### "EPA"means the U.S. Environmental Protection Agency. 

### "Federalaction"means any activity engaged in by a department, agency, or instrumentality ofthe Federal government, or any activitythat a department, agency or instrumentality ofthe Federal government supports in any way, provides financial assistance for, licenses, permits, or approves, otherthan activities related to transportation plans, programs, and projects developed, funded, or approved under Title 23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.). Where the Federal action is a permit,

8-3license, or other approval for some aspect ofa non-Federal undertaking, the relevant activity is the part, portion, orphase orthe non-Federal undertaking that requires the Federal permit, license, orapproval. 

### "Federalagency"means, for purposes ofthis section, a Federal department, agency, or instrumentality oftheFederal government. 

### "Increase the frequency orseverity of any existing violation of any standardin any area"means to cause a nonattainment areato exceed a standard more often or to cause a violation at a greater concentration than previously existed and/or would otherwise exist during the future period in question, ifthe project were not implemented. 

### "Indirect emissions" means those emissions ofa criteria pollutant or its precursors: (i) That are caused or initiated bythe Federal action and originate in the same nonattainment or maintenance area but occur at a different time orplace as the action; (ii) That are reasonably foreseeable; (iii) That the Federal agency can practically control; and (iv) For which the Federal agency has continuing program responsibility. Forthe purposes ofthis definition, even ifa Federal licensing, rulemaking or other approving action is a required initial step for a subsequent activity that causes emissions, such initial steps do not mean that a Federal agency can practically control any resulting emissions. 

### "Localairquality modelinganalysis" means an assessment oflocalized impacts on a scale smallerthan the entire nonattainment or maintenance area, including, for example, congested roadways on a Federal facility, which uses an air quality dispersion model (e.g., Industrial Source ComplexModel or Emission and Dispersion Model System) to determine the effects ofemissions on air quality.**~~Maintenance** 

### area" means an area that was designated as nonattainment and has been re-designated in 40 CFRpart 81 to attainment, meeting the provisions ofsection 1 07(d)(3)(E) ofthe CAA and has a maintenance plan approved under section 175A ofthe CAA.**~~Maintenance**

### plan"means a revision to the applicable SIP, meeting the requirements ofsection 175A oftheCAA.**~~Metropolitan** 

### Planning Organization (MPO)" means the policy board ofan organization created as a result ofthe designation process in 23 U.S.C. 134(d).

8-4

### "Milestone" has the meaning given in sections 182(g)(l) and 189(c)(1) ofthe CAA. 

### "Mitigation measure"means any method ofreducing emissions ofthepollutant or its precursortaken at the location ofthe Federal action and used to reduce the impact ofthe emissions ofthat pollutant caused by the action. 

### "Nationalambientairqualitystandards (NAAQS)" are those standards established pursuant to section 109 ofthe CAA and include standards for carbon monoxide (CO), lead (Pb), nitrogen dioxide (N02 ), ozone, particulate matter (PM 10 and PM2

. 5), and sulfur dioxide (S02 ). 

### "NEPA" is the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.). 

### "Nonattainmentarea (NAA)" means an area designated as nonattainment under section 1 07 ofthe CAA and described in 40 CFR part 81. 

### "Precursors of a criteriapollutant"are: (i) Forozone, nitrogen oxides (NOx), unless an area is exempted from NOx requirements under section 182(f) ofthe CAA, and volatile organic compounds (VOC). (ii) For PM 10, those pollutants described in the PM 10 nonattainment area applicable SIP as significant contributorsto the PM10 levels. (iii) For PM2.s: (A) Sulfur dioxide (S02 ) in all PM25 nonattainment and maintenance areas, (B) Nitrogen oxides in all PM2
.5 nonattainment and maintenance areas unless both the State and EPA determine that it is not a significant precursor, and (C) Volatile organic compounds (VOC) and ammonia (NH3) only in PM2
.5 nonattainment ormaintenance areas where eitherthe State or EPA determines thatthey are significantprecursors. 

### ''Reasonably foreseeable emissions" are projected future direct and indirect emissions that are identified at the time the conformity determination is made; the location ofsuch emissions is known and the emissions are quantifiable as described and documented bythe Federal agency based on its own information and after reviewing any information presented to the Federal agency.

8-5

### "Regional waterand/or wastewaterprojects" include construction, operation, and maintenance ofwater orwastewater conveyances, water orwastewatertreatment facilities, and water storage reservoirs which affect a large portion ofa nonattainment or maintenance area. 

### ''Restrictedinformation" is information that is privileged orthat is otherwise protected from disclosure pursuant to applicable statutes, Executive Orders, or regulations. Such information includes, but is not limited to: Classified national security information, protected critical infrastructure information, sensitive security information, and proprietary business information. 

### "Take orstarttheFederalaction" meansthe date that the Federal agency signs or approves the permit, license, grant or contract or otherwise physically begins the Federal action that requires a conformity evaluation under this section. 

### "Totalof direct andindirectemissions"means the sum ofdirect and indirect emissions increases and decreases caused by the Federal action; i.e., the "net"emissions considering all direct and indirect emissions. The portion ofemissions which are exempt orpresumed to conform under Subsections (c)(iii), (iv), (v), or (vi) are not included in the "total ofdirect and indirect emissions." The "total ofdirect and indirect emissions" includes emissions ofcriteria pollutants and emissions ofprecursors ofcriteriapollutants. (c) Applicability. (i) Conformity determinations for Federal actions related to transportation plans, programs, and projects developed, funded, or approved underTitle 23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.) must meet the procedures and criteria of Chapter 8, Section 4, in lieu oftheprocedures set forth in this section. (ii) For Federal actions not covered by paragraph (i) ofthis subsection, a conformity determination is required for each criteriapollutant or precursor where the total ofdirect and indirect emissions ofthe criteria pollutant orprecursor in a nonattainment or maintenance area caused by a Federal action would equal or exceed any ofthe rates in paragraphs (ii)(A) or (B) ofthis subsection. (A) Forpurposes ofparagraph (ii) ofthis subsection, the following rates apply in nonattainment areas (NAAs):

Ozone (VOCs orNOx): Serious NAAs Severe NAAs ExtremeNAAs Other ozone NAAs outside an ozone transport region Other ozoneNAAs inside an

8-6 TonsNear 50 25 10 100ozone transport region: 

## voc 50 NOx 

### 100 Carbon monoxide: All NAAs 

### 100 SOz orN02: All NAAs 

### 100 PMw: Moderate NAAs 

### 100 Serious NAAs 

### 70 PMz.s: Direct emissions 

### 100 SOz 

### 100 NOx (unless determined not to be significant precursors) 

### 100 VOC or ammonia (ifdetermined to be significant precursors) 

### 100 Pb: All NAAs 

### 25 (B) For purposes ofparagraph (ii) ofthis subsection, the following rates apply in maintenance areas:

Ozone (NOx, S02 or

### NOz): All Maintenance Areas Ozone (VOCs): Maintenance areas inside an ozone transport region Maintenance areas outside an ozone transport region Carbon monoxide: PMw:

Pb: All maintenance areas All maintenance areas Direct emissions 

### SOz NOx (unless determined notto be significantprecursors) VOC or ammonia (ifdetermined to be significant precursors) All maintenance areas

8-7 TonsNear 

### 100

50 100 100 100 100 100 100 100 25(iii) The requirements ofthis section shall not applyto the following Federal actions: (A) Actions where the total ofdirect and indirect emissions are below the emissions levels specified in paragraph (ii) ofthis subsection. (B) Actions which would result in no emissions increase or an increase in emissions that is clearly de minimus: (I) Judicial and legislative proceedings. {II) Continuing and recurring activities such as permit renewals where activities conducted will be similar in scope and operation to activities currently being conducted. (III) Rulemaking and policy development and issuance. (IV) Routine maintenance and repair activities, including repair and maintenance ofadministrative sites, roads, trails, and facilities. (V) Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, and the training oflaw enforcement personnel. (VI) Administrative actions such as personnel actions, organization changes, debt management orcollection, cash management, internal agency audits, program budget proposals, and matters relating to the administration and collection oftaxes, duties and fees. (VII) The routine, recurringtransportation ofmaterial and personnel. (VIII) Routine movement ofmobile assets, such as ships and aircraft, in home port reassignments and stations (when no new support facilities or personnel are required) to perform as operational groups and/or for repair or overhaul. (IX) Maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and disposal will be at an approved disposal site. (X) Actions, such as the following, with respect to existing structures, properties, facilities and lands where future activities conducted will be similar in scope and operation to activities currently being conducted at the existing structures, properties, facilities, and lands; for example, relocation ofpersonnel, disposition of federally-owned existing structures, properties, facilities, and lands, rent subsidies,

8-8operation and maintenance cost subsidies, the exercise ofreceivership orconservatorship authority, assistance in purchasing structures, and the production ofcoins and currency. (XI) The granting ofleases, licenses such as for exports and trade, permits, and easements where activities conducted will be similar in scope and operation to activities currently being conducted. (XII) Planning, studies, and provision oftechnical assistance. (XIII) Routine operation offacilities, mobile assets and equipment. (XIV) Transfers ofownership, interests, and titles in land, facilities, and real and personal properties, regardless ofthe form or method ofthe transfer. (XV) The designation ofempowerment zones, enterprise communities, or viticultural areas. (XVI) Actions by any ofthe Federal banking agencies or the Federal Reserve Banks, including actions regarding charters, applications, notices, licenses, the supervision or examination ofdepository institutions or depository institution holding companies, access to the discount window, orthe provision of financial services to banking organizations orto any department, agency or instrumentality ofthe United States. (XVII) Actions bythe Board ofGovernors ofthe Federal Reserve System or any Federal Reserve Bank necessaryto effect monetary or exchange rate policy. (XVIII) Actions that implement a foreign affairs function oftheUnited States. (XIX) Actions (or portions thereof) associated with transfers ofland, facilities, title, and real properties through an enforceable contract or lease agreement where the delivery ofthe deed is required to occurpromptly after a specific, reasonable condition is met, such as promptly afterthe land is certified as meeting the requirements ofthe Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and where the Federal agency does not retain continuing authority to control emissions associated with the lands, facilities, title, or real properties. (XX) Transfers ofreal property, including land, facilities, and related personal property from a Federal entity to another Federal entity and

8-9assignments ofreal property, including land, facilities, and related personal property from a Federal entityto another Federal entity for subsequent deeding to eligible applicants. (XXI) Actions by the Department ofthe Treasury to effect fiscal policy and to exercise the borrowing authority ofthe United States. (XXII) Air traffic control activities and adopting approach, departure, and enroute procedures for aircraft operations above the mixing height specified in the applicable SIP. Where the applicable SIP does not specify a mixing height, the Federal agency can use the 3,000 feet above ground level as a default mixing height, unless the agency demonstrates that use ofa different mixing height is appropriate because the change in emissions at and above that height caused bythe Federal action is 

### de minimis. (C) Actions where the emissions are not reasonably foreseeable, such as the following: (I) Initial Outer Continental Shelflease sales which are made on a broad scale and are followed by exploration and development plans on a project level. (II) Electric power marketing activities that involve the acquisition, sale and transmission ofelectric energy. (D) Actions which implement a decision to conduct or carry out a conforming program such as prescribed burning actions which are consistent with a conforming land management plan. (iv) Notwithstanding the otherrequirements ofthis section, a conformity determination is not required for the following Federal actions (or portion thereof): (A) The portion ofan action that includes major or minor new or modified stationary sources that require a permit under the new source review (NSR) program (Section 110(a)(2)(C) and section 173 ofthe CAA) or the prevention of significant deterioration (PSD) program (Title I, part C ofthe CAA); (B) Actions in response to emergencies which are typically commenced on the order ofhours or days afterthe emergency and, ifapplicable, which meet the requirements ofparagraph (v) ofthis subsection; (C) Research, investigations, studies, demonstrations, or training (otherthan those exempted under paragraph (iii)(B) ofthis subsection), where no environmental detriment is incurred and/or, the particular action furthers air quality research, as determined by the State agency primarilyresponsible for the applicable SIP;

8-10(D) Alteration and additions ofexisting structures as specifically required by new or existing applicable environmental legislation or environmental regulations (e.g., hush houses for aircraft engines and scrubbers for air emissions); (E) Direct emissions from remedial and removal actions carried out underthe Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and associated regulations to the extent such emissions either comply with the substantive requirements ofthe PSD/NSR permitting program orare exempted from other environmental regulation underthe provisions ofCERCLA and applicable regulations issued under CERCLA. (v) Federal actions which are part ofa continuing responseto an emergency or disaster under paragraph (iv)(B) ofthis subsection and which are to be taken more than 6 months afterthe commencement ofthe response to the emergency or disaster under paragraph (iv)(B) ofthis subsection are exempt from the requirements of this section only if: (A) The Federal agency taking the actions makes a written determination that, for a specified period not to exceed an additional 6 months, it is impractical to prepare the conformity analyses which would otherwise be required and the actions cannot be delayed due to overriding concerns for public health and welfare, national security interests and foreign policy commitments; or (B) For actions which are to be taken afterthose actions covered by paragraph (v)(A) ofthis subsection, the Federal agency makes a new determination as provided in paragraph (v)(A) ofthis subsection and: (I) Provides a draft copy ofthe written determinations required to affected EPA Regional office(s), the affected State(s) and/or air pollution control agencies, and any Federal recognized Indian tribal government in the nonattainment or maintenance area. Those organizations must be allowed 15 days from the beginning ofthe extension period to comment on the draft determination; and (II) Within 30 days after making the determination, publish a notice ofthe determination by placing a prominent advertisement in a daily newspaper ofgeneral circulation in the area affected by the action. (C) Ifadditional actions are necessary in response to an emergency or disaster under paragraph (iv)(B) ofthis subsection beyond the specified time period in paragraph (v)(B) ofthis subsection, a Federal agency can make a new written determination as described in (v)(B) ofthis subsection for as many 6-month periods as needed, but in no case shall this exemption extend beyond three 6-month periods except where an agency:

8-11(I) Provides information to EPA and the State stating that the conditions that gave rise to the emergencyexemption continue to exist and how such conditions effectivelypreventthe agency from conducting a conformity evaluation. (vi) Notwithstanding other requirements ofthis section, actions specified by individual Federal agencies that have met the criteria set forth in eitherparagraphs (vii)(A), (vii)(B), or (vii)(C) ofthis subsection and the procedures set forth in paragraph (viii) ofthis subsection are "presumed to conform", except as provided in paragraph (x) ofthis subsection. Actions specified by individual Federal agencies as "presumed to conform" may not be used in combination with one another when the total direct and indirect emissions from the combination ofactions would equal orexceed any ofthe rates specified in paragraphs (ii)(A) or (ii)(B) ofthis subsection. (vii) The Federal agency must meet the criteria for establishing activities that are presumed to conform by fulfilling the requirements set forth in eitherparagraphs (vii)(A), (vii)(B), or (vii)(C) ofthis subsection: (A) The Federal agency must clearly demonstrate using methods consistent with this section that the total ofdirect and indirect emissions from thetype of activities which would be presumed to conform would not: (I) Cause orcontributeto any new violation ofany standard in any area; (II) Interfere with provisions in the applicable SIP for maintenance ofany standard; (III) Increase the frequency or severity ofany existing violation ofany standard in any area; or (IV) Delaytimely attainment ofany standard orany required interim emission reductions orother milestones in any area including, where applicable, emission levels specified in the applicable SIP for purposes of: (1.) A demonstration ofreasonable further progress; (2.) A demonstration ofattainment; (3 .) A maintenance plan; or (B) The Federal agency must provide documentation that the total ofdirect and indirect emissions from such future actions would be belowthe emission rates for a conformity determination that are established in paragraph (ii) ofthis subsection, based, for example, on similar actions taken over recent years.

8-12(C) The Federal agency must clearly demonstrate thatthe emissions from the type orcategory ofactions and the amount ofemissions from the action are included in the applicable SIP and the State, local, ortribal air quality agencies responsible for the SIP(s) provide written concurrencethat the emissions from the actions along with all other expected emissions in the areawill not exceed the emission budget in the SIP. (viii) In addition to meeting the criteria for establishing exemptions set forth in paragraphs (vii)(A), (vii)(B), or (vii)(C) ofthis subsection, the following procedures must also be complied with to presume that activities will conform: (A) The Federal agency must identifythrough publication in the Federal Register its list ofproposed activities that are "presumed to conform" and the basis for the presumptions. The notice must clearly identifythe type and size ofthe action that would be "presumedto conform" and provide criteria for determining ifthe type and size ofaction qualifies it for the presumption; (B) The Federal agency must notifythe appropriate EPA Regional Office(s), State and local air quality agencies and, where applicable, the agency designated under §174 ofthe CAA and the MPO and provide at least 30 days for the public to comment on the list ofproposed activities "presumed to conform". Ifthe "presumed to conform" action has regional or national application (e.g., the action will cause emission increases in excess ofthe 

### de minimis levels identified in paragraph (ii) of this subsection in more than one ofEPA's Regions), the Federal agency, as an alternative to sending it to EPA Regional Offices, can send the draft conformity determination to U.S. EPA, Office ofAir QualityPlanning and Standards; (C) The Federal Agency must document its response to all the comments received and make the comments, response, and final list ofactivities available to the public upon request; and (D) The Federal agency must publish the final list ofsuch activities in the Federal Register. (ix) Emissions from the following actions are "presumed to conform": (A) Actions at installations with facility-wide emission budgets meeting the requirements in Subsection (k) provided thatthe State has included the emission budget in the EPA-approved SIP and the emissions from the action along with all other emissions from the installation will not exceed the facility-wide emission budget. (B) Prescribed fires conducted in accordance with a smoke management program (SMP) which meets the requirements ofEPA's Interim Air Quality Policy on Wildland and Prescribed Fires or an equivalent replacement EPA policy.

8-13(C) Emissions for actions that the State identifies in the EPAapproved SIP as "presumed to conform". (x) Even though an action would otherwise be "presumed to conform" under paragraphs (vi) or (ix) ofthis subsection, an action shall not be "presumed to conform" and the requirements ofSubsection (a), 40 CFR 93.151, Subsections (d) through 

### U) and Subsections (I) through (n) shall apply to the action ifEPA or a third party shows that the action would: (A) Cause or contribute to any new violation ofany standard in any area; (B) Interfere with provisions in the applicable SIP for maintenance ofany standard; (C) Increase the frequency or severity ofany existing violation of any standard in any area; or (D) Delay timely attainment ofany standard or any required interim emissions reductions or other milestones in any area including, where applicable, emission levels specified in the applicable SIP for purposes of: (I) A demonstration ofreasonable further progress; (II) A demonstration ofattainment; or (III) A maintenance plan. (xi) The provisions ofthis section shall apply in all nonattainment and maintenance areas except conformity requirements for newly designated nonattainment areas are not applicable until I year afterthe effective date ofthe final nonattainment designation for each NAAQS and pollutant in accordance with section 176(c)(6) ofthe CAA. (d) Federal Agency Conformity Responsibility. Any department, agency, or instrumentality ofthe Federal government taking an action subject to this section must make its own conformity determination consistent with the requirements ofthis section. In making its conformity determination, a Federal agency must follow the requirements in Subsections (e) through 

### U) and Subsections (I) through (o) and must consider comments from any interested parties. Where multiple Federal agencies havejurisdiction for various aspects ofa project, a Federal agency may choose to adopt the analysis of another Federal agency or develop its own analysis in order to make its conformity determination. (e) Reporting Requirements.

8-14(i) A Federal agency making a conformity determination under Subsections (d) through 

### U) and Subsections (I) through (n) must provide to the appropriate EPA Regional Office(s), State and local air quality agencies, any federallyrecognized Indian tribal government in the nonattainment ormaintenance area, and, where applicable, affected Federal Land Managers, the agency designated under section 174 ofthe CAA and the MPO, a 30-daynotice which describes the proposed action and the Federal agency's draft conformity determination on the action. Ifthe action has multi-regional or national impacts (e.g., the action will cause emission increases in excess ofthede minimis levels identified in Subsection (c)(ii) in three or more ofEPA's Regions), the Federal agency, as an alternative to sending it to EPA Regional Offices, can provide the notice to EPA's Office ofAir Quality Planning and Standards. (ii) A Federal agency must notifythe appropriate EPA Regional Office(s), State and local air quality agencies, any federally-recognized Indian tribal government in the nonattainment or maintenance area, and, where applicable, affected Federal Land Managers, the agency designated under section 174 ofthe Clean Air Act and the MPO, within 30 days after making a final conformity determination underthis section. (iii) The draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure ofrestricted information and confidential business information shall be controlled bythe applicable laws, regulations, security manuals, or executive orders concerningthe use, access, and release ofsuch materials. Subject to applicable procedures to protectrestricted information from public disclosure, any information or materials excluded from the draft or final conformity determination or supporting materials maybe made available in a restricted information annex to the determination for review by Federal and State representatives who have received appropriate clearancesto review the information. (f) Public Participation. (i) Upon request by any person regarding a specific Federal action, a Federal agency must make available, subject to the limitation in paragraph (v) ofthis section, for review its draft conformity determination under Subsection (d) with supporting materials which describe the analytical methods and conclusions relied upon in making the applicability analysis and draft conformity determination. (ii) A Federal agencymust make public its draft conformity determination under Subsection (d) by placing a notice byprominent advertisement in a daily newspaper ofgeneral circulation in the area affected bythe action and byproviding 30 days for written public comment prior to taking any formal action on the draft determination. This comment period maybe concurrent with any otherpublic involvement, such as occurs in the NEPA process. Ifthe action has multi-regional or national impacts (e.g., the action will cause emission increases in excess ofthede minimis levels identified in Subsection (c)(ii) in three ormore ofEPA's Regions), the Federal agency, as an alternative to publishing separate notices, can publish a notice in the Federal Register.

8-15(iii) A Federal agency must document its response to all the comments received on its draft conformity determination under Subsection (d) and make the comments and responses available, subject to the limitation in paragraph (v) ofthis subsection, upon request by any person regarding a specific Federal action, within 30 days ofthe final conformity determination. (iv) A Federal agency must make public its final conformity determination under Subsection (d) for a federal action byplacing a notice by prominent advertisement in a daily newspaper ofgeneral circulation in the area affected by the action within 30 days ofthe final conformity determination. Ifthe action would have multi-regional or national impacts, the Federal agency, as an alternative, can publish the notice in the Federal Register. (v) The draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure ofrestricted information and confidential business information shall be controlled by the applicable laws, regulations or executive orders concerning the release ofsuch materials. (g) Reevaluation ofConformity. (i) Once a conformity determination is completed by a Federal agency, that determination is not required to be reevaluated ifthe agency has maintained a continuous program to implement the action; the determination has not lapsed as specified in paragraph (ii) ofthis subsection; or any modification to the action does not result in an increase in emissions above the levels specified in Subsection ( c)(ii). Ifa conformity determination is not required for the action at the time the NEPA analysis is completed, the date ofthe finding ofno significant impact (FONSI) for an Environmental Assessment, a record ofdecision (ROD) for an Environmental Impact Statement, or a categorical exclusion determination can be used as a substitute date for the conformity determination date. (ii) The conformity status ofa Federal action automatically lapses 5 years from the date a final conformity determination is reported under Subsection (e), unless the Federal action has been completed or a continuous program to implement the Federal action has commenced. (iii) Ongoing Federal activities at a given site showing continuous progress are not new actions and do not require periodic redeterminations so long as such activities are within the scope ofthe final conformity determination reported under Section (e). (iv) Ifthe Federal agency originally determined through the applicability analysis that a conformity determination was not necessary because the emissions for the action were below the limits in Subsection (c)(ii) and changes to the action would result

8-16in the total emissions from the action being above the limits in Subsection (c)(ii), then the Federal agency must make a conformity determination. (h) Criteria for Determining Conformity ofGeneral Federal Actions. (i) An action required under Subsection (c) to have a conformity determination for a specific pollutant, will be determined to conform to the applicable SIP if, for each pollutant that exceedsthe rates in Subsection (c)(ii), orotherwise requires a conformity determination due to the total ofdirect and indirect emissions from the action, the action meets the requirements ofparagraph (iii) ofthis subsection, and meets any ofthe following requirements: (A) For any criteria pollutant orprecursor, the total ofdirect and indirect emissions from the action are specifically identified and accounted for in the applicable SIP's attainment ormaintenance demonstration or reasonable further progress milestone or in a facility-wide emission budget included in a SIP in accordance with Subsection (k); (B) Forprecursors ofozone, nitrogen dioxide, or PM, thetotal of direct and indirect emissions from the action are fully offset within the same nonattainment or maintenance area (or nearby area ofequal orhigher classification provided the emissions from that area contribute to the violations, orhave contributed to violations in the past, in the area with the Federal action) through a revision to the applicable SIP ora similarly enforceable measure that effects emissions reductions so that there is no net increase in emissions ofthat pollutant; (C) For any directly-emitted criteria pollutant, the total ofdirect and indirect emissions from the action meets the requirements: (I) Specified in paragraph (ii) ofthis subsection, based on areawide air qualitymodeling analysis and local air quality modeling analysis; or (II) Meetthe requirements ofparagraph (i)(E) ofthis subsection and, for local air quality modeling analysis, the requirement ofparagraph (ii) ofthis subsection; (D) For CO ordirectly emitted PM 10: (I) Where the State agencyprimarilyresponsible for the applicable SIP determines that an areawide air qualitymodeling analysis is not needed, the total ofdirect and indirect emissions from the action meetthe requirements specified in paragraph (ii) ofthis subsection, based on local air quality modeling analysis; or (II) Where the State agency primarilyresponsible for the applicable SIP determines that an areawide air quality modeling analysis is appropriate and that a local air quality modeling analysis is not needed, the total ofdirect and indirect

8-17emissions from the action meet the requirements specified in paragraph (ii) ofthis subsection, based on areawide modeling, ormeet the requirements ofparagraph (i)(E) of this subsection; or (E) For ozone or nitrogen dioxide, and for purposes ofparagraphs (i)(C)(II) and (i)(D)(II) ofthis subsection, each portion ofthe action orthe action as a whole meets any ofthe following requirements: (I) Where EPA has approved a revision to the applicable implementation plan afterthe area was designated as nonattainment and the State makes a determination as provided in paragraph (i)(E)(I)(1.) ofthis subsection or where the State makes a commitment as provided in paragraph (i)(E)(I)(2.) ofthis subsection: (1.) The total ofdirect and indirect emissions from the action (or portion thereof) is determined and documented bythe State agency primarily responsible for the applicable SIP to result in a level ofemissions which, together with all otheremissions in the nonattainment (or maintenance) area, would not exceed the emissions budgets specified in the applicable SIP. (2.) Thetotal ofdirect and indirect emissions from the action (or portion thereof) is determined bythe State agency responsible for the applicable SIP to result in a level ofemissions which, together with all other emissions in the nonattainment (or maintenance) area, would exceed an emissions budget specified in the applicable SIP and the State Governor orthe Governor's designee for SIP actions makes a written commitmentto EPA which includes the following:

a. A specific schedule for adoption and submittal ofa revision to the SIP which would achieve the needed emission reductions prior to the time emissions from the Federal action would occur; b. Identification ofspecific measures for incorporation into the SIP which would result in a level ofemissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed any emissions budget specified in the applicable SIP;

c. A demonstration that all existing applicable SIP requirements are being implemented in the area for the pollutants affected by the Federal action, and that local authorityto implement additional requirements has been fully pursued; d. A determination thatthe responsible Federal agencies have required all reasonable mitigation measures associated with their action; and

e. Written documentation including all air quality analyses supporting the conformity determination.



### 8-18(3.) Where a Federal agency made a conformity determination based on a State's commitment under paragraph (i)(E)(I)(2.) ofthis subsection and the State has submitted a SIP to EPA covering the time period during which the emissions will occur or is scheduled to submit such a SIP within 18 months of the conformitydetermination, the State commitment is automatically deemed a call for a SIP revision by EPA under section 110(k)(5) oftheCAA, effective on the date ofthe Federal conformity determination and requiring response within 18 months or any shorter time within which the State commitsto revise the applicable SIP; (4.) Where a Federal agency made a conformity determination based on a State commitment under paragraph (i)(E)(I)(2.) ofthis subsection and the State has not submitted a SIP covering the time period when the emissions will occur or is not scheduled to submit such a SIP within 18 months ofthe conformity determination, the State must, within 18 months, submit to EPA a revision to the existing SIP committing to include the emissions in the future SIP revision. (II) The action (or portion thereof), as determined by the MPO, is specifically included in a current transportation plan and transportation improvement program which have been found to conform to the applicable SIP under Chapter 8, Section 4, or 40 CFR part 93, Subpart A; (III) The action (or portion thereof) fully offsets its emissions within the same nonattainment or maintenance area (or nearby area ofequal or higher classification provided the emissions from that area contribute to the violations, or have contributed to violations in the past, in the area with the Federal action) through a revision to the applicable SIP or an equally enforceable measure that effects emissions reductions equal to or greaterthan the total ofdirect and indirect emissions from the action so that there is no net increase in emissions ofthat pollutant; (IV) Where EPA has not approved a revision to the relevant SIP since the area was redesignated or reclassified, the total ofdirect and indirect emissions from the action for the future years (described in Subsection (i)(iv)) do not increase emissions with respect to the baseline emissions: (I.) The baseline emissions reflect the historical activity levels that occurred in the geographic area affected bythe proposed Federal action during:

a. The most current calendar year with a complete emission inventory available before an area is designated unless EPA sets another year; or b. The emission budget in the applicable SIP;

8-19c. The year ofthe baseline inventory in the PM 10 applicable SIP; (2.) The baseline emissions are the total ofdirect and indirect emissions calculated for the future years (described in Subsection (i)(iv)) usingthe historic activity levels (described in paragraph (i)(E)(IV)(l.) ofthis subsection) and appropriate emission factors for the future years; or (V) Wherethe action involves regional water and/or wastewater projects, such projects are sized to meet onlythe needs ofpopulation projections that are in the applicable SIP. (ii) The areawide and/or local air quality modeling analyses must: (A) Meet the requirements in Subsection (i); and (B) Show that the action does not: (I) Cause orcontribute to any new violation ofany standard in any area; or (II) Increase the frequency or severity ofany existing violation ofany standard in any area. (iii) Notwithstanding any otherrequirements ofthis subsection, an action subject to this section may not be determined to conform to the applicable SIP unless the total ofdirect and indirect emissions from the action is in compliance orconsistent with all relevant requirements and milestones contained in the applicable SIP, such as elements identified as part ofthe reasonable further progress schedules, assumptions specified in the attainment or maintenance demonstration, prohibitions, numerical emission limits, and work practice requirements. (iv) Any analyses required underthis subsection must be completed, and anymitigation requirements necessary for a finding ofconformity must be identified before the determination ofconformity is made. (i) Procedures for Conformity Determinations ofGeneral Federal Actions. (i) The analyses required underthis section must be based on the latest planning assumptions.(A) All planning assumptions must be derived from the estimates ofpopulation, employment, travel, and congestion most recently approved bythe MPO, or other agency authorized to make such estimates, where available.

8-20(B) Anyrevisions to these estimates used as part ofthe conformity determination, including projected shifts in geographic location or level ofpopulation, employment, travel, and congestion, must be approved by the MPO or other agency authorized to make such estimates for the urban area. (ii) The analyses required under this section must be based on the latest and most accurate emission estimation techniques available as described below, unless such techniques are inappropriate. Ifsuch techniques are inappropriate, the Federal agency may obtain written approval from the appropriate EPA Regional Administrator for modification or substitution, ofanothertechnique on a case-by-case basis or, where appropriate, on a generic basis for a specific Federal agency program. (A) Formotor vehicle emissions, the most current version ofthe motorvehicle emissions model specified byEPA and available for use in the preparation or revision ofSIPs in that State must be used for the conformity analysis as specified in paragraphs (ii)(A)(I) and (II) ofthis subsection: (I) The EPA must publish in the Federal Register a notice ofavailability ofany new motor vehicle emissions model; and (II) A grace period ofthree months shall apply during which the motor vehicle emissions model previously specified by EPA as the most current version may be used unless EPA announces a longer grace period in the Federal Register. Conformity analyses for which the analysis was begun during the grace period or no more than 3 months before the Federal Register notice ofavailability ofthe latest emission model may continueto use the previous version ofthe model specified byEPA. (B) For non-motorvehicle sources, including stationary and area source emissions, the latest emission factors specified byEPA in the "Compilation ofAir Pollutant Emission Factors" (AP-42) must be used for the conformity analysis unless more accurate emission data are available, such as actual stack test data from stationary sources which are part ofthe conformity analysis. (iii) The air quality modeling analyses required underthis section must be based on the applicable air quality models, databases, and otherrequirements specified in the most recent version ofthe "Guideline on Air QualityModels" (Appendix W to 40 CFR part 51), unless: (A) The guideline techniques are inappropriate, in which case the model may be modified or another model substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific Federal agency program; and (B) Written approval ofthe EPA Regional Administrator is obtained for any modification or substitution.

8-21(iv) The analyses required underthis section must be based on the total of direct and indirect emissions from the action and must reflect emission scenarios that are expected to occurunder each ofthe following cases: (A) The attainment year specified in the SIP, or ifthe SIP does not specify an attainment year, the latest attainment year possible underthe CAA; or (B) The last year for which emissions are projected in the maintenance plan; (C) The year during whichthe total ofdirect and indirect emissions from the action is expected to be the greatest on an annual basis; and (D) Any year for which the applicable SIP specifies an emissions budget.0) Mitigation ofAirQuality Impacts. (i) Any measures that are intended to mitigate air quality impacts must be identified and the process for implementation and enforcement ofsuch measures must be described, including an implementation schedule containing explicittimelines for implementation. (ii) Priorto determiningthat a Federal action is in conformity, the Federal agency making the conformity determination must obtain written commitments from the appropriate persons or agencies to implement any mitigation measures which are identified as conditions for making conformity determinations. (iii) Persons or agencies voluntarily committingto mitigation measures to facilitate positive conformitydeterminations must complywith the obligations ofsuch commitments. (iv) In instances where the Federal agency is licensing, permittingor otherwise approvingthe action ofanother governmental or private entity, approval bythe Federal agency must be conditioned on the other entity meetingthe mitigation measures set forth in the conformity determination. (v) When necessarybecause ofchanged circumstances, mitigation measures may be modified so long as the new mitigation measures continueto support the conformity determination. Anyproposed change in the mitigation measures is subjectto the reporting requirements ofSubsection (e) and the public participation requirements ofSubsection (f). (vi) Written commitments to mitigation measures must be obtained prior to a positive conformity determination and that such commitments must be fulfilled.

8-22(vii) After a State revises its SIP and EPA approves that SIP revision, any agreements, including mitigation measures, necessary for a conformity determination will be both State and federally enforceable. Enforceabilitythrough the applicable SIP will apply to all persons who agree to mitigate direct and indirect emissions associated with a Federal action for a conformity determination. (k) Conformity Evaluation for Federal Installations With Facility-Wide Emission Budgets. (i) The State or local agency responsible for implementing and enforcing the SIP can in cooperation with Federal agencies orthird parties authorized bythe agency that operate installations subject to Federal oversight develop and adopt a facility-wide emission budget to be used for demonstrating conformityunder Subsection (h)(i)(A). The facility-wide budget must meet the following criteria: (A) Be for a set time period; (B) Coverthe pollutants orprecursors ofthe pollutants for which the area is designated nonattainment or maintenance; (C) Include specific quantities allowed to be emitted on an annual or seasonal basis; (D) The emissions from the facility along with all other emissions in the area will not exceed the emission budget for the area; (E) Include specific measures to ensure compliance with the budget, such as periodic reporting requirements or compliance demonstration, when the Federal agency is taking an action that would otherwise require a conformity determination; (F) Be submitted to EPA as a SIP revision; (G) The SIP revision must be approved by EPA. (ii) The facility-wide budget developed and adopted in accordance with paragraph (i) ofthis subsection can be revised by following the requirements in paragraph (i) ofthis subsection. (iii) Total direct and indirect emissions from Federal actions in conjunction with all other emissions subject to General Conformity from the facility that do not exceed the facility budget adopted pursuant to paragraph (i) ofthis subsection are "presumed to conform"to the SIP and do not require a conformity analysis. (iv) Ifthe total direct and indirect emissions from the Federal actions in conjunction with the other emissions subject to General Conformity from the facility

8-23exceed the budget adopted pursuant to paragraph (i) ofthis subsection, the action must be evaluated for conformity. A Federal agency can use the compliance with the facilitywide emissions budget as part ofthe demonstration ofconformity, i.e., the agency would have to mitigate oroffset the emissions that exceed the emission budget. (v) Ifthe SIP for the area includes a category for construction emissions, the negotiated budget can exempt construction emissions from further conformity analysis. (I) Emissions Beyond the Time Period Covered by the SIP. Ifa Federal action would result in total direct and indirect emissions above the applicable thresholds which would be emitted beyond the time period covered by the SIP, the Federal agency can: (i) Demonstrate conformity with the last emission budget in the SIP; or (ii) Requestthe State to adopt an emissions budget for the action for inclusion in the SIP. The State must submit a SIP revision to EPA within 18 months either including the emissions in the existing SIP or establishing an enforceable commitment to include the emissions in future SIP revisions based on the latest planning assumptions at the time ofthe SIP revision. No such commitment by a State shall restrict a State's ability to require RACT, RACM or any other control measures within the State's authority to ensure timely attainment ofthe NAAQS. (m) Timing ofOffsets and Mitigation Measures. (i) The emissions reductions from an offset or mitigation measure used to demonstrate conformity must occurduring the same calendar year as the emission increases from the action except, as provided in paragraph 

### (ii) ofthis subsection. (ii) The State may approve emissions reductions in other years provided: (A) The reductions are greater than the emission increases bythe following ratios: (I) Extreme nonattainment areas 1.5:1 (II) Severe nonattainment areas 1.3:1 (III) Serious nonattainment areas 1.2:1 (IV) Moderate nonattainment areas 1.15: 1 (V) All other areas 1.1 : 1 (B) The time period for completingthe emissions reductions must not exceed twice the period oftheemissions.

8-24(C) The offset ormitigation measure with emissions reductions in another year will not: (I) Cause orcontribute to a new violation ofany air quality standard; (II) Increase the frequency or severity ofany existing violation ofany air quality standard; or (III) Delaythe timely attainment ofany standard or any interim emissions reductions or other milestones in any area. (iii) The approval bythe State ofan offset or mitigation measure with emissions reductions in another yeardoes not relieve the State ofany obligation to meet any SIP or CAA milestone or deadline. The approval ofan alternate schedule for mitigation measures is at the discretion ofthe State, and they are not required to approve an alternate schedule. (n) Inter-precursor Mitigation Measures and Offsets. Federal agencies must reduce the same type ofpollutant as being increased bythe Federal action except the State may approve offsets or mitigation measures ofdifferent precursors ofthe same criteria pollutant, ifsuch trades are allowed by a State in a SIP approved NSRregulation, is technicallyjustified, and has a demonstrated environmental benefit. (o) Early Emission Reduction Credit Programs at Federal Facilities and Installation Subject to Federal Oversight. (i) Federal facilities and installations subject to Federal oversight can, with the approval ofthe State agency responsible for the SIP in that area, create an early emissions reductions credit program. The Federal agency can create the emission reduction credits in accordance with the requirements in paragraph (ii) ofthis subsection and can use them in accordance with paragraph (iii) ofthis subsection. (ii) Creation ofEmission Reduction Credits. (A) Emissions reductions must be quantifiable through the use of standard emission factors or measurement techniques. Ifnon-standard factors or techniques to quantify the emissions reductions are used, the Federal agency must receive approval from the State agency responsible for the implementation ofthe SIP and from EPA's Regional Office. The emission reduction credits do not have to be quantified before the reduction strategy is implemented, but must be quantified before the credits are used in the General Conformity evaluation. (B) The emission reduction methods must be consistent with the applicable SIP attainment and reasonable further progress demonstrations.

8-25(C) The emissionsreductions cannot be required by orcredited to other applicable SIP provisions. (D) Both the State and Federal air quality agencies must be able to take legal action to ensure continued implementation ofthe emission reduction strategy. In addition, private citizens must also be able to initiate action to ensure compliance with the control requirement. (E) The emissions reductions must be permanent orthe timeframe for the reductions must be specified. (F) The Federal agency must document the emissions reductions and provide a copy ofthe document to the State air quality agency and the EPA Regional Office for review. The documentation must include a detailed description ofthe emission reduction strategy and a discussion ofhow it meets the requirements ofparagraphs (ii)(A) through (E) ofthis subsection. (iii) Use ofEmission Reduction Credits. The emission reduction credits created in accordance with paragraph (ii) ofthis subsection can be used, subject to the following limitations, to reduce the emissions increase from a Federal action at the facility for the conformity evaluation. (A) Ifthe technique used to create the emission reduction is implemented at the same facility as the Federal action and could have occurred in conjunction with the Federal action, then the credits can be used to reduce the total direct and indirect emissions used to determine the applicability ofthe regulation as required in Subsection (c) and as offsets or mitigation measures required by Subsection (h). (B) Ifthe technique used to create the emission reduction is not implemented at the same facility as the Federal action or could not have occurred in conjunction with the Federal action, then the credits cannot be used to reduce the total direct and indirect emissions used to determine the applicability ofthe regulation as required in Subsection (c), but can be used to offset or mitigate the emissions as required by Subsection (h). (C) Emissions reductions credits must be used in the same year in which they are generated. (D) Once the emission reduction credits are used, they cannot be used as credits for another conformity evaluation. However, unused credits from a strategy used for one conformity evaluation can be used for another conformity evaluation as long as the reduction credits are not double counted.

8-26(E) Federal agencies must notifythe State air quality agency responsible for the implementation ofthe SIP and EPA Regional Office when the emission reduction credits are being used. Section 5. Incorporation by reference. (a) Code ofFederal Regulations (CFR). All Code ofFederal Regulations (CFRs) cited in this chapter, including their Appendices, revised and published as ofJuly I, 20II, not including any later amendments, are incorporated byreference. Copies of the Code ofFederal Regulations are available for public inspection and copies can be obtained at cost from the Department ofEnvironmental Quality, Division ofAir Quality, 122 W. 25 1h Street, Cheyenne, Wyoming 82002. Copies ofthe CFRs can also be obtained at cost from Government Institutes, I5200 NBN Way, Building B, Blue Ridge Summit, PA I72I4.

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