Department of Environmental Quality 

To protect, conserve and enhance the quality of Wyoming's 

environment for the benefit of current and future generations. 

Matthew H. Mead, Governor Todd Parfitt, Director 

December 21, 20 12 

Mr. James B. Martin 

Regional Administrator 

USEP A Region 8 

15 9 5 Wynkoop Street 

Denver, CO 80202-1129 

RE: State Implementation Plan Approval Request - Chapter 8, Nonattainment Area 

Regulations, Section 3, Conformity of general federal actions to state 

implementation plans, and Section 5, Incorporation by reference (R-20) 

Dear Mr. Martin: 

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On October 5, 2012, the Environmental Quality Council of the Wyoming Department of 

Environmental Quality conducted a public hearing pursuant to 40 CFR 51.102 to consider the 

adoption of revisions and additions to the Wyoming Air Quality Standards and Regulations 

(W AQSR). Revisions affecting the State Implementation Plan (SIP) involve Chapter 8, 

Nonattainment Area Regulations, Section 3, Conformity of general federal actions to state 

implementation plans, and Section 5, Incorporation by reference. 

Section 3 of Chapter 8, Conformity of general federal actions to state implementation 

plans, was revised to maintain consistency with federal regulations. On July 20, 2012, the Upper 

Green River Basin (UGRB) was effectively designated nonattainrnent for 8-hour ozone and 

subject to the General Conformity Rule. Under the General Conformity Rule, federal agencies 

must work with the State in air quality nonattainment or maintenance 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, of the National Ambient Air Quality Standard (NAAQS) for 8-hour ozone. Section 5 

of Chapter 8, Incorporation by reference, was added to reference all CFR citations in Chapter 8. 

After reviewing comments received before or during the hearing, the Council approved 

the proposed revisions on October 5, 2012. Pursuant to the Wyoming Administrative Procedures 

Act, the revisions were forwarded to the Governor's Office for approval and then transmitted to 

the Secretary of State's Office and became effective on December 19, 2012. 

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

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Mr. James B. Martin 

December 21, 2012 

Page 2 

Since all of the necessary State reviews and approvals have been secured, I am 

submitting one paper copy and one electronic copy (in .pdf format on CD) ofthe revisions to the 

State Implementation Plan. The electronic copy is an exact duplicate of the paper copy. 

The following administrative materials are included in the plan submission and have been 

attached for your review: 

1. A copy of the stamped Certification Page by the Secretary of State indicating the 

effective date of the revisions. The Certification Page, which has been signed by the 

Governor and Director of the Department of Environmental Quality, documents the 

necessary legal authority under State law to adopt and implement the revised 

regulations and also provides evidence, along with the attachments listed below, that 

Wyoming followed all of the procedural requirements ofthe State's laws and 

constitution in conducting and completing the adoption of the plan. The rules became 

effective December 19, 2012. 

2. A May 4, 2012 memorandum from John Carra, the presiding Director of the 

Department of Environmental Quality at the time, to the Governor's Office requesting 

approval to proceed with the rulemaking. 

3. An October 18, 2012 review from the Legislative Service Office, finding the revised 

regulations within the scope of intent of legislative authority. 

4. A copy ofthe notices issued by the Air Quality Division for public hearings with a 

list of newspapers and dates of publication. 

5. A copy of the Statement of Principal Reasons that was adopted with the rules. 

6. A copy of the summary of comments and responses. 

7. A list of signatures of witnesses present at the October 5, 2012 hearing as well as a 

copy of the agenda. 

8. Two copies of the revised chapter, one copy showing where revisions were made in 

underline and strikeout and a second copy with all the revisions incorporated. 

With this submission I am asking for Environmental Protection Agency approval of the 

revised State Implementation Plan for the State of Wyoming to include Chapter 8, 

Nonattainment Area Regulations, Section 3, Conformity of general federal actions to state 

implementation plans, and Section 5, Incorporation by reference, of the Wyoming Air Quality 

Standards and Regulations as revised December 19,2012. 

If you 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 

December 21, 2012 

Page 3 

Sincerely, 

Todd Parfitt 

Director 

Enclosures 

cc: Steven A. Dietrich, Administrator, Air Quality Division w/o enc. 

Christine Anderson, Air Quality Division w/enc. 

Jeni Cederle, Air Quality Division w/enc. 

Carl Daly, EPA Region 8 w/o enc. 

Tim Russ, EPA Region 8 w/o en c. 
.. 

Certification Page 

Regular and Emergency Rules 

lo)~©~ow~rm 

1111 DEC 1 9 2012 1.!!) 

1. GenerallriformationF: .. :;;-, .· :;• >; •• ••• ·. . ·,, . . · .. :~·, ... c -!-_ ,' '· .. :· ' .. \;;·· .. .~: : -·-'· 

a. Agency/Board Name See anached list for references 

Department of Environmental Quality 

b. Agency/Board Address c. Agency/Board City I d. Agency/Board Zip Code 

Herschler Building 2-E, 122 W. 25th Street Cheyenne 82002 

e. Name of Contact Person f. Contact Telephone Number 

Christine Anderson 307-675-5624 

g. Contact Email Address I h. Adoption Date: 

tina.anderson@wyo.gov October 5, 2012 ; p. ,..,.rnf~\ ('..,.,.. 1" ,;,.,1! .. ' ,. "J' ·;. \.~: _.·. ···' acher! I .: f'·!· 1•.1 o rPference:; -

PJr Quality 

2. 'Rule ;Type and Information :. -:; . ·-· :>._,:= ;- ' :.~ .:' < 5· :; ::<" H ; . . --· .- _·;;_ '/'.-'{i•<" ···>; --~~ ··_:._· -~~-~,?;';('!:ii.t":\;_;{:·/.:':f.-E;~:~~-1!'::,.·:· 

a. These rules are: 0 Emergency Rules £Aher com(]/eting_ all of Section 2, proceed to Section 5 below} [!] Regular Rules 

b. Choose all that apply: 0 New Rules' [!1 Amended Rules U Repealed Rules 

• 'New· rules means the first set of regular rules to be promulgated by the Agency aher the Legislature adopted a new statutory provision or significantly amended an existing statute. 

If 'New,' provide the Enrolled Act number and year enacted: 

c. Provide the Chapter Number, and Short Title of Each Chapter being Created/Amended/Repealed (if more than 5 chapters are being created/amended/repealed. please 

use the Additional Rule Information form and attach it to this certification} 

·. Chapter Number: Short Title: 

2 Ambient Standards 

Chapter Number: Short Title: 

3 General Emission Standards 

Chapter Number: Short Trtle: 

5 National Emission Standards 

Chapter Number: Short Title: 

.· 8 Nonattainment Area Regulations 

Chapter Number: Short Title: 

d. [!] The Statement of Reasons Is attached to this certification. 

e. If applicable, describe the emergency which requires promulgation of these rules without providing notice or an opportunity for a public hearing: 

3. State Government Notice·ollntended Rulemakirig ·- ·. ... < ·': .:},;> •. . ' 

'" 

. . .. 

a. Date on which the Notice of Intent containing all of the 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 format were provided to the Attorney General: AUgUSt 1

, 2 Q 1 2 
.. 

4. PublicNotice·aflntended Rulemakinq ' · . ;i .; ~ .. · ·.· .· . a. Notice was mailed 45 days in advance to all persons who made a timely request for advance notice. 1!1) Yes 0 No U N/A 

b. A public hearing was held on the proposed rules. [!] Yes 0 No 

If "Yes:' Date: Time: 

October 5, 2012 9:00A.M. 

s. ·Final Filing h(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 sent to the Attorney General's Office O t b 11 2012 for the Governor's Signature: c 0 er I 

b. Date on which final rules were sent to the Legislative Service Office: October 11 1 2012 

c. Date on which a PDF of the final rules was electronically sent to the Secretary of State: October 11 1 2012 

f--6~ •. A-a-e-nt¥.....,_ -=Is-· o-i:r-rd-:-CI-e_r,....i:lfi~c-a-ti,....on:--~~- •. :-:r:·_-~~,....--< . • --.. ~-~:~-:'i:-·\·-'=.:-:·K-<~-. ··:.-:~-:;:r---i--·_.--_--·:;----=-J .-~<",-:_>-_';.~--,:---.--.· ~:-:-;~-:: ... -.. ,__-,.:---:_:,;;-,,-..-3.-:-.T-:-._.-.-,,.-··.-:,---~-,....., __ · ... -.... _.- .. ,_-.·u-··--::;_,~ 

The undersigned certifies that the foregoing informatf<ln is correct. 

·.-· _ _,.. .. 

I have reviewed these rules and determined that they: 

1. Are within the scope of the statutory authority delegated to the adopting agency; 

2. Appear to be within the scope of the legislative purpose of the statutory authority; and, if emergency rules, 

3. Are necessary and that I concur in the finding that they are an emergency. 

Therefore, I approve the same. 

.. :. 

Distribution List: 

Attorney General 

1. Statement of Reasons; 

2. Original Certification Page; 

3. Summary of Comments (regular rules); 

4. Hard copy of rules: clean and 

strike/underscore; and 

5. Memo to Governor documenting 

emergency (emergency rules). 

1. Statement of Reasons; 

2. Copy of Certification Page; 

3. Summary of Comments (regular rules); 

4. Hard copy of rules: clean and 

strike/underscore; 

5. Electronic copy of rules: clean and 

strike/underscore; and 

l 

sos 

1. PDF of clean 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 'tf" 

.Jo l d. at 

day of ~~.£"'(.,~, 

q:..7o A. M . 

Doc 10 t SSS7. gSSi', 8'i'8'i1 g i''l 0 

Max Maxfield 

Secretary of State 

2 
Department of Environmental Quality 

To protect, conserve and enhance the quality of Wyoming's 

environment for the benefit of current and future generations. 

S/'u);~i fl ·-

Matthew H. Mead, Governor John Corra, Director 

To: Honorable Matthew H. Mead, Governor 

From: John V. Corra, Director, Department of Environmental Quality .M /,k--

Subject: 

Date: 

Priority: 

Summary: 

Proposed Rules for Chapters 2, 3, 5 and 8 (R-20) {) ~ 

Department of Environmental Quality, Air Quality Division 

May 4, 2012 

HIGH- Deadline for response is May 18,2012 

Notice of Agency Rulemaking 

The Air Quality Division (Division) is proposing revisions to the Wyoming Air Quality Standards and 

Regulations (WAQS&R) listed above. The following is a brief summary ofthe proposed rule changes: 

• Annual updates to sections to be adopted by reference from the 2011 Code of Federal Regulations 

(CFR). If the State does not adopt the most recent versions of these 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 !-hour ambient standards for N02 and S02, and the 8-hour standard for ozone (03) to 

be consistent with the National Ambient Air Quality Standards (NAAQS). 

• Removal of the annual and 24-hour ambient standards for S02 to be consistent with the NAAQS. 

This removal reduces the number of standards that sources have to comply with. 

• Designation of the 3-hour ambient S02 standard as a secondary standard to be consistent with the 

NAAQS. It was previously not stated in the rule whether this was a primary or secondary standard. 

• Removal of the general emission standards for sulfur oxides. This standard has become outdated and 

there are already other regulations in place that are as stringent as, or more stringent, that will cover 

sulfur oxide emissions. 

• Removal of the 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 bringing to the Environmental Quality Council 

(EQC) two options for the revision of general conformity: 

o Keeping the State rule in place and revising the rule to be up to date with the federal 

requirements (Option I). 

o Removal of the 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 can be 

found in the Statement of Principal 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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Agency Contact Name: 

Agency Contact Phone: 

Agency Contact Email: 

Christine Anderson 

307-67 5-5624 

tina.anderson@wyo.gov 

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

__ 1 __ Agency may proceed. 

---'\¥---Delay public comment and s0t-up meeting with 

Signature: Governor's Counsel 

If no response has been received by the 1 dh working day, the agency will proceed with these rules. 
Administrative Rule Review Report- ARR12-079 

Legislative Service Office 

October 18, 2012 

AGENCY 

DATE SUBMITTED: 

SUBJECT: 

NATURE OF RULES: 

STATUTORY AUTHORITY: 

Department of Environmental Quality 

October 11, 2012 

Chapter 2 - Ambient Standards; Chapter 3 - General 

Emission Standards; Chapter 5 - National Emission 

Standards; Chapter 8- Nonattainment Area Regulations 

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 

conform to federal requirements as expressed in AQD's State Implementation Plan (SIP) with the 

Environmental Protection Agency (EPA). The rules contain technical descriptions of allowable 

emissions of certain chemical compounds. Following is a summary of the rule revisions by 

chapter. If you would like a copy of the rules in strike and underline 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 of Federal Regulations (CFRs) cited in this chapter revised or published as of 

July I, 2011 are incorporated by reference in the rules. 

Chapter 3 (General Emission Standards) 

Chapter 3 establishes limits on the quantity, rate or concentration of emissions of air pollutants. 

Section 4 (Emission Standards for Sulfur Oxide) has been removed because the regulations were 

superseded by more updated regulations. Section 9 is amended to state that all Code of Federal 

Regulations (CFRs) cited in this chapter revised or published as of July 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 Air Pollutants) is revised to remove the incorporation by reference of 40 CFR part 63, 

Subpart DDDDD (National Emission Standards for Hazardous Air Pollutants for Industrial, 

Commercial, and Institutional Boilers and Process Heaters), which has been vacated. 

Chapter 8 (Nonattainment Area Regulations) 

Chapter 8 establishes regulations specific to areas not attaining the National Ambient Air Quality 

Standards. These rules create a new Section 5 which incorporates by reference all CFRs cited in 

Chapter 8 and their Appendices. 

FINDINGS: The rules appear to be within the scope of statutory and legislative intent. 

STAFF RECOMMENDATION: That the rules be placed on the Consent list and be approved 

by Council as submitted by the agency. 

2 

~ai(L]~ Matthew D. Obrecht 

Staff Attorney 

~tJ.~ Gerald W. Laska · 

Staff Attorney 
Notice of Proposed Rulemaking Before 

The Environmental Quality Council 

By the Department of Environmental Quality 

Air Quality Division (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 of Environmental Quality, Air Quality Division (AQD or Division), will be bringing two 

proposed rulemakings before the EQC. The first proposed rulemaking will involve revising Wyoming Air Quality 

Standards and Regulations (W AQSR) Chapter 1, Common Provisions, Chapter 6, Permitting Requirements, and 

Chapter 7, 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 Implementation Plan (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 of Wyoming, Enrolled Act No. 16 

(Senate File 0086), the AQD will submit these SIP changes to the Environmental Protection Agency (EPA) with the 

goal of replacing the current Greenhouse Gas FIP with a SIP. 

The second proposed 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 of updating the ambient N02, S02, and ozone standards to be consistent with current 

federal regulations. Chapter 3, Section 4, 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 of 40 CFR part 63, 

Subpart DDDDD (Boiler MACT) from Section 3. Chapter 8, Section 3, Conformity of general federal actions to 

state implementation plans, is being revised to maintain consistency with the federal general conformity regulations. 

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 comment period will close on September 17, 2012. Written comments will also become a part 

of the public record if they 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 of the public 

notice and the proposed rules are available for public inspection at the Department of Environmental 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 stated below. If you have questions regarding 

the proposed rules, contact Christine Anderson, Air Quality Division, at 307-675-5624. 

The WDEQ/ AQD will file an analysis of the comments received. The EQC has scheduled the public hearing on 

October 5, 2012. The EQC will consider the proposed rules, written comments, and the analysis of comments, 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 of comments and issues raised by the analysis will be accepted. 

Comments submitted during the comment period can be viewed at the EQC website: 

http://eqc.state. \VV.us/docket.htm under the link titled "!2-21 OJ and !2-21 02". 

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 of the hearing. The 

EQC also has the option to extend the public comment period on these rules. If the 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 the Americans with Disabilities Act, special assistance or alternatz\·e formats will be made 

m·ailable upon request for indi1·iduals with disabilities 
Environmental Quality Council Public Hearing 

October 5, 2012--Public Notice 

Ne\Yspaper Date of Publication 

Casper Star Tribune August 1 and 2, 2012 

Gillette News Record August 2, 2012 

Cody Enterprise August 1, 2012 

\Vyoming Tribune-Eagle August 2, 2012 

Rock Springs Daily Rocket Miner August 1, 2012 
I 

BEFORE THE 

ENVIRONMENTAL QUALITY COUNCIL 

STATE OF WYOMING 

FILED 

OCT 0 5 2012 

IN THE MATTER OF REVISIONS TO SECTIONS 

THREE, FOUR, SIX AND TWELVE OF CHAPTER 

TWO; REVISIONS TO SECTIONS FOUR AND NINE 

OF CHAPTER THREE; REVISIONS TO SECTION 

THREE OF CHAPTER FIVE; 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 

FOR ADOPTION 

1. The Environmental Quality Council, pursuant to the authority vested in it by the 

Wyoming Statutes 35-11-112 (a) (i), has revised or removed the following chapters and 

sections to the Wyoming Air Quality Standards and Regulations. The following sections 

have been revised: Chapter 2, Ambient Standards, Section 3, Ambient standards for 

nitrogen oxides, Section 4, Ambient standards for sulfur oxides, Section 6, Ambient 

standards for ozone, and Section 12, Incorporation by reference; Chapter 3, General 

Emission Standards, Section 9, Incorporation by reference; Chapter 5, National Emission 

Standards, Section 3, National emission standards for hazardous air pollutants; and 

Chapter 8, Nonattainment Area Regulations, Section 1, Introduction to nonattainment 

area regulations, and Section 3, Conformity of general federal actions to state 

implementation plans. Chapter 3, General Emission Standards, Section 4, Emission 

standards for sulfur oxides, has been removed. Chapter 8, Nonattainment Area 

Regulations, Section 5, Incorporation by reference, has been added. 

2. Section 35-11-202 (a) ofthe Environmental Quality Act states that the Administrator, 

after consultation with the Advisory Board, shall recommend to the Director such 

ambient air standards and regulations that may be necessary to prevent, abate, or control 

pollution. 

3. 

Section 35-11-202 (b) of the Act states that in recommending such standards the 

Administrator shall consider all facts and circumstances bearing upon the reasonableness 

of the emissions involved including: 

(A) The character and degree of injury to, or interference with the health and physical 

well being of the people, animals, wildlife and plant life; 

(B) The social and economic value ofthe source of pollution; 

(C) The priority of location in the area involved; 

(D) The technical practicability and economic reasonableness of reducing or 

eliminating the pollution; and 

(E) The social welfare and aesthetic value. 

Chapter 2, Ambient Standards, Section 3, Ambient standards for nitrogen oxides, and 

Section 4, Ambient standards for sulfur oxides, have been revised to bring the 1-hour 

annual ambient standards up to date with the National Ambient Air Quality Standards 

(NAAQS). Section 4, Ambient standards for sulfur oxides, has also been revised to 

remove the annual and 24-hour standards, and designate the 3-hour standard as a 

secondary standard in order to maintain consistency with the NAAQS. Section 6, 

Ambient standards for ozone, has been revised to bring the 8-hour primary and secondary 

standards up to date with the NAAQS. Section 12, Incorporation by reference, was 

updated to adopt by reference from the Code of Federal Regulations (CFR) for July 1, 

2011. The revisions to Section 3, Ambient standards for nitrogen oxides, Section 4, 

Ambient standards for sulfur oxides, 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. The revisions 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 air pollutants, has been revised to remove vacated 40 CFR part 63, Subpart 

DDDDD (Boiler MACT). The version of Subpart DDDDD that was adopted by 

reference from the 2004 Federal Register has been superseded by a more recent rule. 

However, the more recent rule is currently under reconsideration, so it will not be 

adopted by reference in this rulemaking. 

6. Chapter 8, Nonattainment Area Regulations, Section 1, Introduction to nonattainment 

area regulations, has been revised to reflect the addition of Section 5, Incorporation by 

reference. Section 3, Conformity of general federal actions to state implementation 

plans, has been revised to maintain consistency with the federal regulations. Section 5, 

Incorporation by reference, has been added to reference all CFR citations in Chapter 8. 

The revisions to Section 3, Conformity of general federal actions to state implementation 

plans, and Section 5, Incorporation by reference, involve changes to the SIP. 

The Council finds that these regulations are reasonable and necessary to accomplish the policy 

and purpose of the ACT, as stated in W.S. 35-11-102, and that they have been promulgated in 

accordance with rulemaking provisions of the Wyoming Administrative Procedures Act. 

': 

Dated this __ -_·-_· '__ day of_(:_:c_.-_··~ __ , 2012. 

2 

Hearing Examiner.- gned Name 

Wyoming Environmental Quality Council 
plans. 

Draft 419/12- Option 1 (State) 

WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY 

AIR QUALITY DIVISION 

STANDARDS AND REGULATIONS 

Nonattainment Area Regulations 

CHAPTERS 

Section 3. Conformity of general federal actions to state implementation 

(a) Prohibition. 

(i) No department, agency or instrumentality of the 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 a Federal 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) A National EnYironmental Policy Act (NEPA) analysis was 

completed as eYidenced by a final eA'Iironmental assessment (EA), environmental impact 

statement (EIS), or finding of no significant impact (FO~lSI) that ·nas prepared prior to 

January 31, 1994, 

(B) (I) Prior to 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 

pursuant to the agency's affirmatiYe obligation under § 176(c) ofthe Clean Air Act 

(CAA), and 

(III) A written determination of conformity under § 176(e) 

of the CAA has been made by the Federal agency responsible for the Federal action by 

March 15, 1994. 

(iv) Notwithstanding any provision of this section, a determination that an 

action is in conformance with the applicable implementation plan does not exempt the 

8-1 
Draft 419112- Option 1 (State) 

action from any other requirements of the applicable implementation plan, the National 

Environmental Policy Act CNEP Al, or the CAA. 

(v) If an 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 f*H4 section shall have the 

meaning given them by the CAA and EPA's regulations (40 CFR Chapter I), in that order 

of priority. 

"Affected Federal/and manager" means the Federal agency or the Federal 

official charged with direct responsibility for management of an 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 of determining ifyour Federal action must 

be supported by a conformity determination. 

"Applicable implementation plan or applicable SIP" means the portion (or 

portions) of the SIP or most recent revision thereof, which has been approved under-§ 

section IIO!kl ofthe CAA, or promulgated under-§ section llO(c) of the CAA (Federal 

implementation plan), or a plan promulgated or approved pursuant to regulatioRs 

promulgated uRder §section 301 (d) of the CAA (Tribal implementation plan or TIP) and 

which implements the relevant requirements ofthe CAA. 

"Areawide air quality modeling analysis" means an assessment on a scale that 

includes the entire nonattainment or maintenance area which uses an air quality 

dispersion model or photochemical grid model to determine the effects of emissions on 

air quality. for example. an assessment using EPA's community multi-scale air quality 

CCMAQ) modeling system. 

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

"Cause or contribute to a new violation" means a Federal action that: 

(Ai) Causes a new violation of a national ambient air quality standard 

(NAAQS) at a location in a nonattainment or maintenance area which would otherwise 

not be in violation of the standard during the future period in question if the Federal 

action were not taken; or 

(Bill Contributes, in conjunction with other reasonably foreseeable 

actions, to a new violation of a NAAQS at a location in a nonattainment or maintenance 

area in a manner that would increase the frequency or severity of the new violation. 

8-2 
Draft 4/9/12 - Option 1 (State) 

"Caused by", as used in the terms "direct emissions" and "indirect emissions," 

means emissions that would not otherwise occur in the absence of the Federal action. 

"Confidential business information CCBD" 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. 552Cb)( 4)). 

"Conformitv determination" is the evaluation (made after an applicability 

analysis is completed) that a Federal action conforms to the applicable implementation 

plan and meets the requirements of this section. 

"Conformitv 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 of this section. 

"Continuing program responsibility" means a Federal agency has responsibility 

for emissions caused by: 

(i) Actions it takes itself; or 

(ii) Actions of non-Federal entities that the Federal agency. in exercising 

its normal programs and authorities. approves. funds. licenses or permits. provided the 

agency can impose conditions on any portion of the action that could affect the 

emissions. 

"Continuous program 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. 

"Criteria pollutant or standard" means any pollutant for which there is 

established a NAAQS at 40 CFR part 50. 

"Direct emissions" means those emissions of a 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 are reasonably 

foreseeable. 

"Emergency" means a situation where extremely quick action on the part of the 

Federal agencies involved is needed and where the timing of such Federal activities 

makes it impractical to meet the requirements of this 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: Basin Electric 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 of the 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 of Principal Reasons 

that puts in writing that the Department of Environmental 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 of greenhouse gases restricts the 

Department from creating rules that are more stringent than 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 proposed rules are 

silent on the topic of fee collection, but the Department believes that the underlying legislation 

will prevent any fee collection in the foreseeable future. If EPA decides to collect fees at a 

future date, it will take time for EPA to run through that public process, at which time DEQ and 

stakeholders will have an opportunity to discuss the issue further along with any budgeting 

concerns of the Division. 

3. Petroleum Association of Wyoming (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 of fees. 
Draft 4/9112- Option 1 (State) 

"Emissions budgets" are those portions of the applicable SIP's projected 

emission inventories that describe the levels of emissions (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 of information on the location. type of 

source. tvne and quantity of pollutant emitted as well as other parameters of the 

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 that a FedeMI agency Jzas a eentinuing pregram 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 ey the 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 entity taking subsequent actions, such emissions are 

covered by the meaning of a continuing program responsibility. 

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

"Federal action" means any activity engaged in by a department, agency, or 

instrumentality of the Federal government, or any activity that a department, agency or 

instrumentality of the 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 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, 

license, or other approval for some aspect of a non-Federal undertaking, the relevant 

activity is the part, portion, or phase or the non-Federal undertaking that requires the 

Federal permit, license, or approval. 

"Federal agency" means, for purposes of this section, a Federal department, 

agency, or instrumentality ofthe Federal government. 

"Increase the frequency or severity of any existing violation of any standard in 

any area" means to cause a nonattainment area to 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, if the project were not implemented. 

"Indirect emissions" means those emissions of a criteria pollutant or its 

precursors #tat: 

8-4 
Draft 419112- 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 itself but are still 

reasoRably foreseeable, and originate in the same nonattainment or maintenance area but 

occur at a different time or place as the action: 

(ii) That are reasonably foreseeable: 

(Biii) That the Federal agency can practicably practically control; and will 

maiRtaiR coRtrol o•t'er due to a coRtimliRg program respoRsibility of the Federal ageRcy. 

fiv) For which the Federal agency has continuing program responsibility. 

For the purooses of this definition. even if a 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. 

((Local air quality modeling analysis" means an assessment of localized impacts 

on a scale smaller than 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 or Emission and Dispersion Model System) to determine the effects of emissions 

on air quality. 

((Maintenance area" means aRy geographic regioR of the 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 of the CAA. an area that was designated as nonattainment 

and has been re-designated in 40 CFR part 81 to attainment. meeting the provisions of 

section 107(d)(3)ffi) ofthe CAA and has a maintenance plan approved under section 

175A of the CAA. 

((Maintenance plan" means a revision to the applicable SIP, meeting the 

requirements of-§ section 175A of the 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 means the 

policy board of an organization created as a result of the designation process in 23 U.S.C. 

lli@. 

((Milestone" has the meaning given in -§ sections l82(g)( 1) and § 189( c)( 1) of the 

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

be achieYed. 

8-5 
Draft 4/9/12- Option 1 (State) 

"Mitigation measure" means any method of reducing emissions of the pollutant 

or its precursor taken at the location of the Federal action and used to reduce the impact 

of the emissions of that pollutant caused by the action. 

"National ambient air quality standards (NAAQS)" are those standards 

established pursuant to§ section 109 of the CAA and include standards for carbon 

monoxide (CO), lead (Pb), nitrogen dioxide (N02), ozone, particulate matter (PM10 and 

PMz 5), and sulfur dioxide (S02). 

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

u.s.c. 4321 ~· 

"Nonattainment area (NAA)" means any geographie area of the United States 

whieh has been an area designated as nonattainment under§ section 1 07 of the CAA and 

described in 40 CFR part 81. 

"Precursors of a criteria pollutant" are: 

(AD For ozone, nitrogen oxides (NOx), unless an area is exempted from 

NOx requirements under§ section 182(f) of the CAA, and volatile organic compounds 

(VOC). aHd 

(Bill For PM10, those pollutants described in the PM10 nonattainment area 

applicable SIP as significant contributors to the PM10 levels. 

(iii) For PMz 5_;_ 

(A) Sulfur dioxide (SOz) in all PMz 5 nonattainment and 

maintenance areas. 

(B) Nitrogen oxides in all PMz 5 nonattainment and maintenance 

areas unless both the State and EPA determine that it is not a significant precursor. and 

CC) Volatile organic compounds CVOC) and ammonia CNH3) only 

in PMz 5 nonattainment or maintenance areas where either the State or EPA determines 

that they are significant precursors. 

"Reasonably foreseeable emissions" are projected future direct and indirect 

emissions that are identified at the time the conformity determination is made; the 

location of such emissions is known and the emissions are quantifiable as described and 

documented by the Federal agency based on its own information and after reviewing any 

information presented to the Federal agency. 

"Regional water and/or wastewater projects" include construction, operation, 

and maintenance of water or wastewater conveyances, water or wastewater treatment 

8-6 
Draft 419/12- Option 1 (State) 

facilities, and water storage reservoirs which affect a large portion of a nonattainment or 

maintenance area. 

"Regifmu!ly significunt ueti9n" means a Federal action for which the direct and 

indirect emissions of any pollutant represent 10 percent or more of a nonattainment or 

maintenance area's emissions inventory for that pollutant. 

"Restricted information" is information that is privileged or that 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 or start the Federal action" means the 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. 

"Total of direct and indirect emissions" means the sum of direct and indirect 

emissions increases and decreases caused by the Federal action; i.e., the "net" emissions 

considering all direct and indirect emissions. The portion of emissions which are exempt 

or presumed to conform under Subsections (c)(iii), (iv), (v), or (vi) are not included in the 

"total of direct and indirect emissions." The "total of direct and indirect emissions" 

includes emissions of criteria pollutants and emissions of precursors of criteria pollutants. 

(c) Applicability. 

(i) Conformity determinations for Federal actions 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.) 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 or precursor where the 

total of direct and indirect emissions of the criteria pollutant or precursor in a 

nonattainment or maintenance area caused by a Federal action would equal or exceed any 

ofthe rates in paragraph~ (ii)(A) or (B) of this subsection. 

(A) For purposes of paragraph (ii) ofthis subsection, the following 

rates apply in nonattainment areas (NAAs): 

Ozone (VOCs or NOx): 

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 not to be 

significant precursors) 

VOC or ammonia (if determined 

to be significant precursors) 

All NAAs 

100 

50 

100 

100 

100 

100 

70 

25 

Draft 4/9112 - Option 1 (State) 

(B) For purposes of paragraph (ii) ofthis subsection, the following 

rates apply in maintenance areas: 

Ozone (NOx, S02 or N02): 

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 not to be 

significant precursors) 

YOC or ammonia (if determined 

to be significant precursors) 

TonsNear 

100 

50 

100 

100 

100 

8-8 
Draft 419112- Option 1 (State) 

Pb: 

All maintenance areas 25 

(iii) The requirements of this section shall not apply to the following 

Federal actions: 

(A) Actions where the total of direct 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 of administrative sites, roads, trails, and facilities. 

(V) Civil and criminal enforcement activities, such as 

investigations, audits, inspections, examinations, prosecutions, and the training of law 

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 of material and 

personnel. 

(VIII) Routine movement of mobile 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, 

8-9 
Draft 4/9/12- Option 1 (State) 

properties, facilities, and lands; for example, relocation of personnel, disposition of 

federally-owned existing structures, properties, facilities, and lands, rent subsidies, 

operation and maintenance cost subsidies, the exercise of receivership or conservatorship 

authority, assistance in purchasing structures, and the production of coins and currency. 

(XI) The granting of leases, 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 of facilities, mobile assets and 

equipment. 

(XIV) Transfers of ownership, interests, and titles in land, 

facilities, and real and personal properties, regardless of the form or method of the 

transfer. 

(XV) The designation of empowerment 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 of depository institutions or depository 

institution holding companies, access to the discount window, or the provision of 

financial services to banking organizations or to any department, agency or 

instrumentality of the United States. 

(XVII) Actions by the Board of Governors of the Federal 

Reserve System or any Federal Reserve Bank necessary to 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 of land, facilities, title, and real properties through an enforceable contract or 

lease agreement where the delivery of the 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 of the 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. 

8-10 
Draft 419112 - Option 1 (State) 

(XX) Transfers of real property, including land, facilities, 

and related personal property from a Federal entity to another Federal entity and 

assignments of real 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 of the Treasury to effect 

fiscal policy and to exercise the borrowing authority of the United States. 

CXXID 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 of a different mixing height is aporopriate 

because the change in emissions at and above that height caused by the Federal action is 

de minimis. 

(C) Actions where the emissions are not reasonably foreseeable, 

such as the following: 

(I) Initial Outer Continental Shelf lease 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 of electric 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 other requirements of this section, a conformity 

determination is not required for the following Federal actions (or portion thereof): 

(A) The portion of an 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 of the CAA) or the prevention of 

significant deterioration (PSD) program (Title I, part C of the CAA); 

(B) Actions in response to emergencies or natural disasters such as 

hurricanes, earthquakes, etc., which are typically commenced on the order of hours or 

days after the emergency or disaster and, if applicable, which meet the requirements of 

paragraph (v) ofthis subsection; 

(C) Research, investigations, studies, demonstrations, or training 

(other than those exempted under paragraph (iii)(B) of this subsection), where no 

8-11 
Draft 419112- 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 of existing 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 of the PSD/NSR permitting program or are exempted from 

other environmental regulation under the provisions of CERCLA and applicable 

regulations issued under CERCLA. 

(v) Federal actions which are part of a continuing response to an 

emergency or disaster under paragraph (iv)(B) of this subsection and which are to be 

taken more than 6 months after the commencement of the response to the emergency or 

disaster under paragraph (iv)(B) of this 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) of this subsection, the Federal agency makes a new determination as 

provided in paragraph (v)(A) ofthis subsection and: 

en Provides a draft copy of the 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 of the extension period to comment on the draft determination: and 

(II) Within 30 days after making the determination. publish 

a notice of the determination by placing a prominent advertisement in a daily newspaper 

of general circulation in the area affected by the action. 

(C) If additional actions are necessary in response to an 

emergency or disaster under paragraph (iv)(B) of this subsection beyond the specified 

time period in paragraph (v)(B) of this subsection. a Federal agency can make 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 except where an agency: 

8-12 
Draft 4/9/12 - Option I (State) 

(I) Provides information to EPA and the State stating that 

the conditions that gave rise to the emergency exemption continue to exist and how such 

conditions effectively prevent the 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 either paragraphs 

(vii)(A), eF (vii)(B). or (viil(C) of this subsection and the procedures set forth in 

paragraph (viii) ofthis subsection are "presumed to conform", except as provided in 

paragraph (x) of this subsection. Actions specified by individual Federal agencies as 

"oresumed to conform" may not be used in combination with one another when the total 

direct and indirect emissions from the combination of actions would equal or exceed any 

of the rates specified in paragraphs {ii)(A) or (ii)ffi) of this subsection. 

(vii) The Federal agency must meet the criteria for establishing activities 

that are presumed to conform by fulfilling the requirements set forth in either paragraphs 

(vii)(A), eF (vii)(B). or (viilCC) of this subsection: 

(A) The Federal agency must clearly demonstrate using methods 

consistent with this section that the total of direct and indirect emissions from the type of 

activities which would be presumed to conform would not: 

(I) Cause or contribute to any new violation of any 

standard in any area; 

(II) Interfere with provisions in the applicable SIP for 

maintenance of any standard; 

(III) Increase the frequency or severity of any existing 

violation of any standard in any area; or 

(IV) Delay timely attainment of any standard or any 

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 of reasonable further 

progress; 

(2.) A demonstration of attainment; 

(3.) A maintenance plan; or 

(B) The Federal agency must provide documentation that the total 

of direct and indirect emissions from such future actions would be below the emission 

rates for a conformity determination that are established in paragraph (ii) of this 

subsection, based, for example, on similar actions taken over recent years. 

8-13 
Draft 419/12 - Option 1 (State) 

CC) The Federal agency must clearly demonstrate that the 

emissions from the tvoe or category of actions and the amount of emissions from the 

action are included in the applicable SIP and the State. local. or tribal air quality agencies 

responsible for the SJP(s) provide written concurrence that 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 meeting the criteria for establishing exemptions set 

forth in paragraphs (vii)(A), eF (vii)(B). or (vii)(C) of this 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 of proposed activities that are "presumed to conform" and the 

basis for the presumptions. The notice must clearly identify the tvoe and size ofthe 

action that would be "presumed to conform" and provide criteria for determining if the 

tvoe and size of action 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 of the CAA and the MPO and provide at least 30 days for the 

public to comment on the list of proposed 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 of EPA's Regions). the Federal agency. as an alternative 

to sending it to EPA Regional Offices. can send the draft conformitv determination to 

U.S. EPA. Office of Air Quality Planning and Standards: 

(C) The Federal Agency must document its response to all the 

comments received and make the comments, response, and final list of activities available 

to the public upon request; and 

(D) The Federal agency must publish the final list of such 

activities in the Federal Register. 

(ix) 1-iot•Nithstanding the other requirements of this section, when the total 

of direct and indirect emissions of any pollutant from a Federal action does not equal or 

exceed the rates specified in paragraph (ii) of this subsection, but represents 10 percent or 

more of a nonattainment or maintenance area's total emissions ofthat pollutant, the 

action is defined as a regionally significant action and the requirements of Subsection (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 ·included the 

emission budget in the EPA-approved SIP and the emissions from the action along with 

8-14 
Draft 4/9112 - Option 1 (State) 

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 CSMPl which meets the requirements ofEPA's Interim Air Quality 

Policy on Wildland and Prescribed Fires or an equivalent replacement EPA policy. 

(C) Emissions for actions that the State identifies in the EPAapproved SIP as "presumed to conform". 

(x) Where an action otherwise presumed to conform under paragraph (vi) 

of this 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 of Subsection (a) and Subsections (e) through U) shall 

apply for the Federal action. Even though an action would otherwise be "presumed to 

conform" under paragraphs Cvil or fix) of this subsection. an action shall not be 

"presumed to conform" and the requirements of Subsection Ca). 40 CFR 93.151. 

Subsections (d) through (j) and Subsections (l) through (n) shall apply to the action if 

EPA or a third party shows that the action would: 

(A) Cause or contribute to any new violation of any standard in 

any area: 

(B) Interfere with provisions in the applicable SIP for maintenance 

of any standard: 

CC) Increase the frequency or severity of any existing violation of 

any standard in any area: or 

(0) Delay timely attainment of any standard or any required 

interim emissions reductions or other milestones in any area including. where applicable. 

emission levels specified in the applicable SIP for purnoses of: 

(I) A demonstration of reasonable further progress: 

(IJ) A demonstration of attainment: or 

(III) A maintenance plan. 

(xi) The provisions of this section shall apply in all nonattainment and 

maintenance areas except conformity requirements for newly designated nonattainment 

areas are not applicable until 1 year after the effective date ofthe final nonattainment 

designation for each NAAOS and pollutant in accordance with section 176(c)(6) of the 

CAA. 

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Draft 4/9112- Option 1 (State) 

(d) CoAformity AAalysis Federal Agency Conformity Responsibility. Any 

Federal department, agency, or instrumentality of the Federal government taking an 

action subject to this section must make its own conformity determination consistent with 

the requirements of this section. In making its conformity determination, a Federal 

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 have jurisdiction for various aspects of a 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. 

(i) A Federal agency making a conformity 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 or maintenance area. 

and, where applicable, affected Federal Land Managers, the agency designated under-§ 

section 174 ofthe CAA 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 or national 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's Regions). the Federal agency. as an alternative to sending it to EPA 

Regional Offices. can provide the notice to EPA's Office of Air Quality Planning and 

Standards. 

(ii) A Federal 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 of the 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 of restricted 

information and confidential business information shall be controlled by the applicable 

laws. regulations. security manuals. or executive orders concerning the use. access. and 

release of such materials. Subject to applicable procedures to orotect restricted 

information from public disclosure. any information or materials excluded from the draft 

or final conformity determination or supporting materials may be made available in a 

restricted information annex to 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 

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Draft 4/9112- 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) A Federal agency must make public its draft conformity determination 

under Subsection (h) Subsection (d) by placing a notice by prominent advertisement in a 

daily newspaper of general 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 other public 

involvement, such as occurs in the NEPA process. If the action has multi-regional or 

national impacts (e.g .. the action will cause emission increases in excess of the de 

minimis levels identified in Subsection (c)(ii) in three or more of EPA's Regions). the 

Federal agency. as an alternative to publishing separate notices. can publish a notice in 

the Federal Register. 

(iii) A Federal 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, subject to the limitation in paragraph (v) of 

this subsection. upon request by any person regarding a specific Federal action, within 30 

days of the final conformity determination. 

(iv) A Federal agency must make public its final conformity 

determination under Subsection (h) Subsection (d) for a federal action by placing a notice 

by prominent advertisement in a daily newspaper of general circulation in the area 

affected by the action within 30 days of the 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 of restricted 

information and confidential business information shall be controlled by the applicable 

laws. regulations or executive orders concerning the release of such materials. 

(g) Frequency of Conformity Determinations Reevaluation of Conformity. 

(i) Once a conformity determination is completed by a Federal agency. 

that determination is not required to be reevaluated if the agency has maintained a 

continuous orogram to implement the action; the determination has not lapsed as 

specified in paragraph (ji) of this subsection; or any modification to the action does not 

result in an increase in emissions above the levels specified in Subsection (c)Cii). If a 

conformity determination is not required for the action at the time the NEPA analysis is 

completed. the date ofthe finding of no significant impact CFONSQ for an Environmental 

Assessment. a record of decision CRQD) for an Environmental Impact Statement. or a 

categorical exclusion determination can be used as a substitute date for the conformity 

determination date. 

8-17 
Draft 419/12 - Option 1 (State) 

(ii) The conformity status of a 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. 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 of the 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 of direct and indirect emissions abo't'e the 

le-.'els in Subsection (c)(ii), a new conformity determination is required. If the Federal 

agency originally determined through the applicability analysis that a conformitv 

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 in the total emissions 

from the action being above the limits in Subsection (c)Cii). then the Federal agency must 

make a conformity determination. 

(h) Criteria for Determining Conformity of General 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 exceeds the rates in Subsection (c)(ii), or otherwise requires 

a conformity determination due to the total of direct and indirect emissions from the 

action, the action meets the requirements of paragraph (iii) of this subsection, and meets 

any of the following requirements: 

(A) For any criteria pollutant or precursor, the total of direct and 

indirect emissions from the action are specifically identified and accounted for in the 

applicable SIP's attainment or maintenance demonstration or reasonable further progress 

milestone or in a facility-wide emission budget included in a SIP in accordance with 

Subsection (k); 

(B) For precursors of ozone, eF nitrogen dioxide, or PM. the total 

of direct and indirect emissions from the action are fully offset within the same 

nonattainment or maintenance area (or nearby area of equal 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 a similarly enforceable measure that effects emissions reductions so 

that there is no net increase in emissions of that pollutant; 

(C) For any di"rectly-emitted criteria pollutant, except ozone and 

nitrogen dioxide, the total of direct and indirect emissions from the action meets the 

requirements: 

8-18 
Draft 4/9/12 - 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 of paragraph (i)(E) of this 

subsection and, for local air quality modeling analysis, the requirement of paragraph (ii) 

of this subsection; 

(D) For CO or directly emitted PM10: 

(I) Where the State agency primarily responsible for the 

applicable SIP determines that an areawide air quality modeling analysis is not needed, 

the total of direct 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 of direct and indirect 

emissions from the action meet the requirements specified in paragraph (ii) of this 

subsection, based on areawide modeling, or meet the requirements of paragraph (i)(E) of 

this subsection; or 

(E) For ozone or nitrogen dioxide, and for purposes of paragraphs 

(i)(C)(II) and (i)(D)(II) of this subsection, each portion of the action or the action as a 

whole meets any of the following requirements: 

(I) Where EPA has approved a revision to an area's 

attainment or maintenance demonstration after 1990 the applicable implementation plan 

after the area was designated as nonattainment and the State makes a determination as 

provided in paragraph (i)(E)(I)(l.) of this subsection or where the State makes a 

commitment as provided in paragraph (i)(E)(I)(2.) ofthis subsection: 

(1.) The total of direct and indirect emissions from 

the action (or portion thereof) is determined and documented by the State agency 

primarily responsible for the applicable SIP to result in a level of emissions 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 of direct and indirect emissions from 

the action (or portion thereof) is determined by the State agency responsible for the 

applicable SIP to result in a level of emissions 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 or the Governor's designee for SIP actions 

makes a written commitment to EPA which includes the following: 

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Draft 4/9112- Option 1 (State) 

a. A specific schedule for adoption and 

submittal of a revision to the SIP which would achieve the needed emission reductions 

prior to the time emissions from the Federal action would occur; 

b. Identification of specific measures for 

incorporation into the SIP which would result in a level of emissions 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 authority to 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.) of this 

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 conformity 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 commitment under paragraph (i)(E)(I)(2,) of this 

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 

conformitv 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 Cor nearby area of equal 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 

8-20 
Draft 419/12- Option 1 (State) 

revision to the applicable SIP or an equally enforceable measure that effects emissions 

reductions equal to or greater than the total of direct 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 attainment or maintenance demonstration since 1990 since the area was 

redesignated or reclassified, the total of direct 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 by the proposed Federal 

action during: 

a. Calendar year 1990, The most current 

calendar year with a complete emission inventory available before an area is designated 

unless EPA sets another year: or 

b. The calendar year that is the basis for the 

classification (or, 'Nhere the classification is based on multiple years, the most 

representative year), if a classification is promulgated in 4 0 CFR part 81, or The emission 

budget in the applicable SIP: 

c. The year of the baseline inventory in the 

PM1o applicable SIP; 

(2.) The baseline emissions are the total of direct 

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.) of this 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 only the needs of population 

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 or contribute to any new violation of any 

standard in any area; or 

(II) Increase the frequency or severity of any existing 

violation of any standard in any area. 

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Draft 4/9/12 - Option 1 (State) 

(iii) Notwithstanding any other requirements of this subsection, an action 

subject to this section may not be determined to conform to the applicable SIP unless the 

total of direct and indirect emissions from the action is in compliance or consistent with 

all relevant requirements and milestones contained in the applicable SIP, such as 

elements identified as part of the reasonable further progress schedules, assumptions 

specified in the attainment or maintenance demonstration, prohibitions, numerical 

emission limits, and work practice requirements. 

(iv) Any analyses required under this subsection must be completed, and 

any mitigation requirements necessary for a finding of conformity must be identified 

before the determination of conformity is made. 

(i) Procedures for Conformity Determinations of General Federal Actions. 

(i) The analyses required under this section must be based on the latest 

planning assumptions. 

(A) All planning assumptions must be derived from the estimates 

of population, 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 of the conformity 

determination, including projected shifts in geographic location or level of population, 

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. If such techniques are inappropriate. the Federal 

agency may obtain afHl written approval ef from the appropriate EPA Regional 

Administrator is obtained for aey modification or substitution, they may be modified or 

of another 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 of the 

motor vehicle emissions model specified by EPA and available for use in the preparation 

or revision of SIPs 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 

of availability of any 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 

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Draft 419/12 - Option 1 (State) 

Register. Conformity analyses for which the analysis was begun during the grace period 

or no more than 3 j'tffif5 months before the Federal Register notice of availability of the 

latest emission model may continue to use the previous version of the 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 of Air 

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 of the 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 of the "Guideline on Air Quality Models" (Appendix W to 40 

CFR part 51). (Revised) (1986), iRcludiRg supplements (EPA publication RO. 450/2 78 

~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. 

(iv) The analyses required under this section, eJwept SubsectioR (h)(i)(A), 

must be based on the total of direct and indirect emissions from the action and must 

reflect emission scenarios that are expected to occur under each of the following cases: 

(A) The attainment year specified in the SIP. or if the SIP does not 

specify an attainment year. the latest attainment year possible under the CAA: or 

(A.B.) The CAA maRdated attaiRmeRt year or, if applicable, the 

farthest last year for which emissions are projected in the maintenance plan; 

(BQ The year during which the total of direct 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 of Air Quality Impacts. 

(i) Any measures that are intended to mitigate air quality impacts must be 

identified and the process for implementation and enforcement of such measures must be 

described, including an implementation schedule containing explicit timelines for 

implementation. 

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Draft 419/12- Option 1 (State) 

(ii) Prior to 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 committing to mitigation measures to 

facilitate positive conformity determinations must comply with the obligations of such 

commitments. 

(iv) In instances where the Federal agency is licensing, permitting or 

otherwise approving the action of another governmental or private entity, approval by the 

Federal agency must be conditioned on the other entity meeting the mitigation measures 

set forth in the conformity determination. 

(v) When necessary because of changed 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 of Subsection (e) and the public participation 

requirements of Subsection (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 prior to 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) Conformitv 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 or third parties authorized by the agency 

that operate installations subject to Federal oversight develop and adopt a facility-wide 

emission budget to be used for demonstrating conformity under Subsection fh){i)(A). 

The facility-wide budget must meet the following criteria: 

(A) Be for a set time period: 

(B) Cover the pollutants or precursors of the pollutants for which 

the area is designated nonattainment or maintenance: 

8-24 
Draft 419/12 - 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 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) of this subsection are 

"presumed to conform" to the SIP and do not require a conformity analysis. 

Civ) Ifthe total direct and indirect emissions from the Federal actions in 

conjunction with the other emissions subject to General Conformity from the facility 

exceed 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 of conformity. i.e .. the agency would 

have to mitigate or offset the emissions that exceed the emission budget. 

(v) If the SIP for the area includes a category for construction emissions. 

the negotiated budget can exempt construction emissions from further conformity 

analysis. 

(1) Emissions Beyond the Time Period Covered by the SIP. If a 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) Request the 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 

8-25 
Draft 419/12 - Option 1 (State) 

assumptions at the time of the 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 of the NAAOS. 

(m) Timing of Offsets and Mitigation Measures. 

(i) The emissions reductions from an offset or mitigation measure used to 

demonstrate conformity must occur during the same calendar year as the emission 

increases from the action except. as provided in paragraph Oi) of this subsection. 

(ii) The State may approve emissions reductions in other years provided: 

CA) The reductions are greater than the emission increases by the 

following ratios: 

(J) Extreme nonattainment areas 1.5: 1 

(II) Severe nonattainment areas 1.3: 1 

(Ill) Serious nonattainment areas 1.2:1 

CIV) Moderate non attainment areas 1.15: 1 

(V) All other areas 1.1: 1 

(B) The time period for completing the emissions reductions must 

not exceed twice the period of the emissions. 

CC) The offset or mitigation measure with emissions reductions in 

another year will not: 

(J) Cause or contribute to a new violation of any air quality 

standard: 

em Increase the frequency or severity of any existing 

violation of any air quality standard: or 

(III) Delay the timely attainment of any standard or any 

interim emissions reductions or other milestones in any area. 

(iii) The approval by the State of an offset or mitigation measure with 

emissions reductions in another year does not relieve the State of any obligation to meet 

any SIP or CAA milestone or deadline. The approval of an alternate schedule for 

mitigation measures is at the discretion of the State. and they are not required to approve 

an alternate schedule. 

8-26 
Draft 419/12- Option 1 (State) 

(n) Inter-precursor Mitigation Measures and Offsets. Federal agencies must 

reduce the same type of pollutant as being increased by the Federal action except the 

State may approve offsets or mitigation measures of different precursors of the same 

criteria pollutant. if such trades are allowed by a State in a SIP approved NSR regulation. 

is technically justified. and has a demonstrated environmental benefit. 

(o) Early Emission Reduction Credit Programs at Federal Facilities and 

Installation Subject to Federal Oversight. 

Cil Federal facilities and installations subject to Federal oversight can. 

with the approval of the 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) of this subsection 

and can use them in accordance with paragraph (iii) of this subsection. 

(ii) Creation ofEmission Reduction Credits. 

(A) Emissions reductions must be quantifiable through the use of 

standard emission factors or measurement techniques. If non-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 of the 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 Conformitv evaluation. 

(B) The emission reduction methods must be consistent with the 

applicable SIP attainment and reasonable further orogress demonstrations. 

(C) The emissions reductions cannot be required by or credited to 

other applicable SIP provisions. 

(0) Both the State and Federal air quality agencies must be able to 

take legal action to ensure continued implementation of the 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 or the 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 of the emission 

reduction strategy and a discussion ofhow it meets the requirements of paragraphs (ii)(A) 

through (E) of this subsection. 

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(iii) Use of Emission Reduction Credits. The emission reduction credits 

created in accordance with paragraph Cii) of this 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) If the technique used to create the emission reduction is 

implemented at the same facilitv 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 of the regulation as required in 

Subsection (c) and as offsets or mitigation measures required by Subsection (h). 

(B) If the 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 of the regulation as 

required in Subsection (c). but can be used to offset or mitigate the emissions as required 

by Subsection (h). 

CC) Emissions reductions credits must be used in the same year in 

which they are generated. 

CD) 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. 

(E) Federal agencies must notify the State air quality agency 

responsible for the implementation of the SIP and EPA Regional Office when the 

emission reduction credits are being used. 

Section 5. Incorporation by reference. 

(a) Code ofFederal Regulations CCFR). All Code ofFederal Regulations 

fCFRs) cited in this chapter. including their Appendices. revised and published as of July 

1. 2011. not including any later amendments. are incoroorated by reference. Copies of 

the Code of Federal Regulations are available for public inspection and copies can be 

obtained at;cost from the Department of Environmental Oualitv. Division of Air Quality. 

122 W. 25 Street. Cheyenne. Wyoming 82002. Copies of the CFRs can also be 

obtained at cost from Government Institutes. 15200 NBN Way. Building B. Blue Ridge 

Summit. PA 17214. 

8-28 
plans. 

WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY 

AIR QUALITY DIVISION 

STANDARDS AND REGULATIONS 

Nonattainment Area Regulations 

CHAPTERS 

Section 3. Conformity of general federal actions to state implementation 

(a) Prohibition. 

(i) No department, agency or instrumentality of the 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 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 of this section, a determination that an 

action is in conformance with the applicable implementation plan does not exempt the 

action from any other requirements of the applicable implementation plan, the National 

Environmental Policy Act (NEPA), or the CAA. 

(v) If an 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 

of priority. 

((Affected Federal/and manager" means the Federal agency or the Federal 

official charged with direct responsibility for management of an area designated Class I 

under the CAA (42 U.S.C. 7472) that is located within I 00 km of the proposed Federal 

action. 

nApplicability analysis" is the process of determining if your Federal action must 

be supported by a conformity determination. 

nApplicable implementation plan or applicable SIP" means the portion (or 

portions) of the SIP or most recent revision thereof, which has been approved under 

8-1 
section llO(k) ofthe CAA, or promulgated under section IIO(c) ofthe CAA (Federal 

implementation plan), or a 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 air quality modeling analysis" means an assessment on a scale that 

includes the entire nonattainment or maintenance area which uses an air quality 

dispersion model or photochemical grid model to determine the effects of emissions 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 or contribute to a new violation" means a Federal action that: 

(i) Causes a new violation of a national ambient air quality standard 

(NAAQS) at a location in a nonattainment or maintenance area which would otherwise 

not be in violation of the standard during the future period in question if the Federal 

action were not taken; or 

(ii) Contributes, in conjunction with other reasonably foreseeable actions, 

to a new violation of a NAAQS at a location in a nonattainment or maintenance area in a 

manner that would increase the frequency or severity of the new violation. 

"Caused by", as used in the terms "direct emissions" and "indirect emissions," 

means emissions that would not otherwise occur in the absence of the Federal action. 

"Confidential business 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 conforms to 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. 

"Continuing program responsibility" means a Federal agency has responsibility 

for emissions caused by: 

(i) Actions it takes itself; or 

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(ii) Actions of non-Federal entities that the Federal agency, in exercising 

its normal programs and authorities, approves, funds, licenses or permits, provided the 

agency can impose conditions on any portion of the action that could affect the 

emissions. 

"Continuous program 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. 

"Criteria pollutant or standard" means any pollutant for which there is 

established a NAAQS at 40 CFR part 50. 

"Direct emissions" means those emissions of a 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 are reasonably 

foreseeable. 

"Emergency" means a situation where extremely quick action on the part of the 

Federal agencies involved is needed and where the timing of such Federal activities 

makes it impractical to meet the requirements of this section, such as natural disasters 

like hurricanes or earthquakes, civil disturbances such as terrorist acts and military 

mobilizations. 

"Emissions budgets" are those portions of the applicable SIP's projected 

emission inventories that describe the levels of emissions (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 of information on the location, type of 

source, type and quantity of pollutant emitted as well as other parameters of the 

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 by the program. 

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

"Federal action" means any activity engaged in by a department, agency, or 

instrumentality of the Federal government, or any activity that a department, agency or 

instrumentality of the 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 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, 

8-3 
license, or other approval for some aspect of a non-Federal undertaking, the relevant 

activity is the part, portion, or phase or the non-Federal undertaking that requires the 

Federal permit, license, or approval. 

"Federal agency" means, for purposes of this section, a Federal department, 

agency, or instrumentality ofthe Federal government. 

"Increase the frequency or severity of any existing violation of any standard in 

any area" means to cause a nonattainment area to 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, if the project were not implemented. 

"Indirect emissions" means those emissions of a criteria pollutant or its 

precursors: 

(i) That are caused or initiated by the Federal action and originate in the 

same nonattainment or maintenance area but occur at a different time or place 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. 

For the purposes of this definition, even if a 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. 

"Local air quality modeling analysis" means an assessment of localized impacts 

on a scale smaller than 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 Complex Model or Emission and Dispersion Model 

System) to determine the effects of emissions on air quality. 

~~Maintenance area" means an area that was designated as nonattainment and has 

been re-designated in 40 CFR part 81 to attainment, meeting the provisions of section 

1 07(d)(3)(E) of the CAA and has a maintenance plan approved under section 175A of the 

CAA. 

~~Maintenance plan" means a revision to the applicable SIP, meeting the 

requirements of section 175A ofthe CAA. 

~~Metropolitan Planning Organization (MPO)" means the policy board of an 

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) of the 

CAA. 

"Mitigation measure" means any method of reducing emissions ofthe pollutant 

or its precursor taken at the location of the Federal action and used to reduce the impact 

of the emissions of that pollutant caused by the action. 

"National ambient air quality standards (NAAQS)" are those standards 

established pursuant to section 109 of the CAA and include standards for carbon 

monoxide (CO), lead (Pb), nitrogen dioxide (N02), ozone, particulate matter (PM10 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.). 

"Nonattainment area (NAA)" means an area designated as nonattainment under 

section 1 07 of the CAA and described in 40 CFR part 81. 

"Precursors of a criteria pollutant" are: 

(i) For ozone, nitrogen oxides (NOx), unless an area is exempted from 

NOx requirements under section 182(f) ofthe CAA, and volatile organic compounds 

(VOC). 

(ii) For PM10, those pollutants described in the PM10 nonattainment area 

applicable SIP as significant contributors to 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 or maintenance areas where either the State or EPA determines 

that they are significant precursors. 

''Reasonably foreseeable emissions" are projected future direct and indirect 

emissions that are identified at the time the conformity determination is made; the 

location of such emissions is known and the emissions are quantifiable as described and 

documented by the Federal agency based on its own information and after reviewing any 

information presented to the Federal agency. 

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"Regional water and/or wastewater projects" include construction, operation, 

and maintenance of water or wastewater conveyances, water or wastewater treatment 

facilities, and water storage reservoirs which affect a large portion of a nonattainment or 

maintenance area. 

''Restricted information" is information that is privileged or that 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 or start the Federal action" means the 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. 

"Total of direct and indirect emissions" means the sum of direct and indirect 

emissions increases and decreases caused by the Federal action; i.e., the "net" emissions 

considering all direct and indirect emissions. The portion of emissions which are exempt 

or presumed to conform under Subsections (c)(iii), (iv), (v), or (vi) are not included in the 

"total of direct and indirect emissions." The "total of direct and indirect emissions" 

includes emissions of criteria pollutants and emissions of precursors of criteria pollutants. 

(c) Applicability. 

(i) Conformity determinations for Federal actions 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.) 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 or precursor where the 

total of direct and indirect emissions of the criteria pollutant or precursor in a 

nonattainment or maintenance area caused by a Federal action would equal or exceed any 

of the rates in paragraphs (ii)(A) or (B) ofthis subsection. 

(A) For purposes of paragraph (ii) ofthis subsection, the following 

rates apply in nonattainment areas (NAAs): 

Ozone (VOCs or NOx): 

Serious NAAs 

Severe NAAs 

Extreme NAAs 

Other ozone NAAs outside an 

ozone transport region 

Other ozone NAAs inside an 

8-6 

TonsNear 

50 

25 

10 

100 
ozone 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 (if determined 

to be significant precursors) 100 

Pb: 

All NAAs 25 

(B) For purposes of paragraph (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 not to be 

significant precursors) 

VOC or ammonia (if determined 

to be significant precursors) 

All maintenance areas 

8-7 

TonsNear 

100 

50 

100 

100 

100 

100 

100 

100 

100 

25 
(iii) The requirements of this section shall not apply to the following 

Federal actions: 

(A) Actions where the total of direct and indirect emissions are 

below the emissions levels specified in paragraph (ii) of this 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 of administrative sites, roads, trails, and facilities. 

(V) Civil and criminal enforcement activities, such as 

investigations, audits, inspections, examinations, prosecutions, and the training of law 

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 of material and 

personnel. 

(VIII) Routine movement of mobile 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 of personnel, disposition of 

federally-owned existing structures, properties, facilities, and lands, rent subsidies, 

8-8 
operation and maintenance cost subsidies, the exercise of receivership or conservatorship 

authority, assistance in purchasing structures, and the production of coins and currency. 

(XI) The granting of leases, 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 of facilities, mobile assets and 

equipment. 

(XIV) Transfers of ownership, interests, and titles in land, 

facilities, and real and personal properties, regardless of the form or method of the 

transfer. 

(XV) The designation of empowerment zones, enterprise 

communities, or viticultural areas. 

(XVI) Actions by any of the Federal banking agencies or 

the Federal Reserve Banks, including actions regarding charters, applications, notices, 

licenses, the supervision or examination of depository institutions or depository 

institution holding companies, access to the discount window, or the provision of 

financial services to banking organizations or to any department, agency or 

instrumentality ofthe United States. 

(XVII) Actions by the Board of Governors ofthe Federal 

Reserve System or any Federal Reserve Bank necessary to 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 of land, facilities, title, and real properties through an enforceable contract or 

lease agreement where the delivery of the 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 of the 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 

8-9 
assignments of real 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 of the Treasury to effect 

fiscal policy and to exercise the borrowing authority of the 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 of a different mixing height is appropriate 

because the change in emissions at and above that height caused by the Federal action is 

de minimis. 

(C) Actions where the emissions are not reasonably foreseeable, 

such as the following: 

(I) Initial Outer Continental Shelf lease 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 of electric 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 other requirements of this section, a conformity 

determination is not required for the following Federal actions (or portion thereof): 

(A) The portion of an 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 of the CAA) or the prevention of 

significant deterioration (PSD) program (Title I, part C of the CAA); 

(B) Actions in response to emergencies which are typically 

commenced on the order of hours or days after the emergency and, if applicable, which 

meet the requirements of paragraph (v) ofthis subsection; 

(C) Research, investigations, studies, demonstrations, or training 

(other than those exempted under paragraph (iii)(B) of this subsection), where no 

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; 

8-10 
(D) Alteration and additions of existing 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 of the PSD/NSR permitting program or are exempted from 

other environmental regulation under the provisions of CERCLA and applicable 

regulations issued under CERCLA. 

(v) Federal actions which are part of a continuing response to an 

emergency or disaster under paragraph (iv)(B) of this subsection and which are to be 

taken more than 6 months after the commencement of the response to the emergency or 

disaster under paragraph (iv)(B) of this 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) of this subsection, the Federal agency makes a new determination as 

provided in paragraph (v)(A) ofthis subsection and: 

(I) Provides a draft copy of the 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 of the extension period to comment on the draft determination; and 

(II) Within 30 days after making the determination, publish 

a notice of the determination by placing a prominent advertisement in a daily newspaper 

of general circulation in the area affected by the action. 

(C) If additional actions are necessary in response to an 

emergency or disaster under paragraph (iv)(B) of this subsection beyond the specified 

time period in paragraph (v)(B) of this subsection, a Federal agency can make a new 

written determination as described in (v)(B) of this 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 emergency exemption continue to exist and how such 

conditions effectively prevent the agency from conducting a conformity evaluation. 

(vi) Notwithstanding other requirements of this section, actions specified 

by individual Federal agencies that have met the criteria set forth in either paragraphs 

(vii)(A), (vii)(B), or (vii)(C) of this 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 of actions would equal or exceed any of the 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 either paragraphs 

(vii)( A), (vii)(B), or (vii)(C) of this subsection: 

(A) The Federal agency must clearly demonstrate using methods 

consistent with this section that the total of direct and indirect emissions from the type of 

activities which would be presumed to conform would not: 

(I) Cause or contribute to any new violation of any 

standard in any area; 

(II) Interfere with provisions in the applicable SIP for 

maintenance of any standard; 

(III) Increase the frequency or severity of any existing 

violation of any standard in any area; or 

(IV) Delay timely attainment of any standard or any 

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 of reasonable further 

progress; 

(2.) A demonstration of attainment; 

(3 .) A maintenance plan; or 

(B) The Federal agency must provide documentation that the total 

of direct and indirect emissions from such future actions would be below the emission 

rates for a conformity determination that are established in paragraph (ii) of this 

subsection, based, for example, on similar actions taken over recent years. 

8-12 
(C) The Federal agency must clearly demonstrate that the 

emissions from the type or category of actions and the amount of emissions from the 

action are included in the applicable SIP and the State, local, or tribal air quality agencies 

responsible for the SIP(s) provide written concurrence that 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 meeting the criteria for establishing exemptions set 

forth in paragraphs (vii)(A), (vii)(B), or (vii)(C) of this 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 of proposed activities that are "presumed to conform" and the 

basis for the presumptions. The notice must clearly identify the type and size of the 

action that would be "presumed to conform" and provide criteria for determining if the 

type and size of action 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 of the CAA and the MPO and provide at least 30 days for the 

public to comment on the list of proposed activities "presumed to conform". If the 

"presumed to conform" action has regional or national application (e.g., the action will 

cause emission increases in excess of the 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 of Air Quality Planning and Standards; 

(C) The Federal Agency must document its response to all the 

comments received and make the comments, response, and final list of activities available 

to the public upon request; and 

(D) The Federal agency must publish the final list of such 

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 that the 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 of EPA'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) of this subsection, an action shall not be "presumed to 

conform" and the requirements of Subsection (a), 40 CFR 93.151, Subsections (d) 

through U) and Subsections (I) through (n) shall apply to the action if EPA or a third 

party shows that the action would: 

(A) Cause or contribute to any new violation of any standard in 

any area; 

(B) Interfere with provisions in the applicable SIP for maintenance 

of any standard; 

(C) Increase the frequency or severity of any existing violation of 

any standard in any area; or 

(D) Delay timely attainment of any 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 of reasonable further progress; 

(II) A demonstration of attainment; 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 after the effective date of the 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 of the Federal government taking an action subject to this section must 

make its own conformity determination consistent with the requirements of this 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 have jurisdiction 

for various aspects of a 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. 

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(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 or maintenance area, and, 

where applicable, affected Federal Land Managers, the agency designated under section 

174 of the CAA and the MPO, a 30-day notice which describes the proposed action and 

the Federal agency's draft conformity determination on the action. If the 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 or more of EPA's 

Regions), the Federal agency, as an alternative to sending it to EPA Regional Offices, can 

provide the notice to EPA's Office of Air Quality Planning and Standards. 

(ii) A Federal 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 this section. 

(iii) The draft and final conformity determination shall exclude any 

restricted information or confidential business information. The disclosure of restricted 

information and confidential business information shall be controlled by the applicable 

laws, regulations, security manuals, or executive orders concerning the use, access, and 

release of such materials. Subject to applicable procedures to protect restricted 

information from public disclosure, any information or materials excluded from the draft 

or final conformity determination or supporting materials may be made available in a 

restricted information annex to 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) of this 

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 agency must make public its draft conformity determination 

under Subsection (d) by placing a notice by prominent advertisement in a daily 

newspaper of general 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 other public 

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 or more of EPA'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) of this 

subsection, upon request by any person regarding a specific Federal action, within 30 

days of the final conformity determination. 

(iv) A Federal agency must make public its final conformity 

determination under Subsection (d) for a federal action by placing a notice by prominent 

advertisement in a daily newspaper of general circulation in the area affected by the 

action within 30 days of the final conformity determination. If the 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 of such materials. 

(g) Reevaluation of Conformity. 

(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) of this subsection; or any modification to the action does not 

result in an increase in emissions above the levels specified in Subsection ( c )(ii). If a 

conformity determination is not required for the action at the time the NEPA analysis is 

completed, the date ofthe finding of no significant impact (FONSI) for an Environmental 

Assessment, a record of decision (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 of a 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 of the final conformity determination reported under 

Section (e). 

(iv) If the 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 

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in 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 of General 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 exceeds the rates in Subsection (c)(ii), or otherwise requires 

a conformity determination due to the total of direct and indirect emissions from the 

action, the action meets the requirements of paragraph (iii) ofthis subsection, and meets 

any of the following requirements: 

(A) For any criteria pollutant or precursor, the total of direct and 

indirect emissions from the action are specifically identified and accounted for in the 

applicable SIP's attainment or maintenance demonstration or reasonable further progress 

milestone or in a facility-wide emission budget included in a SIP in accordance with 

Subsection (k); 

(B) For precursors of ozone, nitrogen dioxide, or PM, the total of 

direct and indirect emissions from the action are fully offset within the same 

nonattainment or maintenance area (or nearby area of equal 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 a similarly enforceable measure that effects emissions reductions so 

that there is no net increase in emissions of that pollutant; 

(C) For any directly-emitted criteria pollutant, the total of direct 

and indirect emissions from the action meets the requirements: 

(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 of paragraph (i)(E) of this 

subsection and, for local air quality modeling analysis, the requirement of paragraph (ii) 

ofthis subsection; 

(D) For CO or directly emitted PM10: 

(I) Where the State agency primarily responsible for the 

applicable SIP determines that an areawide air quality modeling analysis is not needed, 

the total of direct 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 of direct and indirect 

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emissions from the action meet the requirements specified in paragraph (ii) of this 

subsection, based on areawide modeling, or meet the requirements of paragraph (i)(E) of 

this subsection; or 

(E) For ozone or nitrogen dioxide, and for purposes of paragraphs 

(i)(C)(II) and (i)(D)(II) of this subsection, each portion ofthe action or the action as a 

whole meets any of the following requirements: 

(I) Where EPA has approved a revision to the applicable 

implementation plan after the area was designated as nonattainment and the State makes 

a determination as provided in paragraph (i)(E)(I)(1.) of this subsection or where the 

State makes a commitment as provided in paragraph (i)(E)(I)(2.) of this subsection: 

(1.) The total of direct and indirect emissions from 

the action (or portion thereof) is determined and documented by the State agency 

primarily responsible for the applicable SIP to result in a level of emissions 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 of direct and indirect emissions from 

the action (or portion thereof) is determined by the State agency responsible for the 

applicable SIP to result in a level of emissions 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 or the Governor's designee for SIP actions 

makes a written commitment to EPA which includes the following: 

a. A specific schedule for adoption and 

submittal of a revision to the SIP which would achieve the needed emission reductions 

prior to the time emissions from the Federal action would occur; 

b. Identification of specific measures for 

incorporation into the SIP which would result in a level of emissions 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 authority to 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. 

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(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 conformity determination, the State commitment is automatically deemed a call for a 

SIP revision by EPA under 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 commitment under paragraph (i)(E)(I)(2.) of this 

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 of equal 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 greater than the total of direct and indirect emissions from the 

action so that there is no net increase in emissions of that pollutant; 

(IV) Where EPA has not approved a revision to the 

relevant SIP since the area was redesignated or reclassified, the total of direct 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 by the 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; 

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c. The year of the baseline inventory in the 

PM10 applicable SIP; 

(2.) The baseline emissions are the total of direct 

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.) of this 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 only the needs of population 

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 or contribute to any new violation of any 

standard in any area; or 

(II) Increase the frequency or severity of any existing 

violation of any standard in any area. 

(iii) Notwithstanding any other requirements of this subsection, an action 

subject to this section may not be determined to conform to the applicable SIP unless the 

total of direct and indirect emissions from the action is in compliance or consistent with 

all relevant requirements and milestones contained in the applicable SIP, such as 

elements identified as part of the reasonable further progress schedules, assumptions 

specified in the attainment or maintenance demonstration, prohibitions, numerical 

emission limits, and work practice requirements. 

(iv) Any analyses required under this subsection must be completed, and 

any mitigation requirements necessary for a finding of conformity must be identified 

before the determination of conformity is made. 

(i) Procedures for Conformity Determinations of General Federal Actions. 

(i) The analyses required under this section must be based on the latest 

planning assumptions. 

(A) All planning assumptions must be derived from the estimates 

of population, employment, travel, and congestion most recently approved by the MPO, 

or other agency authorized to make such estimates, where available. 

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(B) Any revisions to these estimates used as part of the conformity 

determination, including projected shifts in geographic location or level of population, 

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. If such techniques are inappropriate, the Federal 

agency may obtain written approval from the appropriate EPA Regional Administrator 

for modification or substitution, of another technique 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 of the 

motor vehicle emissions model specified by EPA and available for use in the preparation 

or revision of SIPs 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 

of availability of any 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 of availability of the 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 of Air 

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 of the "Guideline on Air Quality Models" (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. 

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(iv) The analyses required under this section must be based on the total of 

direct and indirect emissions from the action and must reflect emission scenarios that are 

expected to occur under each of the following cases: 

(A) The attainment year specified in the SIP, or if the SIP does not 

specify an attainment year, the latest attainment year possible under the CAA; or 

(B) The last year for which emissions are projected in the 

maintenance plan; 

(C) The year during which the total of direct 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 of Air Quality Impacts. 

(i) Any measures that are intended to mitigate air quality impacts must be 

identified and the process for implementation and enforcement of such measures must be 

described, including an implementation schedule containing explicit timelines for 

implementation. 

(ii) Prior to 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 committing to mitigation measures to 

facilitate positive conformity determinations must comply with the obligations of such 

commitments. 

(iv) In instances where the Federal agency is licensing, permitting or 

otherwise approving the action of another governmental or private entity, approval by the 

Federal agency must be conditioned on the other entity meeting the mitigation measures 

set forth in the conformity determination. 

(v) When necessary because of changed 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 of Subsection (e) and the public participation 

requirements of Subsection (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. 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) 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 or third parties authorized by the agency 

that operate installations subject to Federal oversight develop and adopt a facility-wide 

emission budget to be used for demonstrating conformity under Subsection (h)(i)(A). 

The facility-wide budget must meet the following criteria: 

(A) Be for a set time period; 

(B) Cover the pollutants or precursors of the 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) of this subsection can be revised by following the requirements in 

paragraph (i) of this 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) If the total direct and indirect emissions from the Federal actions in 

conjunction with the other emissions subject to General Conformity from the facility 

8-23 
exceed 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 of the demonstration of conformity, i.e., the agency would 

have to mitigate or offset the emissions that exceed the emission budget. 

(v) If the 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. If a 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) Request the 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 of the 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 of the NAAQS. 

(m) Timing of Offsets and Mitigation Measures. 

(i) The emissions reductions from an offset or mitigation measure used to 

demonstrate conformity must occur during 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 by the 

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 completing the emissions reductions must 

not exceed twice the period ofthe emissions. 

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(C) The offset or mitigation measure with emissions reductions in 

another year will not: 

(I) Cause or contribute to a new violation of any air quality 

standard; 

(II) Increase the frequency or severity of any existing 

violation of any air quality standard; or 

(III) Delay the timely attainment of any standard or any 

interim emissions reductions or other milestones in any area. 

(iii) The approval by the State of an offset or mitigation measure with 

emissions reductions in another year does not relieve the State of any obligation to meet 

any SIP or CAA milestone or deadline. The approval of an alternate schedule for 

mitigation measures is at the discretion of the 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 of pollutant as being increased by the Federal action except the 

State may approve offsets or mitigation measures of different precursors of the same 

criteria pollutant, if such trades are allowed by a State in a SIP approved NSR regulation, 

is technically justified, 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 of the 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) of this subsection. 

(ii) Creation of Emission Reduction Credits. 

(A) Emissions reductions must be quantifiable through the use of 

standard emission factors or measurement techniques. If non-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 of the 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 emissions reductions cannot be required by or credited 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 or the 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 of the emission 

reduction strategy and a discussion ofhow it meets the requirements of paragraphs (ii)(A) 

through (E) of this subsection. 

(iii) Use of Emission Reduction Credits. The emission reduction credits 

created in accordance with paragraph (ii) of this 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) If the 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 of the regulation as required in 

Subsection (c) and as offsets or mitigation measures required by Subsection (h). 

(B) If the 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 of the 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. 

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(E) Federal agencies must notify the 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 of Federal Regulations (CFR). All Code ofFederal Regulations 

(CFRs) cited in this chapter, including their Appendices, revised and published as of July 

I, 20 II, not including any later amendments, are incorporated by reference. Copies of 

the Code of Federal Regulations are available for public inspection and copies can be 

obtained at cost from the Department of Environmental Quality, Division of Air Quality, 

122 W. 251h 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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