340-250-0020 Applicability (1) Conformity determinations for federal actions in a nonattainment area or maintenance area related to transportation plans, programs, and projects developed, funded, or approved under title 23 U.S.C. or the Federal Transit Laws (49 U.S.C. Chapter 53) must meet the procedures and criteria for transportation conformity as set forth in OAR 340 division 252, in lieu of the procedures set forth in this division. (2) For federal actions in a nonattainment area or maintenance area not covered by section (1) of this rule, a conformity determination is required for each pollutant where the total of direct and indirect emissions caused by a federal action would equal or exceed any of the rates in sections (3)(a) and (b) of this rule. (3) The following emission rates apply to federal actions pursuant to section (2) of this rule: (a) For nonattainment areas: Pollutant — Tons per year: (A) Ozone (VOCs or NOx): (i) Serious NAAs — 50; (ii) Severe NAAs — 25; (iii) Extreme NAAs — 10; (iv) Other ozone NAAs (Outside an ozone transport region) — 100; (v) Marginal & moderate NAAs (Inside an ozone transport region): (I) VOC — 50; (II) NOx — 100. (B) Carbon Monoxide: All NAAs — 100; (C) SO2 or NO2: All NAAs — 100; (D) PM10: (i) Moderate NAAs — 100; (ii) Serious NAAs — 70; (iii) Pb: All NAAs — 25. (b) For maintenance areas: Pollutant — Tons per Year: (A) Ozone (NOx), SO2 or NO2: All maintenance areas — 100; (B) Ozone (VOCs): Maintenance areas: (i) Inside ozone transport region — 50; (ii) Outside ozone transport region — 100. (C) Carbon Monoxide: All maintenance areas — 100; (D) PM10: All maintenance areas — 100; (E) Pb: All maintenance areas — 25. (4) The requirements of this division shall not apply to: (a) Actions where the total of direct and indirect emissions are below the emissions levels specified in subsection (b) of this section. (b) The following actions which would result in no emissions increase or an increase in emissions that is clearly de minimis: (A) Judicial and legislative proceedings. (B) Continuing and recurring activities such as permit renewals where activities conducted will be similar in scope and operation to activities currently being conducted. (C) Rulemaking and policy development and issuance. (D) Routine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails, and facilities. (E) Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, and the training or law enforcement personnel. (F) Administrative actions such as personnel actions, organizational changes, debt management or collection, cash management, internal agency audits, program budget proposals, and matters relating to the administration and collection of taxes, duties and fees. (G) The routine, recurring transportation of material and personnel. (H) 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 or for repair or overhaul. (I) Maintenance dredging and debris disposal where no new depths are required, applicable permits are required, and disposal will be at an approved site. (J) 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, operation and maintenance cost subsidies, the exercise of receivership and conservatorship authority, assistance in purchasing structures, and the production of coins and currency. (K) 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. (L) Planning, studies, and provision of technical assistance. (M) Routine operation of facilities, mobile assets and equipment. (N) Transfer of ownership, interests, and titles in land, facilities and real and personal properties, regardless of the form or method of the transfer. (O) The designation of empowerment zones, enterprise communities, or viticultural areas. (P) Actions by any of the federal banking agencies of 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. (Q) Actions by the Board of Governors of the Federal Reserve System or any Federal Reserve Bank to effect monetary or exchange rate policy. (R) Actions that implement a foreign affairs function of the United States. (S) 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. (T) 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. (U) Actions by the Department of the Treasury to effect fiscal policy and to exercise the borrowing authority of the United States. (c) The following actions where the emissions are not reasonably foreseeable: (A) 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. (B) Electric power marketing activities that involve the acquisition, sale and transmission of electric energy. (d) Actions in nonattainment areas or maintenance areas 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. (5) Notwithstanding the other requirements of this division, a conformity determination is not required for the following federal actions (or portion thereof): (a) The portion of an action that includes major new or modified stationary sources that require a permit under the new source review (NSR) program (Section 173 of the Act) or the prevention of significant deterioration (PSD) program (Title I, part C of the Act). (b) Actions in response to emergencies or natural disasters such as hurricanes, earthquakes, etc., which are commenced on the order of hours or days after the emergency or disaster and, if applicable, which meet the requirements of section (6) of this rule. (c) Research, investigations, studies, demonstrations, or training, other than those exempted under section (4)(b) of this rule, where no environmental detriment is incurred 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 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 regulation under the provisions of CERCLA and applicable regulations issued under CERCLA. (6) Federal actions which are part of a continuing response to an emergency or disaster under section (5)(b) of this rule and which are to be taken more than 6 months after the commencement of the response to the emergency or disaster under section (5)(b) of this rule are exempt from the requirements of this division 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 subsection (a) of this section, the federal agency makes a new determination as provided in subsection (a) of this section. (7) Notwithstanding other requirements of this division, actions specified by individual federal agencies that have met the criteria set forth in section (8) of this rule and the procedures set forth in section (9) of this rule are presumed to conform, except as provided in section (11) of this rule. (8) The federal agency must meet the criteria for establishing activities that are presumed to conform by fulfilling the requirements set forth in either subsection (a) or (b) of this section: (a) The federal agency must clearly demonstrate using methods consistent with this rule that the total of direct and indirect emissions from the type of activities which would be presumed to conform would not: (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; (D) 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: (i) A demonstration of reasonable further progress; (ii) A demonstration of attainment; or (iii) 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 emissions rates for a conformity determination that are established in section (3) of this rule, based, for example, on similar actions taken over recent years. (9) In addition to meeting the criteria for establishing exemptions set forth in section (8) of this rule, 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; (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 section 174 of the Act and the MPO and provide at least 30 days for the public to comment on the list of proposed activities presumed to conform; (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. (10) Notwithstanding the other requirements of this division, when the total of direct and indirect emissions of any pollutant from a federal action does not equal or exceed the rates specified in section (3) of this rule, but represents 10 percent or more of a non-attainment or maintenance area’s total emissions of that pollutant, the action is defined as a regionally significant action and the requirements of 340-250-0010, and 340-250-0050 through 340-250-0100 shall apply for the federal action. (11) Where an action otherwise presumed to conform under section (7) of this rule is a regionally significant action or does not in fact meet one of the criteria in section (8)(a) of this rule, that action shall not be presumed to conform and the requirements of OAR 340-250-0020 and 340-250-0050 through 340-250-0100 shall apply for the federal action. (12) The provisions of this division shall apply in all non-attainment/maintenance areas. [Publications: Publications referenced are available from the agency.] Statutory/Other Authority: ORS 468.020 & 468A.035 Statutes/Other Implemented: ORS 468A.035 History: DEQ 157-2018, minor correction filed 04/12/2018, effective 04/12/2018 DEQ 14-1999, f. & cert. ef. 10-14-99, Renumbered from 340-020-1520 DEQ 17-1998, f. & cert. ef. 9-23-98 DEQ 9-1995, f. & cert. ef. 5-1-95