Missouri Code of State Regulations › Title 10 - DEPARTMENT OF NATURAL RESOURCES › Division 10 - Air Conservation Commission › Chapter 6 - Air Quality Standards, Definitions, Sampling and Reference Methods and Air Pollution Control Regulations for the Entire State of Missouri › Section 10 CSR 10-6.300 - Conformity of General Federal Actions to State Implementation Plans

Current through Register Vol. 49, No. 14, July 15, 2024
This rule implemented section 176(c) of the Clean Air Act,
				  as amended (
				  42 U.S.C.
				  7506(c) ), and regulations
				  under 40 CFR 93, subpart B, with respect to the conformity of general federal
				  actions to the applicable implementation plan.
PURPOSE: The purpose of this rulemaking is to rescind
				  an unnecessary rule. Previously this rule implemented section 176(c) of the
				  Clean Air Act, as amended (
				  42 U.S.C.
				  7506(c) ), and regulations
				  located in 40 CFR 93, subpart B, that directed states to include in their State
				  Implementation Plans (SIPs) provisions requiring general conformity of federal
				  actions to the applicable implementation plan. In 2005, however, Congress
				  passed the "Safe, Flexible, Efficient Transportation Equity Act: A Legacy for
				  Users" (SAFETEA-LU). Section 6011 of SAFETEA-LU amended section 176(c) of the
				  Clean Air Act to remove the requirement for states to adopt a general
				  conformity SIP. In turn, EPA amended the federal general conformity rule at 40
				  CFR 51, Subpart W, to make state adoption of a general conformity SIP optional
				  rather than mandatory (75 FR 17258). Regardless of any provisions in state
				  rules or SIPs, federal regulations require general conformity of federal
				  actions. Now that federal law no longer requires a duplicative state rule for
				  the SIP, this rule merely duplicates federal regulations and is unnecessary.
				  Pursuant to section
				  536.016,
				  RSMo, the evidence supporting the need for this proposed rulemaking is section
				  536.175,
				  RSMo, Executive Order 1703, section 176(c) of the CAA, and 75 FR
				  17258.
(1) Applicability.
(A) 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
				10 CSR
				10-5.480 in lieu of the procedures set forth in this
				rule.
(B) For federal actions not
				covered by subsection (1)(A) of this rule, 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 de
				minimis rates in paragraph (1)(B)1. or paragraph (1)(B)2. of this rule.
1. For purposes of subsection (1)(B) of this
				rule, the following rates apply in nonattainment areas (NAAs):
Tons/Year
Ozone (VOC or NOx):
Serious NAAs
Severe NAAs
25
Extreme NAAs
10
Other ozone NAAs outside an ozone transport
							 region
100
Other ozone NAAs inside an ozone transport
							 region:
VOC
NOx
100
Carbon monoxide: All NAAs
100
SO2 or
							 NO2: All NAAs
100
PM10:
Moderate NAAs
100
Serious NAAs
70
PM2.5:
Direct emissions
100
SO2
100
NOx (unless determined not to
							 be significant precursor)
100
VOC or ammonia (if determined to be significant
							 precursors)
100
Pb: All NAAs
25
2.
				For purposes of subsection (1)(B) of this rule, the following rates apply in
				maintenance areas:
Tons/Year
Ozone (NOx,
							 SO2, or NO2):
All Maintenance Areas
100
Ozone (VOCs):
Maintenance areas inside an ozone transport
							 region
50
Maintenance areas outside an ozone transport
							 region
100
Carbon monoxide: All Maintenance Areas
100
PM10: All Maintenance
							 Areas
100
PM2.5:
Direct emissions
100
SO2
100
NOx (unless determined not to
							 be significant precursor)
100
VOC or ammonia (if determined to be significant
							 precursors)
100
Pb: All Maintenance Areas
25
(C) The requirements of this rule do not
				apply to the following federal actions:
1.
				Actions where the total of direct and indirect emissions are below the
				emissions levels specified in subsection (1)(B) of this rule;
2. The following actions which would result
				in no emissions increase or an increase in emissions that is clearly below the
				de minimis levels identified in subsection (1)(B) of this rule:
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 of 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. 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 necessary) to perform as operational groups
				or for repair or overhaul;
I.
				Maintenance dredging and debris disposal where no new depths are necessary,
				applicable permits are secured, and disposal will be at an approved disposal
				site;
J. 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; actions such as
				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;
K. 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. Transfers
				of ownership, interests, and titles in land, facilities, and real and personal
				properties, regardless of the form or method of the transfer;
O. Designation of empowerment zones,
				enterprise communities, or viticultural areas;
P. 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 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; and
V. Air traffic control
				activities and adopting approach, departure, and enroute procedures for
				aircraft operations above the mixing height specified in the applicable State
				Implementation Plan (SIP) or Tribal Implementation Plan (TIP). Where the
				applicable SIP or TIP does not specify a mixing height, the federal agency can
				use the three thousand feet (3,000') 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 below the de minimis levels identified in subsection
				(1)(B) of this rule;
3.
				Actions where the emissions are not reasonably foreseeable, such as the
				following:
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; and
B. Electric power marketing activities that
				involve the acquisition, sale, and transmission of electric energy;
				and
4. Actions which
				implement a decision to conduct or carry out a program that has been found to
				conform to the applicable implementation plan, such as prescribed burning
				actions which are consistent with a land management plan that has been found to
				conform to the applicable implementation plan.
(D) Notwithstanding the other requirements of
				this rule, a conformity determination is not required for the following federal
				actions (or portion thereof):
1. 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 Clean Air Act (CAA)) or the prevention of
				significant deterioration (PSD) program (Title I, part C of the CAA);
2. Actions in response to emergencies which
				are typically commenced on the order of hours or days after the emergency or
				disaster and, if applicable, which meet the requirements of subsection (1)(E)
				of this rule;
3. Research,
				investigations, studies, demonstrations, or training other than those exempted
				under paragraph (1)(C)2. of this rule, where no environmental detriment is
				incurred or the particular action furthers air quality research, as determined
				by the department;
4. Alteration
				and additions of existing structures as specifically required by new or
				existing applicable environmental legislation or environmental regulations (for
				example, hush houses for aircraft engines and scrubbers for air emissions);
				and
5. Direct emissions from
				remedial and removal actions carried out under 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.
(E) Federal actions which are part of a
				continuing response to an emergency or disaster under paragraph (1)(D)2. of
				this rule and which are to be taken more than six (6) months after the
				commencement of the response to the emergency or disaster under paragraph
				(1)(D)2. of this rule are exempt from the requirements of this rule only if-
1. The federal agency taking the actions
				makes a written determination that, for a specified period not to exceed an
				additional six (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
2. For actions which are to be taken after
				those actions covered by paragraph (1)(E)1. of this rule, the federal agency
				makes a new determination as provided in paragraph (1)(E)1. of this rule and-
A. Provides a draft copy of the written
				determinations required to affected U.S. Environmental Protection Agency (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 fifteen
				(15) days from the beginning of the extension period to comment on the draft
				determination; and
B. Within thirty
				(30) days after making the determination, publishes a notice of the
				determination by placing a prominent advertisement in a daily newspaper of
				general circulation in the area affected by the action; and
3. If additional actions are
				necessary in response to an emergency or disaster under paragraph (1)(D)2. of
				this rule beyond the specified time period in paragraph (1)(E)2. of this rule,
				a federal agency can make a new written determination as described in paragraph
				(1)(E)2. of this rule for as many six (6)-month periods as needed, but in no
				case shall this exemption extend beyond three (3) six (6)-month periods except
				where an agency provides information to EPA and the state or tribe 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.
(F)
				Notwithstanding other requirements of this rule, actions specified by
				individual federal agencies that have met the criteria set forth in paragraphs
				(1)(G)1. through (1)(G)3. of this rule and the procedures set forth in
				subsection (1)(H) of this rule are presumed to conform, except as provided in
				subsection (1)(J) of this rule. 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 paragraph (1)(B)1. or
				(1)(B)2. of this rule.
(G) The
				federal agency must meet the criteria for establishing activities that are
				presumed to conform by fulfilling the requirements set forth in paragraphs
				(1)(G)1. through (1)(G)3. of this rule.
1.
				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 implementation plan 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 emission reductions or other milestones in
				any area including, where applicable, emission levels specified in the
				applicable implementation plan for purposes of-
(I) A demonstration of reasonable further
				progress;
(II) A demonstration of
				attainment; or
(III) A maintenance
				plan.
2. 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 subsection (1)(B) of this
				rule, based, for example, on similar actions taken over recent years.
3. 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) or
				TIP(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.
(H) In
				addition to meeting the criteria for establishing exemptions set forth in
				paragraphs (1)(G)1. through (1)(G)3. of this rule, the following procedures
				must also be complied with to presume that activities will conform:
1. 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;
2. The federal agency must notify the
				appropriate EPA regional office(s), state, local, and tribal air quality
				agencies and, where applicable, the agency designated under section 174 of the
				CAA and the Metropolitan Planning Organization (MPO) and provide at least
				thirty (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 subsection (1)(B) of this rule
				in more than one (1) of EPA'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;
3. The federal agency
				must document its responses to all the comments received and make the comments,
				responses, and final list of activities available to the public upon request;
				and
4. The federal agency must
				publish the final list of such activities in the
Federal
				Register
.
(I)
				Emissions from the following actions are presumed to conform:
1. Actions at installations with
				facility-wide emission budgets meeting the requirements in subsection (3)(H) of
				this rule provided that the state or tribe 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;
2. Prescribed fires
				conducted in accordance with a smoke management program which meets the
				requirements of EPA's Interim Air Quality Policy on Wildland and Prescribed
				Fires or an equivalent replacement EPA policy; and
3. Actions that the state or tribe identifies
				in the EPA-approved SIP or TIP as presumed to conform.
(J) Even though an action would otherwise be
				presumed to conform under subsection (1)(F) or (1)(I) of this rule, an action
				shall not be presumed to conform and the requirements of section (4),
				subsection (1)(L), subsections (3)(A) through (3)(G), and subsections (3)(I)
				through (3)(K) of this rule shall apply to the action if EPA or a third party
				shows that the action would-
1. Cause or
				contribute to any new violation of any standard in any area;
2. Interfere with provisions in the
				applicable SIP or TIP for maintenance of any standard;
3. Increase the frequency or severity of any
				existing violation of any standard in any area; or
4. 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 or
				TIP for purposes of-
A. A demonstration of
				reasonable further progress;
B. A
				demonstration of attainment; or
C.
				A maintenance plan.
(K) The provisions of this rule apply in all
				nonattainment and maintenance areas except conformity requirements for
				newly-designated nonattainment areas are not applicable until one (1) year
				after the effective date of the final nonattainment designation for each
				National Ambient Air Quality Standards (NAAQS) and pollutant in accordance with
				section 176(c)(6) of the Act.
(L)
				State Implementation Plan Revision. The federal conformity rules under 40 CFR
				51, Subpart W and 40 CFR 93, Subpart B, in addition to any existing applicable
				state requirements, establish the conformity criteria and procedures necessary
				to meet the requirements of Clean Air Act section 176(c) until such time as
				this rule is approved by EPA as an implementation plan revision. Following EPA
				approval of this rule as a revision to the applicable implementation plan (or a
				portion thereof), the approved (or approved portion of the) state criteria and
				procedures will govern conformity determinations and the federal conformity
				regulations contained in 40 CFR 93 will apply only for the portion, if any, of
				the state's conformity provisions that is not approved by EPA. In addition, any
				previously-applicable implementation plan requirements relating to conformity
				remain enforceable until the state revises its applicable implementation plan
				to specifically remove them and that revision is approved by
				EPA.