1 Issue Papers for Revising the General Conformity Regulations January 11, 2005 2 i General Conformity Issue Papers ISSUE PAGE NO.

Innovative and Flexible Approaches ............................................................................ 1 Emission Budget Approach ............................................................................................. 3 Early Emission Reduction Credits.................................................................................... 7 Inter Precursor Offsets.................................................................................................. 11 Mitigation Timing ......................................................................................................... 15 Streamlining and Burden Reduction ......................................................................... 17 Regionally Significant Emissions .................................................................................. 19 Presume to Conform..................................................................................................... 23 Minor Source NSR Permits ........................................................................................... 25 Transition Tool for New Standards ........................................................................... 27 Grandfathering Provisions in the Existing Regulations ................................................... 29 Application of the Grace Period for New Designations .................................................. 33 Harmonizing Horizon Years .......................................................................................... 37 SIP Submittal Timing .................................................................................................... 41 Revisions Requested by Other Agencies .................................................................... 43 Wildland Fire Policy...................................................................................................... 45 Geographical Limits for Offsets..................................................................................... 49 Revise Emergency Episode to Include Military Readiness.............................................. 51 Protection of Classified Materials .................................................................................. 55 ii Clarification of Existing Rules.................................................................................... 57 Clarification of General Conformity Determination Process ........................................... 59 Actions Affecting Multiple Nonattainment/ Maintenance Areas ...................................... 63 Coverage of Construction Emissions ............................................................................. 67 Offsite Mobile Source Emissions ................................................................................... 73 Response to Emergency Episodes.................................................................................. 77 Definition of Terms ....................................................................................................... 79 Index A: List of Acronyms ............................................................................................ 81 1 Innovative and Flexible Approaches 2 3 Issue Paper on Emission Budget Approach Issue Federal agencies would like to streamline the conformity process for individual actions or projects, while States expressed a desire for the conformity process to help identify and reduce emissions at Federal installations. Under this approach the States would adopt a facility wide emission budget for an installation subject to conformity requirements and if the proposed action along with the other emissions at the facility would be within the budget, the action or project could be presumed to conform.

Options 1. Include a provision in the General Conformity Regulations that allows State and Federal agencies or a third party to develop facility wide emission budgets for Federal installations or installations subject to the General Conformity Regulations. If the emissions from the Federal action/ project along with all other emissions from the installation do not exceed the budget, then the action/ project would be presumed to conform 2. Do not include the provision in the regulations.

Background Federal agencies have voiced concerns regarding the length of time it takes to conduct a conformity determination, their inability to identify emissions in the State Implementation Plans ( SIPs) and their ability to receive credit for implementing emission reduction programs at the facilities. States, on the other hand, are not always aware of all the emissions at the facilities, have information on the potential growth at the facilities, and find that the existing General Conformity Regulations do not effectively control the growth in emissions at Federal installations.

Concept On a voluntary basis, a State or local air quality agency working with a Federal agency or third party ( e. g., an airport authority) would develop facility wide emission budget for the installations. The budget would be for a set period of time and near the end of that time the State and agency could develop a budget for the next time period. For example, the State and Federal agency ( or third party) could develop annual budgets covering a 10 year period. Two years before the end of the period, the budget would be reviewed and updated to cover the next 10 year period. ( This is the same procedure used for maintenance plans. A maintenance plan is developed for 10 years and 8 years into that plan a new plan is developed for the next 10 years.) The budgets would be developed based upon the latest estimates of emissions and activities growth. The State and Federal 4 agency ( or third party) would notify Environmental Protection Agency ( EPA) and the public and take comment on the draft budget prior to adopting the final budget. The State would agree to use the budget for any future SIP development. The Federal agencies, or the facility operator acting for the agency, would agree to periodically ( e. g., annually) review their emissions to ensure that the project stays within the emissions budget. If the total direct and indirect emissions from the action or project along with all other emissions from the installation do not exceed the budget, then the action or project would be " presumed to conform." If unusual or unforeseen circumstances warrant a revision, the State and Federal agency could agree to revise the budget. For example, The Piedmont Triad International Airport in Greensboro, NC and the State of North Carolina had developed an emission budget for the airport in the 1990' s, they would not have known that Federal Express would decide to develop a hub at the airport and the budget would not have accounted for the increase in air and ground traffic emissions. Under this approach, the State and airport sponsor could review and revise the budget account for the hub.

The emission budget approach would not be applicable to all situations. For example, not all Federal actions or projects occur on installations suitable for emission budgets. In addition, some installations with budgets may on occasion take actions or have projects that would result in the budget being exceeded. In these cases, the Federal agencies would need a process to demonstrate conformity. Therefore, a program similar to the existing regulation would still be necessary In developing the emission budget, the Federal agency would generally reveal its plans for construction at the facility. As a result the State could consider the emissions from the construction in its SIP and they would have three options for handling the construction emissions under the general conformity program. First, they could include the emissions in a facility wide emission budget. Second, they could determine that the construction emission at the facility would be covered elsewhere in the SIP, e. g., in the non road mobile source budget or the area source budget, and thus the emissions could be presumed to conform. Finally, they could cover the construction emissions separately form the emission budget and conduct a separate conformity evaluation for those emissions.

Since the emission budget would be used to develop the SIP for the area, any Federal action at the installation that remains within its budget would not interfere with the SIP. By developing a budget for the installation, the Federal agency would generate a more accurate emission inventory for the activities at the installations and provide the State with realistic growth projections for the installations. The emission budgets would encourage operators to identify ways of reducing emissions and adopt control measures when possible in order to allow for unforeseen growth.

In theory, Federal agencies and State air quality agencies could implement most of this approach on a case by case basis under the existing regulations. We would be repackaging the requirements and providing presumption of conformity for some actions where conformity would be easy to demonstrate. For example, States can currently adopt a facility wide budget in the SIP for a Federal installation. The Federal agency responsible 5 for the installation could easily demonstrate conformity for actions that stay within the budget because the emissions would be identified and accounted for in the SIP. By repackaging the approach and allowing the Federal agencies to presume that the action conforms would encourage its use.

Environmental Impact, Pros, and Cons of the Options 1. Include a provision in the General Conformity Regulations that allows State and Federal agencies or a third party to develop facility wide emission budgets for Federal installations or installations subject to the General Conformity Regulations. If the emissions from the Federal action/ project along with all other emissions from the installation do not exceed the budget, then the action/ project would be presumed to conform.

Pros: a. The Federal agency or installation sponsor would have a budget in the SIP for conformity purposes.

b. The State would have good emission estimates, including growth estimates from the installation c. The installations would be able to receive credit for any emission reduction programs that they implement. ( The reductions would increase the difference between the actual emissions and the budget.)

d. For commercial installations, e. g., airports, the need for additional emissions controls would generally be tied to the economic cycle. During good economic times, when expansion exceeds projections, more controls would be required; during poor economic times, when projections are not being met, little or no additional controls would be necessary.

e. EPA and the public would have an opportunity to comment on the total budget for the installation.

f. Since projects that do not increase the facility emissions above the budget the project can be presumed to conform and a conformity determinations would not be necessary.

g. Installation operators would be encouraged to reduce emissions to meet their budget. This could result in the adoption of innovative control techniques.

h. The 10 year cycle would allow the facility wide emission budget to be updated based upon new technology and planning assumptions.

i. Since the adoption of a facility wide emission budget would be voluntary for both the States and Federal agencies, they would not be forced to adopt budgets for particular installations. 6 j. The facility wide budget would allow the installation operators maximum flexibility in meeting the budget.

k. Since the budgets would be specific to installations, States would be better able to determine whether construction emissions might interfere with the SIP. If the construction emissions do not cause a problem for the SIP, then they could be exempt from the conformity determination. In addition, the State and Federal agency could renegotiate the budget.

Cons: a Some projects may not receive project level conformity reviews. However, this would not exempt the project from a National Environmental Policy Act ( NEPA) analysis.

b. The State and Federal agencies would have to spend time up front developing the emission budget and then review and update that budget every 10 years.

2. Do not include the provision in the regulations Pros: a. Ensures that each project will be reviewed for conformity to the SIP.

b. Federal agencies would not have to share their emission inventories with the State before the project requires a conformity determination.

Cons: a. Federal agencies would continue to have problems identifying emissions in the SIP inventory that apply to the facility.

b. Individual projects would have to undergo conformity evaluations and determinations.

c. States would not receive as much information on the emissions and projected emissions from the Federal facility.

d. There is no certainty that the budget will be updated in a timely manner.

Staff Recommendation The EPA Work Group recommends Option 1. Include a provision in the General Conformity Regulations that allows State and Federal agencies or a third party to develop facility wide emission budgets for Federal installations or installations subject to the General Conformity Regulations. If the emissions from the Federal action/ project along with all other emissions from the installation do not exceed the budget, then the action/ project would be presumed to conform.

The work group also discussed having the State submit the budget to EPA for an adequacy determination if the budget was not going to be immediately included in the SIP. 7 Issue Paper on Early Emission Reduction Credits Issue To expedite the project level conformity process, Federal agencies and project sponsors want to be able to reduce emissions in advance of the time that the reductions are needed for a conformity evaluation. Congress has authorized such a program in the FAA reauthorization act signed in December 2003.

Options 1. Revise the regulations to specifically allow Federal installations or other facilities subject to the General Conformity requirements to receive credit for emission reduction measures that are implemented before they are needed for a conformity determination.

2. Revise the regulations to make it explicit that States have the right to adopt an emission reduction credit program for use in the general conformity program. The program would be consistent with the Airport Early Emission Reduction Credit Program.

3. Leave the program as is and do not create incentives for early reductions.

Background For NSR programs, States have developed emission reduction credit programs to allow offset credits to be banked and often traded. These programs allow facilities to reduce emissions prior to the time that the reductions are needed to offset emission increases from new or modified sources.

Some Federal facilities would like to have the opportunity to reduce emissions prior to when the reductions are needed to offset emission increases covered by the General Conformity program. Although, the General Conformity Regulations do not explicitly allow such a program, the 2002 EPA and FAA general conformity guidance for airports encourages such programs based on an agreement between the Puget Sound Clean Air Agency and the Port of Seattle for the Seattle  Tacoma ( SeaTac Airport) program. In addition, new legislation, passed by Congress in 2003, authorized the FAA to fund emission reduction programs at commercial service airports if the airports receive credits for the emission reductions for use in the general conformity or NSR programs. That legislation required EPA to publish a guidance document to implement the program. EPA released the guidance entitled " Airport Emission Reduction Credit Guidance" ( AERC Guidance) in September 2004. Other Federal agencies have expressed a desire for similar type programs. 8 Environmental Impact, Pros, and Cons of the Options 1. Revise the regulations to specifically allow Federal installations or other facilities subject to the General Conformity requirements to receive credit for emission reduction measures implemented before they are needed for a conformity determination. The regulations would be based upon the 2004 AERC guidance.

Pros: a. Creates an incentive for Federal facilities to reduce emissions, which results in cleaner air during the time that the credits are not used.

b. Federal facilities can implement innovative emission reduction techniques and determine the effectiveness before the reductions are used as offsets for a conformity determination.

c. Federal agencies will have one national program to develop and utilize emission reduction credits d. Provides more authority for the AERC guidance.

Cons: a. States would not be able to tailor the programs to meet State needs.

b. Credit may be allowed for reductions that would have occurred anyway. The facility may have other reasons to adopt the measures and therefore the credit would be given for routine business reductions 2. Revise the regulations to make it explicit that States have the right to adopt an emission reduction credit program for use in the general conformity program.

Pros: a. Creates incentive for Federal facilities to reduce emissions resulting in cleaner air while the credits are not used.

b. Federal facilities can implement innovative emission reduction techniques and determine the effectiveness before the reductions are used as offsets for a conformity determination.

c. States would be able to tailor the programs to meet the State needs.

Cons: a. Federal agencies would have to work with individual State agencies to create separate programs for each State or area. This could lead to inconsistent programs across the country.

b. Credit may be allowed for reductions that would have occurred anyway. The facility may have other reasons to adopt the measures and therefore the credit would be given for routine business reductions 3. Leave the program as is, and do not create incentives for early reductions. 9 Pros: a. Federal agencies will be less likely to receive credit for something that they would have done, regardless of the possible incentives.

Cons: a. May undermine the AERC guidance.

b. Discourages early reductions and thus hampers air quality improvements in early years.

c. Federal facilities will be less likely to implement innovative emission reduction techniques, because they will not be able to determine their effectiveness before the reductions are used as offsets for a conformity determination.

Staff Recommendation The EPA Work Group recommends Option 1. Revise the regulations to specifically allow Federal installations or other facilities subject to the General Conformity requirements to receive credit for emission reduction measures implemented before they are needed for a conformity determination. The regulations would be based upon the 2004 AERC guidance.

The work group also recommended that we include a statement that reductions credits could be used at another Federal facility as an offset. 10 11 Issue Paper on Inter Precursor Offsets for Ozone Areas Issue The General Conformity rule does not specifically allow Federal agencies to offset the emission of precursor criteria pollutants by reducing the emission of another precursor even though many State and local air districts allow such offsets.

Options 1. Retain the current language.

2. Revise the regulation to allow inter precursor offsets where it is technically justified, permitted by the State/ local/ tribal air quality agency, and has an environmental benefit. The ratio of the offsets must be consistent with the SIP requirements and EPA guidance.

Background Tropospheric ( ground level) ozone is a secondary pollutant. It is formed in the atmosphere from emissions of precursors, such as nitrous oxide ( NOx) and volatile organic compounds ( VOCs). Likewise, PM2.5 can also be formed in the atmosphere. In developing their SIP, states generally establish or will establish control programs for precursor pollutants. Actions taken by Federal agencies could increase one of the precursors while reducing the other. Federal agencies would like the ability to receive credit for reducing one precursor towards the increase in emission of another precursor.

Traditionally, an offset involves the same pollutant or pollutant precursor. In developing the SIPs, States usually focus on controlling the precursor that will most effectively control the criteria pollutant and in the ozone program EPA has allowed States to trade off the controls of one precursor for controls of another. For example, the CAA requires that States meet a " reasonable further progress" requirement of reducing the VOC emissions by 3 percent per year after 1996. EPA allows States to substitute NOx reductions for some or all of the VOCs reductions. The substitution is not made on a oneto one basis, but based on the ratio needed for attainment. PM2.5 is also a secondary pollutant and could have its precursors traded.

The General Conformity rule does not address inter precursor offsets. Federal agencies favor revising the rule to include a specific authorization of inter precursor offsets where it is allowed by local air districts. The agencies argue that if a local air quality district finds that inter precursor trading will not interfere with its SIP, the rule should authorize such an approach.

Since the General Conformity rule is not intended to be overly burdensome to Federal agencies, a new paragraph could be added to allow for the offsetting of one precursor by 12 reducing the emissions of another where local or State air quality regulations specifically allow such offsets.

In some cases, state and local air quality agencies have established unidirectional interprecursor trading programs. For example, a NOx reduction may be used to offset additional VOC emissions under these unidirectional programs, but a VOC reduction may not be used to offset increases in NOx emissions. The reasons behind these restrictions are based on the chemical reaction rates, as well as the rate at which each pollutant gets consumed. In ozone nonattainment areas that are termed NOx limited, any increases in NOx emissions would result in more ozone and any decreases will result in less ozone. Consequently, inter precursor trading programs in a NOx limited area must prohibit sources from increasing NOx emissions by using VOC emission reduction credits, as it would cause the ambient air quality to deteriorate.

The offset could be subject to the limitations of the NOx substitution policy to ensure that adequate emission reductions are obtained for the offsets.

Environmental Impact, Pros, and Cons of the Options 1. Retain the current language.

Pros: a. Retaining current language would ensure that the offset will not interfere with the pollutant mix since an emission increase would be offset by emission decreases of the same pollutant.

b. Because some States and localities do not allow for inter precursor trading, retaining current language would ensure that Federal agencies in all areas are treated equally.

Cons: a. Trading of precursors could be beneficial to the environment.

b. Not allowing inter precursor trading can be perceived as overly burdensome, especially in areas where States and local districts allow the practice.

2. Revise the regulation to allow inter precursor offsets where it is technically justified, permitted by the State/ local/ tribal air quality agency, and has an environmental benefit. The ratio of the offsets must be consistent with the SIP requirements and EPA guidance Pros: a. Allows the Federal agencies flexibility in offsetting emission increases.

b. Could improve air quality by ensuring that emissions of the controlling precursor are reduced.

Cons: a. Trading of precursor pollutants may impact ambient air quality if the reductions are not appropriately balanced.

b. Allowing inter precursor offsets could be perceived as inequitable since some States do not allow the practice. 13 Staff Recommendation The EPA Work Group recommends Option 2. Revise the regulation to allow interprecursor offsets where it is technically justified, permitted by the State/ local/ tribal air quality agency, and has an environmental benefit. The ratio of the offsets must be consistent with the SIP requirements and EPA guidance. 14 15 Issue Paper on Mitigation Timing Issue We have generally interpreted the existing regulations to require the mitigation measures to produce a contemporaneous emissions reduction with any emission increases. However, in some cases, it may be beneficial to environment and the State =

s planning process to allow flexibility in the timing of mitigation measures.

Options 1. Keep mitigation timing requirements the same. Require contemporaneous emission reductions.

2. Under certain conditions allow the State and Federal agency to negotiate alternate schedules for the implementation of the mitigation measures.

Background Mitigation measures, including offsets, are used to reduce the impact of emission increases from a project/ action. To minimize the impact of the project emissions, the emission reductions from the mitigation measures should occur at the same time as the emission increases from the project. In general, we have interpreted the current regulations to mean that the reductions must occur in the same calendar year as the increase emissions from the project.

For certain projects, however, it may be beneficial to approve mitigation measures that do not provide contemporaneous emission reductions equal to the emission increases for the specific years but provide net long term air quality benefits. For example, a project with relatively high short term emissions, such as construction project, could be mitigated by converting older equipment to electric or alternate fuels. The State may find it advantageous to allow a short period when the emissions are under controlled in return for permanent over control of the long term emissions.

Environmental Impacts, Pros, and Cons of the Options 1. Keep mitigation timing requirements the same. Require contemporaneous emission reductions Pros: a. Ensures that the mitigation measures completely offset the potential emission increases each year. Cons: a. Limits the flexibility for States and Federal agencies to demonstrate conformity.

2. Under certain conditions allow the State and Federal agency to negotiate alternate schedules for the implementation of the mitigation measures. For non contemporaneous 16 emission reductions require offset ratios consistent with the NSR offset ratios and the mitigation payback period should not exceed two times the project period.

Pros: a. Provides flexibility in meeting the emission control requirements to make a conformity determination b. Increase potential for long term environmental benefits.

c. The alternate mitigation measures may be more cost efficient.

Cons: a. Does not ensure contemporaneous offset of the emission increases from the action/ project by the Federal agency. The State may need to obtain additional reductions to meet the SIP obligations.

b. It is difficult to track and enforce mitigation measures that extend to far into the future. This concern could be addressed by limiting the maximum time for mitigation measures.

Staff Recommendation The EPA Work Group recommends Option 2. Under certain conditions allow the State and Federal agency to negotiate alternate schedules for the implementation of the mitigation measures. For non contemporaneous emission reductions require offset ratios consistent with the NSR offset ratios and the mitigation payback period should not exceed two times the project period. 17 Streamlining and Burden Reduction 18 19 Issue Paper on Regionally Significant Emissions Issue The regionally significant provision in the current regulations has never been triggered. However, Federal agencies and project sponsors expend time and resources to determine if emissions from the Federal action that are below de minimis levels are still regionally significant.

Options 1. Eliminate the provision.

2. Redefine " regionally significant emissions" so that it applies to more projects/ actions. For example, the definition could be changed to 1 or 5 percent of the area's emission inventory.

3. Limit the provision to a specific pollutant. Since the ozone nonattainment/ maintenance areas that could trigger this provision are rural transport areas and none of the carbon monoxide, lead or nitrogen dioxide nonattainment/ maintenance areas have emission inventories small enough to activate the regionally significant provision, the provision could be limited to PM and SO2 nonattainment/ maintenance areas only.

4. Keep the present provision and publish a list of areas identifying where the test is applicable. EPA could publish a list every three years ( following the submission of the triennial emission inventory submission) that identifies the nonattainment/ maintenance areas with total emission inventories below 10 times the de minimis emission levels.

Background The General Conformity rule contains three references to regionally significant actions. The term is defined in section 93.152 as " 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." Paragraphs 93.153( i) and ( j) require conformity determinations for all regionally significant actions, regardless of any exemptions or presumptions of conformity based on other provisions in the regulations.

The " regionally significant action" concept was proposed in the 1993 Notice of Proposed Rulemaking ( 58 FR13836) in order to " capture those actions that fall below the de minimis emission levels, but have the potential to impact the air quality of the region." At that time, EPA requested comments on whether the 10 percent level was appropriate. In the discussion of comments in the preamble to the Final Rule ( 58 FR 63214), EPA reported that it received comments both in favor of and in opposition to the regionally 20 significant action concept. Some respondents felt that the de minimis cut offs would suffice. While many respondents supported the concept, there was a diversity of opinions regarding whether ten percent was the most appropriate significance level. However, EPA reported that no documentation was provided to support a different level. EPA decided to retain both the concept and 10 percent significance level in the final rule.

Under the existing regulations, projects/ actions with emissions below the de minimis levels or projects that are " presumed to conform" can be considered to be regionally significant if the emissions from the project/ action equals or exceeds 10 percent of the nonattainment/ maintenance areas' emission inventory for the pollutant. A regionally significant project/ action must conduct a full conformity determination. In over 10 years since promulgation of the existing regulations, no project/ action has been determined to be regionally significant. The main reason that project/ actions with emissions below de minimis levels are not regionally significant is that the emission inventory for almost all nonattainment and maintenance areas greatly exceeds ten times the de minimis levels. Review of the 1996 emission inventory shows that only six ( one O3 and five SO2) nonattainment/ maintenance areas had emission inventories less than ten times the de minimis levels. In other words, except for those six areas, a project/ action with emissions below de minimis levels would never be considered regionally significant. The ozone area ( e. g., Edmonson, KY) is classified as a rural transport area. The SO2 areas had major point sources that either permanently or temporarily shut down.

The purpose of the regionally significant action provision was to ensure that exempt actions would not overwhelm the nonattainment or maintenance area by significantly increasing the emissions in the area. There is little documentation supporting EPA's selection of 10 percent of the area's emission inventory as the threshold for a regionally significant project/ action.

Federal agencies have complained that in many cases demonstrating that a project is not regionally significant is difficult. First, the total emission inventory for an area is not always readily available and they have to track it down for a lot of small projects. In addition, most emission inventories are published two to three years after the specified year, so the Federal agency is concerned about using the most recent inventory.

Environmental Impact, Pros, and Cons of the Options 1. Eliminate the provision.

Pros: a. Since the existing provision has never been triggered, eliminating the provision streamlines the conformity regulations by removing a provision that has little or no environmental impact.

b. Eliminating the provision reduces the resource burden of the regulations.

Cons: a. There could be the perception that some large projects could be approved without a conformity determination. 21 2. Redefine " regionally significant emissions" to affect more projects/ actions. For example, the definition could be changed to 1 or 5 percent of the area's emission inventory.

Pros: a. Could make the regionally significant provision more meaningful by applying it to smaller sources.

Cons: a. A change to 5 percent would only add a few more areas in which de minimis emission levels would exceed the regionally significant level and thus would have little impact on the number of projects/ actions required to conduct a full determination. A change to 1 percent may add more areas.

b. There is little justification for any other specific percentage number.

3. Limit the provision to specific pollutants. Since the ozone nonattainment/ maintenance areas that could trigger this provision are rural transport areas and none of the carbon monoxide, lead or nitrogen dioxide nonattainment/ maintenance areas have emission inventories small enough to activate the regionally significant provision, the provision could be limited to PM and SO2 nonattainment/ maintenance areas only.

Pros: a. It would eliminate the bulk of the work that Federal agencies and project sponsors currently do to ensure that projects are not regionally significant. At the same time, it will keep the regionally significant provision for PM and SO2.

Cons: a. There are no PM nonattainment areas with emission inventories small enough to activate the regionally significant provision. The SO2 nonattainment/ maintenance areas with small emission inventories are most likely affected by transport from adjacent areas.

b. The small PM 2.5 nonattainment areas are likely to be affected by transport. Thus, there may be few offsets available for Federal agencies to use to mitigate the emissions from their actions.

4. Keep the present provision and publish a list of areas where applicable identifying upwind areas from which Federal agencies could obtain offsets. EPA could publish a list every three years ( following the submission of the triennial emission inventory submission) that identifies the nonattainment/ maintenance areas with total emission inventories below 10 times the de minimis emission levels.

Pros: a. Keeping the present provision will ensure that all exempt projects with emissions large enough to impact a nonattainment/ maintenance area are subject to a conformity determination. Publishing a list that identifies nonattainment/ maintenance areas with total emission inventories 10 times below the de minimis emission levels will assist Federal agencies in targeting projects subject to the regionally significant provisions.

b. Identifying the source areas will allow Federal agencies to find offsets for the emissions. 22 Cons: a. Regulations remain burdensome as Federal agencies are subject to expend resources on regulations that have little or no environmental impact.

b. Since the regionally significant provision only affects small nonattainment and maintenance areas subject to transport, those areas would have few ( if any) offsets available for mitigating Federal actions.

Staff Recommendation The EPA Work Group recommends Option 1. Eliminate the provision. 23 Issue Paper On The Presume to Conform Process Issue Federal agencies have found the " presume to conform" process in the existing regulations to be confusing and cumbersome. The have asked EPA to simplify the process.

Options 1. Retain the existing provisions for Federal agencies to create their own " presumed to conform" list.

2. Add additional method that the Federal agencies can use to justifying inclusion of an action on their " presumed to conform" list. For example, allowing the Federal agencies to demonstrate that the emissions from that type of action are included in the SIP.

Background In promulgating the existing regulations EPA identified a number of actions that were presumed to conform. The Regulations also allow Federal agencies to establish their own list of actions that are presumed to conform. The Federal agency must justify the inclusion of the action on the list by either demonstrating: 1) that the actions will not cause or contribute to an air quality problem or otherwise interfere with the SIP, or 2) that the actions will have emission below the de minimis levels. The Federal agencies must provide copies of the proposed list to EPA, affected State and local air quality agencies and metropolitan planning organizations. In addition, the agencies must provide at least a 30 day public comment period and document it response to all comments. The notice of the proposed and final list must be published in the Federal Register.

No Federal agency has published it won list of " presumed to conform" actions. Although the staff from several agencies have talked about creating such a list only the Federal Aviation Administration has shared a draft of their list with EPA.

Environmental Impacts, Pros, and Cons of the Options 1. Retain the existing provisions for Federal agencies to create their own " presumed to conform" list.

Pros: a. Limits the actions that can be place on a " presumed to conform" list to actions with emissions that are below the de minimis levels or that are shown not to cause an air quality problem.

Cons: a. Does not address the other Federal agencies concerns. 24 2. Add additional method that the Federal agencies can use to justifying inclusion of an action on their " presumed to conform" list. For example, allowing Federal agencies to demonstrate that the emissions from that type of action are included in the SIP.

Pros: a. Provides more flexibility to the agencies in justifying the inclusion of a type of action on their " presumed to conform" list.

b. Activities which clearly meet the State emission requirements can avoid the conformity process.

Cons: a. Agencies could use the additional categories to avoid conformity.

Staff Recommendation The EPA Work Group recommends Option 2. Add additional method that the Federal agencies can use to justifying inclusion of an action on their " presumed to conform" list. For example, allowing Federal agencies to demonstrate that the emissions from that type of action are included in the SIP. 25 Issue Paper on Minor Source NSR Permits Issue The rule in section 93.153( d) exempts emissions from major new or modified stationary sources permitted under NSR or the Prevention of Significant Deterioration ( PSD) programs. However, the rule does not exempt emissions permitted under a minor source NSR program.

Options 1. Revise the regulations to exempt all emissions permitted under NSR programs including minor source NSR.

2. Retain the current language, which requires the inclusion of emissions permitted under a minor source NSR program.

Background The purpose of the Conformity program is to ensure that Federal actions do not interfere with the SIP or the State's ability to attain and maintain the NAAQS. In promulgating the existing General Conformity Regulations, EPA recognized that emissions from a source which underwent a major source new source review ( NSR) or PSD permitting process were already reviewed to ensure that the emissions did not interfere with the SIP. Therefore, the regulations exempt the emissions from sources permitted under major source NSR or PSD programs. Since the time the existing General Conformity Regulations were promulgated in 1993, some States and local agencies have adopted minor source NSR programs. Since these minor source NSR programs provide a review of the emissions to ensure that they will not interfere with the SIP, Federal agencies asked that EPA revise the regulation to exempt minor source NSR programs as well.

Environmental Impact, Pros, and Cons of the Options 1. Revise the regulations to exempt all emissions permitted under NSR programs including minor source NSR.

Pros: a. All permitted emissions would be treated the same way.

b. Reduces the duplicate review of emissions under both minor source NSR and conformity programs.

c. Since the de minimis emission levels under the General Conformity Regulations are the same as the trigger for major source NSR programs, the change would affect only a limited number of sources. 26 Cons: a. Emissions permitted under the minor source NSR program would not be added to the other emissions to determine if the de minimis levels are exceeded.

2. Retain the current language, which requires the inclusion of emissions permitted under a minor source NSR program.

Pros: a. Ensures a review of all minor source emissions.

Cons: a. Permitted minor source emissions are reviewed under two programs.

b. The additional review will provide little environmental benefit.

Staff Recommendation The EPA Work Group recommends Option 1. Revise the regulations to exempt all emissions permitted under NSR programs including minor source NSR. 27 Transition Tools for the New Standards 28 29 Issue Paper on Grandfathering Provision in the Existing Regulation Issue The General Conformity rule contains a provision that grandfathers projects/ actions with conformity determinations that were submitted prior to March 15, 1994, or with a NEPA analysis that was completed prior to January 31, 1994. Another provision in the Rule limits the life of a determination to five years unless the agency has started a continual program to implement the action. Since the grandfathered actions will be ten years old by the time the regulations are revised, actions, which have not been implemented, are beyond the five year time limit. Thus, it would be inconsistent to allow grandfathered actions under the initial Rule to commence without a conformity determination.

Options 1. Remove the grandfathering provision in § 93.150( c).

2. Revise § 93.150( c) to grandfather actions if the ROD for the EIS or the FONSI for the EA is dated before effective date of regulatory revisions or application of conformity requirements but require the action to be started within 5 years of the ROD or FONSI to retain the grandfathered status.

3. Retain the current language and continue to exempt projects/ actions that meet the requirements of Section 93.150 ( c) even if they have not begun yet or have not been completed.

4. During SIP development process Federal agencies will be obligated to notify the State of " grandfathered" projects and States will account for the " grandfathered" actions in the SIP.

Background For Federal actions that had already commenced or where planning activities were completed, or where the Federal agency conducted a general conformity analysis before the regulations were promulgated, EPA provided options in the 1993 General Conformity rule for " grandfathering" these actions. Section 93.150 ( c) of the Rule grandfathers all projects/ actions where a NEPA analysis was completed prior to January 31, 1994, or where a conformity analysis was completed by March 15, 1994. Thus, these projects are not subject to the General Conformity rule and Federal agencies are not required to submit a conformity determination. However, if a project is not started within 5 years of the completion of the NEPA analysis, a supplemental analysis is required. Such a supplemental analysis would mean that the project would proceed under a NEPA analysis that was finished after the 1994 deadlines. 30 Section 93.157 states that the conformity status of a Federal action automatically lapses 5 years from the date a final determination is reported under Section 93.155, unless the action has been completed or a continuous program has commenced to implement the action within a reasonable time. Projects which were grandfathered under the 1993 regulations and for which a continuous program to implement has not commenced no longer fall within the 5 year time frame.

Environmental Impact, Pros, and Cons of the Options 1. Remove both Section 93.150( c) and the grandfathering provision.

Pros: a. Ensures that all projects/ actions meet the five year deadline, which ensures that emissions will not impact ambient air quality.

Cons: a. Federal agencies may have to perform or update a conformity analysis for projects/ actions that were previously exempt.

2. Revise § 93.150( c) to grandfather actions if the ROD for the EIS or the FONSI for the EA is dated before effective date of regulatory revisions or application of conformity requirements but require the action to be started within 5 years of the ROD or FONSI to retain the grandfathered status.

Pros: a. Specifies what actions/ projects qualify for the grandfathering and for how long.

b. Process for grandfathering would be in place when regulations are revised or new areas are designated as nonattainment.

Cons: a. Would eliminate grandfather protections for some actions.

3. Retain the current language and continue to exempt projects/ actions that meet the requirements of Section 93.150( c) even if they have not started or have not been completed.

Pros: a. Continues to exempt projects/ actions that were planned at the time of the initial promulgation of the Rule, but have been delayed for some reason.

Cons: a. The environment surrounding the proposed projects/ actions may have changed over time. Continuing to exempt these actions would not be logical as the analyses completed prior to the 1994 deadlines may not be up to date or accurate. Exempting these sources may have a negative impact on ambient air quality as emissions in the area may have increased in the interim.

4. During SIP development process Federal agencies will be obligated to notify the State of " grandfathered" projects and States will account for the " grandfathered" actions in the SIP. 31 Pros: a. States can assure that the " grandfathered" emissions are accounted for in the SIP.

b. Federal agencies will have assurance that the conformity determinations is valid for 5 years.

c. States will only have to look back for 5 years to determine which projects are grandfathered.

Cons: a. Federal agencies will need to keep abreast of the SIP development process.

Staff Recommendation The EPA Work Group recommends Option 2 & 4. Revise § 93.150( c) to grandfather actions if the ROD for the EIS or the FONSI for the EA is dated before effective date of regulatory revisions or application of conformity requirements but require the action to be started within 5 years of the ROD or FONSI to retain the grandfathered status. During SIP development process Federal agencies will be obligated to notify the State of " grandfathered" projects and States will account for the " grandfathered" actions in the SIP. 32 33 Issue Paper on Application of the Grace Period for New Designations Issue Section 176( c)( 6) of the Clean Air Act ( CAA) creates a grace period for the application of the conformity regulations. The act states that conformity " shall not apply with respect to an area designated nonattainment under section 107( d)( 1) until 1 year after that area is first designated nonattainment for a specific national ambient air quality standard." There remains a need for clarification on how and when the conformity requirements apply to Federal actions in newly designated nonattainment areas.

Scenarios A. Existing actions  Federal actions with a completed conformity determinations and/ or final NEPA analyses, as evidenced by the final determination, a FONSI for an environmental assessment ( EA), or a ROD for an environmental impact statement ( EIS) and the action was started before the end of the grace period would be grandfathered and a conformity determination for the new designated area would not be required.

B. Existing determinations  Federal actions with current ( i. e., less than 5 years old), completed conformity determinations and/ or final NEPA analyses, as evidenced by the final determination, a FONSI for an environmental assessment ( EA), or a ROD for an environmental impact statement ( EIS) that was prepared before the time the area is designated nonattainment but the action starts after the end of the grace period, would be grandfathered and a conformity determination for the new designated area would not be required.

C. Future determinations  Federal actions with conformity determinations and/ or NEPA analyses that will be completed after the end of the 1 year grace period will be required to conduct a conformity evaluation for the newly designated area.

D. Determinations during the grace period  There are several options for Federal actions with conformity determinations or the NEPA analysis completed during the 1 year grace period.

Options for Scenario D 1. Require conformity determinations for all emissions above the de minimis levels that occur after the end of the grace period.

2. Grandfather ( subject to the 5 year limitation) all actions where the conformity determination, ROD for an EIS or FONSI for an EA are completed before the end of the grace period. 34 3. Grandfather actions if their peak emissions occur before the end of the grace period.

4. Grandfather actions if they will be substantially complete before the end of the grace period.

5. Allow the Federal agencies to choose which conformity requirements they will meet if the emissions will not occur until after the end of the grace period.

Background In November 2000 ( P. L. 106 377), Congress added the grace period to § 176( c) to allow for a transition to the conformity requirements for newly designated nonattainment areas. The issue was raised by the metropolitan planning organizations ( MPOs) who asked for a period of time to remodel their transportation plans before conformity requirements applied. Since the MPOs re analyze conformity for the transportation plans every 3 years, the old conformity requirements would apply to the end of the grace period and the new requirements would apply thereafter. However, Congress applied the provision to all of § 176( c) including general conformity. Congress provided little guidance on how the new provision should be implemented.

The existing regulations have a grandfather provision that exempts actions with completed conformity determinations or NEPA analyses. Since § 176( c) of the CAA says that conformity shall not apply until one year after the designations, Federal agencies are not obligated to demonstrate conformity for actions that take place before that date. Likewise, if the action will not cause emissions above the de minimis levels after the end of the grace period, the new conformity requirements should not apply. If the conformity determination or the NEPA analysis is not completed before the end of the grace period, the new requirements would apply. However, for Federal actions with conformity determinations or NEPA analyses completed during the grace period that will result in emissions above the de minimis levels after the end of that grace period, there is no clear direction on which conformity requirements apply.

Environmental Impact, Pros, and Cons of the Options 1. Require conformity determinations for all emissions above the de minimis levels that occur after the end of the grace period.

Pros: a. This option will provide the most environmental protection by requiring a conformity evaluation of the emissions that occur after the end of the grace period.

b. The approach is simple and Federal agencies will know when the conformity requirements apply.

Cons: a. Requires Federal agencies to conduct conformity determination for actions in the newly designated nonattainment areas before the end of the grace period. 35 b. Neither the SIP nor the emission budget will be available to use to demonstrate conformity. 2. Grandfather ( subject to the 5 year limitation) all actions where the conformity determination, ROD for an EIS or FONSI for an EA are completed before the end of the grace period.

Pros: a. The approach is simple and Federal agencies will know when the conformity requirements apply.

b. A project with a conformity determination and NEPA analysis near completion when the area is designated nonattainment will not have to start a new analysis.

Cons: a. Projects that cause significant emissions after the end of the grace period will not have a conformity determination.

b. Federal agencies may rush the completion of the NEPA analyses to avoid conformity determinations.

3. Grandfather actions if their peak emissions occur before the end of the grace period.

Pros: a. Conformity requirements will be based on when the peak emissions caused by the project will occur.

b. Long term projects will generally have conformity based on the requirements of the new designation.

Cons: a. Federal agencies may have to conduct two different analyses to determine which requirements apply.

b. The peak emissions may occur before the end of the grace period, but the project may cause significant long term emissions.

4. Grandfather actions if they will be substantially complete before the end of the grace period.

Pros: a. Allows flexibility for projects, which will be near completion at the time the grace period ends.

b. Long term projects or actions would have to undergo conformity determinations based on the requirements for the newly designated areas.

Cons: a. Federal agencies may have to conduct two different analyses to determine which requirements apply.

b. EPA would have to define the term " substantially complete." 36 5. Allow the Federal agencies to choose which conformity requirements they will meet if the emissions will not occur until after the end of the grace period.

Pros: a. Allows Federal agencies flexibility in determining which conformity requirements apply to an action.

Cons: a. Federal agencies may be inconsistent in the application of the conformity regulations. Many agencies will likely take the easiest way out, instead of the most environmentally protective way.

b. Without specific guidance some Federal agencies may opt not to follow the conformity requirements and could potentially contribute to NAAQS violations.

Staff Recommendation The EPA Work Group recommends Options 2 & 5. Grandfather ( subject to the 5 year limitation) all actions where the conformity determination, ROD for an EIS or FONSI for an EA are completed before the end of the grace period and allow the Federal agencies to choose which conformity requirements they will meet if the emissions will not occur until after the end of the grace period. 37 Issue Paper on Harmonizing Horizon Years Issue Federal agencies have difficulty evaluating conformity for projects/ actions that extend beyond the time period covered by the SIP. Without a defined SIP, Federal agencies do not know how many emissions are allowed for their activities.

Options 1. For actions/ projects that extend beyond the time period in the SIP, allow Federal agencies to demonstrate conformity by meeting the last emission budget in the SIP.

2. In addition to option 1, allow the State and Federal agency to adopt an emission budget that applies to the emissions period of the action/ project. The State would include the emissions in the SIP applicable at the time of submission.

3. In addition to option 1, allow the State and Federal agency to adopt an emission budget that applies to the emissions period of the action/ project. However, the State would not be obligated to incorporate the budget into the new SIP for the area. If the State did not incorporate the budget into the SIP, the Federal agency would " re demonstrate" when the State adopts the SIP budget.

4. Do not revise the rules to address this issue.

Background Emissions from some projects/ actions can increased over time due to growth or other factors. As a result the maximum emissions from the project/ action could occur 10 or even 20 years in the future. Section 93.159( d)( 2) of the General Conformity Regulations requires Federal agencies to evaluate emissions for the year during which the total direct and indirect emissions are expected to be the greatest. In many cases, that year will occur beyond the time period covered by the SIP. Without a projected SIP inventory or budget for that year, the Federal agency cannot demonstrate that the action will not interfere with the SIP.

The SIP demonstrating attainment for nonattainment areas generally cover the period up to the attainment date. The inventories in those SIPs generally do not estimate the emissions beyond that date. After an area has attained the NAAQS, the State adopts a maintenance plan covering a 10 year period. In both of these cases, it is likely that Federal agencies could have projects/ actions with indirect emissions extending beyond the time period covered by the SIP. 38 Environmental Impact, Pros, and Cons of the Options 1. For actions/ projects that extend beyond the time period in the SIP, allow Federal agencies to demonstrate conformity by meeting the last emission budget in the SIP.

Pros: a. The Federal agency will have a specific budget to use in demonstrating conformity.

b. By meeting the last emission budget in the SIP, the Federal agency should not interfere with the SIP process.

Cons: a. If the action/ project emissions grow over time, it may be difficult or impossible for the Federal agency to demonstrate conformity.

b. The State may want to change the emission budget for future SIPs c. This could be perceived as an indirect cap on airport emissions.

2. In addition to option 1, allow the State and Federal agency to adopt an emission budget that applies to the emissions period of the action/ project. The State would include the emissions in the applicable SIP at the time of submission.

Pros: a. For facilities that are expected to grow over time, the State and Federal agency can factor in the growth rates when developing the budget for the area.

b. The State and Federal agencies can select an appropriate time frame for the emission budget and the Federal agency can demonstrate conformity for that time period.

c. The approach would allow Federal agencies or project sponsors to work with the States in developing line item budgets in the SIP.

Cons: a. It is not feasible to develop budgets for all Federal actions/ projects.

b. State may not know what the allowable emissions should be until the SIP is developed.

3. In addition to option 1, allow the State and Federal agency to adopt an emission budget that applies to the emissions period of the action/ project. However, the State would not be obligated to incorporate the budget into the new SIP for the area. If the State did not incorporate the budget into the SIP, the Federal agency would " redemonstrate when the State adopts an SIP budget.

Pros: a. Does not force the State to commit to a budget before it develops its SIP.

b. For facilities that are expected to grow over time, the State and Federal agency can factor in the growth rates when developing the budget for the area. 39 c. The State and Federal agencies can select an appropriate time frame for the emission budget and the Federal agency can demonstrate conformity for that time period d. The approach would Federal agencies or project sponsors to work with the States in developing line item budgets in the SIP.

Cons: a. Creates uncertainty for the Federal agencies in approving or funding a project.

b. Federal agencies may be obligated to " re demonstrate" conformity after the action is taken. ( General Conformity is normally considered a one time occurrence.)

c. Federal agencies may not be able to demonstrate conformity after the action is taken.

4. Do not revise the rules to address this issue.

Pros: a. Reduces the number of regulatory revisions.

Cons: a. Does not address the issue.

Staff Recommendation The EPA Work Group recommends Option 1 & 2. For actions/ projects that extend beyond the time period in the SIP, allow Federal agencies to demonstrate conformity by meeting the last emission budget in the SIP. In addition, allow the State and Federal agency to adopt an emission budget that applies to the emissions period of the action/ project. The State would include the emissions in the applicable SIP at the time of submission. 40 41 Issue Paper on SIP Submittal Timing Issue In demonstrating conformity, the Federal Agencies can have the State commit to include the emissions in the SIP. If the State makes such a commitment, the General Conformity Regulations require the State to submit a SIP revision to EPA within 18 months. This could be problematic in cases where the State is not required until after the 18 month period has expired.

Options 1. If a SIP is in place or require to be submitted before 18 months, allow the State 18 months to submit the required revision. However, if the emissions from the proposed action/ project will not occur until after a scheduled SIP submission, allow the State to include the emissions in the scheduled submission.

2. Retain the current 18 months for all State commitments.

Background The current regulations allow the States to agree to include the emissions in their SIP. The existing regulations require States to submit an SIP revision within 18 months if they agree to include the emissions in the SIP. Such a requirement can be problematic if the State is not required to submit a new SIP for the years covered by the conformity determination until well after the 18 month period has elapsed.

In the transition to the new 8 hour ozone NAAQS, several agencies questioned why the State had to submit a SIP with in 18 months for the conformity determination with in 18 months when the SIP for implementing the 8 hour ozone SIP was not require until later. For example, the conformity determination for the O'Hare International Airport is scheduled to be submitted in September 2005 and the State plans on committing to including the emissions in their SIP. Thus, the State would have to submit a SIP revision in March 2007 that incorporates the emissions. The attainment SIP for the nonattainment area is due in June 2007. In other words the State would be required to submit a revision to the SIP before it is required to submit the SIP.

In some cases, significant emissions from an action may not occur for several years e. g., 8 to 10 years. The SIP for the area may not cover that period of time or the State may make significant changes in the SIP before ten. For example, the State could attain the NAAQS and be designated as a maintenance area before the emissions would occur. 42 Environmental Impact, Pros, and Cons of the Options 1. If a SIP is in place or require to be submitted before 18 months, allow the State 18 months to submit the required revision. However, if the emissions from the proposed action/ project will not occur until after a scheduled SIP submission, allow the State to include the emissions in the scheduled submission.

Pros: a. The State would not have to submit a revision before the SIP is required.

b. Allows the State to address future emissions in future SIP covering the time period when the emissions will occur.

c. The action/ project emissions would not interfere with the SIP or the State's ability to attain the NAAQS, since the State can include the emissions in its SIP.

d. States would still have to comply with the 18 month SIP call if there was a SIP in place and the increase in emissions would occur before a scheduled SIP revision..

e. Removes confusion about the SIP submission requirement.

Cons: a. In some cases, it allows the State more time to submit it SIP revision. . b. States could delay their SIP submissions for a significant period of time.

c. EPA or some one would have to track the commitment to ensure that the new SIP includes the emissions.

2. Retain the current 18 months for all State commitments.

Pros: a. Makes the State submit the SIP revision in a timely manner.

Cons: a. Does not correct the problem.

Staff Recommendation The EPA Work Group recommends Option 1. If a SIP is in place or require to be submitted before 18 months, allow the State 18 months to submit the required revision. However, if the emissions from the proposed action/ project will not occur until after a scheduled SIP submission, allow the State to include the emissions in the scheduled submission. 43 Revisions Requested by Other Federal Agencies 44 45 Issue Paper on Wildland Fire Policy Issue In May 1998, EPA published its interim policy related to prescribed burning on Federal lands. The interim policy suggested that the General Conformity Rule include an alternative method for demonstrating conformity. If a Federal source complies with the requirements in the interim policy, has developed a certified smoke management plan ( SMP) through regional coordination, and includes realtime air quality monitoring, it would not be required to prepare a conformity determination. However, the certified smoke management plan must document that the plan is intended to satisfy the General Conformity determination requirements.

Options 1. Incorporate the alternative method ( interim policy compliance, certified SMP, and monitoring) for wildland fires into the General Conformity rule.

2. Do not incorporate the alternative method.

Background The memo announcing the Interim Air Quality Policy on Wildland and Prescribed Fires states: " EPA urges State and tribal air quality managers to collaborate with wildland owners and managers to mitigate the air quality impacts that could be caused by the increase of fires managed to achieve resource benefits." EPA especially urges them to develop and implement at least basic smoke management programs ( SMP's) when conditions indicate that such fires will adversely impact the public. SMP's establish procedures and requirements for minimizing emissions and managing smoke dispersion. The goals of SMP's are to mitigate the nuisance and public safety hazards ( e. g., on roadways and at airports) posed by smoke intrusions into populated areas; to prevent deterioration of air quality and NAAQS violations; and to address visibility impacts in mandatory Class I Federal areas.

" In exchange for States and tribes pro actively implementing SMP's, EPA intends to exercise its discretion not to redesignate an area as nonattainment if the evidence is convincing that fires managed for resource benefits caused or significantly contributed to violations of the daily or annual PM2.5 or PM10 standards. Rather, the EPA will call on the State or tribe to review the adequacy of the SMP in collaboration with wildland owners/ managers and make appropriate improvements to mitigate future air quality impacts.

" The policy also addresses the treatment of fire emissions to meet other Clean Air Act requirements, such as prevention of significant deterioration and conformity of Federal 46 activities with State implementation plans " Section IX. A of the interim policy addresses General Conformity and the associated Federal actions taken within a nonattainment or maintenance area.

The General Conformity rules require a Federal agency to demonstrate that its action conforms to all applicable SIP requirements and will not cause or contribute to NAAQS violations. The demonstration must occur before a project is initiated. According to the interim policy, the demonstration may be made on an annual basis for all burns within the air shed or maintenance area, or it can be made for each individual fire project conducted at the administrative unit ( Forest, Park, Refuge, etc.).

The interim policy proposed that the General Conformity rules allow an alternative method through its rulemaking. The interim policy states, " At a minimum, EPA believes that the alternate method should require a Federal agency to document that its fire projects are managed within a certified SMP. The SMP also must require regional coordination ( cooperation of all jurisdictions in an airshed) of burn plan authorization and real time air quality monitoring at sensitive receptors, when warranted, in addition to the basic program components discussed in section VI." Section VI of the interim policy discusses authorization to burn, minimizing air pollutant emissions, smoke management components of burn plans, public education and awareness, surveillance and enforcement, program evaluation, and optional air quality protection.

Environmental Impact, Pros, and Cons of the Options Error! Reference source not found.

1. Incorporate the alternative method ( interim policy compliance, certified SMP, and monitoring) for wildland fires into the General Conformity rule.

Pros: a. Encourages regional coordination as an alternative to a conformity determination.

b. Will help to establish better understanding of the smoke patterns based on real time air quality monitoring c. Allows Federal land managers to establish long term plans based on current data.

Cons: a. Requires the additional burden of real time air quality monitoring if the method is chosen.

b. A SMP may not sufficiently cover the atmospheric interactions leading to ozone and PM formation, so additional modeling may be required at the regional level.

2. Do not incorporate the alternative method.

Pros: a. Requires that prescribed burns comply with the current SIP and nonattainment area designations.

b. Does not require regional coordination for of a burn plan authorization. 47 Cons: a. Continues the burden of conformity determinations for each annual burn cycle.

b. Does not encourage regional coordination as an alternative to a conformity determination.

Staff Recommendations The EPA Work Group recommends Option 1. Incorporate the alternative method ( interim policy compliance, certified SMP, and monitoring) for wildland fires into the General Conformity rule. 48 49 Issue Paper on Geographic Limits for Offsets Issue The General Conformity Regulations allow increased emissions from a Federal action to be offset only within the same nonattainment or maintenance area. However, other offset programs, e. g., the NSR program, allow the use of offsets from adjacent nonattainment or maintenance areas of equal or higher classification. During the interagency review of the emission trading policy, EPA agreed to revise the General Conformity Regulations to be consistent with the NSR rules.

Options 1. Allow the use of offsets within the same nonattainment or maintenance area, as well as within adjacent nonattainment or maintenance areas of equal or higher classification.

2. In addition to option 1, for actions/ projects in rural, isolated nonattainment or maintenance areas, allow the Federal agency to obtain the offset from upwind source areas.

3. In addition to option 1, allow the Federal agencies to obtain offsets 200 km upwind of a facility for NOx and 100 km upwind of a facility for VOCs.

Background The offset provisions contained in the General Conformity Regulations are based on the offset provisions found under the NSR program. The General Conformity Regulations were originally crafted to be consistent with the draft NSR Regulations. The draft NSR regulations required that offsets be from the same nonattainment area. However, after the General Conformity Regulations were promulgated, the final NSR Regulations were published and allowed the use of offsets from the same area or from a adjacent area of equal or higher classification.

In the mid 1990' s several Federal agencies requested that EPA revise the General Conformity regulations to make them consistent with the NSR Rules. They reason that if local and State air quality regulations specifically allow the new source offsets from adjacent areas, then the General Conformity Regulations should also allow it. EPA agreed with their request and committed to include the provision in the next revision of the rule.

A related issue is the problem of demonstrating conformity in rural isolated nonattainment or maintenance areas. Those areas generally have low emission inventories and Federal agencies have difficulties obtaining offsets for the emissions of those actions.

Environmental Impact, Pros, and Cons of the Options 50 1. Allow the use of offsets within the same nonattainment or maintenance area, as well as within adjacent nonattainment or maintenance areas of equal or higher classification.

Pros: a. Revising language to allow offsets from adjacent nonattainment or maintenance areas of equal or higher classification would make the rule consistent with the definition in the NSR program.

b. Revising the offset provision would fulfill EPA commitment.

Cons: a. Allow offsets from adjacent areas may result in an increase of local emissions that could be toxic.

2. In addition to option 1, for actions/ projects in rural isolated nonattainment or maintenance areas, allow the Federal agency to obtain the offset from the upwind source areas.

Pros: a. Allows Federal agencies to demonstrate conformity more easily in rural transport areas Cons: a. If the pollutant reductions occur in another State, there may be difficulties implementing the offsets.

3. In addition to option 1, allow the Federal agencies to obtain offsets 200 km upwind of a facility for NOx and 100 km upwind of a facility for VOCs Pros: a. Allows the agency a greater area to obtain an offset.

Cons: a. There may be a decreased environmental benefit.

b. Reductions in upwind attainment areas can be undone by new sources in the vicinity that are not required to offset their emission increases.

Staff Recommendation The EPA Work Group recommends Option 1. Allow the use of offsets within the same nonattainment or maintenance area, as well as within adjacent nonattainment or maintenance areas of equal or higher classification. 51 Issue Paper on Revise Emergency Episode to Include Military Readiness ( Proffered by the Department of Defense)

Issue The conformity regulations do not offer an exemption for military readiness activities taken in response to war, a declared national emergency, or during military disaster relief operations unless such actions meets the requirements of the emergency episode exemption. In some cases, the Department of Defense ( DoD) must move quickly to prepare units for their mission and may not be able to conduct conformity analyses for their actions.

Options 1. Revise the definition of " Emergency" to include military readiness activities and provide an exemption for " Military Readiness Activities."

2. Do not include military readiness activities in the definition of " Emergencies."

Background SIPs or SIP revisions take into account known sources of air emissions, including DoD sources. However, response to situations such as war, national emergencies or military disaster relief operations are generally not known is advance and not included in the SIP. When faced with such emergencies, DoD may need to take new actions that will result in emissions above de minimis levels, and the emissions may not conform to the SIP. A sudden ramp up on flight training or troop training in a nonattainment area could raise questions about conformity obligations. Also, Homeland Security activities, such as round the clock air surveillance of the major cities, constitute a new mission for some airfields and could raise conformity issues if the level of flights is sufficient enough. Completion of a conformity determination may delay DoD actions.

EPA's general conformity regulations provide an exemption for actions taken in response to emergencies or natural disasters that are commenced on the order of hours or days after the emergency, 40 CFR 51.853( d)( 2) and 93.153( d)( 2). A Federal agency may extend this exemption for 6 month periods as part of a continuing response to the emergency. Id. At 51.853( e) and 93.153( e). However, that exemption may not apply to the DoD activities.

The lack of an exemption from conformity for military readiness activities may make it impossible to provide the optimal training or conduct the optimal testing that is necessary to prepare U. S. military forces for their mission. 52 Environmental Impact, Pros, and Cons 1. Revise the definition of " Emergency" to include military readiness activities and provide an exemption for " Military Readiness Activities" by amending § § 51.852 and 93.152 as follows:

" 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 subpart. Such situations include activities in response to a declaration of war; declaration of a national emergency; a mobilization or presidential Call up; and/ or any other defense or domestic emergency, including enemy attacks, civil disturbances, terrorist actions, and/ or natural disasters."

And by adding an exemption for " Military Readiness Activities" in § § 51.853( d) and 93.153( d) as follows:

( i) The term ` military readiness activities' includes all training and operations that relate to combat, and the adequate and realistic testing of military equipment, vehicles, weapons, and sensors for proper operation and suitability for combat use. The term does not include the routine operation of installation operating support functions, such as administrative offices, military exchanges, commissaries, water treatment facilities, storage, schools, housing, motor pools, laundries, morale, welfare and recreation activities, shops, and mess halls, nor the operation of industrial activities, or the construction or demolition of such facilities.

( ii) The terms ` combat' or ` combat use' include all forms of armed conflict and operational employment as well as those support functions necessary for armed conflict and operational employment, including transportation of personnel, weapons, supplies, ammunition and other military material to the vicinity of actual or potential armed conflict; intelligence gather in support of actual or potential armed conflict; command of and communications between military units; and similar activities necessary for the successful prosecution of armed conflict, whether or not conducted at the scene of actual conflict.

Pros: a. DoD would not have to conduct conformity analyses when responding to emergencies.

Cons: a. Significant emission increases could occur at military facilities without a conformity determination.

2. Do not include military readiness activities in the definition of " Emergencies."

Pros: a. Actions resulting in significant emission increases will be reviewed under the General Conformity Regulations 53 Cons: a. DoD may have to conduct conformity analyses when responding to emergencies.

Staff Recommendation The EPA Work Groups recommends Option 2. Do not include military readiness activities in the definition of " Emergencies." 54 55 Issue Paper on Protection of Classified Materials ( Prepared by the Department of Defense)

Issue The General Conformity Rule, 40 CFR Parts 51 and 93, currently contains no provision protecting classified information from public release. The Department of Defense ( DoD) recommends that such a provision be included in the planned revision of the rule.

Background Public participation is required under sections 51.856 and 93.156 of the general conformity rule. Those sections provide that at the request of any person " the Federal agency must make available for review its draft conformity determination . . . with supporting materials which describe the analytical methods and conclusions relied upon in making the applicability analysis." A newspaper notice must inform the general public of the availability of both the draft and final conformity determinations. In addition, public release of information may be required subject to the provisions of CAA § 114. For example 42 U. S. C. 7414( a)( 1) authorizes the Administrator to require persons subject to CAA requirements to maintain certain records, and section 7414( c) makes these records generally available to the public. Records can be withheld upon a satisfactory showing to the Administrator that such information would divulge trade secrets. Disclosure of confidential information by a federal employee is a criminal offense. 18 U. S. C. § 1905. However, confidential information is defined such that it only protects trade secret information from public disclosure. The rule does not extend to classified information.

" Classified information," as used in the Classified Information Procedures Act, 18 U. S. C. A. App. 3, § 1( a) means any information or material that has been determined by the United States Government pursuant to an Executive Order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security and any restricted data, as defined in paragraph r. of section 11 of the Atomic Energy Act of 1954 ( 42 U. S. C. 2014( y)( b)). " National Security," as used in this Act, means the national defense and foreign relations of the United States. Title 18 provides criminal penalties for the disclosure of classified information, which is defined as " information, which at the time of a violation of this section, is, for reasons of national security, specifically designed by a United States Government Agency for limited or restricted dissemination or distribution." 18 U. S. C. § 798( b).

EPA has included protection of classified information in other CAA programs. In the promulgation of the Risk Management Plan ( RMP) Rules, 40 CFR Part 68, the issue of classified information was addressed by EPA. In the preamble to the RMP, EPA states " It is not reasonable to interpret the CAA to require the disclosure of classified information in violation of criminal law. It has been EPA's long standing policy to interpret information disclosure provisions in its statutes as being consistent with national security law to the 56 maximum extent possible and to require such information be maintained in accordance with the originating agency's requirements. Therefore, EPA is promulgating language in § 68.150( d) to clarify its intent with respect to the disclosure of classified information in RMPs by specifically exempting classified information from the RMP except by means of a classified annex submitted to appropriately cleared Federal or state representatives with proper security clearances." 61 Fed. Reg. 31695, ( June 20, 1996).

Option 1. DoD recommends that the following paragraphs be added to the General Conformity Rule to clarify the treatment of classified information:

§ 51.852 and 93.152, Definitions " Classified Information," as used in the Classified Information Procedures Act 18 U. S. C. A. App. 3, § 1( a). means any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security and any restricted data, as defined in paragraph r. of section 11 of the Atomic Energy Act of 1954 ( 42 U. S. C. 2014( y)). ( b) " National Security," as used in this Act, means the national defense and foreign relations of the United States.

§ 51. 856( e) and 93.156( e), Public Participation Notwithstanding the provisions of § 51.856 [ or 93.156] of this part, the draft and final conformity determination shall exclude Classified Information. The disclosure of Classified Information by the DoD or other Federal agencies or contractors of such agencies shall be controlled by applicable laws, regulations, or executive orders concerning the release of Classified Information. Subject to applicable procedures to protect Classified Information from public disclosure, any information or material excluded from the draft or final conformity determination may be made available in a classified annex to the conformity determination for review by Federal and state representatives who have received the appropriate security clearances.

Staff Recommendation The EPA Work Groups recommends that we include the language that states that nothing in the revised regulations require the divulging classified information and reference the Classified Information Procedures Act. 57 Clarification of the Existing Rules 58 59 Issue Paper on Clarification of General Conformity Determination Process Issue The General Conformity rule does not contain a pollutant specific table or chart with step by step instructions on how to perform a conformity determination. The preamble to the Rule contains a table summarizing the requirements in Section 93.158( a), however, it is cumbersome and does not contain step by step instructions. Federal agencies have requested that EPA include a clear, pollutant specific step by step table or chart summarizing the regulatory requirements in the revised rule.

Options 1. Do not provide guidance either in the rulemaking package or separately from the rule making package.

2. Produce a separate guidance document that includes a step by step table or flowchart.

3. Provide the requested guidance in the preamble to the rule revision.

4. Revise the General Conformity rule to clarify the process that could include a stepby step table or chart.

Background The General Conformity regulations apply to a wide variety of Federal actions, but because EPA exempted many of the actions through the de minimis emission levels and other exemptions, most agencies do not routinely conduct determinations. Most agencies and project sponsors must start by learning the requirements before they can start their evaluations. Neither EPA's original regulatory package nor its subsequent guidance have provided a step by step chart for the Federal agencies and project sponsors to follow in evaluating their conformity requirements.

Generally Federal agencies divide the conformity evaluations process into two phases. The " applicability analysis" is used to evaluate whether the rules are applicable to the action/ project and whether or not a full determination is necessary. If a determination is required, then the " conformity determinations process" is used to demonstrate conformity with the SIP or show that the action/ project will not interfere with the State's ability to attain and maintain the NAAQS. In the applicability analysis most of the steps are consistent across all of the pollutants, while the determination process is more pollutant specific. 60 Many Federal agencies have noted that the processes for applicability analysis demonstration conformity are unclear. The General Conformity rule does not provide precise guidance with a step by step table or flowchart. However, some Federal agencies have developed internal guidance to assist their facilities.

An alternative to the step by step table might be a flowchart. The flowchart would help the Federal facility determine whether its proposed action is exempt from the General Conformity rule or requires full scale determination. However, since Federal actions cover numerous areas, a single flowchart may become cumbersome if it covered all agencies and rules.

Environmental Impact, Pros, and Cons of the Options 1. Do not provide guidance either in the rule making package or separately from the rule making package.

Pros: a. Allows other Federal agencies to develop their own interpretation of EPA's rule.

b. Does not force Federal agencies to follow strict guidance Cons: a. Does not provide the requested guidance.

b. Federal agencies will differ in their approaches to conducting conformity evaluations.

2. Produce a separate guidance document that includes a step by step table or flowchart.

Pros: a. The separate guidance document can provide more details on the process.

b. Provides the requested guidance c. Allows the guidance to be more detailed and cover a number of different situations d. Reduces the material in the Federal Register Cons: a. Guidance would not be included in the Federal Register and consequently, may not carry as much weight.

3. Provide the requested guidance in the preamble to the rule revision.

Pros: a. Provides the requested guidance b. Guidance is published in the Federal Register Cons: a. Guidance would have to be more general in nature.

b. Would significantly increase the Federal Register notice length 61 c. Would be more restrictive than guidance and might hamper innovative solutions.

4. Revise the General Conformity rule to clarify the process that could include a step bystep table or chart.

Pros: a. Provides the requested guidance b. Guidance is published in the Federal Register Cons: a. Guidance would have to be more general in nature.

b. Would significantly increase the Federal Register notice length.

Staff Recommendation The EPA Work Group recommends Options 2 & 3. Produce a separate guidance document that includes a step by step table or flowchart and provide the guidance in the preamble to the rule revision, if it can be done without too much shorthand.

The work group discussed the use of an expert system to provide the guidance, but did not make a recommendation on its use. 62 63 Issue Paper on Actions Affecting Multiple Nonattainment/ Maintenance Areas Issue Some Federal actions may affect more than one nonattainment or maintenance area. The current regulations established de minimis emission levels and offset limitations based on a single nonattainment or maintenance area. The regulations need to clarify how Federal agencies can evaluate conformity if the action/ project involves more than one nonattainment or maintenance area.

Options 1. Clarify in the regulations that conformity is evaluated separately for each nonattainment/ maintenance area.

2. Revise the regulations so that actions/ projects with emissions in adjacent nonattainment/ maintenance areas must be considered as one action/ project meeting the requirements of the higher classification. Actions/ projects with emissions in non adjacent areas would have separate evaluations for each area.

3. Do not clarify the regulations, but keep the existing policy.

4. Revise the regulation to require an evaluation for the whole project even if the project results in emissions in more than one area.

Background The emissions from most Federal Actions/ projects occur within one nonattainment or maintenance area. However, some Federal actions or projects can extend across nonattainment or maintenance area boundaries, causing emissions from an action or project to impact more than one area. For example, Federal facilities ( e. g., some national parks and military installations) or airports may be located in multiple counties and even in multiple States. Part of the facility may be located within a nonattainment or maintenance area and the rest may be in another nonattainment, maintenance, or attainment area. In addition, some Federal actions/ projects are regional and even national in scope. The current regulations do not specify how actions/ projects affecting multiple areas should be addressed.

Current EPA guidance ( e. g., for the Mexican motor carrier case) suggests that Federal agencies should treat emissions in each nonattainment and maintenance area as separate actions/ projects. This policy was based on the following factors:

a. The General Conformity Regulations exempts actions/ projects below set de minimis levels. The de minimis levels are based upon the type and classification of 64 the nonattainment or maintenance area. Therefore, they can vary between adjacent areas.

b. Section 176( c)( 5) of the CAA, which was added in 1995, states that conformity shall apply only to a nonattainment or maintenance area.

c. SIPs are developed on an area basis.

d. The current General Conformity Regulations limit the geographic area for offsets to the same nonattainment or maintenance area. Although the revision of the regulations will likely expand that area to adjacent nonattainment areas of equal or higher classification, the requirements for actions/ projects, which cause emissions in more than one area, are not clear.

Environmental Impacts, Pros, and Cons of the Options 1. Clarify in the regulations that conformity is evaluated separately for each nonattainment/ maintenance area..

Pros: a. Codifies EPA policy.

b. Keeps a simple approach for most conformity evaluations.

c. Ensures that conformity is consistent with the physical conditions of each different nonattainment area.

Cons: a. Allows some projects to split emissions between nonattainment areas allowing the project/ action to fall below the de minimis levels.

2. Revise the regulations so that actions/ projects with emissions in adjacent nonattainment/ maintenance areas must be considered as one action/ project meeting the requirements of the higher classification. Actions/ projects with emissions in non adjacent areas would have separate evaluations for each area.

Pros: a. Keeps projects that cross area boundaries from splitting emissions.

b. Areas affected by regional or national actions/ projects are treated separately.

c. Provides regulatory guidance d. Keeps simple approach for most conformity evaluations.

e. Ensures that conformity is consistent with the physical conditions of each different nonattainment area.

Cons: a. Makes the regulations more complex. 65 3. Do not clarify the regulations, but keep the existing policy Pros: a. Avoids codification of the policy in case management wants to make policy revisions.

b. Keeps simple approach for most conformity evaluations.

c. Ensures that conformity is consistent with the physical conditions of each different nonattainment area.

Cons: a. Allows some projects to split emissions between nonattainment areas so as to fall below the de minimis levels b. Does provide clear direction for impacts in multiple areas.

4. Revise the regulations to require an evaluation for the whole project even if the project results in emissions in more than one area.

Pros: a. Requires that all the emissions from the action be considered Cons: a. Would be very difficult to implement, particularly for actions that have national impacts.

b. May be inconsistent with § 176( c)( 5).

Staff Recommendation The EPA Work Group recommends Option 1. Clarify in the regulations that conformity is evaluated separately for each nonattainment/ maintenance area. 66 67 Issue Paper on Coverage of Construction Emissions Issue Construction emissions are considered to be part of the " total direct and indirect" emissions from a project and must be considered in a conformity evaluation. Other programs such as Transportation Conformity and New Source Review ( NSR) generally do not require construction emissions to be included in the project review.

Options 1. Exempt construction from consideration under the General Conformity rule, but require Federal agencies to comply with local and State control measures for construction emissions.

2. Retain the current provision so that the General Conformity rule continues to apply to construction emissions.

3. Retain the provision for longer construction projects ( e. g., 1 or 2 years) and exempt shorter construction projects provided that all emission control requirements for construction are met.

4. Exempt construction emissions from maintenance areas and nonattainment areas classified as moderate or below, while retaining the current provision for nonattainment areas classified as higher than moderate.

5. If the State adopts an emission budget for the Federal installation, or other installation subject to the conformity regulations, the State could exempt the construction emissions.

6. Exempt emissions from " clean" construction equipment.

7. Exempt offsite emissions associated with construction Background Although the General Conformity Regulations do not specifically mention construction emissions, they implicitly require that Federal agencies include emissions from construction activities in the conformity evaluation. The definitions of both direct emissions and indirect emissions encompass all emissions that are caused by the action. Therefore, when the Federal action includes, or results in construction projects, the emissions for the construction activities must be included in the total direct and indirect emissions of the action. 68 In the sister Transportation Conformity program ( 40 CFR 93.100 149), construction emissions are generally excluded from determinations. The Transportation Conformity Regulations require the consideration of PM 10 from construction related fugitive dust only in PM 10 nonattainment and maintenance areas where the SIP identifies those emissions as a contributor to the nonattainment problem. In such a case, the regional PM 10 emissions analysis must consider the construction related fugitive PM 10 emissions and account for the level of construction activity, the fugitive PM 10 control measures in the implementation plan, and the dust producing capacity of the proposed activities. Construction emissions do not have to be included in carbon monoxide and PM 10 hotspot analyses ( i. e., estimations of future localized CO and PM 10 concentrations) because the emissions are temporary. Otherwise, the Transportation Conformity rule only requires that projects comply with the PM 10 emissions from the construction activities and/ or normal use and operation associated with the project. Additionally, the NSR program does not require the consideration of construction emissions.

Many Federal agencies have argued that construction emissions are excluded from consideration under the Transportation Conformity Regulations and should be treated similarly under the General Conformity Regulations. Furthermore, Federal agencies pointed out that the emissions from construction are not included in some SIPs, so they should not factor into the agencies' demonstrations of conformity to those SIPs. Finally, the agencies argued that construction emissions are temporary and not long term contributors to the National Ambient Air Quality Standards ( NAAQS) violations and are therefore not truly reflective of a completed project's contribution to a nonattainment/ maintenance area's emissions budget.

The General Conformity Regulations covers a wide variety of actions and projects. Therefore, the rules were drafted to be general enough to cover the differing circumstances. While a majority of Federal actions/ projects do not involve long term construction activities, some do. For example, increasing the depth of the navigable channel in New York Harbor is expected to take 7 to 10 years to complete. In addition, the States and local agencies can reasonably anticipate and plan for construction emissions from highway and mass transit activities based upon regional transportation plans and historic activities. However, the State and local agencies may not be aware of Federal activities requiring construction or may not be easily able to estimate the emissions from the construction. Therefore, the SIPs may not adequately account for the emissions from those activities.

In drafting and adopting an SIP, States and local agencies generally allow for some emissions from construction activities either in a construction emission category or as part of another category, such as off road mobile sources. The emission estimates for these categories are usually based upon historic activity levels or on projected future activity levels. Therefore, if the State or local agency knows about the future actions/ projects at the Federal facility at the time the SIP is being developed, the construction emissions can be incorporated into the SIP. If the construction activities comply with State and local requirements, those emissions can then be " presumed to conform." 69 Environmental Impact, Pros, and Cons of the Options 1. Exempt construction from consideration under the General Conformity rule, if the Federal agencies to comply with local and State control measures for construction emissions.

Pros: a. From an administrative viewpoint, exempting construction emissions streamlines the regulation by not requiring consideration of emissions.

b. Keeping the requirement to make construction emissions subject to local and State control measures ensures that the Federal sponsor would comply with all PM and dust control measures in the SIP. ( In many cases on non federal land, construction emissions are already subject to State/ local regulations.)

Cons: a. The construction emissions from a project would not be considered.

b. Some large construction projects could avoid conformity determinations.

2. Retain current provision so that the General Conformity rule continues to apply to construction emissions.

Pros: a. This approach ensures that all emissions are considered during a conformity determination and therefore helps to prevent violations of the NAAQS.

Cons: a. The requirement to consider construction emissions in conformity determinations is perceived as burdensome and inequitable to Federal agencies because these emissions are exempt under other programs.

3. Retain the provision for longer construction projects ( e. g., 1, 2, 3, or 5 years) and exempt shorter construction projects provided that all emission control requirements for construction are met.

Pros: a. Smaller, short term construction projects eliminate the necessity of a conformity determination.

b. Larger projects would still have to meet the conformity requirements.

Cons: a. Larger projects would not be exempt.

b. Short term construction projects with significant emissions would not be reviewed.

c. This option would encourage construction activities to be shortened, which could result in higher emission levels over a shorter period of time.

4. Exempt construction emissions for maintenance areas and nonattainment areas classified as moderate or below, while retaining the current provision in nonattainment areas classified as higher than moderate. 70 Pros: a. Construction emissions in more serious nonattainment areas would continue to be reviewed.

b. Projects in less serious nonattainment areas would not have to include construction emissions. Thus the number of projects in those areas that need conformity determinations would decrease.

Con: a. Major projects in less serious nonattainment areas may not be reviewed.

b. Adds more confusion to the regulations.

c. Since the de minimis emission levels for the lower classified nonattainment areas are 100 tons per year, many construction projects are already exempt.

5. If the State adopts an emission budget for the Federal facility, or other facilities subject to the conformity requirements, the State could exempt the construction emissions. Otherwise the current requirements to review construction emissions would be retained.

Pros: a. The conformity process for facilities with emission budgets would be streamlined.

b. With the budget process, States would know about expected construction projects and could account for the emissions in the SIP.

c. Unexpected projects that could interfere with the SIP would still have to meet the conformity requirements.

Cons: a. The public may not get to review the construction emission during the project level review for General Conformity.

b. For Federal actions not covered by facility budgets and for States that require the review, construction emissions would still be reviewed.

c. Long term ( 5 or more years) construction project emissions would not be reviewed.

6. Exempt emissions from " clean" construction equipment.

Pros: a. Would encourage Federal facilities to require the use of clean equipment for construction.

b. eliminate the need to review the construction emissions using low emission equipment.

Cons: a. Constructions emissions would not be reviewed.

b. The Agency would need to identify " clean" equipment. 71 7. Exempt offsite emissions associated with construction.

Pros: a. Allows materials to be delivered to the site from the most economical location.

b. Most offsite mobile source emissions will be covered by the Transportation Conformity program.

Cons: a. Some Federal projects may involve significant offsite emissions.

Staff Recommendation The EPA Work Group recommends options 2 & 5. Retain current provision so that the General Conformity rule continues to apply to construction emissions. If the State adopts an emission budget for the Federal facility, or other facilities subject to the conformity requirements, the State could exempt the construction emissions. Otherwise the current requirements to review construction emissions would be retained. 72 73 Issue Paper on Offsite Mobile Source Emissions Issue Federal sources have asked EPA to clarify ( 1) what constitutes an offsite emission, ( 2) who should be allowed to take credit for an offsite emission reduction, and ( 3) under which program ( i. e., general conformity or transportation) the emission reductions are credited. In addition, agencies have asked which emissions qualify for exemption, and which non exempt emissions the MPO can include in a transportation conformity or transportation improvement plan.

Options 1. Maintain the existing language and issue a guidance document clarifying the relationship between general conformity and transportation conformity.

2. Revise the applicability section of the regulation ( 93.153) to clarify that highway and mass transit projects subject to the transportation conformity regulations are exempt from the General Conformity Regulations and that increased emissions not covered by those projects must be included in total direct and indirect emissions for a general conformity evaluation. In addition, include a new section to clarify how mitigation measures involving offsite emissions will be handled.

3. Remove the requirement that offsite mobile source emissions be included in the general conformity evaluation.

Background The existing General Conformity Regulations include some and exempt other offsite mobile source emissions. The regulations exempt emissions from actions subject to the Transportation Conformity Regulations while requiring emissions generated from motor vehicle trips to and from a project site are to be considered indirect emissions and included in the conformity evaluation. For example, airport expansion projects must take into consideration increased travelers driving to and from the airport, rather than just increased emissions that occur on airport property, unless improved access to the airport is included in a conforming transportation plan or transportation improvement plan.

One way of demonstrating that the offsite motor vehicle emissions conform to the SIP is by including the emissions in an MPO analysis of the conforming regional transportation plan and the transportation improvement plans. The Federal agency demonstrating conformity can rely on the MPO's findings and use them to demonstrate conformity with the SIP. Several Federal agencies have asked that the revised regulations clarify which emissions qualify for exemption, as well as when those emissions have to be accounted for, so that they can use the MPO's analysis to demonstrate conformity. For example, many Federal installations would be considered regionally significant under the 74 Transportation Conformity Regulations and their emissions are included in regional modeling.

Federal agencies have argued that since offsite mobile source emissions are already accounted for in the regional emissions analysis performed by the MPO, they are covered under the Transportation Conformity rule. Furthermore, Federal agencies believe that considering offsite mobile source emissions under both Transportation Conformity and General Conformity constitutes " double counting."

EPA general guidance on offsite mobile sources not covered by the Transportation Conformity Regulations states that commuting and other trips to and from the site are considered as indirect emissions and must be included if they are reasonably foreseeable and the agency maintains control over them through a continuing program responsibility. For example, the increased emissions caused by additional employee and passenger vehicles commuting to the airport as a result of an airport expansion would be considered indirect emissions resulting from the expansion. In this example, if the Federal Highway Administration ( FHWA) funded airport access improvements as part of the expansion, then the emissions from the traffic to and from the airport would be covered under Transportation Conformity and exempt under General Conformity. If, on the other hand, the access improvements are not funded by FHWA, but the MPO includes the additional traffic in its modeling to demonstrate compliance with the mobile source emission budget, then the airport can use the MPO's determinations as a demonstration of conformity for that portion of the increased emissions.

Federal agencies have also asked EPA to clarify how an agency can take credit for offsite transportation control measures implemented to offset onsite emission increases. For example, if a DoD fleet switches to cleaner fuels, who can take credit for the offsets  the Federal facility that obtains the offsets for the reduction or the MPO? EPA has generally not taken a position on the ownership of the credits, but rather, has stated that it is up to the State and Federal agency to determine who owns the credits.

Environmental Impact, Pros, and Cons of the Options 1. Maintain the existing language and issue a guidance document clarifying the relationship between general conformity and transportation conformity Pros: a. Provides guidance without changing the regulations.

b. The guidance can be more specific than the regulation Cons: a. Guidance would not carry as much weight as the regulation.

b. Some confusion on the relationship between general conformity and transportation conformity may still occur.

2. Revise the applicability section of the regulation ( 93.153) to clarify that highway and mass transit projects subject to the transportation conformity regulations are exempt from 75 the General Conformity Regulations and that increased emissions not covered by those projects must be included in total direct and indirect emissions for a general conformity evaluation. In addition, include a new section to clarify how mitigation measures involving offsite emissions will be handled.

Pros: a. Provides clarity on the inclusion of the emissions in the general conformity evaluation.

b. Provides assurance that the offsite mitigation measures can be used to offset increased onsite emissions.

Cons: a. Regulation may not be as flexible as a guidance document and may not cover all circumstances.

3. Remove the requirement that offsite mobile source emissions be included in the general conformity evaluation.

Pros: a. Provides a clear distinction on which emissions must be included in the general conformity evaluation.

b. Reduces burden on Federal agencies Cons: a. Significant emissions from Federal actions may not be subject to either General Conformity or the Transportation Conformity Regulations.

Staff Recommendation The EPA Work Group recommends Option 1. Maintain the existing language and issue a guidance document clarifying the relationship between general conformity and transportation conformity. 76 77 Issue Paper on Response to Emergency Episodes Issue The General Conformity Regulations allows a 6 month exemption for actions in response to emergencies such as terrorist attacks, hurricanes and earthquakes. The Federal agency can extend the exemption period for up to 6 months if it makes a written determination stating that it is impractical to prepare the conformity analysis, which would otherwise be required, and that the action cannot be delayed due to overriding concerns for public health and welfare, national security interest or foreign policy commitments. There are no requirements for EPA or State review or comment on the determination nor is the Federal agency required to notify the public about the determination. The regulations do not specify how many 6 month extensions the Federal agencies can use.

Options 1. Include a requirement for a 15 day EPA/ State review of a draft determination and require the Federal agency to publish a notice within 30 days of making the determination.

2. Specify the maximum number of 6 month extensions for which a Federal Agency can request exemption ( only 1 extension for total of 1 year exemption, or a maximum of 3 extensions for 2 years exemption, etc.).

3. Do not revise the regulations.

Background The only time that the extension of the 6 month exemption has been used was in New York following the terrorist attack of September 11, 2001. The Federal agencies did not know what they had to do to invoke the provision and EPA and the State agencies had to request permission to review the determination. In addition, the public was not given notice of the determination.

In responding to the shutdown of the Port Authority Trans Hudson ( PATH) line between New Jersey and New York, the Federal agencies sponsored a ferry service across the Hudson River. The service lasted 2 years until the mass transit service was restored. The Federal agencies continued with a series of 6 month extensions of the exemption.

Environmental Impact, Pros, and Cons 1. Include a requirement for a 15 day EPA/ State review of a draft determination and require the Federal agency to publish a notice within 30 days of making the determination. 78 Pros: a. Allows the EPA and State agencies to comment on the draft determination.

b. Provides notice to the public about the determination.

c. Is not overly restrictive on the Federal agency Cons: a. Delays the determination by requiring time for review and comment.

b. Does not allow the public to comment on the determination.

2. Specify the maximum number of 6 month extensions for which a Federal Agency can request exemption ( a maximum of 2 extensions for 1 year, a maximum of 4 extensions for 2 years, etc.).

Pros: a. Prevents agencies from indefinitely delaying a conformity determination.

b. Allows Federal agencies a reasonable time to respond to emergencies.

Cons: a. Limits flexibility of Federal agencies in responding to an emergency 3. Do not revise the regulations.

Pros: a. Allows flexibility to agencies responding to emergencies.

Cons: a. Does not address the confusion in the existing regulations.

b. Could allow agencies to delay the conformity evaluation indefinitely Staff Recommendation The EPA Work Group recommends options 1 & 2. Include a requirement for a 15 day EPA/ State review of a draft determination and require the Federal agency to publish a notice within 30 days of making the determination. In addition, specify the maximum number of 6 month extensions for which a Federal Agency can request exemption ( a maximum of 2 extensions for 1 year, a maximum of 4 extensions for 2 years, etc.). 79 Issue Paper on Definition of Terms Issue The General Conformity Regulations uses several terms which are not defined in the regulations. In addition, Federal agencies have used different terms to describe activities related to the conformity determinations. As a result, communication between agencies has been hampered and the lack of definitions has created confusion about the implementation of the regulation.

Options 1. Add the definition of the terms listed in appendix 1 to the regulations.

2. Do not define additional terms in the regulations Background The General Conformity Regulations define a number of terms in § 93.152. Even though " conformity determination" is used in the regulations it is not defined in § 93.152. This has lead to some confusion in implementing the regulations. Some agencies have used other terms to describe portions of the conformity determination process such as " applicability analysis" to describe the process to determine if a full conformity determination is required. Other agencies have used other terms to describe the process. Stakeholders and the general public become confused when different terms are use to describe the same process.

Stakeholders have proposed that we define or redefine the following terms:

Applicability analysis Conformity determination Conformity evaluation Emergency Emission budget Emission inventory Exempt actions Offsets Mitigation measure Presumed to conform Reasonably foreseeable emissions ( should apply to direct as well as indirect emissions.)

Environmental Impact, Pros, and Cons of the Options 1. Add the definition of the terms listed in appendix 1 to the regulations 80 Pros: a Reduce confusion and improve communications Cons: a. Some agencies may have to revise their terms.

2. Do not define additional terms in the regulations Pros: a. Allows agencies to use their own terms Cons: a. Continue hampering communications and adds to confusions in implementing the regulations.

Staff Recommendation The EPA Work Group recommends Option 1. Add the definition of the terms listed in appendix 1 to the regulations 81 Index A: A List of Acronyms AERC Airport Emission Reduction Credit CAA Clean Air Act DoD Department of Defense EPA Environmental Protection Agency EA Environmental Analysis EIS Environmental Impact Statement FAA Federal Aviation Administration FONSI Finding of No Significant Impact MPO Metropolitan Planning Organization NAAQS National Ambient Air Quality Standards NEPA National Environmental Policy Act NOx Nitrogen Oxides NSR New Source Review PATH Port Authority Trans Hudson PM Particulate Matter PSD Prevention of Significant Deterioration RMP Risk Management Planning ROD Record of Decision SIP SIP State Implementation Plan SMP Smoke Management Plan SO2 Sulfur Dioxide VOC VOCs Volatile Organic Compounds