General Conformity Training Module 2.1: Applicability Process

Words that are shown in bold and italics are defined in the Glossary.

See Figure 3 for a flowchart showing the applicability process

2.1.1 Prohibition and geographic areas

Section 176(c) of the Clean Air Act (CAA) prohibits federal agencies from taking actions that initiate or cause emissions of criteria or precursor pollutants to originate within nonattainment and maintenance areas unless the emissions from the actions conform to the applicable implementation plan (SIP/TIP/FIP) for the nonattainment or maintenance area. Based on monitored air quality data and other information, EPA, states and tribes identify specific areas that do not meet a new or revised national ambient air quality standard (NAAQS). For such areas, EPA designates those areas as Nonattainment, Attainment or Unclassifiable/Attainment. For areas designated nonattainment for certain pollutants (e.g., ozone and PM_2.5), EPA will classify such areas based on the severity of the pollution problem (e.g., Marginal, Moderate, Extreme, Severe or Serious ozone nonattainment, Moderate or Serious PM nonattainment). EPA publishes the designations and classifications by state and geographic area in subpart C of 40 CFR Part 81. When the air quality in a nonattainment area improves and the area is meeting the NAAQS, the state or tribe may develop a plan under CAA section 175A to maintain the NAAQS and the EPA may approve the redesignation of the area from nonattainment to attainment. These areas are known as maintenance areas.

The CAA recognizes that ozone and its precursor pollutants can be transported over long distances and can impact large regions. To address that concern, the CAA establishes a single transport region for ozone under CAA section 184 and allows for any other transport region established for ozone that is consistent with the CAA. The Ozone Transport Commission was established to coordinate the control of ozone precursors in the ozone transport regions. Of particular concern is the northeast portion of the United States, from Northern Virginia to New England. At present, EPA has not approved any other ozone transport regions. The General Conformity regulations recognize the potential need to have consistent pollution control requirements throughout the ozone transport region and thus establishes more restrictive de minimis emission threshold rates for maintenance areas and the lower classification nonattainment areas within ozone transport regions.

Section 176(c)(5) of the CAA limits the application of the conformity regulations to emissions within nonattainment and maintenance areas. Therefore, pollutants caused by a federal action and emitted within designated Attainment areas (not maintenance areas), Unclassifiable/Attainment areas or otherwise undesignated areas (e.g., within the waters of the Outer Continental Shelf or OCS) are not subject to the requirements of the General Conformity regulations.

2.1.2 De minimis emission threshold rates

In promulgating the General Conformity regulations, EPA recognized that the many entities of federal government take thousands of actions every year, most of which do not result in significant increases in emissions in nonattainment or maintenance areas. Therefore, EPA promulgated de minimis emission threshold rates (tons per year) for each of the criteria pollutants and their precursor pollutants. If the total direct and indirect emissions from the action are below the de minimis threshold rates, the emissions are exempt from the provisions of the General Conformity regulations. The de minimis threshold rates are based on an area’s designation (i.e., nonattainment or maintenance) and classification (e.g., Marginal, Moderate etc.) and are described in the De minimis Table.

If a federal agency determines that its action will result in total direct and indirect emissions within a nonattainment or maintenance area, it must compare the projected emissions to the de minimis threshold rates for that area. The total direct and indirect emissions reveal the annual net emission increases caused by the action that would occur in each future year within the nonattainment or maintenance area, where such emissions would not occur except for the action. The emissions must be reasonably foreseeable at the time the conformity determination is made. For indirect emissions the federal agency also must be able to practicably control the emissions based upon the agency’s continuing program responsibility.

The total of direct and indirect emissions is used to identify any emissions that would equal or exceed the relevant de minimis threshold rates. The action cannot be segmented or parsed into separate actions to create several smaller projects with emissions that are less than the de minimis threshold rates for the purpose of avoiding the requirement for a conformity determination.

2.1.3 Presumed to conform

In addition to the activities in EPA's list of presumed to conform activities , individual federal agencies are permitted to develop their own list of activities that are presumed to conform. The list must meet specific criteria and undergo the public review process set forth in the General Conformity regulations. Basically, a federal agency must show that the emissions from that type, size and scope of action would be below the de minimis threshold rates or would otherwise conform with the applicable implementation plan. The list can be area specific and does not have to apply to the entire country. An agency taking an action that includes several of the activities included on their own list is allowed a limited number of activities to claim as a presumed to conform. A provision added to the regulations in the 2010 revisions of the General Conformity regulations allows states to develop its own list of activities that are presumed to conform in that state or in a part or portion of that state. See 40 CFR section 51.851 and 40 CFR section 93.151 (27 pp, 287 K, About PDF).

2.1.4 Other exemptions

Since agencies of the federal government make numerous decisions and take numerous actions every day and very few have the potential to interfere with a state or tribe's ability to attain and maintain the NAAQS in nonattainment or maintenance areas, EPA’s General Conformity regulations list a number of categories of actions that are presumed to conform, have presumed de minimis emissions, or have emissions that are not reasonably foreseeable (see Table 2 below).

Figure 3. Applicability Analysis

(Click on links to relevant sections)

Figure 3. Applicability Analysis

Table 1. De minimis Emission Levels

Table 2: EPA Exempt Actions

Sub Section of 93.153	Exemption	Comment
a.	Transportation plans, programs and projects	Conformity for these actions are covered under the Transportation Conformity Regulations.
c.1.	Total emissions below the de minimis levels	See Table I for the de minimis emission levels
c.2.	Actions which would result in no emissions increases in non-attainment or maintenance areas
c.2.i.	Judicial and legislative proceedings
c.2.ii.	Continuing and recurring activities such as permit renewals where activities conducted will be similar in scope and operations to activities currently being conducted	Conformity evaluation may be required if the size, scope or frequency of the activity increases.
c.2.iii.	Rulemaking and policy development and issuance	The process of rulemaking or policy development is exempt however if the resulting rule or policy increases emissions above the de minimis levels in any non-attainment or maintenance area then a conformity determination is required for the rule or policy. See the ruling from the US 9th Circuit Court of Appeals.
c.2.iv.	Routine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails and facilities.
c.2.v.	Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, and the training of law enforcement personnel
c.2.vi.	Administrative actions
c.2.vii.	The routine, recurring transportation of materials and personnel	The quantity and frequency of the activity remains constant.
c.2.viii.	Routine movement of mobile assets
c.2.ix.	Maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and disposal will be at an approved disposal site.	Increasing the depth or width of the channel requires an evaluation.
c.2.x.	Future activities similar in scope to current activities
c.2.xi.	Granting licenses and leases for activities similar to ongoing activities
c.2.xii.	Planning, studies, and provision of technical assistance	This is similar to rulemaking and policy development; planning, studies and provisions are exempt, however, if the following actions by the federal agency may require a conformity determination.
c.2.xiii.	Routine operation
c.2.xiv.	Transfers of ownership, interests, and titles in land, facilities, and real and personal properties, regardless of the form or method of the transfer
c.2.xv.	Designation of empowerment zones, enterprise communities, or viticulture areas
c.2.xvi.	Actions by any of the federal banking agencies or the Federal Reserve Banks
c.2.svii.	Actions by the Board of Governors of the Federal Reserve System or any Federal Reserve Bank necessary to effect monetary or exchange rate policy
c.2.xviii.	Actions that implement a foreign affairs function of the United States
c.2.xix.	Actions associated with transfer of land, facilities, title, and real properties through an enforceable contract or lease agreement where the delivery of the deed is required to occur promptly after a specific, reasonable condition is met
c.2.xx.	Transfer of real property, including land, facilities, and related personal property from one federal entity to another
c.2.xxi.	Actions by the Department of the Treasury to effect fiscal policy and to exercise the borrowing authority of the United States
c.2.xxii.	Air traffic above the mixing height for the area	The federal agency must use the mixing height specified in the SIP/TIP. If no mixing height is specified, the federal agencies can use the 3,000 feet above ground level as a default mixing height unless the agency demonstrates that a different height is appropriate.
c.3.	Actions where the emissions are not reasonably foreseeable
c.3.i.	Initial outer continental shelf lease sales
c.3.ii.	Electric power marketing
c.4.	Actions which implement a decision to conduct or carry out a conforming program
d.1.	NSR or PSD permitted emissions	Both major and minor sources are now exempt. A Title V operating permit does not exempt a facility from conformity requirements. However, if the action is covered by the permit, the federal agency may be able to show the emissions are covered in the SIP/FIP in the conformity demonstration.
d.2.	Response to emergency events or natural disasters	Response to the event or disaster in the first 6 months does not require any conformity evaluation. The exemption can be extended in 6-month increments, provided the federal agency makes a determination that it is impractical to prepare the conformity analyses due to concerns for public health and welfare as well as national security and foreign policy commitment. The exemption cannot be extended beyond 2 years after the event or disaster.
d.3.	Research or training that causes no detrimental effects on the environment
d.4.	Action as a result of an environmental regulation
d.5.	Emissions resulting from Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) actions; must comply with PSD/NSR program or otherwise be exempt from other environmental regulations under provisions of CERCLA