General Conformity Training Module 2.2: Emissions and Review

2.2.1 Estimating projected future emissions caused by the project

Direct emissions are caused by activities included in the project's scope of work, such as the emissions during the construction phase of a project. Indirect emissions are also caused by activities but may be distant from the main focus of the project in either time or space. For example, emissions from construction workers' vehicles while commuting to/from the project area are indirect emissions. Both direct and indirect emissions must be reasonably foreseeable, meaning that the emissions can be estimated based on acceptable techniques using reasonable assumptions about the characteristics of the source, type and quantity of fuel used, the type of equipment required, and emissions factors for each source unit.

For indirect emissions, the emissions must be of the type that "the agency can practicably control" and for which "the agency has continuing program responsibility." A continuing program responsibility means that the agency has an oversight role over the activities generating the emissions or has the ability to limit the emissions. For example, an agency would have the ability to limit the emissions by specifying requirements in a contract or by conditioning a permit.

The annual “total direct and indirect emissions” is defined as the annual net emissions increase caused by the project considering all the emission increases and decreases that are expected to occur. For example, if a federal agency intends to modify the operations at a facility with a different type of operation, the annual total direct and indirect emissions would be the difference in emissions when comparing the two methods of operation. The portion of emissions which are exempt or presumed to conform are not included in the annual “total of direct and indirect emissions.”

The annual de minimis emissions rates are based upon the annual net emissions increase generated by the project. Therefore, the annual total direct and indirect emissions include all of the annual emissions, even if some of the emissions occur outside of the season associated with the pollutant. The federal agency may choose to focus emissions mitigation or offsets to the months where such emissions are more likely to impact the NAAQS.

The annual net emissions increases are compared to the de minimis rates to determine if the project requires the support of a General Conformity determination.

Segmenting a project into multiple smaller actions to avoid the work and expense of preparing a General Conformity determination is not allowed. This is an approach intended to allow a more favorable comparison to the de minimis rates than if the project activities were kept together. For example, an agency shall not separate the construction phase into a separate action, when the construction is obviously required to meet the intended goals of the larger project.

EPA exemptions. If a project scope of work includes one or more activities that are exempt as established by the EPA within the General Conformity regulations, those emissions should be excluded from the calculation of the annual total net emissions.

EPA presumptions of conformity. If a project scope of work includes one or more activities that are presumed to conform as established by the EPA within the General Conformity regulations, those emissions should be excluded from the calculation of the annual total net emissions.

State or Tribal presumptions of conformity. If a project scope of work includes one or more activities that are presumed to conform as established by the State or Tribe in its General Conformity applicable implementation plan revision, the federal agency must coordinate with the appropriate air agency or government office and follow their guidelines on claiming such presumptions before excluding the emissions from the calculation of the annual total net emissions.

Agency-specific presumptions of conformity. If a project scope of work includes one or more activities that are presumed to conform as established by the agency in its list of presumed to conform activities, which is published in the Federal Register, the federal agency must follow the provisions in the Federal Register notice on when and how many activities qualify as presumptions of conformity before excluding the emissions from the calculation of the annual total net emissions.

The emissions from all remaining activities would be included in the calculation of the annual net emissions and compared to the de minimis rates.

2.2.2 Requirements for a revised General Conformity evaluation

A General Conformity evaluation reflects the emissions and determines conformity for the project at hand and is based on the project's scope of work available at the time of the evaluation--a snapshot in time. If the project scope of work changes, the General Conformity evaluation may need to be updated and repeated.

If a change or modification is made by the agency to the original scope of work, or other circumstances change the original scope of work after the General Conformity evaluation is complete, and that change causes emissions that would change the conclusion of the original General Conformity evaluation a new evaluation may be required. For instance, if the change would increase the annual rate of emissions to equal or exceed de minimis, whereas the original evaluation showed de minimis emissions, a new General Conformity evaluation would be necessary; or if the change affects the scope in a manner that would disqualify the agency's claim for an exemption or presumption of conformity, a new evaluation may be required.

Otherwise, the agency must maintain a continuing program to implement the project. This means the agency must implement the project within five years of the agency's decision to proceed with the project (e.g., the EIS ROD or EA FONSI) to ensure that the conditions used to demonstrate conformity have not changed. If the agency does not start the project within five years, it is possible that the status of the nonattainment or maintenance area could have changed or emissions offsets cannot be obtained or mitigation agreements are not initiated or fail. In addition, if implementation of the project pauses for more than 18 months, the General Conformity evaluation may need to be repeated.

2.2.3 Special Situations

Prescribed fires under EPA regulations are presumed to conform only if they are identified and conducted in accordance with a smoke management plan. These plans must meet the requirements of EPA's Air Quality Policy on Wildfires and Prescribed Fires.

For the most part, water and wastewater projects funded by the EPA do not require a conformity evaluation if the project is not increasing the capacity of the facility or if the projected growth served by the project is consistent with the growth estimates in the applicable implementation plan.

In the General Conformity regulations, EPA provides an exemption for the process of rulemaking. However, that exemption does not apply to the rule itself. Therefore, if the substance of the rule would cause an increase in emissions within nonattainment or maintenance areas, then the emissions caused by implementation of the rule may need to be evaluated for conformity.

2.2.4 Documentation of de minimis finding

The General Conformity regulations do not require any official reporting or public participation for claims of exemptions or presumptions of conformity specifically listed within the General Conformity regulations, or presumptions included on the agency's own list of presumed to conform activities, or those listed by a State or Tribe in their General Conformity implementation plan revision.

Although not required by the General Conformity regulations, many federal agencies have found it helpful to include in their files a “record of de minimis finding” to document the evaluation of the project's emissions that are below the de minimis rates or is otherwise exempt or presumed to conform. Such documentation is most helpful when the annual emissions are close to the de minimis rates or for controversial projects that may be challenged. Since federal General Conformity evaluations support an environmental review prepared by the agency under the National Environmental Policy Act (NEPA) and must conduct either an Environmental Analysis (EA) or an Environmental Impact Statement (EIS), such documentation is often included in the EIS Record of Decision (ROD) or EA Finding of No Significant Impact (FONSI).