General Conformity Training Modules: Appendix B April 5, 2010 Revisions to the Conformity Regulations

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

In the 2010 revisions (27 pp, 287 K, About PDF) to the General Conformity regulations, EPA identified a number of potential provisions to improve the effectiveness of the regulations while at the same time streamline their implementation. Under the revisions, the basic conformity process remains essentially the same. The revisions deleted unnecessary provisions, provided more options for federal agencies to demonstrate conformity, recognized the status of Indian tribes, and clarified some procedural requirements.

B1 Applicability Analyses

EPA revised the following provisions that affect an applicability analysis:

• Regional significance requirement removed--Deleted the regional "10 percent" test for exempt activities or projects that have emissions below the de minimis levels to determine if the emissions are regionally significant. When EPA promulgated the original General Conformity regulations in 1993, it included a provision that required exempted activities and projects with emissions below the de minimis levels but considered regionally significant emissions, defined as above 10 percent of the area’s emission budget or inventory, to develop a conformity demonstration and prepare a written and signed conformity determination;

• Minor stationary sources. Included exemption for minor sources with new source review (NSR) permits. The original regulations provided an exemption for major NSR sources but not minor sources;

• Identified the following as presumed to conform (PTC) projects:
  • Prescribed fires conducted in accordance with an approved smoke management plan;
  • Projects where an area-wide emissions budget has been adopted by the State and incorporated within the applicable implementation plan in accordance with the regulations; and

  • Projects established as presumed to conform by a State agency or Tribal government and listed in their own General Conformity applicable implementation plan revision.

• Established a program to allow early emission reductions to create emission reduction credits (EERCs) that can be used to account for emissions from future projects or reduce the annual total of direct and indirect emissions for a current project; and

• Established a grace period of one year after an area is designated as nonattainment before conformity is required.

B2 Conformity Demonstrations

EPA is adding a new section that allows alternate schedules for mitigating emissions increases. The mitigation timing approach allows some flexibility for federal agencies and States or Tribes to negotiate a program for certain emissions mitigation to occur in future years. This approach can be used to accommodate short-term increases in emissions if substantial long-term reduction in emissions will result.

B3 Reporting Requirements

The revised regulations establish the rights of federally recognized Indian Tribes to participate in the conformity process and require the federal agency to provide the draft demonstration to any such Tribe located within a nonattainment or maintenance area.

B4 Procedural Requirements

EPA included the following provisions in the revised regulations to clarify the process:

• Development of the presumed to conform list;

• Exemption for the rulemaking process;

• Extension of the emergency events exemption;

• Demonstrating conformity beyond the time frame in the applicable implementation plan; and

• Allowing but not requiring States and Tribes to submit and adopt their own General Conformity applicable implementation plan revision that accounts for the unique needs of their nonattainment and maintenance areas.