Current as of: July 2009
(a) Conformity determinations for Federal actions related to transportation plans, programs, and projects developed, funded, or approved under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.) must meet the procedures and criteria of 40 CFR part 51, subpart T, in lieu of the procedures set forth in this subpart.
(b) For Federal actions not covered by paragraph (a) of this section, a conformity determination is required for each criteria pollutant or precursor where the total of direct and indirect emissions of the criteria pollutant or precursor in a nonattainment or maintenance area caused by a Federal action would equal or exceed any of the rates in paragraphs (b)(1) or (2) of this section.
(1) For purposes of paragraph (b) of this section, the following rates apply in nonattainment areas (NAA's):------------------------------------------------------------------------
Tons/
year------------------------------------------------------------------------Ozone (VOC's or NOX):
Serious NAA's................................................
50
Severe NAA's.................................................
25
Extreme NAA's................................................
10
Other ozone NAA's outside an ozone transport region..........
100Other ozone NAA's inside an ozone transport region:
VOC..........................................................
50
NOX..........................................................
100Carbon monoxide: All NAA's.....................................
100SO2 or NO2: All NAA's..........................................
100PM-10:
Moderate NAA's...............................................
100
Serious NAA's................................................
70PM2.5:
Direct emissions.............................................
100
SO2..........................................................
100
NOX (unless determined not to be a significant precursor)....
100
VOC or ammonia (if determined to be significant precursors)..
100Pb: All NAA's..................................................
25------------------------------------------------------------------------
(2) For purposes of paragraph (b) of this section, the following rates apply in maintenance areas:------------------------------------------------------------------------
Tons/
year------------------------------------------------------------------------Ozone (NOX, SO2 or NO2):
All Maintenance Areas........................................
100Ozone (VOC's):
Maintenance areas inside an ozone transport region...........
50
Maintenance areas outside an ozone transport region..........
100Carbon monoxide: All Maintenance Areas.........................
100PM-10: All Maintenance Areas...................................
100PM2.5:
Direct emissions.............................................
100
SO2..........................................................
100
NOX (unless determined not to be a significant precursor)....
100
VOC or ammonia (if determined to be significant precursors)..
100Pb: All Maintenance Areas......................................
25------------------------------------------------------------------------
(c) The requirements of this subpart shall not apply to the following Federal actions:
(1) Actions where the total of direct and indirect emissions are below the emissions levels specified in paragraph (b) of this section.
(2) Actions which would result in no emissions increase or an increase in emissions that is clearly de minimis:
(i) Judicial and legislative proceedings.
(ii) Continuing and recurring activities such as permit renewals where activities conducted will be similar in scope and operation to activities currently being conducted.
(iii) Rulemaking and policy development and issuance.
(iv) Routine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails, and facilities.
(v) Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, and the training of law enforcement personnel.
(vi) Administrative actions such as personnel actions, organizational changes, debt management or collection, cash management, internal agency audits, program budget proposals, and matters relating to the administration and collection of taxes, duties and fees.
(vii) The routine, recurring transportation of materiel and personnel.
(viii) Routine movement of mobile assets, such as ships and aircraft, in home port reassignments and stations (when no new support facilities or personnel are required) to perform as operational groups and/or for repair or overhaul.
(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.
(x) Actions, such as the following, with respect to existing structures, properties, facilities and lands where future activities conducted will be similar in scope and operation to activities currently being conducted at the existing structures, properties, facilities, and lands; for example, relocation of personnel, disposition of federally-owned existing structures, properties, facilities, and lands, rent subsidies, operation and maintenance cost subsidies, the exercise of receivership or conservatorship authority, assistance in purchasing structures, and the production of coins and currency.
(xi) The granting of leases, licenses such as for exports and trade, permits, and easements where activities conducted will be similar in scope and operation to activities currently being conducted.
(xii) Planning, studies, and provision of technical assistance.
(xiii) Routine operation of facilities, mobile assets and equipment.
(xiv) Transfers of ownership, interests, and titles in land, facilities, and real and personal properties, regardless of the form or method of the transfer.
(xv) The designation of empowerment zones, enterprise communities, or viticultural areas.
(xvi) Actions by any of the Federal banking agencies or the Federal Reserve Banks, including actions regarding charters, applications, notices, licenses, the supervision or examination of depository institutions or depository institution holding companies, access to the discount window, or the provision of financial services to banking organizations or to any department, agency or instrumentality of the United States.
(xvii) Actions by the Board of Governors of the Federal Reserve System or any Federal Reserve Bank necessary to effect monetary or exchange rate policy.
(xviii) Actions that implement a foreign affairs function of the United States.
(xix) Actions (or portions thereof) associated with transfers of land, facilities, title, and real properties through an enforceable contract or lease agreement where the delivery of the deed is required to occur promptly after a specific, reasonable condition is met, such as promptly after the land is certified as meeting the requirements of CERCLA, and where the Federal agency does not retain continuing authority to control emissions associated with the lands, facilities, title, or real properties.
(xx) Transfers of real property, including land, facilities, and related personal property from a Federal entity to another Federal entity and assignments of real property, including land, facilities, and related personal property from a Federal entity to another Federal entity for subsequent deeding to eligible applicants.
(xxi) Actions by the Department of the Treasury to effect fiscal policy and to exercise the borrowing authority of the United States.
(3) Actions where the emissions are not reasonably foreseeable, such as the following:
(i) Initial Outer Continental Shelf lease sales which are made on a broad scale and are followed by exploration and development plans on a project level.
(ii) Electric power marketing activities that involve the acquisition, sale and transmission of electric energy.
(4) Actions which implement a decision to conduct or carry out a conforming program such as prescribed burning actions which are consistent with a conforming land management plan.
(d) Notwithstanding the other requirements of this subpart, a conformity determination is not required for the following Federal actions (or portion thereof):
(1) The portion of an action that includes major new or modified stationary sources that require a permit under the new source review (NSR) program (section 173 of the Act) or the prevention of significant deterioration program (title I, part C of the Act).
(2) Actions in response to emergencies or natural disasters such as hurricanes, earthquakes, etc., which are commenced on the order of hours or days after the emergency or disaster and, if applicable, which meet the requirements of paragraph (e) of this section.
(3) Research, investigations, studies, demonstrations, or training (other than those exempted under paragraph (c)(2) of this section), where no environmental detriment is incurred and/or, the particular action furthers air quality research, as determined by the State agency primarily responsible for the applicable SIP;
(4) Alteration and additions of existing structures as specifically required by new or existing applicable environmental legislation or environmental regulations (e.g., hush houses for aircraft engines and scrubbers for air emissions).
(5) Direct emissions from remedial and removal actions carried out under the Comprehensive Environmental Response, Compensation and Liability Act and associated regulations to the extent such emissions either comply with the substantive requirements of the PSD/NSR permitting program or are exempted from other environmental regulation under the provisions of CERCLA and applicable regulations issued under CERCLA.
(e) Federal actions which are part of a continuing response to an emergency or disaster under paragraph (d)(2) of this section and which are to be taken more than 6 months after the commencement of the response to the emergency or disaster under paragraph (d)(2) of this section are exempt from the requirements of this subpart only if:
(1) The Federal agency taking the actions makes a written determination that, for a specified period not to exceed an additional 6 months, it is impractical to prepare the conformity analyses which would otherwise be required and the actions cannot be delayed due to overriding concerns for public health and welfare, national security interests and foreign policy commitments; or
(2) For actions which are to be taken after those actions covered by paragraph (e)(1) of this section, the Federal agency makes a new determination as provided in paragraph (e)(1) of this section.
(f) Notwithstanding other requirements of this subpart, actions specified by individual Federal agencies that have met the criteria set forth in either paragraph (g)(1) or (g)(2) of this section and the procedures set forth in paragraph (h) of this section are presumed to conform, except as provided in paragraph (j) of this section.
(g) The Federal agency must meet the criteria for establishing activities that are presumed to conform by fulfilling the requirements set forth in either paragraph (g)(1) or (g)(2) of this section:
(1) The Federal agency must clearly demonstrate using methods consistent with this subpart that the total of direct and indirect emissions from the type of activities which would be presumed to conform would not:
(i) Cause or contribute to any new violation of any standard in any area;
(ii) Interfere with provisions in the applicable SIP for maintenance of any standard;
(iii) Increase the frequency or severity of any existing violation of any standard in any area; or
(iv) Delay timely attainment of any standard or any required interim emission reductions or other milestones in any area including, where applicable, emission levels specified in the applicable SIP for purposes of:
(A) A demonstration of reasonable further progress;
(B) A demonstration of attainment; or
(C) A maintenance plan; or
(2) The Federal agency must provide documentation that the total of direct and indirect emissions from such future actions would be below the emission rates for a conformity determination that are established in paragraph (b) of this section, based, for example, on similar actions taken over recent years.
(h) In addition to meeting the criteria for establishing exemptions set forth in paragraphs (g)(1) or (g)(2) of this section, the following procedures must also be complied with to presume that activities will conform:
(1) The Federal agency must identify through publication in the Federal Register its list of proposed activities that are presumed to conform and the basis for the presumptions;
(2) The Federal agency must notify the appropriate EPA Regional Office(s), State and local air quality agencies and, where applicable, the agency designated under section 174 of the Act and the MPO and provide at least 30 days for the public to comment on the list of proposed activities presumed to conform;
(3) The Federal agency must document its response to all the comments received and make the comments, response, and final list of activities available to the public upon request; and
(4) The Federal agency must publish the final list of such activities in the Federal Register.
(i) Notwithstanding the other requirements of this subpart, when the total of direct and indirect emissions of any pollutant from a Federal action does not equal or exceed the rates specified in paragraph (b) of this section, but represents 10 percent or more of a nonattainment or maintenance area's total emissions of that pollutant, the action is defined as a regionally significant action and the requirements of Sec. 93.150 and Sec. Sec. 93.155 through 93.160 shall apply for the Federal action.
(j) Where an action otherwise presumed to conform under paragraph (f) of this section is a regionally significant action or does not in fact meet one of the criteria in paragraph (g)(1) of this section, that action shall not be presumed to conform and the requirements of Sec. 93.150 and Sec. Sec. 93.155 through 93.160 shall apply for the Federal action.
(k) The provisions of this subpart shall apply in all nonattainment and maintenance areas.
[58 FR 63253, Nov. 30, 1993, as amended at 71 FR 40427, July 17, 2006]________________________________________________________________________
Questions & Answers: Pollution and Waste ManagementU.S. Code Provisions: Pollution and Waste ManagementState Laws: Pollution and Waste Management| Alaska | Alaska Statutes Chapter 46.04 - Oil And Hazardous Substance Pollution Control | | Alaska Statutes Chapter 46.08 - Oil And Hazardous Substance Releases | | Alaska Statutes Chapter 46.09 - Hazardous Substance Release Control | | California | California Government Code > Title 7.9 - Recycling, Resource Recovery, And Litter Prevention | | California Health and Safety Code > Division 20 > Chapter 6.65 - Unified Agency Review Of Hazardous Materials Release Sites | | California Health and Safety Code > Division 20 > Chapter 6.66 - Oversight Costs | | California Health and Safety Code > Division 20 > Chapter 6.67 - Aboveground Storage Of Petroleum | | California Health and Safety Code > Division 20 > Chapter 6.7 - Underground Storage Of Hazardous Substances | | California Health and Safety Code > Division 20 > Chapter 6.10 - California Land Environmental Restoration And Reuse Act | | California Health and Safety Code > Division 20 > Chapter 6.11 - Unified Hazardous Waste And Hazardous Materials Management Regulatory Program | | California Health and Safety Code > Division 27 - California Pollution Control Financing Authority Act | | California Health and Safety Code > Division 104 > Part 13 - Garbage And Onsite Sewage Disposal | | California Public Resources Code > Division 30 - Waste Management | | California Public Resources Code > Division 31 - Waste Management Facilities | | California Public Resources Code > Division 33 - Glass Contamination | | California Public Utilities Code > Division 6 > Chapter 8 - Special District For Sewage Disposal Or Solid Waste Resource Recovery | | Connecticut | Connecticut General Statutes > Title 22a > Chapter 446n - Covered Electronic Devices | | Delaware | Delaware Code Title 7 > Chapter 78 - Pollution Prevention Act | | Delaware Code Title 9 > Chapter 24 - Garbage Disposal | | Delaware Code Title 9 > Chapter 47 - Garbage Disposal | | Delaware Code Title 16 > Chapter 16 - Litter Control Law | | Delaware Code Title 16 > Chapter 17 - Refuse And Garbage | | Florida | Florida Statutes > Chapter 376 - Pollutant Discharge Prevention and Removal | | Florida Statutes > Chapter 403 > Part I - Pollution Control | | Florida Regulations Chapter 62N-16 - Pollutant Discharge Act | | Hawaii | Hawaii Revised Statutes > Chapter 342E - Nonpoint Source Pollution Management and Control | | Idaho | Idaho Code Title 31 > Chapter 45 - Pollution Control Financing | | Illinois | Illinois Compiled Statutes > 415 ILCS 80 - Degradable Plastic Act | | Illinois Compiled Statutes > 415 ILCS 85 - Toxic Pollution Prevention Act | | Illinois Compiled Statutes > 415 ILCS 125 - Environmental Impact Fee Law | | Indiana | Indiana Code > Title 13 > Article 19 - Solid Waste And Hazardous Waste Management Generally | | Indiana Code > Title 13 > Article 26 - Regional Water, Sewage, And Solid Waste Districts | | Indiana Code > Title 13 > Article 27 - Industrial Pollution Prevention And Safe Materials | | Indiana Code > Title 13 > Article 27.5 - Clean Manufacturing Technology And Safe Materials | | Indiana Code > Title 13 > Article 28 - Technical Assistance And Voluntary Compliance | | Indiana Code > Title 36 > Article 11 - County Onsite Waste Management Districts | | Kansas | Kansas Statutes > Chapter 12 > Article 21 - Refuse Collection And Disposal | | Kansas Statutes > Chapter 65 > Article 34 - Solid And Hazardous Waste | | Kansas Statutes > Chapter 80 > Article 22 - Refuse Collection And Disposal | | Louisiana | Louisiana Revised Statutes > Title 30 > Chapter 13 - Louisiana Waste Reduction Law | | Louisiana Revised Statutes > Title 30 > Chapter 14 - Louisiana Resources Recovery And Development Authority | | Louisiana Revised Statutes > Title 33 > Chapter 25 - Garbage Districts | | Maine | Maine Revised Statutes > Title 17 > Chapter 79 - Littering And Dumping | | Maine Revised Statutes > Title 17 > Chapter 80 - Litter Control | | Maine Revised Statutes Title 38 > Chapter 13 - Waste Management | | Maine Revised Statutes > Title 38 > Chapter 16-A - Nondegradable Food And Beverage Containers | | Maine Revised Statutes Title 38 > Chapter 17 - Maine Refuse Disposal District Enabling Act | | Michigan | Michigan Laws > Chapter 123 > Act 298 of 1917 - Garbage Disposal Plants | | Michigan Laws > Chapter 123 > Act 261 of 1927 - Disposal Plants | | Michigan Laws > Chapter 123 > Act 179 of 1947 - Joint Garbage And Rubbish Disposal | | Michigan Laws > Chapter 123 > Act 152 of 1976 - Access To Disposal Facilities | | Michigan Laws > Chapter 123 > Act 266 of 1951 - The Garbage Disposal Act | | Michigan Laws > Chapter 123 > Act 76 of 1965 - Joint Water Supply And Waste Disposal Systems | | Michigan Laws > Chapter 324 > Act 284 of 1998 - Clean Michigan Initiative Act | | Minnesota | Minnesota Statutes Chapter 115A - Waste Management | | Minnesota Statutes Chapter 115B - Environmental Response and Liability | | Minnesota Statutes Chapter 115C - Petroleum Tank Release Cleanup | | Minnesota Statutes Chapter 115D - Toxic Pollution Prevention | | Minnesota Statutes Chapter 115E - Oil and Hazardous Substance Discharge Preparedness | | Minnesota Statutes Chapter 116 - Pollution Control Agency | | Minnesota Statutes Chapter 443 - Rubbish Removal | | Montana | Montana Code Title 75 > Chapter 10 - Waste And Litter Control | | Montana Code Title 75 > Chapter 16 - Transboundary Pollution | | New Hampshire | New Hampshire Revised Statutes > Chapter 163-B - Litter Control Law | | New Mexico | New Mexico Statutes Chapter 3 > Article 48 - Refuse; Collection and Disposal | | New Mexico Statutes Chapter 3 > Article 59 - Pollution Control Revenue Bonds | | New Mexico Statutes Chapter 4 > Article 56 - Refuse; Collection and Disposal | | New Mexico Statutes Chapter 67 > Article 15 - Clean Highways | | New Mexico Statutes Chapter 67 > Article 16 - Litter Control and Beautification | | New Mexico Statutes Chapter 74 - Environmental Improvement | | New York | New York Laws - Environmental Conservation > Article 21 - Pollution Control Compacts | | New York Environmental Conservation Law > Article 27 > Title 1 - Solid and Hazardous Waste Management Policy and Planning | | New York Environmental Conservation Law > Article 27 > Title 3 - Waste Transporter Permits | | New York Environmental Conservation Law > Article 27 > Title 24 - Environmental Tests Reporting Requirements | | New York Environmental Conservation Law > Article 27 > Title 25 - Phase-Out of Creosote | | New York Laws - Environmental Conservation > Article 28 - Pollution Prevention | | New York Environmental Conservation Law > Article 54 > Title 5 - Non-Hazardous Municipal Landfill Closure Projects and Municipal Landfill Gas Management Projects | | New York Environmental Conservation Law > Article 54 > Title 7 - Municipal Waste Reduction Or Recycling Projects | | New York Environmental Conservation Law > Article 72 > Title 5 - Waste Transporter Program Fee | | New York Environmental Conservation Law > Article 72 > Title 6 - State Pollutant Discharge Elimination System Program Fee | | New York | New York Laws > Environmental Conservation > Article 21 - Pollution Control Compacts | | New York Laws > Environmental Conservation > Article 27 > Title 1 - Solid And Hazardous Waste Management Policy And Planning | | New York Laws > Environmental Conservation > Article 27 > Title 3 - Waste Transporter Permits | | New York Laws > Environmental Conservation > Article 27 > Title 24 - Environmental Tests Reporting Requirements | | New York Laws > Environmental Conservation > Article 27 > Title 25 - Phase-Out Of Creosote | | New York Laws > Environmental Conservation > Article 28 - Pollution Prevention | | New York Laws > Environmental Conservation > Article 54 > Title 5 - Non-Hazardous Municipal Landfill Closure Projects And Municipal Landfill Gas Management Projects | | New York Laws > Environmental Conservation > Article 54 > Title 7 - Municipal Waste Reduction Or Recycling Projects | | New York Laws > Environmental Conservation > Article 72 > Title 5 - Waste Transporter Program Fee | | New York Laws > Environmental Conservation > Article 72 > Title 6 - State Pollutant Discharge Elimination System Program Fee | | North Carolina | North Carolina General Statutes Chapter 136 > Article 10A - Litter Prevention Account | | North Dakota | North Dakota Code > Chapter 23-29.1 - Municipal Waste Landfill Release Compensation Fund | | North Dakota Code > Chapter 40-34 - Sewage and Garbage Disposal | | Ohio | Ohio Code > Title 15 > Chapter 1502 - Recycling, Waste Reduction, Litter Prevention | | Ohio Code > Title 37 > Chapter 3734 - Solid And Hazardous Wastes | | Ohio Code > Title 37 > Chapter 3746 - Voluntary Action Program | | Ohio Code > Title 37 > Chapter 3752 - Cessation Of Regulated Operations | | Ohio Code > Title 37 > Chapter 3753 - Risk Management Program | | Rhode Island | Rhode Island General Laws > Chapter 23-18.9. Refuse Disposal | | Rhode Island General Laws > Chapter 23-18.11. Promotion of Paper Bag Usage | | Rhode Island General Laws > Chapter 23-19.4. Septage, Industrial Wastes and Waste Oil Pumping, Cleaning and Transportation | | Rhode Island General Laws > Chapter 23-60. Battery Deposit and Control | | Rhode Island General Laws > Chapter 23-60.1. Dry Cell Battery Control | | South Carolina | South Carolina Code > Title 48 > Chapter 1 - Pollution Control Act | | South Carolina Code > Title 48 > Chapter 3 - Pollution Control Facilities | | South Dakota | South Dakota Laws > Title 34A > Chapter 7 - Litter Disposal And Control | | Tennessee | Tennessee Code > Title 4 > Chapter 7 > Part 3 - Litter Prevention and Control Law | | Tennessee Code > Title 5 > Chapter 19 - Garbage and Rubbish Collection and Disposal Services | | Tennessee Code > Title 7 > Chapter 58 - Resource Recovery and Solid Waste Disposal | | Tennessee Code > Title 68 > Environmental Protecion > Chapter 213 - Sanitary Landfill Areas Act | | Texas | Texas Health And Safety Code > Title 5 > Subtitle B - Solid Waste, Toxic Chemicals, Sewage, Litter, And Water | | Utah | Utah Code > Title 19 > Chapter 8 - Voluntary Cleanup Program | | Vermont | Vermont Statutes > Title 10 > Chapter 46 - Interstate Waste Compact | | Vermont Statutes > Title 10 > Chapter 159 - Waste Management | | Virginia | Virginia Code Title 10.1 > Chapter 14 - Virginia Waste Management Act | | Virginia Code Title 54.1 > Chapter 22.1 - Waste Management Facility Operators | | Wisconsin | Wisconsin Statutes > Chapter 287 > Subchapter II - Solid Waste Reduction, Recovery And Recycling | | Wisconsin Statutes > Chapter 287 > Subchapter IV - Littering | | Wisconsin Statutes > Chapter 287 > Subchapter V - Enforcement And Penalties |
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