General Conformity Training Module 3.4: Federal Agencies' Presumed to Conform Actions

• Module III:  
  Details
• 3.1 Applicability
  Analyses
• 3.2 Emissions
  Calculations
• 3.3 Response to
  Emergency Events
• 3.4 EPA's List of Exemptions and Federal Agencies' Presumed to Conform Activities
• 3.5 Demonstrating
  Conformity
• 3.6 Proactive Role
  for Federal Agencies

3.4 EPA's List of Exemptions and Federal Agencies' Presumed to Conform Activities.

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

To preserve flexibility in the regulations and reduce the regulatory burden by allowing Federal agencies to focus on just those activities that might have the potential to negatively impact the NAAQS, the EPA identifies some activities as “exempt” under § 93.153(c)(d), and (e), and others as “presumed to conform” under § 93.153(i). The emissions from activities that are exempt or presumed to conform must be excluded from the applicability analyses even though the activities might otherwise apply under GC:

3.4.1 Exemptions or presumptions can be claimed at the discretion of a Federal agency, and no further analysis is required, but only if the Federal agency can meet the requirements of the qualifying condition, if one is specified.

3.4.2 A qualifying condition means the Federal agency must have some degree of Federal oversight through continuing program responsibility, which makes the qualifying condition enforceable, such as when the federal agency is a party to a contract.

3.4.3 Any qualifying condition imposed for either a presumption or an exemption must be enforceable; otherwise, the qualifying condition is meaningless for the purpose of General Conformity. If a federal agency has no oversight, no practicable control, or no continuing program of responsibility, the condition is not enforceable. 

3.4.4 The emissions caused by activities a Federal agency claims as presumed to conform (PTC) or exempt (usually there are no emissions reported for exempt activities) are not included as part of the agency's applicability analysis.

3.4.5 The emissions caused by exempt or presumed to conform activities are not “determined to conform,” instead, they are simply not considered part of the General Conformity applicability analysis and therefore, are not included in the table of direct and indirect emissions.

3.4.6 For its presumptions, the EPA requires support based on an analysis of the emissions prepared in accordance with § 93.153(f) or § 93.161. The only current exception to this requirement is the presumption of conformity under § 93.153(i)(2) for prescribed fires.

3.4.7 The General Conformity regulations include a provision known as the "presumed to conform list," which allows Federal agencies to prepare a list of activities for which the agency has prepared an analysis for each activity, where for each individual activity, the Federal agency has shown the activity's total of direct and indirect emissions are less than de minimis.

3.4.8 The PTC provision requires the Federal agency to have a degree of statutory oversight or continuing program responsibility for each activity included on the PTC list. Each such activity is "presumed to conform" and one or more of these presumptions can be claimed by the Federal agency for a future project to help the Federal agency demonstrate conformity.

3.4.9 The Federal agency can place limits on the type or category of activities that are presumed to conform. The agency could limit the size of the activity to ensure that the emissions are below the de minimis rates, or limit the geographic extent of the activity to ensure that the activity can be included in the State, Tribal, or Federal air quality implementation plan (SIP/TIP/FIP). The geographic limit could be a single nonattainment or maintenance area or as small as a single facility.

3.4.10 A Federal agency can claim more than one PTC activity for a single project  as long as the sum of all the emissions from the PTC activities do not exceed the de minimis rates.

3.4.11 To finalize its PTC list, a Federal agency would develop a draft list and publish the draft list, making it available for public review and comment. This means the agency will share the draft list with appropriate EPA offices and State and Tribal agencies, publishing the list in the Federal Register, taking comment on the draft list, and providing notice of the final list.

3.4.12 Only the Federal Aviation Administration (FAA) and the Bureau of Land Management (BLM) have published a list of activities that the agency presumes will conform. See 72 FR 41565 (July 30, 2007) (pdf) (16 pp, 716 KB) and 2016 81 FR 96033 (Dec. 29, 2016) (pdf) (11 pp. 91.5 KB).

3.4.13 The EPA has established alternate methods that help a Federal agency demonstrate conformity at a specific federal facility. Under this approach, a facility and the Federal agency would work with the State, Tribal, or local air quality agency to develop an emissions budget for the facility. When a project is subsequently proposed for the facility, as long as the emissions caused by the project's activities at the facility remain within the emissions budget, the activities proposed for the project would be “presumed to conform.” If the activities would generate emissions that exceed the emissions budget, the activities  have to undergo a standard conformity evaluation. Details of the facility emission budget approach are provided in Module 3.5.

3.4.14 Another method of demonstrating conformity is by applying Early Emissions Reduction Credits (EERC) under General Conformity  § 93.165.

3.4.15 For the purpose of transparency, the General Conformity regulations include a provision at § 93.153(j) allowing the EPA or a third party to challenge a Federal agency's claim for a presumption. No such specific language exists to challenge a claim for an exemption.