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WASHINGTON, D.C. 20240-0036
December 4, 2012
In Reply Refer To:
7300 (WO-280) P                                                                                                                              
Instruction Memorandum No. 2013-025
Expires:  09/30/2014
To:             All Field Office Officials
                  Attn: Air Specialists and Contacts, NEPA Coordinators
From:         Assistant Director, Renewable Resources and Planning
Subject:     Guidance for Conducting Air Quality General Conformity Determinations
Program Area: Soil, Water, Air (SWA)
Purpose:  This Instruction Memorandum (IM) transmits guidance to State and field office staff conducting conformity determinations on the Bureau of Land Management (BLM) actions and authorized activities in nonattainment and/or maintenance areas.
Policy/Action:  The Federal Land Policy and Management Act Section 202 [43 U.S.C. 1712] (c) (8) requires the BLM to provide for compliance with applicable air pollution control laws.  Section 176(c) (42 U.S.C. 7506) of the Clean Air Act (CAA) requires Federal agencies’ actions to conform to any applicable State, Tribal or Federal implementation plans (SIP, TIP or FIP)[1] for attaining and maintaining the National Ambient Air Quality Standards (NAAQS).  Where actions are not specifically exempted, the BLM must complete a conformity determination before engaging in or authorizing any actions in designated nonattainment or maintenance areas.
Conformity Determinations
General conformity applies to all Federal actions in nonattainment/maintenance areas.  A Federal action refers to any activity directly engaged in by a department or agency of the Federal government. It also refers to any activity that a department or agency supports in any way, which includes providing financial assistance, licenses, permits or formal approval. All Federal actions within a nonattainment/maintenance area that have the potential to emit NAAQS pollutants or their precursors for which the area is designated nonattainment, should evaluate the emissions to determine if they conform with the applicable SIP. The regulations provide a three-step process for meeting the general conformity requirements of the CAA.  These are: 
1).  Applicability Analysis
2).  Conformity Evaluation and Determination
3).  Review Process. This includes agency and public notification, which can require lead times. 
Applicability Analysis
The applicability analysis should be a simple analysis that determines whether a conformity determination is needed (see step 1 below). Consider analyzing all proposed National Environmental Policy Act (NEPA) actions early, to facilitate a comparative evaluation of alternatives with respect to air quality issues.  The more detailed conformity evaluation and determination can be applied to only the preferred alternative when it is identified in the NEPA process.
The regulations recognize that the majority of Federal actions do not result in a significant increase in emissions, and therefore, include a number of exemptions.  Listed in 40 CFR 93.153(c) are many types of actions that are exempt from a conformity determination. Exemptions likely to apply to the BLM-authorized projects are identified in Attachment 1.  Some actions are “presumed to conform” under 40 CFR 93.161 (also in Attachment 1) if a Federal agency negotiates a facility-wide emission budget with appropriate agency responsible for a SIP/TIP. Once the SIP is approved by the Environmental Protection Agency (EPA), any action at the facility can be “presumed to conform” as long as the emissions from the proposed action and all other emissions at the facility are within the negotiated budget.  States and Tribes can develop their own “presumed to conform” lists for actions covered by their conformity SIPs/TIPs (40 CFR 51.851(f)). Federal agencies may also determine some actions to be presumed to conform once they have published them after a notice and comment period in accordance with 40 CFR 93.153(f) through (h).
For actions that are not exempt, Attachment 2 shows de minimis annual emission thresholds for criteria air pollutants and precursors emitted in nonattainment and maintenance areas.  Note that many BLM actions will either be exempt or their emissions will be below de minimis levels. Regardless, an Applicability Analysis is required to document exemptions or emissions lower than de minimis thresholds.
A conformity evaluation where the action is exempt or turns out to be below the de minimis threshold does not require a public review process or agency notification.  Include your findings in the administrative record for the associated NEPA analysis.  If, through the Applicability Analysis, rates for nonattainment criteria pollutant(s) are calculated to exceed de minimis levels by the proposed Federal action, a conformity determination must be completed before the action is authorized or allowed to proceed. 
Conformity Determination

For the BLM, a general conformity determination can be completed in parallel with a NEPA document.  The general conformity determination must be a separate analysis, and for the BLM purposes, should be conducted before completion of the NEPA analysis to ensure that the project meets all regulations.  Conformity determinations are only required for the preferred alternative (see discussion above). 
In States that have SIPs, the SIP will identify provisions, application of control measures, and modeling or emissions inventory tracking to show that the proposed action’s emissions are within the budget established for the planning area, and a letter from the State to this effect can be used to determine conformity.  Where SIP provisions exist, they can be incorporated into appropriate NEPA sections.  If a State does not have a SIP, consult the EPA.
Review Process
Conformity determinations are subject to a public review process.  To do so, the regulations require Federal agencies to provide notice of the draft determination to the applicable EPA Regional Office, the State and local air quality agencies, and where applicable, any Federal land manager and Federally-recognized Indian Tribes.  The draft determination is subject to a 30-day comment period and the final determination must be made public.  The final determination is subject to appeal (40 CFR 93.156(b)).
Implementation Guidance
The BLM National Training Center (NTC), in concert with the California Ridgecrest Field Office, has developed a 10 step process to complete a conformity analysis.  In brief, the steps are:
1.  Determine jurisdictional and exemption applicability (Applicability Analysis) 
To perform the Applicability Analysis:
  • determine which regulatory authority has jurisdiction in the project area,
  • determine the Federal nonattainment and maintenance areas that may be involved,
  • determine which criteria pollutants may be involved,
  • identify the applicable laws, regulations, statutes and rules that apply,
  • determine if the proposed action is exempt from a conformity determination (Attachment 1), or
  • determine if direct and indirect emissions within the nonattainment or maintenance area are below applicable thresholds (Attachment 2). 
If the proposed action is exempt or below de minimis thresholds, include a brief discussion of the Applicability Analysis in the Environmental Assessment or Environmental Impact Statement and skip to step 10 to complete the process.  If the proposed action is not exempt or below de minimis levels, proceed to step 2.  
2.  Describe the SIP status and content 
When there is a nonattainment area SIP, describe the provisions from the SIP that relate to the proposed action.  These may include operating permits, approved control measures, an inventory of existing sources, and the proposed management, emissions budget and emissions inventory tracking and/or modeling to show that the proposed controls and other measures will achieve ambient air quality standards.  Although the rule states that air quality modeling cannot be used to demonstrate conformity for emissions of ozone and PM2.5 precursors or nitrogen dioxide (NO2), modeling is still valid to determine impacts for all the other pollutants and can be used to show that the proposed mitigation measures are effective. 
3.  Provide background information 
This section should address additional information that may be necessary to understand the environmental and regulatory setting for the proposed project. This could include information on nonattainment history, regulations and rules to implement the SIP, existence of new proposed rules, petitions to EPA to redesignate the area (such as nonattainment to maintenance), pollutant transport into the area and other such details. 
4.  Conduct an Air Quality impact analysis 
This section should contain estimates of emissions that are caused by the project and located in the nonattainment or maintenance area. According to the EPA rules, the emissions estimates should include all reasonably foreseeable direct and indirect emissions from the proposed action.  
5.  Compare results to applicable SIP provisions and rules
Under this section, the project with its emission estimates and mitigations needs to be compared to the SIP to see if it complies with the provisions of the SIP, including the application of control measures required in the SIP and acquisition of all necessary air permits.  A source with emissions permitted by the State regulatory agency is “presumed to conform,” and those emissions are NOT included in the Federal agencies Conformity Analysis.  However, permitted project emissions must be assessed to determine if they are within the emissions budget established in the SIP, if such an emissions budget has been developed.  If the emissions are not within the SIP budget, then they need to be addressed. 
6.  Write a Conclusion Statement 
At this point, a statement needs to be made as to whether the project is in conformity (if not, the project cannot proceed), whether the emissions exceed the de minimus levels (40 CFR 93.153) and a formal determination is necessary, or it is below de minimus levels and no further analysis would be necessary.  This statement should also include the mechanism through which any required mitigation will be established and enforced (i.e., in the Record of Decision, the Conditions of Approval (COAs) on an Application for Permit to Drill (APD), etc.). 
7.  Complete a conformity determination if necessary
This is a formal statement that the project conforms to the applicable SIP. The statement generally reads as such:  
“The proposed action and alternatives have been analyzed under Section 176 (c) of the CAA, as amended, and 40 CFR 93.150 - 165, and the selected action has been determined to be in conformity to the applicable SIP purpose of attaining the NAAQS.” 
Use the information gathered in steps 1 through 6, and any supporting documentation such as modeling or consultation with EPA/States/Tribes that you need to support your statement. For fluid and solid minerals development projects the information is likely to include a thorough emissions inventory for EACH year for the life of the project and may include emissions offsets and trading, mitigation, or pacing of development. 
8.  Provide agency and public review of the draft determination 
On a formal determination, there are specific notification requirements. Under 40 CFR 93.156, the requirements include publication of availability in a newspaper and taking public comments. 
9.  Submit for approval to the appropriate regulatory agencies 
On a formal determination, there are specific notification requirements.  This is spelled out at 40 CFR 93.156. 
10.  Archive these findings 
Include the Applicability Analysis, the conformity determination (if applicable), and supporting documentation in the Administrative Record.  Note that since Conformity determinations expire after 5 years if the action is not started, and most oil and gas projects typically have a 10 to 40 year lifetime, supporting documentation may include the implementation plan for a large oil and gas development.   This would document continuing progress and ensure all necessary mitigation measures are in place and the project is being developed per the implementation plan. 
For further information, the draft California Ridgecrest Field Office Handbook, a PowerPoint presentation from the NTC on conformity, sample conformity determinations, the CFR, and other supporting documents can be found at: http://teamspace.blm.doi.net/sites/airres/default.aspx. Also, EPA has an excellent general conformity on-line training, located at http://www.epa.gov/air/genconform/training/index.html. 
SIP and Conformity Compliance Strategies
There are several different approaches the BLM can take to ensure compliance with SIPs and the conformity regulations.  If the regulatory authority is still developing their SIP, there are actions the BLM can take to assure that control requirements are met by future BLM authorized activities.  First, submit data such as the emissions inventory to the State or other applicable jurisdiction for incorporation into the SIP so that it may be built into the SIP emission budgets.  Although the rule states that air quality modeling cannot be used to demonstrate conformity for emissions of ozone or PM2.5 precursors or nitrogen dioxide (NO2), modeling is an accepted approach to determine impacts for all the other pollutants and can be used to show that the proposed mitigation measures are effective.
Second, work with the jurisdiction to establish control measures to be applied to each project/activity in the SIP.  Under this scenario, conformity becomes a simple task of referencing the appropriate SIP provisions that apply to the proposed action.
Another compliance strategy, and one that may be required if the proposed action and/or its associated emissions are not already in the SIP, is to model the proposed action and demonstrate no significant contribution to the nonattainment or maintenance area’s air quality concentrations (not currently an option for ozone nonattainment areas, but as photochemical modeling becomes more refined this may change).  This approach must have regulatory agency concurrence on the emission calculations, the use and benefits of control measures, model type, and modeling protocol.  Depending on the size and potential impact of the proposed action, this may entail extensive and time-consuming modeling and schedule provisions should be made with that in mind.
The more commonly used strategy is the application of emission offsets to the proposed action.  This is basically reducing similar emissions in the nonattainment or maintenance area to demonstrate a zero net change in emissions from the proposed action.  Again, regulatory agency concurrence on this approach is essential.  If there is no SIP in place, compare the proposed actions emissions to the “baseline” emission inventory year and use offsets to demonstrate that you would not cause a net change in emissions of a pollutant in the existing NAAQS nonattainment or maintenance area.
If an action fails to meet the provisions of the SIP, then it cannot be approved as proposed. At this point, mitigation measures can be developed which would ensure that the proposed activity can be approved. This can take the form of application of additional control measures, and acquisition of air quality emission credits by the project proponent, or additional offsets. Depending on the project and time scale, the mitigation can be incorporated into the proposed action for a revised analysis.
Although the general conformity rules allow linking conformity analysis with the NEPA analysis process, the conformity rule does not require such linking. However, combining conformity and NEPA analyses in some cases may be efficient and convenient. At the point in the NEPA process when the proposed action is determined, the air quality conformity analysis can be initiated.  Note that while all the NEPA alternatives can be evaluated in the applicability analysis, only the NEPA preferred alternative, or the selected alternative requires a Conformity Determination.  If a Federal action is determined not to conform to the applicable SIP, even though the NEPA process has been completed, the Federal action cannot be implemented. Finally, a Categorical Exclusion from NEPA does not exclude a Federal action from the general conformity rules.

Timeframe:  This policy is applicable to all BLM activities immediately.
Budget Impact:  Budget impacts can range from negligible to substantial depending on the extent of the analysis required to comply with the general conformity requirements.  In general, exempt and de minimis actions will have little to no budget impact.  Conformity analysis/ determination of proposed actions that are already incorporated in a relevant SIP should also have negligible budgets impacts.  If emission inventory development and/or dispersion modeling is required to demonstrate conformity, the costs (to the BLM if developing a Resource Management Plan, for example) could be significant.
Background:  The intent of the general conformity requirement is to prevent the air quality impacts of Federal actions from causing or contributing to a violation of the NAAQS or interfering with the purpose of a SIP, TIP, or FIP.  In the CAA, Congress recognized that actions taken by Federal agencies could affect State, Tribal, and local agencies' ability to attain and maintain the NAAQS.  In Section 176(c)(42 U.S.C. 7506) of the CAA, Congress established requirements to ensure Federal agencies’ proposed actions conform to the applicable SIP, TIP or FIP for attaining and maintaining the NAAQS.  That section requires Federal entities to find that the emissions from the Federal action will conform to the purposes of the SIP, TIP or FIP or not otherwise interfere with the State's or Tribe's ability to attain and maintain the NAAQS.
The process for determining compliance with the NAAQS, developing SIPs, and implementing the actions required by the SIPs is predictable and well-defined in the CAA.  This process can also take many years, and even stretch into decades.  Knowing where a State is in this process will help the BLM plan for future requirements that the agency may need to undertake to comply with the general conformity requirements.  The first step in determining compliance with the NAAQS is the establishment of a monitoring network to collect data on pollutant concentrations, and identify areas that are exceeding the standards, or very near the standard.  This is typically implemented by States, though tribes and EPA can also establish these networks.  Once adequate monitoring data has been collected, which may take 3 or more years, if the data shows the area as not meeting the NAAQS, the State will submit a nonattainment determination to EPA for review.  After EPA review, which also may take a year or more, EPA will classify the area as nonattainment.
Once a nonattainment area has been designated by EPA, Federal agencies have a 1 year grace period before general conformity applies.  The EPA designates the timeframe (18 to 36 months) to develop a SIP (or TIP or FIP in the case of Tribal or Federal responsibility areas).  The purpose of a SIP is to demonstrate to EPA how the State will attain the NAAQS in the nonattainment areas.  In some cases, EPA may grant an extension on this deadline.  These plans may include emission inventories, emission reduction strategies, regulations to implement the strategies, and air quality modeling or emissions inventory tracking to demonstrate that the plans will result in attainment of the standards. Depending on the severity of the nonattainment problem, the SIP must demonstrate the ability to bring the area back into attainment within 2 to 9 years, though extensions are possible.  The State enforces the EPA-approved SIP requirements.  State air quality agencies implement SIP plans by enforcing regulations and by monitoring both emission reductions and air quality concentrations.  When the area meets the standards, the State develops, submits, and adopts a maintenance plan, and EPA re-designates the area as a maintenance area, which may last for up to 20 years before the area can finally be re-designated as an attainment area.  Section 176(c) of the CAA requires Federal agencies to demonstrate conformity with the SIPs starting 1 year after the final nonattainment designation is made by EPA.   
Manual/Handbook Sections Affected: The Air Resource Management MS-7300, section B.1.
Coordination: This IM was coordinated with the State Offices and National Operations Center, as well as EPA.
Contact: Nancy Dean, Chief, Division of Environmental Quality & Protection (WO-280), at (202) 912-7136.
Signed by:                                                                   Authenticated by:
Edwin L. Roberson                                                      Robert M. Williams
Assistant Director                                                       Division of IRM Governance,WO-560
Renewable Resources and Planning
2 Attachments
[1] For readability, in the remainder of this IM the acronym “SIP” will be presumed to also include TIPs and FIPS.

Last updated: 12-13-2012