General Conformity Training Module 1.3: Background
Words that are shown in bold and italics are defined in the Glossary.
1.3.1 Why Congress added General Conformity to the CAA
In 1977, Congress recognized that a federal agency's decision to take or start a federal action to implement certain federal projects could interfere with a State's or Tribe's ability to attain and maintain the National Ambient Air Quality Standards (NAAQS). For example, emissions caused federal decisions to construct and operate airport improvement projects or projects to dredge a harbor channel, either of which could delay or interfere with attainment or maintenance of the NAAQS within nonattainment or maintenance areas. Because it is the sole responsibility of a federal agency to assure the State, Tribe, and the public that its projects' emissions will not interfere with the NAAQS attainment or maintenance planning process, Congress added section 176(c) to the CAA (codified in 42 U.S.C. section 7506). This section of the CAA prohibits federal agencies from taking or starting any action which does not conform with the applicable implementation plan to attain or maintain the NAAQS. However, at the time, the EPA interpreted this section as only pertaining to federal transit and federal highway-related projects. In the CAA Amendments of 1990, Congress revised CAA section 176(c) to clarify that the new section applies to all federal actions that would cause emissions to originate within nonattainment or maintenance areas, not just to actions related to highways and mass transit.
1.3.2 Legal requirement for conformity
The legal requirement for the General Conformity program is found in CAA section 176(c)(4)(A). The CAA, as amended in 1990, prohibits federal agencies from taking or starting any action which does not conform with the applicable implementation plan. As a result, in 1993 the EPA promulgated two new sets of regulations in the Code of Federal Regulations (CFR) under 40 CFR part 93. The Transportation Conformity regulations implement CAA 176(c)(4)(B) for projects, plans, and programs funded by the Federal Highway Administration or Federal Transit Administration programs under 40 CFR part 93 subpart A. All other projects are considered "general" and are evaluated under the General Conformity regulations that implement CAA 176(c)(4)(A) and are codified under 40 CFR part 93 subpart B.
1.3.3 Air Quality Management
1.3.3.1 National Ambient Air Quality Standards (NAAQS)
In order to protect public health and the environment, EPA has established NAAQS for six criteria pollutants. These pollutants are emitted throughout the United States and can cause serious health problems, as well as cause damage to the environment and to property. The indicators or names of the six pollutants include particulate matter, PM10 and PM2.5, ground-level ozone (O3), carbon monoxide (CO), sulfur dioxide (SO2), lead (Pb), and nitrogen dioxides (NO2), which is the more harmful pollutant within that family of nitrogen oxides (NOx). The NAAQS define the criteria established by the EPA to protect public health are named NAAQS primary standards whereas criteria intended to prevent environmental and property damage are named secondary standards.
1.3.3.1.1 Designations and Classifications
The CAA directs the EPA to designate areas as nonattainment, attainment, or unclassified based on ambient air quality monitored data and other information depending on whether the area is violating the standard, attaining the standard, or whether the EPA is unable to designate the area due to incomplete data. In addition, the CAA also requires the EPA to classify nonattainment areas based upon the severity of the pollution problem for O3, PM10, PM2.5, or CO. The CAA ties the stringency of the State's or Tribe's control measures to the area’s nonattainment classification. For example, an area with a higher classification, such as a severe or extreme O3 nonattainment area, has more stringent requirements. The designation and classification for each nonattainment area, by State and by county, is codified in 40 CFR part 81. The information on which areas are designated and their classification is available on EPA’s Green Book website.
1.3.3.1.2 Nonattainment and Maintenance Areas
The EPA designates an area as nonattainment generally based upon air quality monitoring data or modeling studies that show the area is currently violating, or contributes to the violation of a NAAQS. Where the data do not make such a showing, EPA designates the area as attainment or unclassifiable. When a nonattainment area subsequently attains the NAAQS and is no longer violating or contributing to violations of the NAAQS, the State or Tribe seeks to redesignate the area as attainment and submits and adopts an EPA-approved plan to maintain the standard under CAA section 175A. Such areas are known as maintenance areas.
Maintenance areas retain the attainment designation and are subject to the requirements of the CAA section 175A maintenance plan for 20 years after they are designated attainment. Such plans are included in the State or Tribal regulations that impose certain requirements to help improve and maintain the air quality of maintenance areas and also nonattainment areas.
1.3.3.2 State, Tribal, and Federal Implementation Plans
SIPs are developed and adopted by states and are designed to improve air quality in nonattainment and maintenance areas. State and local governments are responsible for developing and implementing the SIPs, which are submitted to EPA and, upon approval, become federally enforceable. The SIPs are documents which include area-specific information such as the existing air quality, an inventory of the emission sources, projected growth, a strategy to improve the air quality, laws and regulations needed to implement the strategy and a demonstration that the area will attain the standard. On tribal lands, federally recognized Indian tribes can develop their own TIPs similar to SIPs. If the state or tribe fails to submit a required plan, EPA can promulgate a federal implementation plan known as a FIP.
1.3.3.3 Federal Compliance
Section 176(c) requires federal agencies to comply with the General Conformity regulations and demonstrate conformity for projects that cause emissions to originate within certain nonattainment or maintenance areas; otherwise, the projects cannot be approved or implemented. If a federal agency must prepare a General Conformity Determination, the agency is required to provide notice of its draft conformity determination to the EPA Regional Office, the State or Tribe affected, the local Metropolitan Planning Organization, and, if applicable, the federal land manager. These offices will have 30 days to review the information, during which time they may comment on the documentation.
The General Conformity regulations also require that notice of the draft conformity determination be made public by placing a notice of availability in a daily newspaper in the area affected, and to allow for a 30-day review and comment period. These notifications are also required when the federal agency makes its final conformity determination. The federal agency must respond the public comments, in writing, and make these responses available to any person who asked for them.
1.3.4 How is General Conformity related to other programs?
1.3.4.1 Transportation Conformity
Transportation Conformity ensures that transportation plans, projects, and programs meet air quality goals by approving and funding only those activities that meet those goals. Transportation Conformity applies to transportation plans, transportation improvement programs, or Federal Highway Administration or Federal Transit Administration projects within certain nonattainment areas or maintenance areas. Project emissions subject to Transportation Conformity are not subject to the provisions of the General Conformity program.
1.3.4.2 National Environmental Policy Act
The National Environmental Policy Act (NEPA), passed in 1969, requires federal agencies to consider how “major” federal actions, including the use of federal funds, lands, or permits, may impact human health and the environment. The human environment includes natural, cultural, and socioeconomic resources. NEPA also requires that decisions include public input and involvement. Additional information on NEPA can be found at https://www.epa.gov/nepa.
The General Conformity is inextricably connected to the NEPA process. If a NEPA project includes activities that meet the requirements under the General Conformity provisions, the federal agency must consider a General Conformity evaluation. For convenience and efficiency, the General Conformity process may be integrated with the NEPA process, particularly for the public reporting and participation process required for each program. However, this is not required. The General Conformity evaluation and the NEPA assessment are two separate and unique processes where the General Conformity supports only the NEPA project the federal agency ultimately intends to implement or approve. However, the two may be prepared separated. The federal agency determines the most appropriate way, given the individual situation, to integrate the conformity and NEPA processes.
There are certain requirements for NEPA, such as the development of alternative actions, that are not required under General Conformity. Therefore, it may not make sense to perform a General Conformity evaluation for all NEPA alternatives, but only for the one alternative, combination of alternatives, or other derivative project the federal agency intends to approve or implement. At a minimum, at the point in the NEPA process when the preferred alternative is recommended, the air quality evaluation of General Conformity can proceed for that project.