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before the action is taken. To determine whether conformity requirements apply to an action, the
agency must consider the following criteria: the nonattainment and maintenance status of the
area; exemptions from and presumptions to conformity; the project’s emissions in comparison to
threshold levels; and the regional significance of the project’s emissions.
Nonattainment and Maintenance Areas. The current conformity rule only applies to
nonattainment areas and maintenance areas. The CAA establishes air quality standards (the
NAAQS) for pollutants, called criteria pollutants. A nonattainment area (NAA) is any geographic
area of the United States that is in violation of any NAAQS and, therefore, has been designated
as nonattainment under the CAA. States are required to develop revised State Implementation
Plans (SIPs) for such areas, with adequate control measures to achieve attainment within
specified deadlines. A maintenance area (MA) is any geographic area of the United States
previously designated nonattainment pursuant to the CAA Amendments of 1990 and subsequently
redesignated to attainment, subject to the requirement to develop a maintenance plan under the
CAA. Such an area must develop a maintenance plan, which is a revision to the applicable
implementation plan, meeting the requirements of the CAA. Unclassifiable (“Cannot be
classified”) areas are not subject to the current conformity rules.
Exemptions and Presumptions. The rule contains exemptions from and presumptions to
conformity. Federal actions for which it is necessary to perform a thorough air quality analysis in
order to comply with other statutory requirements (e.g., actions subject to the New Source
Review program, remedial activities under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA)) are considered to conform with the applicable SIP.
Federal actions that would result in no emissions increase or a de minimis emissions increase are
exempt from the conformity process. The rule identifies a list of actions that would result in no
emissions increase or an increase in emissions that is clearly de minimis. Examples include air
traffic control activities and adopting approach, departure, and enroute procedures for air
operations; routine installation and operation of aviation and maritime navigational aids;
participating in “air shows” and “fly-over” by military aircraft; routine monitoring and /or
sampling of air, water, soils, effluent, etc.; continuing and recurring activities such as permit
renewals where activities currently being conducted; rulemaking and policy development and
issuance; routine movement of mobile assets such as aircraft; routing operation of facilities,
mobile assets and requirement; routing maintenance and repair activities; administrative actions;
and, land transfers. See Determining Conformity of General Federal Actions to State or Federal
Implementation Plans, 58 Fed. Reg. 63214, 63229 (November 30, 1993). However, actions that
are exempt or presumed to conform still must evaluate whether the emissions are considered
“regionally significant,” discussed below.
Threshold Emission Levels. Annual threshold rates of emissions were established in the
General Conformity Rule to focus conformity requirements on those Federal actions with the
potential to have significant air quality impacts. Threshold levels are established in Title 40
§93.153(b) and vary according to the type of pollutant and the severity of the nonattainment/
maintenance area. The project’s emissions (proposed project emissions minus no action
emissions) are compared to these threshold levels. Table 3 and Table 4 list the threshold levels
applicable to nonattainment areas and maintenance areas, respectively. Conformity emission
thresholds refer to the total of direct and indirect emissions, which “means the sum of direct and
indirect emissions increases and decreases caused by the Federal action; i.e., the ‘net’ emissions
considering all direct and indirect emissions.”
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Direct emissions are those caused by or initiated by the Federal action, and that occur at the same
time and place as the action. Indirect emissions are those (a) “caused by the Federal action, but
may occur later in time and/or may be farther removed in distance from the action itself but are
still reasonably foreseeable” and (b) that “the Federal agency can practicably control and will
maintain control over due to a continuing program responsibility of the Federal agency.”7
Examples of “controlling” or regulating emissions are through the use of emissions control
equipment on a boiler (direct control) or through the implementation of regulations or conditions
　
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