Chapter 3745-102 General Federal Action Conformity

3745-102-01 Purpose.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3745-102-02 of the Administrative Code titled"Incorporation by reference."]

(A) The purpose of this chapter is to implement Section section 176(c) of the CAA and regulations under 40 CFR Part 51, Subpart W, with respect to the conformity of general federal actions to the applicable implementation plan. Under those authorities, no department, agency or instrumentality of the federal government shall engage in, support in any way or provide financial assistance for, license or permit, or approve any activity which does not conform to an applicable implementation plan. This chapter sets forth policy, criteria, and procedures for demonstrating and assuring conformity of such actions to the applicable implementation plan.

(B) Under Section 176(c) of the CAA and 40 CFR Part 51, Subpart W, a federal agency shall make a determination that a federal action conforms to the applicable implementation plan in accordance with the requirements of this chapter before the action is taken.

(C) The preceding sentence does not include federal actions where either:

(1) A National Environmental Policy Act of 1969 analysis was completed as evidenced by a final environmental assessment, environmental impact statement, or finding of no significant impact that was prepared prior to January 31, 1994; or

(2)

(a) Prior to January 31, 1994, an environmental assessment was commenced or a contract was awarded to develop the specific environmental analysis;

(b) Sufficient environmental analysis is completed by March 15, 1994, so that a federal agency may determine that the federal action is in conformity with the specific requirements and the purposes of the applicable implementation plan pursuant to the agency's affirmative obligation under Section 176(c) of the CAA; and

(c) A written determination of conformity under Section 176(c) of the CAA has been made by the federal agency responsible for the federal action by March 15, 1994.

(D) Notwithstanding any provision of this chapter, a determination that an action is in conformity with the applicable implementation plan does not exempt the action from any other requirements of the applicable implementation plan, the National Environmental Policy Act of 1969, or the CAA.

Effective: 11/03/2006
R.C. 119.032 review dates: 08/16/2006 and 11/03/2011
Promulgated Under: 119.03
Statutory Authority: ORC 3704.03(E)
Rule Amplifies: ORC 3704.033 , 3704.03(E)
Prior Effective Dates: 8/21/95

3745-102-02 Definitions.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the "Incorporation by Reference" paragraph at the end of this rule.]

(A) Terms used but not defined in this chapter shall have the meaning given them by the CAA and USEPA's regulations, in that order of priority. Except as otherwise provided in this rule, the definitions in rule 3745-15-01 of the Administrative Code shall apply to this chapter.

(B) As used in Chapter 3745-102 of the Administrative Code:

(1) "Affected federal land manager" means the federal agency or the federal official charged with direct responsibility for management of an area designated as Class I under 42 USC 7472 that is located within one hundred kilometers of the proposed federal action.

(2) "Applicable implementation plan" means the portion or portions of the state's implementation plan, or most recent revision thereof, which has been approved under Section 110 of the CAA, or promulgated under Section 110(c) of the CAA (federal implementation plan), or promulgated or approved pursuant to regulations promulgated under Section 301(d) (D) of the CAA and which implements the relevant requirements of the CAA.

(3) "Areawide air quality modeling analysis" means an assessment on a scale that includes the entire nonattainment or maintenance area, which uses an air quality dispersion model to determine the effects of emissions on air quality.

(4) "CAA" means the Clean Air Act as amended November 15, 1990; 42 USC 7401 to 42 USC 7671q .

(5) "Cause or contribute to a new violation" means a federal action that:

(a) Causes a new violation of a national ambient air quality standard at a location in a nonattainment or maintenance area which would otherwise not be in violation of the standard during the future period in question if the federal action were not taken;, or

(b) Contributes, in conjunction with other reasonably foreseeable actions, to a new violation of a national ambient air quality standard at a location in a nonattainment or maintenance area in a manner that would increase the frequency or severity of the new violation.

(6) "Caused by", as used in the terms "direct emissions" and "indirect emissions," means emissions that would not otherwise occur in the absence of the federal action.

(7) "CERCLA" means the Comprehensive Environmental Response, Compensation, and Liability Act, contained in 42 USC 9601 to 42 USC 9675 .

(8) "CO" means carbon monoxide.

(9) "Criteria pollutant or standard" means any pollutant for which there is an established a national ambient air quality standard at 40 CFR Part 50.

(10) "Direct emissions" means those emissions of a criteria pollutant or its precursors that are caused or initiated by the federal action and occur at the same time and place as the action.

(11) "Emergency" means a situation where extremely quick action on the part of the federal agencies involved is needed and where the timing of such federal activities makes it impractical to meet the requirements of this chapter, such as natural disasters like hurricanes or earthquakes, civil disturbances such as terrorist acts, and military mobilizations.

(12) "Emissions budgets" means those portions of the total allowable emissions defined in a USEPA-approved revision to the applicable implementation plan for a certain date for the purpose of meeting reasonable further progress milestones or attainment or maintenance demonstrations, for any criteria pollutant or its precursors, specifically allocated by the applicable implementation plan to mobile sources, to any stationary source or class of stationary sources, to any federal action or class of action, to any class of area sources, or to any subcategory of the emissions inventory. The allocation system shall be specific enough to assure meeting the criteria of Section section 176(c)(1)(B) of the CAA. An emissions budget may be expressed in terms of an annual period, a daily period, or other period established in the applicable implementation plan.

(13) "Emission offsets" for the purposes of paragraph (B) of rule 3745-102-05 of the Administrative Code, means emissions reductions which are quantifiable, consistent with the applicable implementation plan attainment and reasonable further progress demonstrations, surplus to reductions required by and credited to other applicable implementation plan provisions, enforceable under both state and federal law, and permanent within the time frame specified by the program. Emissions reductions intended to be achieved as emissions offsets under this chapter shall be monitored and enforced in a manner equivalent to that under USEPA's new source review requirements.

(14) "Emissions that a federal agency has a continuing program responsibility for" means emissions that are specifically caused by an agency carrying out its authorities, and does not include emissions that occur due to subsequent activities, unless such activities are required by the federal agency. Where an agency, in performing its normal program responsibilities, takes actions itself or imposes conditions that result in air pollutant emissions by a non-federal entity taking subsequent actions, such emissions are covered by the meaning of a continuing program responsibility.

(15) "Facility" means any building, structure, roadway, installation, operation, or combination thereof.

(16) "Federal action" means any activity engaged in by a department, agency or instrumentality of the federal government, or any activity that a department, agency or instrumentality of the federal government supports in any way, provides financial assistance for, licenses, permits, or approves, other than activities related to transportation plans, programs, and projects developed, funded, or approved under Title 23 of the United States Code or the Federal Transit Act, contained in 49 USC 53. Where the federal action is a permit, license, or other approval for some aspect of a non-federal undertaking, the relevant activity is the part, portion, or phase of the non-federal undertaking that requires the federal permit, license, or approval.

(17) "Federal agency" means, for purposes of this chapter, a federal department, agency, or instrumentality of the federal government to the extent that it is engaging in, supporting in any way or providing financial assistance for, licensing or permitting, or approving an action in the state of Ohio.

(18) "Increase the frequency or severity of any existing violation of any standard in any area" means to cause a nonattainment area to exceed a standard more often, or to cause a violation at a greater concentration than previously existed or would otherwise exist during the future period in question if the project were not implemented.

(19) "Indirect emissions" means those emissions of a criteria pollutant or its precursors that:

(a) Are caused by the federal action, but may occur later in time or may be farther removed in distance from the action itself but are still reasonably foreseeable;, and

(b) The federal agency can practicably control and will maintain control over due to a continuing program responsibility of the federal agency.

(20) "Local air agency" means an agency that has been delegated air pollution control responsibilities by the director pursuant to Section 3704.03 of the Revised Code.

(21) "Local air quality modeling analysis" means an assessment of localized impacts on a scale smaller than the entire nonattainment or maintenance area, including, for example, congested roadway intersections and highways or transit terminals, which uses an air quality dispersion model to determine the effects of emissions on air quality.

(22) "Maintenance area" means any geographic region of the United States previously designated nonattainment pursuant to the CAA and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under Section 175A of the CAA.

(23) "Maintenance plan" means a revision to the applicable implementation plan, meeting the requirements of Section 175A of the CAA.

(24) "Metropolitan planning organization" or "MPO" means that organization designated as being responsible, together with the state, for conducting the continuing, cooperative, and comprehensive planning process under 23 USC 134 and 49 USC 5303 within the MPO boundary as recognized by the governor of Ohio.

(25) "Milestone" has the meaning given in Sections 182(g)(1) and 189(c)(1) of the CAA. A milestone consists of an emissions level and the date on which it is required to be achieved.

(26) "National ambient air quality standards" or "NAAQS" means those standards established pursuant to Section 109 of the CAA and include standards for CO, Pb, NO2, ozone, PM10 and SO2.

(27) "NEPA" means the National Environmental Policy Act of 1969, contained in 42 USC 4321 to 42 USC 4370(f) .

(28) "Nonattainment area" or "NAA" means any geographic area of the United States which has been designated as nonattainment under Section 107 of the CAA and described in 40 CFR Part 81.

(29) "NOx" means oxides of nitrogen.

(30) "NO2" means nitrogen dioxide.

(31) "Pb" means lead.

(32) "PM10" means particulate matter with an aerodynamic diameter less than or equal to ten microns.

(33) "Precursors of a criteria pollutant" means:

(a) For ozone: NOx unless an area is exempted from NOx requirements under Section 182(f) of the CAA, and volatile organic compounds (VOC); and

(b) For PM10: those pollutants described in the PM10 nonattainment area applicable implementation plan as significant contributors to the PM10 levels.

(34) "Reasonably foreseeable emissions" means projected future indirect emissions that are identified at the time the conformity determination is made; the location of such emissions is known to the extent adequate to determine the impact of such emissions; and the emissions are quantifiable, as described and documented by the federal agency based on its own information and after reviewing any information presented to the federal agency.

(35) "Regionally significant action" means a federal action for which the direct and indirect emissions of any pollutant represent ten per cent or more of a nonattainment or maintenance area's emissions inventory for that pollutant.

(36) "Regional water or wastewater projects" include construction, operation, and maintenance of water or wastewater conveyances, water or wastewater treatment facilities, and water storage reservoirs which affect a large portion of a nonattainment or maintenance area.

(37) "Total of direct and indirect emissions" 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. The portion of emissions which are exempt or presumed to conform under paragraph (C), (D), (E) or (F) of rule 3745-102-03 of the Administrative Code are not included in the"total of direct and indirect emissions", except as provided in paragraph (J) of rule 3745-102-03 of the Administrative Code. The"total of direct and indirect emissions" includes emissions of criteria pollutants and emissions of precursors of criteria pollutants. The segmentation of projects for conformity analyses when emissions are reasonably foreseeable is not permitted by this chapter.

(38) "USEPA" means the United States environmental protection agency.

(39) "VOC" means volatile organic compound as defined in paragraph (B)(6) of rule 3745-21-01 of the Administrative Code.

(C) Incorporation by reference. This chapter includes references to certain matter or materials. The text of the incorporated materials is not included in the regulations contained in this chapter. The materials are hereby made a part of the regulations in this chapter. For materials subject to change, only the specific version specified in the regulation are incorporated. Material is incorporated as it exists on the effective date of this rule. Except for subsequent annual publication of existing (unmodified) Code of Federal Regulation compilations, any amendment or revision to a referenced document is not incorporated unless and until this rule has been amended to specify the new dates.

(1) Availability. The materials incorporated by reference are available as follows:

(a) Clean Air Act. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." The full text of the Act as amended in 1990 is also available in electronic format at www.epa.gov/oar/caa/. A copy of the Act is also available for inspection and copying at most public libraries and "The State Library of Ohio."

(b) Code of Federal Regulations. Information and copies may be obtained by writing to: "Superintendent of Documents, Attention: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." The full text of the CFR is also available in electronic format at www.access.gpo.gov/nara/cfr/. The CFR compilations are also available for inspection and copying at most public libraries and "The State Library of Ohio."

(c) Compilation of air pollutant emission factors, AP-42. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." The full text of the compilation of air pollutant emission factors, AP-42, is also available in electronic format at http://www.epa.gov/ttn/chief/ap42/index.html. The compilation of air pollutant emission factors, AP-42, are also available for inspection and copying at most public libraries and "The State Library of Ohio."

(d) Comprehensive Environmental Response, Compensation, and Liability Act. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." The full text of the Act as amended in 1980 is also available in electronic format at http://www4.law.cornell.edu/uscode/. A copy of the Act is also available for inspection and copying at most public libraries and "The State Library of Ohio."

(e) a.Federal Register. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." It is also available in electronic format at http://www.gpoaccess.gov/nara/index.html. A copy of the Register is also available for inspection and copying at most public libraries and "The State Library of Ohio."

(f) Federal Transit Act. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." The full text of the Act as amended in 1998 is also available in electronic format at http://www4.law.cornell.edu/uscode/. A copy of the Act is also available for inspection and copying at most public libraries and "The State Library of Ohio."

(g) National Environmental Policy Act. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." A copy of the Act is also available for inspection and copying at most public libraries and "The State Library of Ohio."

(h) United States Code. Information and copies may be obtained by writing to: "Superintendent of Documents, Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954." The full text of the United States Code is also available in electronic format at http://www4.law.cornell.edu/uscode/. The USC compilations are also available for inspection and copying at most public libraries and "The State Library of Ohio."

(2) Incorporated materials

(a) 23 USC 134 ; "Metropolitan Planning;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code; as amended August 10, 2005; Pub. L. 109-59, Sec. 6001(a), 119 Stat. 1839.

(b) 40 CFR Part 50; "National primary and secondary ambient air quality standards;" as published in the July 1, 2005 Code of Federal Regulations.

(c) 40 CFR Part 51, Appendix W; "Guideline on Air Quality Models;" 70 FR 68228, November 9, 2005.

(d) 40 CFR Part 51, Subpart W; "Determining Conformity of General Federal Actions to State or Federal Implementation Plans;" 58 FR 63247, Nov. 30, 1993.

(e) 40 CFR Part 81; "Designation of areas for air quality planning purposes;" as published in the July 1, 2005 Code of Federal Regulations.

(f) 40 CFR Part 93, Subpart A; "Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Laws;" as published in the July 1, 2005 Code of Federal Regulations.

(g) 42 USC 4321 to 42 USC 4370f ; "National environmental policy;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(h) 42 USC 7401 to 42 USC 7671q ; "Air Pollution Prevention and Control;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(i) 42 USC 7472 ; "Initial classifications;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(j) 49 USC 5303 ; "Metropolitan Planning;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code; as amended August 10, 2005; Pub. L. 109-59, Sec. 6001(a), 119 Stat. 1839.

(k) "Comprehensive environmental response, compensation, and liability;" contained in 42 USC 9601 to 42 USC 9675 ; published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(l) Federal Transit Act, contained in 49 USC 53 ; "Mass Transportation;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code; as amended August 10, 2005, L. 109-59.

(m) National Environmental Policy Act of 1969; contained in 42 USC 55 ; "National Environmental Policy;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(n) Part C of Title I, of the Clean Air Act; contained in 42 USC 7470 to 42 USC 7492 "Prevention of significant deterioration of air quality;" published January 19, 2004 in Supplement II of the 2000 Edition of United States Code.

(o) Part D of the Clean Air Act; contained in 42 USC 7501 to 42 USC 7515 ; "Plan Requirements for Non Attainment Areas;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code; as amended August 10, 2005, Pub. L. 109-59, sec. 6011(a)-(f), 119 Stat. 1878-1881.

(p) Section 107 of the Clean Air Act; contained in 42 USC 7408 ;" Air quality criteria and control techniques;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(q) Section 109 of the Clean Air Act; contained in 42 USC 7409 ;" National Ambient Air Quality Standards;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(r) Section 110 of the Clean Air Act; contained in 42 USC 7410 ;" Implementation plans;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(s) Section 110(c) of the Clean Air Act; contained in 42 USC 7410 ;" Implementation plans;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(t) Section 110(k)(5) of the Clean Air Act, contained in 42 USC 7410 ;" Implementation plans;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(u) Section 173 of the Clean Air Act; contained in 42 USC 7503 ;" Permit requirements;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(v) Section 174 of the Clean Air Act; contained in 42 USC 7504 ; " Planning procedures;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(w) Section 175A of the Clean Air Act; contained in 42 USC 7505a ;" Maintenance plans;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(x) Section 176(c) of the Clean Air Act; contained in 42 USC 7506 ;" Limitation on certain federal assistance;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(y) Section 176(c)(1)(B) of the Clean Air Act; contained in 42 USC 7506 ;" Limitation on certain federal assistance;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(z) Section 182(g)(1) of the Clean Air Act; contained in 42 USC 7511a ;"Plan submissions and requirements;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(aa) Section 182(f) of the Clean Air Act; contained in 42 USC 7511a ;"Plan submissions and requirements;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(bb) Section 189(c)(1) of the Clean Air Act; contained in 42 USC 7513a ;"Plan provisions and schedules for plan submissions;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(cc) Section 301(d) of the Clean Air Act; contained in 42 USC 7601 ;"Administration;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

(dd) Title 23 of the United States Code; "Highways;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code, as amended June 9, 1998; Pub. L. 105-178, title V, §5101(1), , 112 Stat. 422, Sept. 9, 1966, Pub. L. 89-564, title I, §102(b)(3), , 80 Stat. 735.

(ee) Title 49 of the United States Code; "Transportation;" published January 19, 2004 in Supplement III of the 2000 Edition of the United States Code.

Effective: 11/03/2006
R.C. 119.032 review dates: 08/16/2006 and 11/03/2011
Promulgated Under: 119.03
Statutory Authority: ORC 3704.03(E)
Rule Amplifies: ORC 3704.033 , 3704.03(E)
Prior Effective Dates: 8/21/95

3745-102-03 Applicability.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3745-102-02 of the Administrative Code titled"Incorporation by reference."]

(A) Conformity determinations for federal actions related to transportation plans, programs, and projects developed, funded, or approved under Title 23 of the United States Code or the Federal Transit Act, contained in 49 USC 5303 shall meet the procedures and criteria of Chapter 3745-101 of the Administrative Code, in lieu of the procedures set forth in this chapter.

(B) For federal actions not covered by paragraph (A) of this rule, a conformity determination by the federal agency taking the action for which the conformity determination is being made is required for each pollutant where the total of direct and indirect emissions in a nonattainment or maintenance area caused by a federal action would equal or exceed any of the rates in paragraph (B)(1) or (B)(2) of this rule.

(1) For purposes of paragraph (B) of this rule, the following rates apply in NAA's:

Pollutant Tons/Year

Ozone (VOC or NOx)

Serious NAAs 50

Severe NAAs 25

Extreme NAAs 10

Other ozone NAAs outside an ozone transport region 100

Marginal and moderate NAAs inside an ozone transport region

VOC 50

NOx 100

Carbon monoxide

All NAAs 100

SO2 or NO2

All NAAs 100

PM10

Moderate NAAs 100

Serious NAAs 70

Pb

All NAAs 25

(2) For purposes of paragraph (B) of this rule, the following rates apply in maintenance areas:

Pollutant Tons/Year

Ozone (NOx), SO2 or NO2

All maintenance areas 100

Ozone (VOC)

Maintenance areas inside an ozone transport region 50

Maintenance areas outside an ozone transport region 100

Carbon monoxide

All maintenance areas 100

PM10

All maintenance areas 100

Pb

All maintenance areas 25

(C) The requirements of this chapter shall not apply to:

(1) Actions where the total of direct and indirect emissions are below the emissions levels specified in paragraph (B) of this rule.

(2) The following actions which would result in no emissions increase or an increase in emissions that is clearly de minimis:

(a) Judicial and legislative proceedings.

(b) Continuing and recurring activities such as permit renewals where activities conducted will be similar in scope and operation to activities currently being conducted.

(c) Rulemaking and policy development and issuance;

(d) Routine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails, and facilities.

(e) Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, and the training of law enforcement personnel.

(f) 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.

(g) The routine, recurring transportation of materiel and personnel.

(h) 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 or for repair or overhaul.

(i) Maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and disposal will be at an approved disposal site.

(j) 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, actions such as 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.

(k) 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.

(l) Planning, studies, and provision of technical assistance.

(m) Routine operation of facilities, mobile assets and equipment.

(n) Transfers of ownership, interests, and titles in land, facilities, and real and personal properties, regardless of the form or method of the transfer.

(o) The designation of empowerment zones, enterprise communities, or viticultural areas.

(p) 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.

(q) Actions by the board of governors of the federal reserve system or any federal reserve bank to effect monetary or exchange rate policy.

(r) Actions that implement a foreign affairs function of the United States.

(s) 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.

(t) 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.

(u) Actions by the department of the treasury to effect fiscal policy and to exercise the borrowing authority of the United States.

(3) The following actions where the emissions are not reasonably foreseeable:

(a) 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.

(b) Electric power marketing activities that involve the acquisition, sale and transmission of electric energy.

(4) Individual actions which implement a decision to conduct or carry out a program that has been found to conform to the applicable implementation plan, such as prescribed burning actions which are consistent with a land management plan that has been found to conform to the applicable implementation plan. Such land management plan shall have been found to conform within the past five years.

(D) Notwithstanding the other requirements of this chapter, 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 program pursuant to Section 173 of the CAA or the prevention of significant deterioration program under Part C of Title I of the CAA.

(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 rule.

(3) Research, investigations, studies, demonstrations, or training, other than those exempted under paragraph (C)(2) of this rule, where no environmental detriment is incurred or the particular action furthers air quality research, as determined by the Ohio EPA, which is responsible for the applicable implementation plan.

(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 CERCLA and associated regulations to the extent such emissions either comply with the substantive requirements of the prevention of significant deterioration/new source review 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 rule and which are to be taken more than six months after the commencement of the response to the emergency or disaster under paragraph (D)(2) of this rule are exempt from the requirements of this chapter only if:

(1) The federal agency taking the actions makes a written determination that, for a specified period not to exceed an additional six 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 rule, the federal agency makes a new determination as provided in paragraph (E)(1) of this rule.

(F) Notwithstanding other requirements of this chapter, individual actions or classes of actions specified by individual federal agencies that have met the criteria set forth in either paragraph (G)(1) or (G)(2) of this rule and the procedures set forth in paragraph (H) of this rule are presumed to conform, except as provided in paragraph (J) of this rule.

(G) The federal agency shall 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 rule:

(1) The federal agency shall clearly demonstrate, using methods consistent with this chapter, that the total of direct and indirect emissions from the type of activities which would be presumed to conform would not:

(a) Cause or contribute to any new violation of any standard in any area;

(b) Interfere with provisions in the applicable implementation plan for maintenance of any standard;

(c) Increase the frequency or severity of any existing violation of any standard in any area; or

(d) 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 implementation plan for purposes of:

(i) A demonstration of reasonable further progress;

(ii) A demonstration of attainment; or

(iii) A maintenance plan; or

(2) The federal agency shall 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 rule, based, for example, on similar actions taken over recent years.

(H) In addition to meeting the criteria for establishing exemptions set forth in paragraph (G)(1) or (G)(2) of this rule, the following procedures shall also be complied with to presume that activities will conform:

(1) The federal agency shall 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 shall notify the appropriate USEPA regional office(s), Ohio EPA and local air agencies and, where applicable, the agency designated under Section 174 of the CAA and the MPO and provide at least thirty days for the public to comment on the list of proposed activities presumed to conform;

(3) The federal agency shall 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 shall publish the final list of such activities in the Federal Register.

(I) Notwithstanding the other requirements of this chapter, 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 rule, but represents ten per cent 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 rule 3745-102-01 and of paragraph (B) of rule 3745-102-04 to rule 3745-102-06 of the Administrative Code shall apply for the federal action.

(J) Where an action presumed to be de minimis under paragraph (C)(1) or (C)(2) of this rule or otherwise presumed to conform under paragraph (F) of this rule is a regionally significant action or where an action otherwise presumed to conform under paragraph (F) of this rule does not in fact meet one of the criteria in paragraph (G)(1) of this rule, that action shall not be considered de minimis or presumed to conform and the requirements of rule 3745-102-01 and of paragraph (B) of rule 3745-102-04 to rule 3745-102-06 of the Administrative Code shall apply for the federal action.

(K) The provisions of this chapter shall apply in all nonattainment and maintenance areas.

Effective: 11/03/2006
R.C. 119.032 review dates: 08/16/2006 and 11/03/2011
Promulgated Under: 119.03
Statutory Authority: ORC 3704.03(E)
Rule Amplifies: ORC 3704.033 , 3704.03(E)
Prior Effective Dates: 8/21/95

3745-102-04 Conformity analysis, reporting requirements, public participation and consultation.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3745-102-02 of the Administrative Code titled"Incorporation by reference."]

(A) Any federal department, agency, or instrumentality of the federal government taking an action subject to 40 CFR Part 51, Subpart W and this chapter shall make its own conformity determination consistent with the requirements of this chapter. In making its conformity determination, a federal agency shall consider comments from any interested parties. Where multiple federal agencies have jurisdiction for various aspects of a project, a federal agency may choose to adopt the analysis of another federal agency, to the extent that the proposed action and impacts analyzed are the same as the project for which a conformity determination is required, or to develop its own analysis in order to make its conformity determination.

(B) A federal agency making a conformity determination under paragraph (B) of rule 3745-102-05 of the Administrative Code shall:

(1) Provide to the appropriate USEPA regional office(s), to Ohio EPA and local air agencies and, where applicable, to affected federal land managers, to the agency designated under Section 174 of the CAA, and to the MPO, a thirty-day notice which describes the proposed action and the federal agency's draft conformity determination on the action.,

(2) Notify the appropriate USEPA regional office(s), Ohio EPA and local air agencies and, where applicable, affected federal land managers, the agency designated under Section 174 of the CAA, and the MPO, within thirty days after making a final conformity determination under paragraph (B) of rule 3745-102-05 of the Administrative Code.

(C) Upon request by any person regarding a specific federal action, a federal agency shall make available for review its draft conformity determination under paragraph (B) of rule 3745-102-05 of the Administrative Code with supporting materials which describe the analytical methods, assumptions, and conclusions relied upon in making the applicability analysis and draft conformity determination. In addition, a federal agency shall:

(1) Make public its draft conformity determination under paragraph (B) of rule 3745-102-05 of the Administrative Code by placing a notice by prominent advertisement in a daily newspaper of general circulation in the areas affected by the action, and by providing thirty days for written public comment prior to taking any formal action on the draft determination. This comment period may be concurrent with any other public involvement, such as occurs in the NEPA process.

(2) Document its response to all the comments received on its draft conformity determination under paragraph (B) of rule 3745-102-05 of the Administrative Code and make the comments and responses available, upon request by any person regarding a specific federal action, within thirty days of the final conformity determination.

(3) Make public its final conformity determination under paragraph (B) of rule 3745-102-05 of the Administrative Code for a federal action by placing a notice by prominent advertisement in a daily newspaper of general circulation in the area affected by the action within thirty days of the final conformity determination.

Effective: 11/03/2006
R.C. 119.032 review dates: 08/16/2006 and 11/03/2011
Promulgated Under: 119.03
Statutory Authority: ORC 3704.03(E)
Rule Amplifies: ORC 3704.033 , 3704.03(E)
Prior Effective Dates: 8/21/95

3745-102-05 Conformity determinations.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules, and federal statutory provisions referenced in this rule, see the last paragraph of rule 3745-102-02 of the Administrative Code titled"Incorporation by reference."]

(A) Frequency of conformity determinations.

(1) The conformity status of a federal action automatically lapses five years from the date a final conformity determination is reported under paragraph (B) of rule 3745-102-04 of the Administrative Code, unless the federal action has been completed or a continuous program has been commenced to implement that federal action within a reasonable time.

(2) Ongoing federal activities at a given site showing continuous progress are not new actions and do not require periodic redeterminations so long as the emissions associated with such activities are within the scope of the final conformity determination reported under paragraph (B) of rule 3745-102-04 of the Administrative Code.

(3) If, after the conformity determination is made, the federal action is changed so that there is an increase in the total of direct and indirect emissions above the levels in paragraph (B) of rule 3745-102-03 of the Administrative Code, then a new conformity determination is required.

(B) Criteria for determining conformity of general federal actions.

(1) The areawide and local air quality modeling analyses shall:

(a) Meet the requirements in paragraph (C) of this rule; and

(b) Show that the action does not:

(i) Cause or contribute to any new violation of any standard in any area; or

(ii) Increase the frequency or severity of any existing violation of any standard in any area.

(2) Notwithstanding any other requirements of paragraph (B) of this rule, an action subject to this chapter shall not be determined to conform to the applicable implementation plan unless the total of direct and indirect emissions from the action is in compliance or is consistent with all relevant requirements and milestones contained in the applicable implementation plan, such as elements identified as part of the reasonable further progress schedules, assumptions specified in the attainment or maintenance demonstration, prohibitions, numerical emission limits, and work practice requirements, and such action is otherwise in compliance with all relevant requirements of the applicable implementation plan.

(3) Any analyses required under paragraph (B) of this rule shall be completed, and any mitigation requirements necessary for a finding of conformity shall be identified in compliance with rule 3745-102-06 of the Administrative Code, before the determination of conformity is made.

(4) An action required under rule 3745-102-03 of the Administrative Code to have a conformity determination for a specific pollutant will be determined to conform to the applicable implementation plan if, for each pollutant that exceeds the rates in paragraph (B) of rule 3745-102-03 of the Administrative Code or otherwise requires a conformity determination due to the total of direct and indirect emissions from the action, the action meets the requirements of paragraph (B)(2) of this rule and meets any of the following requirements:

(a) For any criteria pollutant, the total of direct and indirect emissions from the action are specifically identified and accounted for in the applicable implementation plan's attainment or maintenance demonstration;

(b) For ozone or NO2, the total of direct and indirect emissions from the action are fully offset within the same nonattainment or maintenance area through a revision to the applicable implementation plan or a measure similarly enforceable under state and federal law that effects emission reductions so that there is no net increase in emissions of that pollutant;

(c) For any criteria pollutant, except ozone and nitrogen dioxide, the total of direct and indirect emissions from the action meet the requirements:

(i) Specified in paragraph (B)(1) of this rule, based on areawide air quality modeling analysis and local air quality modeling analysis;, or

(ii) Specified in paragraph (B)(4)(e) of this rule and, for local air quality modeling analysis, the requirement of paragraph (B)(1) of this rule;

(d) For CO or PM10:,

(i) Where the Ohio EPA determines, in accordance with paragraphs (B) and (C) of rule 3745-102-04 of the Administrative Code and consistent with the applicable implementation plan, that an areawide air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in paragraph (B)(1) of this rule, based on local air quality modeling analysis;, or

(ii) Where the Ohio EPA determines, in accordance with paragraphs (B) and (C) of rule 3745-102-04 of the Administrative Code and consistent with the applicable implementation plan, that an areawide air quality modeling analysis is appropriate and that a local air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in paragraph (B)(1) of this rule, based on areawide modeling, or meet the requirements of paragraph (B)(4)(e) of this rule; or

(e) For ozone or nitrogen dioxide, and for purposes of paragraphs (B)(4)(c)(ii) and (B)(4)(d)(ii) of this rule, each portion of the action or the action as a whole meets any of the following requirements:

(i) Where USEPA has approved a revision to an area's attainment or maintenance demonstration after 1990 and the state makes a determination as provided in paragraph (B)(4)(e)(i)(a) of this rule or where the state makes a commitment as provided in paragraph (B)(4)(e)(i)(b) of this rule. Any such determination or commitment shall be made in compliance with paragraphs (B) and (C) of rule 3745-102-04 of the Administrative Code:

(a) The total of direct and indirect emissions from the action, or portion thereof, is determined and documented by the Ohio EPA to result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed the emissions budgets specified in the applicable implementation plan.

(b) The total of direct and indirect emissions from the action, or portion thereof, is determined by the Ohio EPA to result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would exceed an emissions budget specified in the applicable implementation plan and the governor or the Ohio EPA makes a written commitment to USEPA which includes the following:

(i) A specific schedule for adoption and submittal of a revision to the applicable implementation plan which would achieve the needed emission reductions prior to the time that emissions from the federal action would occur;

(ii) Identification of specific measures for incorporation into the applicable implementation plan which would result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed any emissions budget specified in the applicable implementation plan;

(iii) A demonstration that all existing applicable implementation plan requirements are being implemented in the area for the pollutants affected by the federal action, and that local authority to implement additional requirements has been fully pursued;

(iv) A determination that the responsible federal agencies have required all reasonable mitigation measures associated with their action;

(v) Written documentation including all air quality analyses supporting the conformity determination.

(c) Where a federal agency made a conformity determination based on a state commitment under paragraph (B)(4)(e)(i)(b) of this rule, such a state commitment is automatically deemed a call for an implementation plan revision by USEPA under Section section 110 (k)(K)(5) of the CAA CAAA, effective on the date of the federal conformity determination and requiring response within eighteen months or any shorter time within which the state commits to revise the applicable implementation plan;

(ii) The action, or portion thereof, as determined by the MPO, is specifically included in a current transportation plan and transportation improvement program which have been found to conform to the applicable implementation plan under Chapter rule 3745-101 of the Administrative Code or 40 CFR Part 93, Subpart subpart A;

(iii) The action, or portion thereof, fully offsets its emissions within the same nonattainment or maintenance area through a revision to the applicable implementation plan or through an equally enforceable measure that effects emission reductions equal to or greater than the total of direct and indirect emissions from the action so that there is no net increase in emissions of that pollutant;

(iv) Where USEPA has not approved a revision to the applicable implementation plan attainment or maintenance demonstration since 1990, the total of direct and indirect emissions from the action for the future years (described in paragraph (C)(4) of this rule) do not increase emissions with respect to the baseline emissions, and:

(a) The baseline emissions reflect the historical activity levels that occurred in the geographic area affected by the proposed federal action during:

(i) Calendar year 1990,

(ii) The calendar year that is the basis for the classification (or, where the classification is based on multiple years, the year that is most representative in terms of the level of activity), if a classification is promulgated in 40 CFR Part 81;, or

(iii) The year of the baseline inventory in the PM l0 applicable implementation plan;

(b) The baseline emissions are the total of direct and indirect emissions calculated for the future years (described in paragraph (C)(4) of this rule) using the historic activity levels, which are described in paragraph (B)(4)(e)(iv)(a) of this rule, and appropriate emission factors for the future years; or

(v) Where the action involves regional water or wastewater projects, such projects are sized to meet only the needs of population projections that are in the applicable implementation plan, based on assumptions regarding per capita use that are developed or approved in accordance with paragraph (C)(1) of this rule.

(C) Procedures for conformity determinations of general federal actions.

(1) The analyses required under this chapter shall be based on the latest planning assumptions.

(a) All planning assumptions shall be derived from the estimates of current and future population, employment, travel, and congestion most recently developed by the MPO (including, but not limited to, assumptions regarding per capita water and sewer use, vehicle miles traveled per capita or per household, trip generation per household, vehicle occupancy, household size, vehicle fleet mix, vehicle ownership, wood stoves per household, and the geographic distribution of population growth). The conformity determination shall also be based on the latest assumptions about current and future background concentrations and other federal actions.

(b) Any revisions to these estimates used as part of the conformity determination, including projected shifts in geographic location or level of population, employment, travel, and congestion, shall be approved by the MPO or other agency authorized to make such estimates for the area.

(2) The analyses required under this chapter shall be based on the latest and most accurate emission estimation techniques available as described below, unless such techniques are inappropriate. If such techniques are inappropriate and written approval of the USEPA regional administrator is obtained for any modification or substitution, then they may be modified or another technique substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific federal agency program.

(a) For motor vehicle emissions, the most current version of the motor vehicle emissions model specified by USEPA for use in the preparation or revision of implementation plans in the state or area shall be used for the conformity analysis as specified below:

(i) The USEPA publishes in the Federal Register a notice of availability of any new motor vehicle emissions model; and

(ii) A grace period of three months shall apply during which the motor vehicle emissions model previously specified by USEPA as the most current version may be used. Conformity analyses for which the analysis was begun during the grace period or no more than three years before the Federal federal [sic] Register notice of availability of the latest emission model may continue to use the previous version of the model specified by USEPA, if a final determination as to conformity is made within three years of such analysis.

(b) For non-motor vehicle sources, including stationary and area source emissions, the latest emission factors specified by USEPA in the "Compilation of Air Pollutant Emission Factors (AP-42)" shall be used for the conformity analysis unless more accurate emission data are available, such as actual stack test data from stationary sources which are part of the conformity analysis.

(3) The air quality modeling analyses required under this chapter shall be based on the applicable air quality models, data bases, and other requirements specified in the most recent version of the "Guideline on Air Quality Models" contained in 40 CFR Part 51, Appendix W (Revised)" (1986), including supplements (USEPA publication No. 450/2-78-027R), unless:

(a) The guideline techniques are inappropriate, in which case the model may be modified or another model substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific federal agency program; and

(b) Written approval of the USEPA regional administrator is obtained for any modification or substitution.

(4) The analyses required under this chapter shall be based on the total of direct and indirect emissions from the action and shall reflect emission scenarios that are expected to occur under each of the following cases:

(a) The CAA CAAA mandated attainment year or, if applicable, the farthest year for which emissions are projected in the maintenance plan;

(b) The year during which the total of direct and indirect emissions from the action for each pollutant analyzed is expected to be the greatest on an annual basis; and

(c) Any year for which the applicable implementation plan specifies an emissions budget.

Effective: 11/03/2006
R.C. 119.032 review dates: 08/16/2006 and 11/03/2011
Promulgated Under: 119.03
Statutory Authority: ORC 3704.03(E)
Rule Amplifies: ORC 3704.033 , 3704.03(E)
Prior Effective Dates: 8/21/95

3745-102-06 Mitigation of air quality impacts.

(A) Any measures that are intended to mitigate air quality impacts shall be identified in the conformity determination, including the identification and quantification of all emission reductions claimed, and the process for implementation, including any necessary funding of such measures and tracking of such emission reductions, and enforcement of such measures shall be described, including an implementation schedule containing explicit timelines for implementation.

(B) Prior to determining that a federal action is in conformity, the federal agency making the conformity determination shall obtain written commitments from the appropriate persons or agencies to implement any mitigation measures which are identified as conditions for making conformity determinations. Such written commitment shall describe such mitigation measures and the nature of the commitment, in a manner consistent with paragraph (A) of this rule.

(C) Persons or agencies voluntarily committing to mitigation measures to facilitate positive conformity determinations shall comply with the obligations of such commitments.

(D) In instances where the federal agency is licensing, permitting or otherwise approving the action of another governmental or private entity, the federal agency shall condition its approval in the conformity determination on the other entity meeting the mitigation measures set forth in the conformity determination, as provided in paragraph (A) of this rule.

(E) When necessary because of changed circumstances, mitigation measures may be modified so long as the new mitigation measures continue to support the conformity determination in accordance with this rule and with paragraphs (B) and (C) of rule 3745-102-05 of the Administrative Code. Any proposed change in the mitigation measures is subject to the reporting requirements of paragraph (B) of rule 3745-102-04 of the Administrative Code and the public participation requirements of paragraph (C) of rule 3745-102-04 of the Administrative Code.

(F) The federal agency shall obtain written commitments that mitigation measures will be implemented before the federal agency makes a determination that the project conforms and that such commitments shall be fulfilled.

(G) After this implementation plan revision is approved by USEPA, any agreements, including mitigation measures, necessary for a conformity determination will be both state and federally enforceable. Enforceability through the applicable implementation plan will apply to all persons who agree to mitigate direct and indirect emissions associated with a federal action for a conformity determination.

Effective: 11/03/2006
R.C. 119.032 review dates: 08/16/2006 and 11/03/2011
Promulgated Under: 119.03
Statutory Authority: ORC 3704.03(E)
Rule Amplifies: ORC 3704.033 , 3704.03(E)
Prior Effective Dates: 8/21/95