La. Admin. Code tit. 33 § III-1405

Current through Register Vol. 50, No. 6, June 20, 2024

Section III-1405 - Applicability

A. Conformity determinations for federal actions related to transportation plans, programs, and projects developed, funded, or approved under Title 23 U.S.C. or the Federal Transit Act ( 49 U.S.C. 1601 et seq.) must meet the procedures and criteria of LAC 33:III.Chapter 14.Subchapter B, in lieu of the procedures set forth in this Subchapter.

B. For federal actions not covered by Subsection A of this Section, a conformity determination under this Subchapter is required for each criteria 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 2 of this Section. Emissions from federal actions must be determined using methods described in LAC 33:III.1411.

1. The following rates apply in nonattainment areas (NAAs).

Criteria Pollutants	Tons/Year
Ozone (VOCs or NO_x)
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
NO_x	100
Carbon Monoxide
All NAAs	100
SO₂ or NO₂
All NAAs	100
PM₁₀
Moderate NAAs	100
Serious NAAs	70
Pb
All NAAs	25

2. The following rates apply in maintenance areas.

Criteria Pollutants	Tons/Year
Ozone (NO_x), SO₂ or NO₂
All Maintenance Areas	100
Ozone (VOCs)
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 Subchapter shall not apply to:

1. actions where the total of direct and indirect emissions are below the emissions levels specified in Subsection B of this Section;

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. routine, recurring transportation of material 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 and/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. actions, 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, such as the following examples: 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; and assistance in purchasing structures;

k. 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. 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 the Comprehensive Environmental Response, Compensation, and Liability Act (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; and

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; and

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

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 conforming land management plan that has been found to conform to the applicable implementation plan.

D. Notwithstanding the other requirements of this Subchapter, 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 (NSR) program (Section 173 of the CAA) or the prevention of significant deterioration (PSD) program (Title I, Part C 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 Subsection E of this Section;

3. research, investigations, studies, demonstrations, or training where no environmental detriment is incurred and/or the particular action furthers air quality research, as determined by the department primarily responsible for the applicable SIP;

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); and

5. direct emissions from remedial and removal actions carried out under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and associated regulations to the extent such emissions either comply with the substantive requirements of the PSD/NSR 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 Section 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 Section are exempt from the requirements of this Subchapter 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 Section, the federal agency makes a new determination as provided in Paragraph E.1 of this Section.

F. Notwithstanding other requirements of this Subchapter, actions specified by individual federal agencies that have met the criteria set forth in either Paragraph G.1, 2, or 3 of this Section and when the procedures set forth in Subsection H of this Section have been met are presumed to conform, except as provided in Subsection J of this Section.

G. The federal agency must meet the criteria for establishing classes of action that are presumed to conform by fulfilling the requirements set forth in either Paragraph G.1 or 2 of this Section. Federal agencies, in accordance with Paragraph G.1 or 2 of this Section, may establish classes of action as presumed to conform and not subject to the requirements of LAC 33:III.1410; and may in accordance with Paragraph G.3 of this Section, specify future individual actions as presumed to conform when the individual actions are similar in design and scope to the type of activity upon which the class of action was established.

1. The federal agency must demonstrate, using methods consistent with these regulations that the total of direct and indirect emissions from the class of action 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 SIP 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 SIP for purposes of:

i. a demonstration of reasonable further progress;

ii. a demonstration of attainment; or

iii. a maintenance plan.

2. The federal agency must 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 Subsection B of this Section based, for example, on actions similar in design and scope taken over recent years.

3. Future individual actions which are specified by an individual federal agency as presumed to conform based on that action being similar in design and scope to a presumed to conform class of action established in accordance with Paragraph G.1 or 2 of this Section are subject to the requirements of Subsections H and J of this Section, and must operate at or below the emissions levels established in the associated class of action presumed to conform.

H. In addition to meeting the criteria for establishing presumed to conform actions set forth in Paragraph G.1, 2 or 3 of this Section, the following procedures must also be complied with to presume that actions will conform:

1. the federal agency must identify, through publication in the Federal Register, its list of proposed actions that are presumed to conform and the analyses, assumptions, emission factors, and criteria used as the basis for the presumptions;

2. the federal agency must give direct notice of proposed presumed to conform actions and the basis for the presumptions to the EPA Region 6 Office, the department, local air quality agencies and, where applicable, the MPO; and provide at least 30 days prior to publishing the final list of such actions for the agencies notified and the public to comment on the list of proposed actions presumed to conform;

3. the federal agency must document its response to all the comments received and make the comments, response, and final list of actions available to the public upon request; and

4. the federal agency must publish the final list of such actions in the Federal Register.

I. Notwithstanding the other requirements of this Subchapter, when the total of direct and indirect emissions of any pollutant from a federal action does not equal or exceed the rates specified in Subsection B of this Section, and the federal action is regionally significant, the requirements of LAC 33:III.1403 and 1407-1412 shall apply.

J. Where an action otherwise presumed to conform under Subsection F of this Section is a regionally significant action or does not, in fact, meet one of the criteria in Paragraph G.1 of this Section, that action shall not be presumed to conform and the requirements of LAC 33:III.1403 and 1407-1412 shall apply for the federal action.

La. Admin. Code tit. 33, § III-1405

Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1270 (November 1994), amended LR 23:720 (June 1997).

AUTHORITY NOTE: Promulgated in accordance with R.S. 30:2054.