Regulatory Text: 
Louisiana Administrative Code, Title 33 ENVIRONMENTAL QUALITY, Part III Air (LAC 33:III)

Chapter 14.  Conformity

Subchapter A.  Determining Conformity of General Federal Actions to State or Federal Implementation Plans

SIP effective 1996-11-12 (LAc67) and 1998-05-08 (LAc75) and 2011-08-04 (LAd34)
Updated with §1410.A.5.a.i as submitted to EPA August 14, 2009 [LA039.03] and resubmitted to EPA 
October 2015 [LA039.05], MM002 LR 33:2084 (October 20, 2007).
Approved by EPA January 28, 2016 (81 FR 04891) effective February 29, 2016 (LAd47),
Regulations.gov docket EPA-R06-OAR-2012-0434 [LA039].

Outline:
Section 1401.  Purpose. LAc67
Section 1403.  Prohibition. LAc67
Section 1404.  Definitions. LAc67
Section 1405.  Applicability. LAc67, LAc75
Section 1406.  Conformity Analysis. LAc67
Section 1407.  Reporting Requirements. LAc67
Section 1408.  Public Participation. LAc67
Section 1409.  Frequency of Conformity Determinations. LAc67
Section 1410.  Criteria for Determining Conformity of General Federal Actions. LAc67, LAd34, LAd47
Section 1411.  Procedures for Conformity Determinations of General Federal Actions. LAc67
Section 1412.  Mitigation of Air Quality Impacts. LAc67
Section 1413.  Departmental Review. LAc67
Section 1414.  Enforcement Provisions. LAc67
Section 1415.  Savings Provision. LAc67


Section 1401.  Purpose. LAc67
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

   The purpose of this Subchapter is to implement 40 CFR part 51, subpart W to fulfill requirements of section 176(c) of the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), with respect to the conformity of general federal actions to the applicable state implementation plan(s) (SIPs).  This rule sets forth policy, criteria, and procedures for demonstrating and assuring conformity of such actions to the applicable SIPs.

   AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
   HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).

******************** end section 1401 *********************86t**

Section 1403.  Prohibition. LAc67
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

   A.  No department, agency, or instrumentality of the federal government shall engage in, support in any way, provide financial assistance for, license, permit, or approve any activity which does not conform to an applicable implementation plan.
   B.  A federal agency must make a determination that a federal action conforms to the applicable implementation plan in accordance with the requirements of this Subchapter before the action is taken.

   C.  Subsection B of this Section does not include federal actions where conditions in either Subsection C.1 or 2 of this Section are met:
    1.  A National Environmental Policy Act (NEPA) analysis was completed as evidenced by a final environmental assessment (EA), environmental impact statement (EIS), or finding of no significant impact (FONSI) that was prepared prior to January 31, 1994, or
    2.  Prior to January 31, 1994, an EA was commenced or a contract was awarded to develop the specific environmental analysis; Sufficient environmental analysis is completed by March 15, 1994, so that the federal agency may determine that the federal action is in conformity with the specific requirements and the purposes of the applicable SIP in accordance with the federal agency's affirmative obligation  under section 176(c) of the CAA; and A written determination of conformity under section 176(c) of the CAA has been made as of March 15, 1994 by the federal agency responsible for the federal action.

   D.  Notwithstanding any provision of this Subchapter, a determination that an action is exempt, is in conformance, or is presumed to conform with the applicable implementation plan does not exempt the action from any other requirements of the applicable implementation plan, the NEPA, the CAA, or any facility reporting, testing, monitoring, permitting, and fee requirements of LAC 33:III.

  AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).

******************** end section 1403 **********************86t**
This SIP Citation Was Last Modified on:  06/20/98

Section 1404.  Definitions. LAc67
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

   Terms used, but not defined in this part, shall have the meaning given them by the CAA and LAC 33:III, in that order of priority.

    Affected Federal Land Manager - the federal agency or the federal official charged with direct responsibility for management of an area designated as Class I under 42 U.S.C. 7472 of the CAA that is located within 100 km of the proposed federal action.

    Applicable Implementation Plan or Applicable SIP - the portion(s) of the Louisiana SIP 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) of the CAA and which implements the relevant requirements of the CAA.

    Areawide Air Quality Modeling Analysis - 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.
    Cause or Contribute to a New Violation - a federal action that:
      a.  causes a new violation of a national ambient air quality standard (NAAQS) 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 NAAQS at a location in a nonattainment or maintenance area in a manner that would increase the frequency or severity of the new violation.

    Caused By (as used in the terms "direct emissions" and "indirect emissions") - emissions that would not otherwise occur in the absence of the federal action.

    CAA - Clean Air Act as amended, 1990.

    Criteria Pollutant or Standard - any pollutant for which there is established a NAAQS at 40 CFR part 50.

    Department - the Air Quality Division, Office of Air Quality and Radiation Protection, of the Department of Environmental Quality.

    Direct Emissions - 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.

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

    Emissions Budgets - those portions of the total allowable emissions defined in the applicable implementation plan for a certain period for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance, for any criteria pollutant or its precursors, allocated by the applicable implementation plan to mobile sources, stationary sources, area sources, or any class source or subcategory source established within those projected emissions inventories.

    Emission Offsets - measures which reduce emissions and are quantifiable, consistent with the applicable SIP attainment and reasonable further progress demonstrations, surplus to reductions required by, and credited to, other applicable SIP provisions, enforceable under both state and federal law, and permanent within the time frame specified by the applicable SIP.

    Emissions that a Federal Agency has a Continuing Program Responsibility For - emissions that are specifically caused by an agency carrying out its authorities, but does not include emissions that occur due to subsequent activities, unless such activities are required by the federal agency; and where an agency, in performing its normal program responsibilities, takes actions itself or imposes conditions that result in air pollutant emissions by a nonfederal entity taking subsequent actions.

    Facility - all emission points, and fugitive, area, and mobile emission sources under common control on contiguous property.

    Federal Action - 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 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.).  Where the federal action is a permit, license, or other approval for some aspect of a nonfederal undertaking, the relevant activity is the part, portion, or phase of the nonfederal undertaking that requires the federal permit, license, or approval.

    Federal Agency - a federal department, agency, or instrumentality of the federal government.

    Increase the Frequency or Severity of any Existing Violation of any Standard in any Area - to cause a nonattainment area to exceed a standard more often or to cause a violation at a greater concentration than previously existed and/or would otherwise exist during the future period in question, if the project were not implemented.

    Indirect Emissions - those emissions of a criteria pollutant or its precursors that:
      a.  are 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.  the federal agency can practicably control and will maintain control over due to a continuing program responsibility of the federal agency, including:
        i.  on-site traffic activity and traffic to and from a proposed facility which is related to increases or other changes in the scale or timing of operations of such facility;
        ii.  emissions related to the activities of employees of contractors or federal employees;
        iii.  emissions offsets related to employee commutation and similar programs to increase average vehicle occupancy imposed on all employers of a certain size in the locality;
        iv.  emissions related to the use of federal facilities under lease or temporary permit; and
        v.  emissions related to the activities of contractors or leaseholders that may be addressed by provisions that are usual and customary for contracts or leases or are within the scope of contractual protection of the interests of the United States.

    Local Air Quality Modeling Analysis - 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.

    Maintenance Area - an area with a maintenance plan approved under section 175A of the CAA.

    Maintenance Plan - a revision to the applicable SIP which meets the requirements of section 175A of the CAA.

    Metropolitan Planning Organization (MPO) - that organization designated as being responsible, together with the state, for conducting the continuing, cooperative, and comprehensive planning process under 23 U.S.C. 134 and 49 U.S.C. 1607.

    Milestone - an emissions level and the date on which it is required to be achieved under sections 182(g)(1) and 189(c)(1) of the CAA.

    National Ambient Air Quality Standards (NAAQS) - those standards established pursuant to section 109 of the CAA, including standards for carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), ozone, particulate matter (PM10), and sulfur dioxide (SO2).

    NEPA - the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.).

    Nonattainment Area (NAA) - a geographic area of the United States designated as nonattainment under section 107 of the CAA and described in 40 CFR part 81.

    Precursors of a Criteria Pollutant -
      a.  for ozone:  nitrogen oxides (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 SIP as significant contributors to the PM10 levels.

    Reasonably Foreseeable Emissions - 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 that the impact of such emissions can be determined; 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.

    Regional Water and/or Wastewater Project - includes 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.

    Regionally Significant Action - a federal action for which the direct and indirect emissions of any pollutant represent 10 percent or more of a nonattainment or maintenance area's emissions inventory for that pollutant.

    Total of Direct and Indirect Emissions - the sum of direct and indirect emissions increases and decreases of criteria pollutant and precursor caused by federal action, inclusive of all emissions known or reasonably foreseeable at the time the emissions level is calculated (i.e., the net emissions considering all direct and indirect emissions).  Emissions which are exempt or presumed to conform under LAC 33:III.1405.C, D, E, or F, except as provided in LAC 33:III.1405.J, are not subject to the requirements of LAC 33:III.1410 and are not included in the net emissions from federal action which must be determined in conformity with the applicable SIP emissions budget.  Segmentation of projects for determining emissions for presumed to conform actions, and for conformity analyses is not permitted.

  AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).

******************** end section 1404 **********************86t**
This SIP Citation Was Last Modified on:  06/20/98

Section 1405.  Applicability. LAc67, LAc75
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96. Revised section 1405.B approved by EPA 03/09/98 (63 FR 11374) at 52.970(c)(75) effective 05/08/98.

  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 Subsection 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 (VOC's 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.  The following rates apply in maintenance areas:

           CRITERIA POLLUTANTS               TONS/YEAR

         Ozone (NOx), SO2 or NO2:                100
           All maintenance areas
         Ozone (VOC's):
           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 Subsection 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 Subsection 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 Subsection E.1 of this Section, the federal agency makes a new determination as provided in Subsection 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 Subsection 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 Subsection G.1  or 2 of this Section.  Federal agencies, in accordance with Subsection 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 Subsection 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 Subsection G.1 or 2 of this Section are subject to the requirements of Subsection 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 Subsection 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 Subsection 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.
  AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994), amended LR 23:720 (June 1997).

******************** end section 1405 **********************86t**
This SIP Citation Was Last Modified on:  06/20/98

Section 1406.  Conformity Analysis. LAc67
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

  Any federal department, agency, or instrumentality of the federal government taking an action subject to this Subchapter must make its own conformity determination consistent with the requirements of this Subchapter.  In making its conformity determination, a federal agency must 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 the proposed action and impacts analyzed are the same as the project for which a conformity determination is required) or develop its own analysis in order to make its conformity determination.  Any analysis adopted must include all known facility emissions associated with the action.

  AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).

******************** end section 1406 **********************86t**
This SIP Citation Was Last Modified on:  06/20/98

Section 1407.  Reporting Requirements. LAc67
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

  A.  A federal agency making a conformity determination under LAC 33:III.1410 must provide to the department, the EPA Region 6 Office, local air quality agencies and, where applicable, affected federal land managers, and the MPO a direct notice 30 days prior to final adoption of the conformity determination, which describes the proposed action and the federal agency's draft conformity determination on the action in sufficient detail to demonstrate that criteria and procedures required in LAC 33:III.1410-1412 are applied.

  B.  A federal agency must give direct notification to the department, the EPA Region 6 Office, local air quality agencies and, where applicable, affected federal land managers, and the MPO within 30 days after making a final conformity determination under LAC 33:III.1410.

  AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).

******************** end section 1407 **********************86t**
This SIP Citation Was Last Modified on:  06/20/98

Section 1408.  Public Participation. LAc67
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

  A.  Upon request by any person regarding a specific federal action, a federal agency must make available for review its draft conformity determination under LAC 33:III.1410 with supporting materials which describe the analytical methods, assumptions, and conclusions relied upon in making the applicability analysis and draft conformity determination.

  B.  A federal agency must make public its draft conformity determination under LAC 33:III.1410 by placing a notice by prominent advertisement in the official state journal (daily newspaper so designated) and by providing 30 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.

  C.  A federal agency must document its response to all the comments received on its draft conformity determination under LAC 33:III.1410 and make the comments and responses available, upon request by any person regarding a specific federal action, within 30 days of the final conformity determination.

  D.  A federal agency must make public its final conformity determination under LAC 33:III.1410 for a federal action by placing a notice by prominent advertisement in the official state journal (a daily newspaper so designated)  within 30 days of the final conformity determination.

  AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).

******************** end section 1408 **********************86t**
This SIP Citation Was Last Modified on:  06/20/98

Section 1409.  Frequency of Conformity Determinations. LAc67
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

  A.  The conformity status of a federal action automatically lapses five years from the date its final conformity determination is reported under LAC 33:III.1407, unless the federal action has been completed or a continuous program has been commenced to implement that federal action within a reasonable time.

  B.  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 LAC 33:III.1407.

  C.  A new conformity determination is required 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 and the new net emissions are above the levels in LAC 33:III.1405.B.

  AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).

******************** end section 1409 **********************86t**
This SIP Citation Was Last Modified on:  06/20/98


Section 1410.  Criteria for Determining Conformity of General Federal Actions. LAc67, LAd34
Paragraph 1410.A.5.a.i Approved by EPA July 5, 2011 (76 FR 38977) effective August 4, 2011 (LAd34), Regulations.gov docket EPA-R06-OAR-2007-0924.  All other paragraphs are as previously approved by EPA 09/13/96 (61 FR 48409) effective 11/12/96 (LAc67).

  A.  An action required under LAC 33:III.1405 to have a conformity determination for a specific pollutant will be determined to conform to the applicable SIP if, for each pollutant that equals or exceeds the rates in LAC 33:III.1405.B or otherwise requires a conformity determination due to the total of direct and indirect emissions from the action, the action meets the requirements of Subsection C of this Section and meets any of the following requirements:

    1.  for any criteria pollutant, the total of direct and indirect emissions from the action are specifically identified and accounted for in the applicable SIP's attainment or maintenance demonstration;

    2.  for ozone or nitrogen dioxide, 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 SIP or a measure similarly enforceable under state and federal law that effects emission offsets so that there is no net increase in emissions of that pollutant;

    3.  for any criteria pollutant, except ozone and nitrogen dioxide, the total of direct and indirect emissions from the action meet the requirements:

      a.  specified in Subsection B of this Section, based on areawide air quality modeling analysis and local air quality modeling analysis, or

      b.  meet the requirements of Subsection A.5 of this Section and, for local air quality modeling analysis, the requirement of Subsection B of this Section;

    4.  for CO or PM10:

      a.  where the department determines 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 Subsection B of this Section based on local air quality modeling analysis; or

      b.  where the department determines 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 Subsection B of this Section based on areawide modeling or meet the requirements of Subsection A.5 of this Section; or

    5.  for ozone or nitrogen dioxide and for purposes of Subsection A.3.b and 4.b of this Section, each portion of the action or the action as a whole meets any of the following requirements:

      a.  where EPA has approved a revision to an area's attainment or maintenance demonstration after 1990 and the department makes a determination as provided in Subsection A.5.a.i of this Section or where the state makes a commitment as provided in Subsection A.5.a.ii of this Section:
§1410.A.5.a.i SIP effective to February 28, 2016.
OS065  §1410.A.5.a.i; LAd34;LA021.11; OS065; LR 31:2438 (10/20/2005)
            i. the total of direct and indirect emissions from 
the action (or portion thereof) is determined and documented 
by the department to result in a level of emissions that, 
together with all other emissions in the nonattainment or 
maintenance area, would not exceed the emissions budgets 
specified in the applicable SIP. As a matter of policy, should 
the department make such determination or commitment, the 
federal agency must provide to the Office of Environmental 
Assessment, Air Quality Assessment Division, information 
on all known projects or other actions that may affect air 
quality or emissions in any area to which this rule is 
applicable, regardless of whether such project or action is 
deternined to be subject to this rule under LAC 33:III.1405. 
The department may charge the federal agency requesting 
such determination a reasonable fee based on the number of 
manhours required to perform and document the 
determination; or

§1410.A.5.a.i as submitted to EPA August 14, 2009 [LA039.03] and resubmitted to EPA 
October 2015 [LA039.05], MM002 LR 33:2084 (October 20, 2007).
Approved by EPA January 28, 2016 (81 FR 04891) effective February 29, 2016 (LAd47),
Regulations.gov docket EPA-R06-OAR-2012-0434 [LA039].
i. the total of direct and indirect emissions from
the action (or portion thereof) is determined and documented
by the department to result in a level of emissions that,
together with all other emissions in the nonattainment or
maintenance area, would not exceed the emissions budgets
specified in the applicable SIP. As a matter of policy, should
the department make such determination or commitment, the
federal agency must provide to the Office of Environmental
Assessment information on all known projects or other
actions that may affect air quality or emissions in any area to
which this rule is applicable, regardless of whether such
project or action is determined to be subject to this rule
under LAC 33:III.1405. The department may charge the
federal agency requesting such determination a reasonable
fee based on the number of manhours required to perform
and document the determination; or

        ii.  the total of direct and indirect emissions from the action (or portion thereof) is determined by the department 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 SIP and the governor or the governor's designee for SIP actions makes a written commitment to EPA which includes the following:
          (a).  a specific schedule for adoption and submittal of a SIP revision which provides that the needed emission offsets would be achieved prior to the time emissions from the federal action would occur;
          (b).  identification of specific measures for incorporation into the SIP 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 SIP;
          (c).  a demonstration that all existing applicable SIP 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;
          (d).  a determination that the responsible federal agencies have required all reasonable mitigation measures associated with their action, such as mitigation measures available through the SIP regulating banking of emission credits; and
          (e).  written documentation including all air quality analyses supporting the conformity determination.
        iii.  where a federal agency made a conformity determination based on a state commitment under Subsection A.5.a.ii of this Section, such a state commitment is automatically deemed a call for a SIP revision by EPA under section 110(k)(5) of the CAA, effective on the date of the federal conformity determination and requiring response within 18 months or any shorter time within which the state commits to revise the applicable SIP;

      b.  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 SIP under LAC 33:III.Chapter 14, Subchapter B, or 40 CFR part 93, subpart A;

      c.  emissions from the action (or portion thereof) are fully offset within the same nonattainment or maintenance area through a revision to the applicable SIP or an equally enforceable measure that effects emission offsets 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;

      d.  where EPA has not approved a revision to the relevant SIP attainment or maintenance demonstration since 1990, the total of direct and indirect emissions from the action for the future years [described in LAC 33:III.1411.D] do not increase emissions with respect to the baseline emissions and the baseline emissions:
        i.  reflect the historical activity levels that occurred in the geographic area affected by the proposed federal action during:
          (a).  calendar year 1990;
          (b).  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 associated with emissions), if a classification is promulgated in 40 CFR part 81; or
          (c).  the year of the baseline inventory in the applicable PM10 SIP;
        ii.  are the total of direct and indirect emissions calculated for the future years [described in LAC 33:III.1411.D] using the historic activity levels [described in Subsection A.5.d.i of this Section] and appropriate emission factors for the future years; or

      e.  where the action involves regional water and/or wastewater projects, such projects are sized to meet only the needs of population projections that are in the applicable SIP.

  B.  The areawide and/or local air quality modeling analyses must:

    1.  meet the requirements in LAC 33:III.1411; and

    2.  show that the action does not:

      a.  cause or contribute to any new violation of any standard in any area; or

      b.  increase the frequency or severity of any existing violation of any standard in any area.

  C.  Notwithstanding any other requirements of this Section, an action subject to this Subchapter may not be determined to conform to the applicable SIP unless the total of direct and indirect emissions from the action is in compliance or consistent with all relevant requirements and milestones contained in the applicable SIP, 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.

  D.  Any analyses required under this Section must be completed and any mitigation requirements necessary for a finding of conformity must be identified and committed to in compliance with LAC 33:III.1412.B and F before the determination of conformity is made.

****End Louisiana Section 1410 SIP effective August 4, 2011***LAd34***LA021***uxr****
****End Louisiana Section 1410 SIP effective February 29, 2016***LAd47***LA039***w2h***


Section 1411.  Procedures for Conformity Determinations of General Federal Actions. LAc67
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

  A.  The analyses required under this Subchapter must be based on the latest planning assumptions.

    1.  All planning assumptions must be derived from the estimates of population, employment, travel, and congestion most recently approved by the MPO or state agency authorized to make such estimates, where available.

    2.  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, must be approved by the MPO or state agency authorized to make such estimates for the area.

  B.  The analyses required under this Subchapter must 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 EPA regional administrator is obtained for any modification or substitution, 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.

    1.  For motor vehicle emissions, the most current version of the motor vehicle emissions model specified by EPA and available for use in the preparation or revision of SIPs in the state must be used for the conformity analysis as specified below:

      a.  the EPA must publish in the Federal Register a notice of availability of any new motor vehicle emissions model; and

      b.  a grace period of three months shall apply during which the motor vehicle emissions model previously specified by EPA 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 Register notice of availability of the latest emission model may continue to use the previous version of the model specified by EPA.

    2.  For nonmotor vehicle sources, including stationary and area source emissions, the latest emission factors specified by EPA in the "Compilation of Air Pollutant Emission Factors (AP-42)" must 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.

  C.  The air quality modeling analyses required under this Subchapter must 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 (Revised)" (1986), including supplements (EPA publication no. 450/2-78-027R),  unless:
    1.  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
    2.  written approval of the EPA regional administrator is obtained for any modification or substitution.

  D.  The analyses required under this Subchapter, except LAC 33:III.1410.A.1, must be based on the total of direct and indirect emissions from the action and must reflect emission scenarios that are expected to occur under each of the following cases:
    1.  the CAA-mandated attainment year or, if applicable, the farthest year for which emissions are projected in the maintenance plan;
    2.  the year during which the total of direct and indirect emissions from the action is expected to be the greatest on an annual basis; and
    3.  any year for which the applicable SIP specifies an  emissions budget.

  AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).

******************** end section 1411 **********************86t**
This SIP Citation Was Last Modified on:  06/20/98

Section 1412.  Mitigation of Air Quality Impacts. LAc67
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

  A.  Any measures that are intended to mitigate air quality impacts must be identified [including the identification and quantification of all emission offsets claimed] and the process for implementation [including any necessary funding of such measures and tracking of such emission reductions] and enforcement of such measures must 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 must obtain written commitments to mitigate from the appropriate persons or agencies who will implement mitigation measures which are identified as conditions for making conformity determinations, including mitigation measures that the federal agency making the conformity determination must itself implement as a condition for making the conformity determination.  Such written commitment shall describe such mitigation measures and the nature of the commitment in a manner consistent with Subsection A of this Section.

  C.  Persons or agencies voluntarily committing to mitigation measures to facilitate positive conformity determinations must 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, approval by the federal agency must be conditioned on the committing entity meeting the mitigation measures set forth in the conformity determination as provided in Subsection A of this Section.

  E.  When necessary because of changed circumstances and if permissible by the state and federal law regulating the original mitigation, mitigation measures may be modified so long as the new mitigation measures continue to support the conformity determination in accordance with LAC 33:III.1410-1412.  Any proposed change in the mitigation measures is subject to the reporting requirements of LAC 33:III.1407 and the public participation requirements of LAC 33:III.1408.

  F.  Written commitments to mitigation measures must be obtained prior to a positive conformity determination and such commitments must be fulfilled.

  G.  After the department revises its SIP to adopt its general conformity rules and EPA approves that SIP revision, any agreements, including mitigation measures, necessary for a conformity determination will be both state and federally enforceable. Enforceability through the applicable SIP will apply to all persons who agree to mitigate direct and indirect emissions associated with a federal action for a conformity determination.

  AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).

******************** end section 1412 **********************86t**
This SIP Citation Was Last Modified on:  06/20/98

Section 1413.  Departmental Review. LAc67
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

  When notified by the federal agency of action that would be presumed to conform or when notified of a proposed conformity determination, the department will review documentation, clarify information, and provide written comments as appropriate to ensure accountability of federal actions.

  AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).

******************** end section 1413 *********************86t**
This SIP Citation Was Last Modified on:  06/20/98

Section 1414.  Enforcement Provisions. LAc67

Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

  A.  Any person(s) regulated by this Subchapter, including any person(s) who voluntarily commit to mitigate measures for emissions offsets to federal actions and who fail to comply with the requirements of this Subchapter shall be subject to enforcement provisions under R.S. 30:2025.

  B.  Failure to comply with any requirement of this Subchapter shall be subject to enforcement under the provisions of R.S. 30:2025.

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

  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).

******************** end section 1414 *********************86t**

This SIP Citation Was Last Modified on:  06/20/98

Section 1415.  Savings Provision. LAc67
Approved by EPA 09/13/96 (61 FR 48409) at 52.970(c)(67) effective 11/12/96.

  The federal conformity rules under 40 CFR part 93, subpart A establish the conformity criteria and procedures necessary to meet the requirements of the CAA, section 176(c), until such time that this conformity implementation plan revision is approved by EPA.  Following EPA approval of this revision to the applicable implementation plan (or a portion thereof), the approved (or approved portion of) state criteria and procedures would govern conformity determinations; and the federal conformity regulations contained in 40 CFR part 93 would apply only for the portion, if any, of the state's conformity provisions that is not approved by EPA.

  AUTHORITY NOTE:  Promulgated in accordance with R.S. 30:2054.
  HISTORICAL NOTE:  Promulgated by the Department of Environmental Quality, Office of Air Quality and Radiation Protection, Air Quality Division, LR 20:1268 (November 1994).