EPA Proposes Revisions to General Conformity Rules

On January 8, 2008, the United States Environmental Protection Agency published its proposed revisions to the General Conformity Rules.  Under the Clean Air Act, a State develops a State Implementation Plan (SIP), which is the State’s plan for bringing sections of the state which do not comply with the Clean Air Act into compliance. Before any Federal agency takes or funds any action, it must ensure that the project will not interfere with the SIP – that is, it must assure that the Federal action is in “conformity” with the SIP. The General Conformity regulations are the regulations, promulgated by the EPA, implementing the Clean Air Act’s “conformity provision.

The General Conformity regulations have become critical to communities around airports because the FAA’s conformity determination is often the only analysis that the FAA will perform with respect to how its projects will affect the air quality in the area around the airport. Thus, we have sought to keep these regulations strong so that Federal agencies, such as the FAA, have to provide the communities around airports with information about the effect their projects have on air quality and ensure that the actions of the Federal agencies dop not adversely impact air quality in the communities.

The EPA’s proposed revisions, the way we read them, weaken those principles in the following ways:

  • By allowing Federal agencies, in certain instances, to shift the burden of proving that the project conforms to the SIP onto “third parties” (that is, the communities) and the EPA.
  • By allowing the Federal agencies to obtain permission to emit air pollutants without any connection to a particular project thereby eliminating the need for them to analyze air quality when they undertake projects. Thus, emission increases are effectively hidden in the SIP, unseen and unanalyzed by the communities.
  • By allowing the Federal agencies to unilaterally  decide when an analysis is necessary, rather than requiring them to perform an analysis every time.

Comments on the proposed revisions are due April 14, 2008, one month after a public hearing held in Washington D.C. on March 14, 2008.  We will post our comments as soon as they are submitted to the EPA.

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