[Senate Report 106-228]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 430
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-228

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      EXTENSION OF CONFORMITY REGULATIONS UNDER THE CLEAN AIR ACT

                                _______
                                

               February  2, 2000.--Ordered to be printed

                                _______
                                

   Mr. Smith of New Hampshire, from the Committee on Environment and 
                 Public Works, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [to accompany S. 1053]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 1053) to amend the Clean Air Act to 
incorporate certain provisions of the transportation conformity 
regulation, as in effect on March 1, 1999, having considered 
the same, reports favorably thereon with an amendment and 
recommends that the bill, as amended, do pass.

                           General Statement

Objectives of the Legislation
    Section 176 of the Clean Air Act (CAA) requires all Federal 
activity to ``conform'' to implementation plans approved under 
the CAA. This section of law prohibits permitting, approval or 
funding of transportation projects by the Department of 
Transportation unless the project comes from a transportation 
plan that conforms with an implementation plan approved under 
the CAA. It also prohibits approval by a metropolitan planning 
organization of any project or plan that does not conform to an 
implementation plan. The United States Court of Appeals 
recently found the Environmental Protection Agency (EPA) 
regulations implementing Section 176 to violate the CAA 
[Environmental Defense Fund v. Environmental Protection Agency, 
No. 97-1637, 1999 U.S. App. LEXIS 3161 (D.C. Cir. Mar. 2, 
1999)]. That case highlighted shortcomings in both the law and 
the implementing regulations. The Court found that the 
regulations violate the law. The law allows no flexibility to 
continue activities prohibited by Section 176 during a short-
term conformity lapse, to continue funding construction of 
project that was fully approved as part of a conforming 
transportation plan or to allow estimates from submitted, but 
unapproved plans, to be used for conformity determinations.
    The Court found that the regulations inappropriately 
allowed certain transportation projects to be ``grandfathered'' 
from the conformity test without satisfying the requirements of 
Section 176. The central question in the aftermath of the case 
is, under what circumstances is it appropriate to allow 
transportation projects to proceed in the event that the 
transportation plan containing that project does not conform 
with the implementation plan describing an area's plan for 
achieving the National Ambient Air Quality Standards (NAAQS)? 
The case also leaves questions regarding the use of emission 
budgets from submitted, but unapproved, implementation plans 
for determining conformity.
    The bill addresses this question by amending Section 176 to 
allow for a minimum of disruption in transportation planning 
and construction activities during a lapse in conformity. S. 
1053 as reported by the committee attempts to strike a balance 
between the important goal of ensuring that transportation 
plans conform to emission limitations and strategies set forth 
in implementation plans and the desire to maintain a smooth and 
efficient process for planning, designing and constructing 
transportation projects.
    The bill would permit transportation projects contained in 
a transportation plan to proceed if Federal funds have been 
obligated for the project, or a full funding grant agreement 
has been reached, or if the NEPA review process for that 
project has been completed not more than 2 years prior to the 
conformity lapse. The bill would also allow an emissions budget 
from a submitted, but not approved, implementation plan to be 
used for determining conformity.
Background
    When it amended the CAA in 1977, Congress added a new 
Section 176 to the Act that required that any activity approved 
by a Federal agency conform to the affected State's 
implementation plans. In 1990, Section 176 was modified 
specifically to prohibit the approval by the Secretary of 
Transportation of any transportation plan unless it was 
demonstrated that the anticipated emissions from highway and 
transit projects contained in the 3-year transportation 
implementation program, together with the highway and transit 
emissions from the existing transportation system. The 1990 
amendment was intended to encourage transportation planning 
officials and air quality officials to cooperate in the 
development of a transportation system that would address both 
mobility and air quality needs.
    Since the implementation of the CAA Amendments of 1990, 
numerous transportation plans have been disapproved for both 
substantive and technical failures to comply with the 
conformity provisions in Section 176. Many of these failures 
have been rectified in a matter of months and with only minor 
adjustments to submitted plans. The implementation of the 
revised Section 176, along with revisions in Federal surface 
transportation laws, have resulted in improved coordination 
among air quality and transportation planners.
    In some cases, however, institutional obstacles to 
coordination, coupled with rapid growth and persistent air 
quality problems continue to result in conformity lapses in 
some areas of the nation. In response to concerns raised by 
some transportation and air of ficials EPA promulgated a 
revised rule to govern the process of determining 
transportation conformity on August 15, 1997. Among the aims of 
these regulations was an effort to protect the continuity of 
highway projects for an area that could not demonstrate 
conformity of its transportation plans to its implementation 
plans.
    Under this regulation, as under the previous (1993) 
regulation, if an area's transportation plan failed to conform 
with the State's implementation plan--if a conformity lapse 
occurred--the Section 176 prohibition on funding or approval of 
projects would be suspended under certain circumstances. The 
rule allowed continued activity on projects for which a review 
conducted according to the requirements of the National 
Environmental Policy Act of 1969 (NEPA) had been completed. The 
rule also made flexible other provisions of Section 176, 
including allowing conformity determinations to be based on 
emissions budgets from submitted implementation plans, even if 
no determination had been reached by EPA regarding the utility 
of those budgets in a State's effort to achieve the NAAQS.
    Two extensions of the conformity status of one area by the 
United States Department of Transportation allowed that region 
time to make more than 100 projects eligible for grandfather 
status during the conformity lapse that followed the second 
extension of conformity for that area. Those actions led to the 
lawsuit against EPA's regulations. In deciding this case [cited 
above] the court found the flexible implementation of the CAA 
provided by EPA's 1997 rule to be beyond the authority granted 
by Section 176. In the wake of the decision, the Administration 
issued guidance to fill the void of regulations.
    Because the current Administration guidance allows 
exemptions that appear to be beyond the clear authority granted 
by Section 176, legal jeopardy may persist for EPA's actions on 
conformity. Furthermore, because the guidance is more 
restrictive than the rule thrown out by the court, concern 
remains in the transportation community about the potential 
disruption for planning and construction activities during even 
brief conformity lapses that occur as a result of technical 
violations.

                      Section-by-Section Analysis

Section 1. Inapplicability of Transportation Conformity Funding 
        Prohibition to Certain Transportation Projects

                                Summary

            Use of Emissions Budgets
    The bill would modify Section 176 to permit conformity 
determinations to be made using emission budgets contained in a 
submitted, but unapproved implementation plan. Those emission 
budgets may be used for conformity determinations once the 
Administrator determines their adequacy for that purpose, or 90 
days after the submission of the implementation plan, whichever 
is first.
            Exemption From Conformity Test
    The bill establishes a general rule for grandfathering 
individual projects from further conformity review. If, prior 
to a lapse of conformity, a funding agreement had been approved 
for the project the project can proceed during a lapse. The 
funding agreement can be either in the form of an approval of 
plans, specifications, and estimates under title 23 of United 
States Code, a full funding grant agreement under chapter 53 of 
title 49 of United States Code, or an equivalent approval. This 
step involves the commitment of funds from both the State and 
Federal Governments to complete the construction of a project.
    The bill provides for a project to be temporarily 
grandfathered from conformity review if the project has not 
reached the point of a funding agreement, but a NEPA review for 
the project was completed not more than 2 years prior to the 
conformity lapse. Projects in that category shall be allowed to 
proceed for 1 year after the start of lapse. The 1-year limit 
on this grandfather provision will prevent projects from 
proceeding indefinitely unless conformity between 
transportation plans and air quality plans is demonstrated.
            Regulation
    Within 1 year of enactment of this bill, EPA would be 
required to promulgate regulations to implement this 
legislation. The bill would restore, for a period of 1 year 
from enactment of the bill, the regulations in effect 
immediately prior to the March 2, 1999 decision by the United 
States Court of Appeals. After the sooner of EPA promulgation 
of regulations under the authority that would be granted by 
this bill, or 1 year after enactment of this bill, the 
regulations in effect prior to the March 2, 1999 court decision 
would be nullified.
            Activity During a Conformity Lapse
    The bill also extends the opportunity for State and local 
governments to use their own resources during a conformity 
lapse to prevent interruption of a project that may not be 
eligible for either of the two previously described categories. 
Once the transportation plan that includes those projects is 
found to conform with the implementation plan, State and local 
expenditures incurred during a lapse for right-of-way 
acquisition or design activities could be counted toward a 
State's obligated share of project funding under title 23 or 
title 49 of United States Code. During a conformity lapse, mass 
transportation projects also would be grandfathered from the 
prohibitions in Section 176 on approval, acceptance or funding.

                               Discussion

    After EPA's conformity regulations were overturned in 
court, transportation officials expressed concern that highway 
construction could be interrupted by conformity lapses 
occurring after all approvals had been granted. Delays caused 
by a conformity lapse could jeopardize transportation safety, 
increase costs, and impact economic development while planning 
officials addressed concerns regarding future expansions of the 
transportation system.
    By allowing a funding agreement to serve as a final point 
at which a project may be reviewed for conformity the bill 
treats the agreement as a contract that, once committed to, 
should be honored as such irrespective of subsequent 
developments. By allowing a temporary grandfather for projects 
that have met NEPA requirements, disruption in transportation 
activities is minimized.
Section 2. Effect of Revised Ozone Standards on Conformity 
        Determinations

                                Summary

    The bill would ensure that no area shall be considered out 
of conformity with an implementation plan solely because it is 
designated nonattainment for an ozone standard promulgated 
after January 1, 1997 until an implementation plan is required 
to be submitted to address the new standard. One year from the 
date the Administrator finds adequate the emission budgets 
contained in an implementation plan for a new standard an area 
would no longer be protected from conformity determinations 
based solely on the new standard.

                               Discussion

    Due to litigation, the final form of the standards 
promulgated by EPA in November 1997 remains unclear. Under 
current law, States would be required to submit attainment 
designations for the 8-hour ozone standards regardless of the 
status of litigation involving the rule. In the past, the 
courts have declared attainment designations to be the starting 
point for application of the conformity requirement. The result 
of applying conformity after attainment designations in this 
case would be to judge conformity without any certainty that 
the 8-hour standard would become enforceable Federal policy.
    Section 176 is explicit in requiring conformity to be 
judged against implementation plans. Until plans are required 
to be submitted describing how an area intends to attain a 
newly promulgated standard, it is impossible to determine 
conformity against that plan.
    The bill would prohibit the application of the conformity 
test for the new standard until a year after the emission 
estimates contained in the relevant implementation plan are 
determined to be adequate by the Administrator.

                                Hearings

    The Committee on Environment and Public Works held no 
hearings on S. 1053. On July 14, 1999, the Committee on 
Environment and Public Works held a hearing on conformity under 
the Clean Air Act. Testimony was given by Robert Perciasepe, 
Assistant Administrator, Office of Air and Radiation, 
Environmental Protection Agency; Kenneth R. Wykle, 
Administrator, Federal Highway Administration, Department of 
Transportation; Gordon J. Linton, Administrator, Federal 
Transit Administration; Dean E. Carlson, Secretary of 
Transportation, Kansas Department of Transportation; Jacob L. 
Snow, General Manager, Clark County, Nevada, Regional 
Transportation Commission; Jack Stephens, Jr., Executive Vice 
President, Customer Development, Metro Atlanta Rapid Transit 
Authority; Jack Kinstlinger, Vice Chairman, American Road and 
Transportation Builders Association; Mark Pisano, Executive 
Director, Southern California Association of Governments; 
Michael Replogle, Federal Transportation Director, 
Environmental Defense Fund. Also, a number of statements were 
submitted for inclusion in the record.

                          Legislative History

    On May 14, 1999, S. 1053 was received in the Senate, read 
twice, and referred to the Committee on Environment and Public 
Works. On September 29, 1999 the committee held a business 
meeting to consider the bill. An amendment offered by Senators 
Chafee and Bond was agreed to by a a roll call vote of 10 ayes 
and 8 nays. Voting in favor were Senators Bennett, Bond, 
Chafee, Crapo, Hutchison, Inhofe, Smith, Thomas, Voinovich, and 
Warner. Voting against were Senators Baucus, Boxer, Graham, 
Lautenberg, Lieberman, Moynihan, Reid, and Wyden. An amendment 
offered by Senator Inhofe was agreed to by a a roll call vote 
of 10 ayes and 8 nays. Voting in favor were Senators Bennett, 
Bond, Chafee, Crapo, Hutchison, Inhofe, Smith, Thomas, 
Voinovich, and Warner. Voting against were Senators Baucus, 
Boxer, Graham, Lautenberg, Lieberman, Moynihan, Reid, and 
Wyden. S. 1053 was ordered reported by a voice vote with 
Senator Baucus voting nay.

                      Regulatory Impact Statement

    Section 11(b) of rule XXVI of the Standing Rules of the 
Senate requires publication in the report of the committee's 
estimate of the regulatory impact of the bill as reported. S. 
1053, as reported, is expected to impose no new regulatory 
impact. This bill will not affect the personal privacy of 
individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee makes the following 
evaluation of the Federal mandates contained in the reported 
bill. S. 1053, as reported, imposes no Federal 
intergovernmental mandates on State, local, or tribal 
governments.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of a reported 
bill, prepared by the Congressional Budget Office, be included 
in the report. That statement follows:
                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 27, 1999.

Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1053, a bill to 
amend the Clean Air Act to incorporate certain provisions of 
the transportation conformity regulations, as in effect on 
March 1, 1999.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are James 
O'Keeffe (for Federal costs), who can be reached at 226-2860, 
and Lisa Cash Driskill (for the State and local impact), who 
can be reached at 225-3220.
            Sincerely,
                                               Dan Crippen.
                              ----------                              


               Congressional Budget Office Cost Estimate

S. 1053, A bill to amend the Clean Air Act to incorporate certain 
        provisions of the transportation conformity regulations, as in 
        effect on March 1, 1999, as ordered reported by the Senate 
        Committee on Environment and Public Works on September 29, 1999
    S. 1053 would permit highway and mass transit construction 
projects that have been halted by certain requirements of the 
Clean Air Act (CAA) to resume. CBO expects that allowing these 
projects to continue would not significantly affect Federal 
spending. Generally, funds for highway and mass transit 
projects can be switched from halted to unaffected projects. 
That is not the case, however, for a small amount of the funds 
that have been specified for some individual projects. Since S. 
1053 would allow a number of such specified projects to resume 
construction, enacting the bill could result in some money 
being spent sooner than it would be under current law, but we 
estimate that any shift in the timing of outlays would be less 
than $500,000 a year.
    The CAA requires the Department of Transportation (DOT) to 
approve regional transportation plans and programs in certain 
areas to assure that they conform with air quality standards 
contained in States' implementation plans. If an area 
transportation plan does not conform with the implementation 
plan--known as a conformity lapse--then certain federally 
funded projects cannot proceed. In implementing this provision 
of the CAA, the Environmental Protection Agency (EPA) issued a 
rule with a provision allowing DOT to fund projects under 
certain circumstances during a conformity lapse. A March 1999 
court decision, however, overturned this provision of the rule. 
S. 1053 would effectively reinstate this provision of the rule 
for one year and would direct the EPA to issue a new rule 
allowing transportation projects to proceed under certain 
conditions during a conformity lapse.
    If enacted this fall, S. 1053 would accelerate the spending 
of some funds already made available in the DOT appropriation 
act for fiscal year 2000 (Public Law 106-69), because work on a 
few projects is currently halted. Because that change would not 
be subject to further appropriation action, it would constitute 
a change in direct spending, and thus, pay-as-you-go procedures 
would apply to the bill. Based on information from DOT and from 
State departments of transportation, CBO estimates that 
relatively few projects would be affected. We estimate that 
enactment of the bill would increase spending in 2000 by less 
than $500,000, and that this would be offset by an equivalent 
reduction in outlays over the next few years.
    S. 1053 also would direct EPA to issue new CAA regulations 
as described in this bill. Based on information from the 
agency, we estimate that implementing this provision would cost 
less than $250,000 and would be subject to the availability of 
appropriated funds.
    S. 1053 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on State, local, or tribal governments. 
It would make it easier for State and local governments to 
continue construction on transportation projects that might 
otherwise be halted because of certain CAA requirements.
    The CBO staff contacts are James O'Keeffe (for Federal 
costs), who can be reached at 226-2860, and Lisa Cash Driskill 
(for the State and local impact), who can be reached at 225-
3220. This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.
Minority Views of Senators Baucus, Moynihan, Lautenberg, Reid, Graham, 
                      Lieberman, Boxer, and Wyden

    We agree that, as the report says, we must strike a balance 
between assuring that transportation plans conform to clean air 
emission reduction plans and doing so in a way that facilitates 
efficient transportation planning, design, and construction.
    However, we believe that this bill undermines, rather than 
promotes, that balance. We also believe that the bill 
needlessly undermines progress toward reducing ozone and other 
pollutants.
    Turning first to transportation conformity, we repeat the 
words of this committee's report (S. Rept. 101-228, 101st 
Cong., 1st Sess. 29 (1989)) on the bill that became the Clean 
Air Act Amendments of 1990: ``[T]he transportation conformity 
requirements [of the Act] are to encourage medium- and long-
range planning that takes into account air quality concerns and 
does not defer to a late date decisions about the air quality 
impacts of a particular project.'' (Emphasis added.)
    Unfortunately, in some cases, that is precisely what has 
happened. The situation in Atlanta (which is alluded to in the 
report) is an example. Through a combination of poor 
coordination, slow implementation, and lax enforcement, 
conformity decisions were deferred to a late date. Federal 
agencies exacerbated the situation by issuing regulations that 
went well beyond the scope of section 176 of the Clean Air Act, 
such as by allowing certain projects to be exempt from 
conformity forever, as long as a NEPA analysis had been 
conducted at some point. That practice was particularly harmful 
when multi-part projects were approved in toto based on 
analysis of only the first segment. As the court of appeals 
said, in invalidating the regulations, the regulation is 
``unlawful because [it] departs from the criteria for 
demonstrating conformity established in . . . the Clean Air 
Act'' (Environmental Defense Fund v. Browner, 167 F. 3rd 641, 
651 (D.C. Cir. 1999)).
    We agree with the majority that the court's decision 
created a practical problem because of uncertainty about when 
current projects would be protected from a conformity lapse. 
However, since the court decision, the Department of 
Transportation and the Environmental Protection Agency have 
issued a guidance that provides clarification, by allowing 
projects that have been funded for construction to proceed 
without further challenge. At our July 14 hearing, we heard 
substantial testimony that the guidance is workable and will 
allow projects to continue. Further, as EPA Assistant 
Administrator Robert Perciasepe testified, this approach 
``avoids creating a large pipeline of projects that could be 
built even when we know that they may contribute to an air 
quality problem and further prevent an area from demonstrating 
conformity.''
    Although we agree that it is appropriate to codify the 
guidance, to provide legal certainty, the reported bill goes 
much further. It effectively reinstates the invalidated 
regulation for a year and allows projects to proceed for a year 
after a conformity lapse, regardless of the impact on air 
quality, as long as a NEPA analysis has been conducted within 2 
years. This threatens to create the very pipeline of projects 
that Assistant Administrator Perciasepe warned against. 
Alternatively, it could create an incentive to rush through an 
inadequate NEPA analysis in anticipation of a looming 
conformity lapse. Either result would be contrary to the Act's 
goals.
    Turning to ozone standards, section two of the bill 
comprises an amendment offered during the committee markup by 
Senator Inhofe. It is largely unrelated to the underlying bill. 
And it threatens to start another skirmish in the long struggle 
over the Administration's 1997 8-hour ozone standard.
    After that standard was promulgated, Congress included a 
provision, in the ``TEA-21'' highway bill that was enacted last 
year, that requires EPA to designate the communities that do 
not meet the standard (that is, are in nonattainment) in July 
2000. Since then, a court of appeals has held that the standard 
is unenforceable, but indicated that EPA retains the authority 
to designate areas as nonattainment under an 8-hour ozone 
standard. The government has sought a rehearing of the 
decision, and the litigation is likely to continue for a long 
time, perhaps years.
    In response, the bill suspends the conformity requirement 
for the new 8-hour ozone standard until 1 year after States are 
required to submit State implementation plans for that 
standard. In effect, this delays the application of the 
conformity requirement for areas everywhere that would have 
been designated as nonattainment for that standard until 
approximately 4 years after the current litigation is finally 
resolved, whenever that may be. This is an unnecessary and 
irresponsible delay that weakens the public health purpose of 
designation.
    The decision by the court of appeals does create a problem. 
But it is a limited problem, requiring a limited legislative 
solution. The only communities that will be faced with a sudden 
need to demonstrate conformity are ones that have never been in 
nonattainment before, but find themselves in nonattainment with 
the 8-hour standard. They may lack the data and expertise to 
submit a SIP or a vehicle emissions budget by July 2000. We 
support targeted legislation protecting these communities, but 
believe that conformity must apply where air quality is deemed 
to be unhealthy.
    On the other hand, communities that are already in 
nonattainment with the current 1-hour ozone standard generally 
already have the needed information and experience on hand to 
demonstrate conformity. For example, their current vehicle 
emissions budgets most likely can be used to demonstrate 
conformity until such time as a new 8-hour standard becomes 
effective. For these communities, technical nonconformity, if 
any occurs, will be brief and will not have a significant 
practical consequence.
    Nevertheless, the reported bill provides these communities 
with an open-ended exemption, which could delay the 
implementation of measures to further reduce ozone pollution by 
many years, denying millions of Americans the benefits of 
healthier air. This is unacceptable.
    We disagree with the approaches that the Majority has taken 
in both section one and section two of this bill. However, we 
remain willing to discuss both issues to attempt to find a 
targeted solution that will protect public health and provide 
certainty for States, highway contractors, and communities.
                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:
                              ----------                              


                           CLEAN AIR ACT \1\

---------------------------------------------------------------------------
    \1\ The Clean Air Act (42 U.S.C. 7401-7626) consists of Public Law 
159 (July 14, 1955); 69 Stat. 322) and the amendments made by 
subsequent enactments.
---------------------------------------------------------------------------

[As Amended Through Public Law 104-89, January 4, 1996]

           *       *       *       *       *       *       *


               LIMITATIONS ON CERTAIN FEDERAL ASSISTANCE

SEC. 176.

 [Subsections (a) and (b), repealed by Public Law 101-549, sec.110(4), 
                            104 Stat. 2470.]

    (c)(1) 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 
implementation plan after it has been approved or promulgated 
under section 110. No metropolitan planning organization 
designated under section 134 of title 23, United States Code, 
shall give its approval to any project, program, or plan which 
does not conform to an implementation plan approved or 
promulgated under section 110. The assurance of conformity to 
such an implementation plan shall be an affirmative 
responsibility of the head of such department, agency, or 
instrumentality. Conformity to an implementation plan means--
                    (A) conformity to an implementation plan's 
                purpose of eliminating or reducing the severity 
                and number of violations of the national 
                ambient air quality standards and achieving 
                expeditious attainment of such standards; and
                    (B) that such activities will not--
                            (i) cause or contribute to any new 
                        violation of any standard in any area;
                            (ii) increase the frequency or 
                        severity of any existing violation of 
                        any standard in any area; or
                            (iii) delay timely attainment of 
                        any standard or any required interim 
                        emission reductions or other milestones 
                        in any area.
                        The determination of conformity shall 
                        be based on the most recent estimates 
                        of emissions, and such estimates shall 
                        be determined from the most recent 
                        population, employment, travel and 
                        congestion estimates as determined by 
                        the metropolitan planning organization 
                        or other agency authorized to make such 
                        estimates. For the purpose of this 
                        subsection, estimates of emissions from 
                        motor vehicles and necessary emissions 
                        reductions contained in a submitted 
                        implementation plan may be used in lieu 
                        of an approved implementation plan if 
                        no approved implementation plan is 
                        available. If the Administrator does 
                        not determine the adequacy of any 
                        estimates of emissions submitted to the 
                        Administrator for use under the 
                        preceding sentence within 90 days after 
                        the date of submission of the 
                        estimates, the estimates shall be 
                        deemed to be adequate.
            (2) Any transportation plan or program developed 
        pursuant to title 23, United States Code, or the Urban 
        Mass Transportation Act shall implement the 
        transportation provisions of any applicable 
        implementation plan approved under this Act applicable 
        to all or part of the area covered by such 
        transportation plan or program. No Federal agency may 
        approve, accept or fund any transportation plan, 
        program or project unless such plan, program or project 
        has been found to conform to any applicable 
        implementation plan in effect under this Act. In 
        particular--
                    (A) no transportation plan or 
                transportation improvement program may be 
                adopted by a metropolitan planning organization 
                designated under title 23, United States Code, 
                or the Urban Mass Transportation Act, or be 
                found to be in conformity by a metropolitan 
                planning organization until a final 
                determination has been made that emissions 
                expected from implementation of such plans and 
                programs are consistent with estimates of 
                emissions from motor vehicles and necessary 
                emissions reductions contained in the 
                applicable implementation plan, and that the 
                plan or program will conform to the 
                requirements of paragraph (1)(B);
                    (B) no metropolitan planning organization 
                or other recipient of funds under title 23, 
                United States Code, or the Urban Mass 
                Transportation Act shall adopt or approve a 
                transportation improvement program of projects 
                until it determines that such program provides 
                for timely implementation of transportation 
                control measures consistent with schedules 
                included in the applicable implementation plan;
                    (C) a transportation project may be adopted 
                or approved by a metropolitan planning 
                organization or any recipient of funds 
                designated under title 23, United States Code, 
                or the Urban Mass Transportation Act, or found 
                in conformity by a metropolitan planning 
                organization or approved, accepted, or funded 
                by the Department of Transportation only if it 
                meets either the requirements of subparagraph 
                (D) or the following requirements--
                            (i) such a project comes from a 
                        conforming plan and program;
                            (ii) the design concept and scope 
                        of such project have not changed 
                        significantly since the conformity 
                        finding regarding the plan and program 
                        from which the project derived; and
                            (iii) the design concept and scope 
                        of such project at the time of the 
                        conformity determination for the 
                        program was adequate to determine 
                        emissions.
                    (D) Any project not referred to in 
                subparagraph (C) shall be treated as conforming 
                to the applicable implementation plan only if 
                it is demonstrated that the projected emissions 
                from such project, when considered together 
                with emissions projected for the conforming 
                transportation plans and programs within the 
                nonattainment area, do not cause such plans and 
                programs to exceed the emission reduction 
                projections and schedules assigned to such 
                plans and programs in the applicable 
                implementation plan.
                    (E) Extension of conformity determination 
                after approval of certain transportation 
                projects.--
                            (i) In general.--Notwithstanding 
                        subparagraphs (C) and (D), any 
                        transportation project that received an 
                        approval described in clause (iii), 
                        after compliance with subparagraph (C) 
                        or (D), may be implemented even if the 
                        Administrator subsequently determines 
                        that the conformity of the applicable 
                        transportation plan and program to the 
                        applicable implementation plan has 
                        lapsed (referred to in this subsection 
                        as a `conformity lapse').
                            (ii) Transition provision.--
                        Notwithstanding subparagraphs (C) and 
                        (D), any transportation project that 
                        received an approval described in 
                        clause (iii) before March 2, 1999, may 
                        be implemented without any additional 
                        conformity determination.
                            (iii) Types of approval.--An 
                        approval described in this clause is--
                                    (I) an approval of plans, 
                                specifications, and estimates 
                                under title 23, United States 
                                Code;
                                    (II) a full funding grant 
                                agreement under chapter 53 of 
                                title 49, United States Code; 
                                or
                                    (III) an approval or 
                                authorization equivalent to an 
                                approval or agreement under 
                                subclause (I) or (II).
                    (F) Extension of conformity determination 
                for reviewed projects.--Notwithstanding 
                subparagraphs (C) and (D), any transportation 
                project for which a review under the National 
                Environmental Policy Act of 1969 (42 U.S.C. 
                4321 et seq.) has been completed within the 2-
                year period preceding a conformity lapse may be 
                implemented for a period ending not later than 
                1 year after the date of commencement of the 
                lapse.
            (3) Until such time as the implementation plan 
        revision referred to in paragraph (4)(C) is approved, 
        conformity of such plans, programs, and projects will 
        be demonstrated if--
                    (A) the transportation plans and programs--
                            (i) are consistent with the most 
                        recent estimates of mobile source 
                        emissions;
                            (ii) provide for the expeditious 
                        implementation of transportation 
                        control measures in the applicable 
                        implementation plan; and
                            (iii) with respect to ozone and 
                        carbon monoxide nonattainment areas, 
                        contribute to annual emissions 
                        reductions consistent with sections 
                        182(b)(1) and 187(a)(7); and
                    (B) the transportation projects--
                            (i) come from a conforming 
                        transportation plan and program as 
                        defined in subparagraph (A) or for 12 
                        months after the date of the enactment 
                        of the Clean Air Act Amendments of 
                        1990, from a transportation program 
                        found to conform within 3 years prior 
                        to such date of enactment; and
                            (ii) in carbon monoxide 
                        nonattainment areas, eliminate or 
                        reduce the severity and number of 
                        violations of the carbon monoxide 
                        standards in the area substantially 
                        affected by the project.
                        With regard to subparagraph (B)(ii), 
                        such determination may be made as part 
                        of either the conformity determination 
                        for the transportation program or for 
                        the individual project taken as a whole 
                        during the environmental review phase 
                        of project development.
            [(4)(A) No]
            (4) Criteria and procedures for determining 
        conformity.--
                    (A) Promulgation.--
                            (i) Initial promulgation.--Not 
                        later than one year after the date of 
                        enactment of the Clean Air Act 
                        Amendments of 1990, the Administrator 
                        shall promulgate criteria and 
                        procedures for determining conformity 
                        (except in the case of transportation 
                        plans, programs, and projects) of, and 
                        for keeping the Administrator informed 
                        about, the activities referred to in 
                        paragraph (1). No later than one year 
                        after such date of enactment, the 
                        Administrator, with the concurrence of 
                        the Secretary of Transportation, shall 
                        promulgate criteria and procedures for 
                        demonstrating and assuring conformity 
                        in the case of transportation plans, 
                        programs, and projects. A suit may be 
                        brought against the Administrator and 
                        the Secretary of Transportation under 
                        section 304 to compel promulgation of 
                        such criteria and procedures and the 
                        Federal district court shall have 
                        jurisdiction to order such 
                        promulgation.
                            (ii) Subsequent promulgation.--
                                    (I) In general.--Not later 
                                than 1 year after the date of 
                                enactment of this clause, the 
                                Administrator shall promulgate 
                                criteria and procedures for 
                                demonstrating and ensuring 
                                conformity in the case of 
                                transportation plans, programs, 
                                and projects.
                                    (II) Effective date of 
                                prior regulations.--Regulations 
                                promulgated under clause (i) 
                                and in effect before March 2, 
                                1999, shall be in effect as 
                                originally promulgated, 
                                notwithstanding the decision of 
                                the court in Environmental 
                                Defense Fund v. Environmental 
                                Protection Agency, 167 F.3d 641 
                                (D.C. Cir. 1999)--
                                            (aa) beginning on 
                                        the date of enactment 
                                        of this clause; and
                                            (bb) ending on the 
                                        earlier of the 
                                        effective date of 
                                        regulations promulgated 
                                        under this clause or 1 
                                        year after the date of 
                                        enactment of this 
                                        clause.
                                    (III) Applicability of 
                                regulations.--
                                            (aa) Initial 
                                        regulations.--The 
                                        regulations described 
                                        in subclause (II) shall 
                                        apply to any conformity 
                                        lapse that occurs 
                                        before the effective 
                                        date of regulations 
                                        promulgated under 
                                        subclause (I) but only 
                                        until the date of 
                                        promulgation of the 
                                        regulations under 
                                        subclause (I).
                                            (bb) Subsequent 
                                        regulations.--The 
                                        regulations promulgated 
                                        under subclause (I) 
                                        shall apply to any 
                                        conformity lapse that 
                                        occurs on or after the 
                                        effective date of 
                                        regulations promulgated 
                                        under subclause (I).
                                    (IV) Action to compel 
                                promulgation.--A civil action 
                                may be brought against the 
                                Administrator under section 304 
                                to compel promulgation of 
                                regulations under this clause.
                    (B) The procedures and criteria shall, at a 
                minimum--
                            (i) address the consultation 
                        procedures to be undertaken by 
                        metropolitan planning organizations and 
                        the Secretary of Transportation with 
                        State and local air quality agencies 
                        and State departments of transportation 
                        before such organizations and the 
                        Secretary make conformity 
                        determinations;
                            (ii) address the appropriate 
                        frequency for making conformity 
                        determinations, but in no case shall 
                        such determinations for transportation 
                        plans and programs be less frequent 
                        than every three years; [and]
                            (iii) address how conformity 
                        determinations will be made with 
                        respect to maintenance plans[.] ; and
            (iv) provide for a period of 90 days between--
                    (I) the date on which a State 
                implementation plan under section 110 is 
                disapproved; and
                    (II) the effective date of the prohibition 
                on approval, acceptance, or funding under this 
                subsection.
                    (C) Such procedures shall also include a 
                requirement that each State shall submit to the 
                Administrator and the Secretary of 
                Transportation within 24 months of such date of 
                enactment, a revision to its implementation 
                plan that includes criteria and procedures for 
                assessing the conformity of any plan, program, 
                or project subject to the conformity 
                requirements of this subsection.
            (5) Applicability.--This subsection shall apply 
        only with respect to--
                    (A) a nonattainment area and each pollutant 
                for which the area is designated as a 
                nonattainment area; and
                    (B) an area that was designated as a 
                nonattainment area but that was later 
                redesignated by the Administrator as an 
                attainment area and that is required to develop 
                a maintenance plan under section 175A with 
                respect to the specific pollutant for which the 
                area was designated nonattainment.
            (6) Activity during a conformity lapse.--
                    (A) Attribution of non-federal funds.--In 
                the case of a project for which a review under 
                the National Environmental Policy Act of 1969 
                (42 U.S.C. 4321 et seq.) has been completed, 
                non-Federal funds applied toward right-of-way 
                acquisition or design activities during a 
                period of conformity lapse may be attributed to 
                a State's obligated share of project funding 
                under title 23 or title 49, United States Code, 
                at such time as a transportation plan or 
                transportation improvement program that 
                includes the project is determined to conform 
                to the implementation plan.
                    (B) Mass transportation projects.--During a 
                period of conformity lapse, the prohibition on 
                approval, acceptance, or funding under this 
                subsection shall not apply to the funding of 
                any project for mass transportation (as defined 
                in section 5302 of title 49, United States 
                Code).
            (7) Effect of revised ozone standard.--
                    (A) In general.--Until the date described 
                in subparagraph (B), notwithstanding any other 
                provision of law, an area shall not be 
                considered to be out of conformity with an 
                implementation plan under this Act for the sole 
                reason that the area is a nonattainment area 
                under section 107 with respect to a revised 
                national ambient air quality standard for ozone 
                promulgated after January 1, 1997.
                    (B) Date.--For any area, the date referred 
                to in subparagraph (A) is the date that is 1 
                year after the date on which the Administrator 
                determines to be adequate, with respect to the 
                area, the estimates of emissions from motor 
                vehicles and necessary emissions reductions 
                contained in an implementation plan, regardless 
                of whether the implementation plan itself has 
                been approved.

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