[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.
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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:
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CLEAN AIR ACT \1\
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\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.
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[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.
* * * * * * *