[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Proposed Rules]
[Pages 36112-36151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16581]
[[Page 36111]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 51 and 93
Transportation Conformity Rule Amendments: Flexibility and
Streamlining; Proposed Rule
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 /
Proposed Rules
[[Page 36112]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 93
[FRL-5527-8]
RIN 2060-AG16
Transportation Conformity Rule Amendments: Flexibility and
Streamlining
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing a more streamlined and flexible
transportation conformity rule. The conformity rule requires that
transportation plans, programs, and projects conform to state air
quality implementation plans (SIPs) and establishes the criteria and
procedures for determining whether or not they do. Conformity to a SIP
means that transportation activities will not produce new air quality
violations, worsen existing violations, or delay timely attainment of
national ambient air quality standards.
Since publication of the original rule in November 1993, EPA, the
Department of Transportation (DOT), and state and local air and
transportation officials have had considerable experience implementing
the criteria and procedures in the rule. The changes proposed today are
a result of this experience and are intended to make the conformity
rule less complex and make it a more effective planning tool. The
proposed changes will not result in any change in health and
environmental benefits.
This proposed rule would give state and local governments more
authority in setting the performance measures used as tests of
conformity and more discretion when a transportation plan does not
conform to a SIP. The proposal would allow motor vehicle emissions
budgets in a submitted SIP to be used to determine conformity instead
of the ``build/no-build'' test. Modeling requirements would be tailored
for different types of areas, and rural areas would be able to choose
among several conformity tests.
DATES: Comments on this action must be submitted on or before September
9, 1996. EPA will conduct one public hearing on this proposal beginning
at 10 a.m. on Tuesday, August 6, 1996, in Washington, DC. As described
in section XVI. of today's action, the hearing will continue throughout
the day until all testimony has been presented.
ADDRESSES: Interested parties may submit written comments (in
duplicate, if possible) to: Air and Radiation Docket and Information
Center, U.S. Environmental Protection Agency, Attention: Docket No. A-
96-05, 401 M Street, SW., Washington, DC 20460. (Those desiring
notification of receipt of comments must include a self-addressed,
stamped postcard.)
The public hearing will be held in Washington, DC, at the Holiday
Inn Capitol Hill, 550 C Street, SW., Washington, DC 20024, (202) 479-
4000.
Materials relevant to this rulemaking are contained in Public
Docket A-96-05 by EPA. The docket is located at the above EPA address
in room M-1500 Waterside Mall (ground floor) and may be inspected from
8 a.m. to 5:30 p.m., Monday through Friday, including all non-
government holidays.
FOR FURTHER INFORMATION CONTACT: Kathryn Sargeant, Transportation and
Market Incentives Group, Regional and State Programs Division, U.S.
Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, MI
48105, (313) 668-4441.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by the conformity rule are those
which adopt, approve, or fund transportation plans, programs, or
projects under the Intermodal Surface Transportation Efficiency Act or
Federal Transit Laws. Regulated categories and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
------------------------------------------------------------------------
Local government.......................... Local transportation and air
quality agencies.
State government.......................... State transportation and air
quality agencies.
Federal government........................ EPA and Department of
Transportation (Federal
Highway Administration and
Federal Transit
Administration).
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by the conformity rule. Other types of
entities not listed in the table could also be regulated. To determine
whether your organization is regulated by this action, you should
carefully examine the applicability in Sec. 51.394/Sec. 93.102 of the
conformity rule. If you have questions regarding the applicability of
this action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
The contents of this preamble are listed in the following outline:
I. Background on Transportation Conformity Rule
II. Applicability of the Budget Test and Emission Reduction Tests
III. Implementation of the Budget Test
IV. Non-federal Projects
V. Rural Nonattainment and Maintenance Areas
VI. Modeling Requirements
VII. Consequences of SIP Disapproval
VIII. Mismatch in SIP/Transportation Plan Timeframe
IX. Public Participation
X. Interagency Consultation
XI. Streamlining and Clarification
XII. TCM Flexibility
XIII. PM10 Hot Spots
XIV. Signalization Projects
XV. Conformity SIPs
XVI. Public Hearing
XVII. Administrative Requirements
I. Background on Transportation Conformity Rule
Today's action proposes to amend the transportation conformity
rule, ``Criteria and Procedures for Determining Conformity to State or
Federal Implementation Plans of Transportation Plans, Programs, and
Projects Funded or Approved Under Title 23 U.S.C. or the Federal
Transit Act'' (58 FR 62188, November 24, 1993). Required under section
176(c) of the Clean Air Act, as amended in 1990, the transportation
conformity rule established the criteria and procedures by which the
Federal Highway Administration (FHWA), the Federal Transit
Administration (FTA), and metropolitan planning organizations (MPOs)
determine the conformity of federally funded or approved highway and
transit plans, programs, and projects to state implementation plans
(SIPs). Conformity ensures that transportation plans, programs, and
projects do not produce new air quality violations, worsen existing
violations, or delay timely attainment of national ambient air quality
standards (NAAQS). According to the Clean Air Act, federally supported
activities must conform to the implementation plan's purpose of
attaining and maintaining these standards.
Since publication of the transportation conformity rule in November
1993, EPA, the Department of Transportation (DOT), and state and local
air and transportation officials have had considerable experience
implementing the criteria and procedures in the rule. It is that mutual
[[Page 36113]]
experience which leads to today's proposal, which is the third of a
series of three anticipated amendments to the transportation conformity
rule. In each case, the amendments were needed to clarify ambiguities,
correct errors, or make the conformity process more logical and
feasible. The first set of amendments was published as an interim final
rule on February 8, 1995 (60 FR 7449), and was finalized on August 7,
1995 (60 FR 40098). The first set of amendments aligned the dates of
conformity lapses (i.e., halting of new federally funded highway/
transit projects) due to SIP failures with the application of Clean Air
Act highway sanctions for certain ozone areas and all areas with
disapproved SIPs with a protective finding.
The second set of amendments was proposed on August 29, 1995 (60 FR
44790), and was finalized on November 14, 1995 (60 FR 57179). The
second set of amendments allowed any transportation control measure
(TCM) from an approved SIP to proceed during a conformity lapse;
aligned the date of conformity lapses with the date of application of
Clean Air Act highway sanctions for any failure to submit or submission
of an incomplete control strategy SIP; extended the grace period before
which areas must determine conformity to a submitted control strategy
SIP; established a grace period before which transportation plan and
program conformity must be determined in newly designated nonattainment
areas; and corrected the nitrogen oxides (NOx) provisions of the
transportation conformity rule consistent with the Clean Air Act and
previous commitments made by EPA.
Today's proposal would further amend the conformity rule in
response to several issues raised by conformity implementers and other
interested parties. EPA has worked closely with these conformity
stakeholders to develop this proposal. In March 1995, the National
Governors' Association (NGA) and the Environmental Council of States
(ECOS) hosted a meeting of state DOTs, environmental agencies, EPA, and
DOT to discuss the conformity rule. At this meeting, ECOS presented
nine specific proposals to change the conformity rule. EPA and DOT
committed to address all nine issues. EPA requested that state
workgroups prepare white papers examining four issues in greater depth:
the build/no- build test, non-federal projects, rural nonattainment
areas, and adding non-exempt projects to the transportation plan and
transportation improvement program (TIP) without full regional
analysis. The remaining five issues are being addressed
administratively.
In April 1995, EPA hosted in Washington, DC a conformity
stakeholder meeting of state DOTs, state environmental agencies, MPOs,
environmentalists, industry groups, and other public interest groups.
EPA substantially shaped the meeting's agenda around NGA's four white
papers in order to provide groundwork for stakeholder discussion on
these issues. On June 30, 1995, EPA distributed to conformity
stakeholders draft regulatory language addressing the issues discussed
at the April meeting. EPA received written comments and followed up
with a series of four conference calls in July 1995 to solicit
additional reaction to the June draft language. The draft language and
comments are available in the public docket.
On September 1, 1995, EPA distributed a letter to conformity
stakeholders indicating what EPA and DOT intended to propose regarding
key conformity issues. Today's proposal is based substantially on the
approach described in the September letter.
II. Applicability of the Budget Test and Emission Reduction Tests
A. Description of Proposal
The proposal would change the time periods during which the budget
test and the ``emission reduction tests,'' commonly known as the
``build/no-build test,'' are required. The proposal would eliminate the
requirements for the emission reduction tests once a control strategy
SIP or maintenance plan has been submitted to EPA and EPA has had 45
days to review the adequacy of the SIP submission and its motor vehicle
emissions budget(s). The budget test would replace the emission
reduction tests 45 days after the control strategy SIP or maintenance
plan was submitted to EPA (provided EPA has not found the submission
inadequate), or earlier if EPA has found the submission adequate.
Under the existing transportation conformity rule, both the
emission reduction tests and the budget test are required until EPA's
final approval of the control strategy SIP (or maintenance plan, where
control strategy SIPs are not required). In addition, under the
existing rule EPA has a review period of 90 days before the motor
vehicle emissions budget in a newly submitted SIP may replace a
previously submitted motor vehicle emissions budget.
The proposal would streamline the conformity process by eliminating
the existing transportation conformity rule's reliance on the
classification system of ``Phase II interim period,'' ``transitional
period,'' ``control strategy period,'' and ``maintenance period'' to
determine whether the budget test and/or emission reduction tests
apply.
1. Applicability of Nitrogen Oxides (NOX) Emission Reduction
Tests and Budget Tests in Ozone Areas
Under the proposal, the budget test would replace the emission
reduction tests only for those pollutants for which the submitted SIP
establishes a motor vehicle emissions budget. For example, 15% SIPs for
ozone areas are only required to address volatile organic compounds
(VOC), and as a result, most will not address NOX or establish a
NOX emissions budget. In these areas, the VOC emission reduction
tests (``build/no-build'' and less-than-1990 tests) would no longer be
required, but the NOX emission reduction tests would continue to
be required until a NOX budget is established in a submitted SIP
(unless the area had received a NOX waiver). In ozone
nonattainment areas, Phase II attainment SIPs will establish NOX
motor vehicle emissions budgets.
A submitted 15% or Phase I attainment SIP would be considered to
establish a NOX motor vehicle emissions budget if the submitted
SIP contains an explicit NOX budget that is intended to act as a
ceiling on future NOX emissions and if the NOX budget
represents a net reduction from 1990 NOX emissions levels. A
submitted SIP that achieves 15% or reasonable further progress
reductions by substituting some NOX reductions for the required
VOC reductions would establish a NOX motor vehicle emissions
budget.
2. EPA 45-Day Review Period
This proposal would allow conformity to be determined based on
consistency with a submitted SIP's motor vehicle emissions budget(s),
once the submitted SIP had been reviewed by EPA. (Of course, the
submitted SIP cannot override the motor vehicle emissions budgets in an
approved SIP for the years addressed by the approved SIP. See Section
III.A.1.) The submitted SIP budget(s) would be used for conformity
purposes beginning 45 days after the SIP's submission to EPA, provided
EPA had not found the SIP and its budget(s) inadequate. The submitted
SIP budget(s) would be used for determining conformity before EPA's 45-
day review period expires if EPA finds the SIP and its budget(s)
adequate before expiration of such 45-day period.
If EPA finds the submitted SIP and its budget(s) to be inadequate,
they could not be used for conformity purposes, and conformity would
have to be
[[Page 36114]]
determined using the previously established SIP budget(s), or the
emission reduction tests, if there are no previously established SIP
budgets. If EPA finds the submitted SIP and its budget(s) to be
inadequate after EPA's 45-day review period and after conformity had
already been determined using the submitted SIP, the conformity
determination would still be valid. However, that submitted SIP and
budget(s) could not be used for future conformity determinations.
Projects would still be considered to come from a conforming plan and
TIP if they were included in the transportation plan and TIP that were
found to conform to a budget that was later declared inadequate.
In order for EPA to consider a submitted SIP's motor vehicle
emissions budget(s) adequate for transportation conformity purposes,
the submitted SIP must have been endorsed by the Governor (or his or
her designee) and have been subject to a public hearing. The emissions
budget(s) would have to be clearly identified and precisely quantified.
Each emissions budget would have to be consistent with reasonable
further progress, attainment, or maintenance, based upon a
consideration of all emissions sources. The emissions budget(s) would
have to be consistent with the area's emissions inventory and modeling
assumptions for all sources and show a clear relationship between the
control measures, the emissions reductions, and the resulting budgets.
Each revision to a previously submitted SIP would have to identify the
impacts on point, area, and mobile source emissions, as well as changes
to any established safety margins. Changes to previously submitted
budgets and the reasons for the changes would have to be explained and
documented, including the basis for any changes related to emission
factors or estimates of vehicle miles traveled (VMT), and what those
changes imply for control strategies. If the revised emissions budget
requires additional emission control strategies to demonstrate
attainment or maintenance, such new strategies would have to be
specified in the SIP submission. The SIP submission would have to
contain a quantification of the emissions impacts of such new
strategies and, at a minimum, commitments by appropriate agencies to a
schedule for adoption and implementation, and the draft regulations or
other relevant documents. Consultation among federal, state, and local
agencies would have to occur and full documentation and justifications
would have to be provided to EPA before the SIP is submitted. Any EPA
concerns would have to be addressed before submission if the SIP and
its budget(s) are to be found adequate for conformity purposes. If a
SIP submission does not satisfy these conditions, EPA may find it
inadequate for conformity purposes.
EPA's review of the adequacy of a SIP submission for transportation
conformity purposes is separate from EPA's completeness review. EPA may
find a SIP incomplete after 45 days or after finding the SIP submission
adequate for transportation conformity purposes. An incomplete SIP may
still have appropriate motor vehicle emissions budgets for use in the
conformity process, as recognized by EPA's use of ``protective
findings'' under the November 1993 transportation conformity rule. If
the SIP submission is both incomplete and inadequate for transportation
conformity purposes, EPA would have to declare the submission
inadequate for conformity purposes in addition to finding it
incomplete.
3. Areas That Are Not Required to Submit Control Strategy SIPs
Background. Under the existing transportation conformity rule,
areas that are not required to submit control strategy SIPs have two
options for demonstrating conformity. The first option is to satisfy
the ``build/no-build'' and less-than-1990 emission reduction tests; the
second is to submit a SIP that demonstrates attainment and use the
budget test to determine conformity. In the latter option, such an area
would be required under the existing rule to satisfy both of the
emission reduction tests until the SIP is approved by EPA.
Areas affected by proposal. Marginal and below ozone nonattainment
areas, not classified carbon monoxide (CO) nonattainment areas, and
moderate CO nonattainment areas with a design value of 12.7 ppm or less
are not required by the Clean Air Act to submit control strategy SIPs.
These classifications are listed in Secs. 51.464 and 93.136 of the
existing transportation conformity rule.
In addition, some moderate and above ozone nonattainment areas that
are meeting the ozone NAAQS are not required to submit control strategy
SIPs (see May 10, 1995, memorandum from John S. Seitz, Director of the
Office of Air Quality Planning and Standards, to Regional Air Division
Directors, entitled ``Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard'').
Through today's action, EPA is proposing alternatives for
demonstrating conformity for particular pollutants if areas are not
required to submit control strategy SIPs for that pollutant. The first
alternative is currently allowed under the existing transportation
conformity rule and would continue to be available under this proposal
with some additional flexibilities. The second and third options would
provide new alternatives to these areas for demonstrating conformity.
EPA would require these areas to satisfy only one of the alternatives
described below in order to demonstrate conformity.
Create a budget through the SIP process and use the budget test. As
stated above, the existing transportation conformity rule and this
proposal would allow these areas to submit a SIP that establishes a
motor vehicle emissions budget consistent with attainment or
maintenance. These areas would then be required to satisfy the budget
test for each emissions budget. However, unlike the existing rule, this
proposal would allow the SIP budget to be used after the SIP has been
submitted to EPA and before EPA approval. The emission reduction tests
would not be required once a SIP is submitted and EPA's 45-day review
period has occurred (as described above).
Default budget for clean data areas. This proposal would provide
another alternative for demonstrating conformity in areas that are not
required to submit control strategy SIPs, and have monitoring data
indicating attainment of the standard (``clean data''), but have not
yet submitted a maintenance plan. These clean data areas could
demonstrate conformity using the budget test instead of the emission
reduction tests, using as a ``motor vehicle emissions budget'' the
motor vehicle emissions levels in the most recent year of clean data.
The motor vehicle emissions levels in the most recent year of clean
data would be determined by the state air quality agency through the
interagency consultation process. This default ``budget'' would not
have to be submitted as a SIP revision and would not require special
public participation in addition to that otherwise required by the
transportation conformity rule. If a clean data area wishes to use a
budget other than emissions levels in the most recent year of clean
data, the area could submit that budget through the SIP process as
described above.
Emission reduction test flexibility. Today's action would allow
areas that are not required to submit control strategy SIPs another
alternative when demonstrating conformity. If these areas
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do not have a SIP with a motor vehicle emissions budget, this proposal
would allow these areas a choice of emission reduction tests.
Specifically, this proposal would allow them to demonstrate conformity
by either satisfying the build/no-build test or demonstrating that
annual motor vehicle emissions will not be greater than 1990 levels
(i.e., the ``1990 test'').
Under the existing transportation conformity rule, these areas are
required to satisfy both the build/no-build and less-than-1990 emission
reduction tests in the absence of a budget. For the reasons explained
below, this proposal would offer CO and ozone areas not required to
submit control strategy SIPs the same flexibility currently available
to PM10 (particles with an aerodynamic diameter of less than or
equal to a nominal 10 micrometers) and nitrogen dioxide (NO2)
nonattainment areas, which are required to satisfy either the build/no-
build emission reduction test or ensure that annual motor vehicle
emissions will not be greater than 1990 levels.
B. Rationale
1. Elimination of the Emission Reduction Tests
A broad consensus of conformity implementers and interested parties
have advised EPA that the ``build/no-build test'' has limited value in
demonstrating contribution to emission reductions, or serving as the
primary criterion on which conformity is based. Because of the
limitations of currently available modeling tools, the build/no-build
test may yield only slight differences in emissions, well within the
range of modeling error. The parties have indicated that when motor
vehicle emissions budget(s) have been established in submitted SIPs,
they provide a more relevant basis for conformity determinations.
EPA agrees with this assessment by the transportation conformity
stakeholders. EPA originally created the ``build/no build test'' and
less-than-1990 tests (required by Secs. 51.436-51.446 of the November
1993 transportation conformity rule) in order to implement the emission
reduction requirements of Clean Air Act section 176(c)(3)(A)(iii) (for
ozone and CO nonattainment areas), and to ensure that transportation
activities would not increase the frequency or severity of existing
violations (for PM10 and NO2 nonattainment areas), as
required by Clean Air Act section 176(c)(1)(B)(ii). In light of the
stakeholders' input, EPA now believes that consistency with the motor
vehicle emissions budget(s) in a submitted control strategy SIP or
maintenance plan is sufficient to satisfy these Clean Air Act
requirements.
Clean Air Act section 176(c)(3)(A)(iii) requires transportation
plans, TIPs, and projects in ozone and CO nonattainment areas to
contribute to annual emissions reductions consistent with sections
182(b)(1) and 187(a)(7). EPA believes that consistency with the motor
vehicle emissions budgets in a submitted ozone or CO attainment SIP
satisfies Clean Air Act section 176(c)(3)(A)(iii), because these
budgets are intended to represent the emissions reductions necessary to
attain the ozone or CO standard, as required by sections 182(b)(1) and
187(a)(7). Similarly, consistency with a submitted maintenance plan's
emissions budgets fulfills the requirement to contribute to emissions
reductions necessary to attain the standard, because the maintenance
plan's emissions budgets represent emission levels consistent with
attainment.
EPA carefully considered whether the motor vehicle emissions
budget(s) established by an ozone area's submitted 15% SIP or post-1996
reasonable further progress SIP are sufficient to satisfy the
requirements of Clean Air Act section 176(c)(3)(a)(iii), because such
budgets do not necessarily represent the full emissions reductions
necessary to attain the ozone standard. However, the motor vehicle
emissions budgets in these SIPs do represent VOC emission reductions
from 1990 levels. As a result, EPA believes that consistency with such
a VOC budget is sufficient to satisfy the requirement of Clean Air Act
section 176(c)(3)(A)(iii) for contribution to necessary emissions
reductions.
EPA considered not allowing a submitted 15% SIP or post-1996
reasonable further progress SIP to establish a NOX motor vehicle
emissions budget that would be used for determining conformity instead
of the NOX emission reduction tests. The Clean Air Act does not
require such SIPs to address NOX, so a NOX emissions budget
in such a SIP could be unconstrained and would not necessarily be
sufficient to satisfy section 176(c)(3)(A)(iii)'s requirement to
contribute to annual emissions reductions. However, if a state
establishes a NOX emissions budget that it intends to constrain
future emissions and that does represent emissions reductions from 1990
levels, EPA now believes this budget would be a better basis for
determining conformity than the ``build/no-build test.'' As a result,
EPA is proposing that a 15% SIP or post-1996 reasonable further
progress SIP (Phase I attainment SIP) that addresses NOX would be
considered to establish a NOX emissions budget for the purposes of
transportation conformity only if that budget represented net emission
reductions from 1990. Whether or not a SIP establishes a NOX motor
vehicle emissions budget should be determined in consultation with the
SIP agency and the EPA Region.
For PM10 and NO2 nonattainment areas, the ``build/no-
build test'' and the less-than-1990 test were intended to satisfy the
general definition of conformity in section 176(c)(1)(B)(ii) that
transportation activities not increase the frequency or severity of any
existing violation. EPA believes that consistency with the motor
vehicle emissions budget(s) established in the submitted attainment SIP
or maintenance plan ensures that existing violations will not be
worsened by transportation projects, because these budgets represent
emissions levels that are consistent with attainment of the standards.
2. Adequacy of Submitted (But Not Approved) Budgets
The November 1993 transportation conformity rule requires emission
reduction tests as well as budget tests until EPA approves the
submitted SIP, because EPA believed it could not be certain that
submitted emissions budgets are consistent with Clean Air Act
requirements for reasonable further progress, attainment, and
maintenance until EPA approves the SIP. In contrast, this proposal
would allow the motor vehicle emissions budgets established by
submitted SIPs to be the basis of conformity determinations. (Of
course, the submitted SIP cannot override the motor vehicle emissions
budgets in an approved SIP for the years addressed by the approved SIP.
See Section III.A.1.)
EPA now believes this is appropriate because a submitted SIP is a
product of a state's interagency consultation process, which encourages
discussion among state and local air quality and transportation
agencies, and is ultimately endorsed by the Governor (or his/her
designee). During the SIP process, states also gather information and
comment from environmental groups and other interested parties at
public hearings. EPA believes that these processes would ensure the
credibility of a submitted SIP (and its motor vehicle emissions
budgets) for the purposes of transportation conformity especially where
the only alternative conformity test is the emission reduction tests.
Given the limitations to the usefulness of the emission reduction
tests, a submitted SIP's motor vehicle
[[Page 36116]]
emissions budgets are likely to be at least as good a basis for making
conformity determinations, even if they are not yet approved by EPA.
EPA's proposed 45-day review period for newly submitted SIPs is
intended to prevent conformity from being based on motor vehicle
emissions budgets that are clearly not consistent with attainment,
maintenance, or reasonable further progress. If EPA was not consulted,
given sufficient information, or EPA's concerns were not satisfied
prior to SIP submission sufficient for EPA to determine that the motor
vehicle emissions budgets are adequate for conformity purposes during
this 45-day review period, EPA could declare the motor vehicle
emissions budgets inadequate and prevent their use for conformity
purposes. In addition, if EPA finds the motor vehicle emissions budgets
inadequate even after the 45-day review period, further conformity
determinations may not be based on those budgets.
EPA considered a range of review periods after which submitted
motor vehicle emissions budgets could replace emission reduction tests
for determining conformity. Under the November 1993 transportation
conformity rule, EPA has used a 90-day review period before a newly
submitted SIP budget could replace a previously submitted budget. Many
conformity stakeholders suggested a 30-day review period. EPA is
proposing a 45-day review period as a compromise to balance the
conflicting goals of using submitted SIP budgets as quickly as possible
and preventing transportation investments from being made based on
budgets that are not consistent with attainment, maintenance, or
reasonable further progress. If budgets are found inadequate after
conformity has already been determined, future plans and TIPs would
have to offset the emissions from grandfathered projects that may have
been inappropriately allowed under the inadequate budgets. This
disruption could be avoided by allowing EPA enough time initially to
determine the adequacy of budgets and prevent the use of inadequate
budgets.
Regardless of the 45-day review period, EPA cannot ultimately
ensure that a submitted SIP's motor vehicle emissions budget is
consistent with reasonable further progress, attainment, or
maintenance--and thus adequate to fulfill the conformity requirements
of Clean Air Act section 176(c)--until EPA fully approves the SIP
through notice-and-comment rulemaking. As a result, the proposal
provides that reliance on a submitted SIP's motor vehicle emissions
budgets for determining conformity is deemed to be a statement by the
MPO and DOT that they are not aware of any information that would
indicate that emissions consistent with such budgets would cause or
contribute to any new violation of the relevant standard(s); increase
the frequency or severity of any existing violation of the relevant
standard(s); or delay timely attainment of the relevant standards or
any required interim emissions reductions or other milestones. (This
provision clarifies that, in the absence of EPA approval of the SIP,
the MPO and DOT may not base conformity determinations on submitted
SIPs that they have reason to believe do not satisfy Clean Air Act
requirements.)
3. Areas Not Required to Submit Control Strategy SIPs
EPA has received public comment to extend certain flexibilities to
areas that are not required to submit control strategy SIPs. The
existing transportation conformity rule requires these areas to either
satisfy the ``build/no-build'' and less-than-1990 emission reduction
tests or submit a control strategy SIP or maintenance plan and satisfy
the budget test. Today's action proposes additional flexibilities for
areas that are not required to submit control strategy SIPs, including
marginal and below ozone nonattainment areas, not classified CO
nonattainment areas, moderate CO nonattainment areas with a design
value of 12.7 ppm or less, and some moderate and above ozone areas that
are meeting the ozone standard. Please refer to section II.A.3. for
additional background material.
Create a budget through the SIP process and use the budget test.
Although the areas discussed in this section are not required by the
Clean Air Act to submit control strategy SIPs, these areas could choose
to submit a control strategy SIP or maintenance plan (which contains a
motor vehicle emissions budget) and demonstrate conformity by using the
budget test. The existing transportation conformity rule requires
consistency with the SIP's motor vehicle emissions budget as stipulated
in Clean Air Act section 176(c)(2)(A). This option is available both in
the existing transportation conformity rule and this proposal.
Default budget for clean data areas. This proposal would allow
areas with clean monitoring data but no submitted or approved budget to
determine conformity using the budget test, with the motor vehicle
emissions levels in the most recent year of clean data serving as the
``budget.'' In order for data to be considered ``clean,'' it must meet
EPA's requirements and guidance for acceptable monitoring. EPA is also
proposing this second option because many areas would prefer to
determine conformity using a budget test rather than the emission
reduction tests, but are nevertheless unwilling to devote resources to
creating a motor vehicle emissions budget through the SIP process. The
motor vehicle emissions in the most recent year with clean data is an
adequate ``default budget'' that can be determined without using the
formal SIP process. This level of motor vehicle emissions does not
automatically demonstrate attainment, because it does not consider the
levels of emissions from other sources. However, these areas are not
required by the Clean Air Act to submit attainment demonstrations.
Furthermore, this level of motor vehicle emissions does produce clean
data. Therefore, EPA believes that requiring consistency with the level
of motor vehicle emissions in the most recent year of clean data is a
reasonable test, and one that is likely to be more meaningful than the
emission reduction test (for the reasons discussed earlier).
Emission reduction test flexibility. This proposed alternative
would allow areas that are not required to submit control strategy SIPs
that do not choose the other two options in this section to satisfy
either the build/no-build test or demonstrate that annual motor vehicle
emissions will not be greater than 1990 levels (i.e., the ``1990
test''), provided these areas do not have an approved budget in a
control strategy SIP or maintenance plan. EPA is proposing this
flexibility because conformity stakeholders have indicated that, like
PM10 and NO2 areas, the ozone and CO classifications listed
in Secs. 51.464 and 93.136 of the transportation conformity rule and
moderate and above ozone nonattainment areas that are affected by the
May 10, 1995, EPA memorandum (see section II.A.3. for more information)
are not subject to sections 182(b)(1) and 187(a)(7) of the Clean Air
Act.
The existing transportation conformity rule requires that areas
without motor vehicle emissions budgets must satisfy both the build/no-
build and less-than-1990 emission reduction tests in order to
demonstrate conformity. EPA originally created these tests in order to
implement the emission reduction provisions of Clean Air Act section
176(c)(3)(A)(iii), which requires ozone and CO areas to contribute to
annual emission reductions consistent with sections 182(b)(1) and
187(a)(7). However, sections 182(b)(1) and 187(a)(7) only apply to
moderate and above ozone nonattainment areas and
[[Page 36117]]
CO nonattainment areas that are moderate greater than 12.7 ppm.
PM10 and NO2 areas are similarly not required to satisfy
the annual emission reduction provisions of Clean Air Act section
176(c)(3)(A)(iii). The existing transportation conformity rule and this
proposal require PM10 and NO2 areas to satisfy either the
build/no-build or 1990 test in order to demonstrate conformity.
EPA originally required both the build/no-build and less-than-1990
tests for all ozone and CO areas in order to ensure that transportation
planning does not produce new air quality violations, worsen existing
violations, or delay timely attainment of the NAAQS, as required by
Clean Air Act section 176(c)(1)(B). However, EPA now believes that, for
these areas which were never subject to the emission reduction mandate
of section 176(c)(3)(A)(iii), either the build/no-build test or the
1990 test is sufficient to satisfy the requirements of the Clean Air
Act.
III. Implementation of the Budget Test
A. Which Budgets Apply?
1. Approved SIPs Versus Submitted SIPs
Years that are directly addressed by the approved SIP. Motor
vehicle emissions budgets in an approved SIP (i.e., the applicable
implementation plan) must always be used for demonstrating satisfaction
of the budget test for those years in the timeframe of the
transportation plan that are addressed by the approved SIP. That is, if
the approved SIP establishes a motor vehicle emissions budget for a
year in the timeframe of the transportation plan, consistency with that
budget must be demonstrated for that year. A submitted SIP cannot
override the motor vehicle emissions budgets in an approved SIP for the
years addressed by the approved SIP.
Clean Air Act section 176(c) specifically requires conformity to
approved implementation plans. The provisions of an implementation plan
that EPA has approved under Clean Air Act section 110 are enforceable
and cannot be changed on the basis of a submission. As a result,
although some conformity implementers and interested parties requested
that they be permitted to replace approved SIP budgets with submitted
SIP budgets, EPA believes that this cannot be legally allowed. In
addition, approved SIP budgets have been subject to full technical
review and public comment and should not be replaced by budgets that
have not yet been fully analyzed and reviewed.
Years that are not directly addressed by the approved SIP. However,
this proposal would allow a submitted SIP's motor vehicle emissions
budgets to be used instead of the approved SIP's budgets for those
years not directly addressed by the approved SIP. For example, for a
serious ozone nonattainment area, the approved 15% SIP's VOC budget
would have to be used to demonstrate the budget test for 1996, but the
submitted attainment SIP's budget would be used to demonstrate the
budget test for the attainment year (1999).
Similarly, this proposal would allow a submitted maintenance plan's
motor vehicle emissions budgets to be used for the years after the
attainment year, instead of continuing to use the approved attainment
year budget for those subsequent years. Under the existing
transportation conformity rule, a submitted maintenance plan's motor
vehicle emissions budget(s) may not be used for transportation
conformity purposes until the maintenance plan has been approved.
EPA believes this flexibility is appropriate because any given
approved SIP is only intended to address a certain period of time. In
general, attainment SIPs address only the period through the attainment
year, and maintenance plans address at a minimum a ten-year period. EPA
believes that the Clean Air Act's reference to conformity to ``approved
implementation plans'' applies to the years which the approved SIP
addresses, and that this language should not prohibit using as the
relevant test of conformity subsequent SIP submissions that address
later years. EPA believes that the submitted maintenance plan's motor
vehicle emissions budgets are more relevant to the years after the
attainment year than the attainment year budget in the approved
attainment SIP. Similarly, a submitted attainment SIP's budget is more
relevant for the attainment year than an approved post-1996 SIP budget.
EPA had previously required use of the last budget in the approved SIP
for all subsequent years only because there was no other budget against
which to determine conformity. Once such a budget is submitted, it
provides the most relevant basis for testing conformity.
If no SIP is submitted that addresses the years after the approved
SIP, the approved SIP's budget(s) would continue to apply for the
future years in the timeframe of the transportation plan.
Changes to approved SIPs. This proposal would not alter the fact
that proposed changes to an approved SIP cannot be used for the
purposes of transportation conformity until those changes are approved.
For example, if an area submits a proposed revision to a SIP with an
attainment year budget to replace the approved attainment SIP, that SIP
submission cannot be used until it is approved by EPA.
2. Multiple SIP Submissions
How soon can a newly submitted SIP replace a previously submitted
SIP? Under this proposal, the most recent SIP submissions would replace
other prior SIP submissions that have not yet been approved. If an area
submits a SIP to revise motor vehicle emissions budgets in a SIP that
has not yet been approved, the most recent SIP submission would be used
for demonstrating the budget test beginning 45 days after submission to
EPA (provided EPA has not found the submission inadequate), or earlier,
if EPA has found the submission to be adequate.
Under the existing transportation conformity rule, a newly
submitted SIP is not permitted to replace a complete SIP submission for
90 days. If EPA found the newly submitted SIP complete in less than 90
days, either SIP submission could be used for conformity determinations
made during the first 90 days after SIP submission. This proposal would
require the most recent SIP submission to be used for conformity
purposes after 45 days (if it has not been found inadequate), or as
soon as it has been found adequate, if this occurs in less than 45 days
after submission to EPA.
EPA is proposing this change for several reasons. First, due to
conformity stakeholder suggestions that submitted SIPs should be used
sooner for conformity purposes, EPA is proposing to shorten the
existing transportation conformity rule's 90-day grace period to 45
days. In addition, EPA is interested in streamlining the transportation
conformity rule and reducing ambiguity in its implementation. There has
been substantial confusion in implementation of the existing
transportation conformity rule regarding which submitted SIP's budgets
should be used for conformity purposes, and at which times. EPA
believes that it is simpler and truer to the spirit of conformity to
require the most recently submitted SIP (that has undergone 45-day EPA
review) to be used for determining conformity.
EPA believes that the simplicity gained from this change outweighs
any potential limitation to the flexibility of areas to choose among
SIP submissions in the first few weeks after submission. In many
instances, SIP submissions intended to replace previous SIP submissions
were either inspired by conformity considerations or represent a more
accurate basis for conformity. As
[[Page 36118]]
a result, most areas would not choose to use the previous SIP
submission even if given the opportunity.
In addition, the protection EPA originally intended the 90-day
grace period to provide is under the state's control. EPA did not
originally require newly submitted SIPs to be used in the first 90
days, because EPA did not want conformity determinations that were
underway at the time of the SIP submission to be disrupted. However,
this protection is not necessary in the conformity rule itself, because
the state controls when it submits a SIP, and the interagency
consultation process gives state and local agencies an opportunity to
coordinate conformity determinations and SIP submissions to avoid
disruption of the conformity process. EPA believes that the ambiguity
regarding which SIP submission is used for conformity is more
problematic than the remote possibility that a SIP submission would
interfere with a conformity determination that was underway.
When should different submitted SIPs be used? When a series of
control strategy SIPs have been submitted to fulfill different Clean
Air Act requirements for a particular pollutant, the budget test would
be demonstrated using each relevant submitted SIP that is adequate for
conformity purposes. For example, the proposal would require the
submitted post-1996 reasonable further progress SIP's motor vehicle
emissions budgets to be used for demonstrating the budget test for
milestone years, and would require the submitted attainment
demonstration's budget(s) to be used for demonstrating the budget test
for the attainment year. SIP budget(s) that address the latest future
year would apply for all subsequent years in the timeframe of the
transportation plan.
B. Control Strategy SIPs and Maintenance Plans That Do Not Establish
Motor Vehicle Emissions Budgets
This proposal would clarify that the emissions budget test must be
satisfied only for those pollutants and pollutant precursors for which
a motor vehicle emissions budget is established. Normally, a control
strategy SIP or maintenance plan would by its nature include a motor
vehicle emissions budget for each pollutant and pollutant precursor for
which the area was designated nonattainment. These budgets are created
by the control strategy SIP or maintenance plan even if they are not
clearly identified, and failure to clearly identify a motor vehicle
emissions budget does not relieve the requirement to satisfy the budget
test. However, as explained further below, there are some cases in
which a SIP could specifically provide that no motor vehicle emissions
budget was established for transportation conformity purposes, and in
such cases, the budget test would not have to be satisfied for that
pollutant or precursor.
Certain nonclassifiable ozone areas have the option to submit a
``limited maintenance plan,'' which would not establish motor vehicle
emissions budgets. According to the November 16, 1994, memorandum from
Sally Shaver, Director of EPA's Air Quality Strategies and Standards
Division, to EPA Regional Air Division Directors, entitled ``Limited
Maintenance Plan Option for Nonclassifiable Ozone Nonattainment
Areas,'' nonclassifiable ozone areas whose design values are at or
below 0.106 ppm (85% of exceedance levels of the ozone standard) at the
time of redesignation may choose to submit a less rigorous maintenance
plan than required for other areas. This ``limited maintenance plan''
would not be required to project emissions over the maintenance period,
and as a result, no motor vehicle emissions budget would be
established. There are similar policies for CO and PM10 areas that
may also result in no motor vehicle emissions budgets being
established.
In other cases, the control strategy SIP or maintenance plan could
explicitly demonstrate that motor vehicle emissions are not a
significant contributor to the nonattainment problem, and the SIP could
explicitly state that it is not establishing a motor vehicle emissions
budget for transportation conformity purposes. This could occur, for
example, in CO and PM10 areas that are dominated by stationary
sources. In order for EPA to approve or find adequate for conformity
purposes a SIP that makes a claim of insignificance, the SIP would have
to demonstrate that it would be unreasonable to expect that such an
area would experience enough motor vehicle emissions growth for a
violation to occur. Such a demonstration would have to be based on a
number of factors, including the percentage of the inventory comprised
by motor vehicle-related emissions currently and in the future, how
close the monitoring data is to the standard, the absence of SIP motor
vehicle control measures, historical trends in the growth of motor
vehicle emissions and VMT, and projections of motor vehicle emissions
and VMT.
If EPA's 45-day review period expires without EPA finding the SIP
either adequate or inadequate for conformity purposes, the submitted
SIP's claim of insignificance may be used to justify not demonstrating
satisfaction of the budget test (unless or until EPA finds the SIP
inadequate).
When a control strategy SIP or maintenance plan does not establish
motor vehicle emissions budgets, no regional emissions tests would be
required to be satisfied. That is, neither the emissions budget test
nor the emission reduction tests would be required to be satisfied.
C. For Which Years Would the Budget Test Be Demonstrated?
This proposal would clarify (without changing the substance of) the
existing transportation conformity rule's requirements regarding the
years for which the budget test must be demonstrated. The proposal
would explicitly require the budget test to be demonstrated for each
year for which the SIP establishes a motor vehicle emissions budget.
For example, the attainment SIP generally establishes a budget for the
attainment year, and the 15% SIP establishes a VOC budget for 1996.
SIPs may explicitly include motor vehicle emissions budgets for other
years not specifically required to be addressed by the Clean Air Act.
For example, an attainment SIP or a maintenance plan may address more
years than required by the Clean Air Act and explicitly include motor
vehicle emissions budgets for those years. In such cases, the budget
test would have to be demonstrated for the years for which a budget was
specifically established.
The budget test must be demonstrated for the last year of the
maintenance plan and any other years for which the maintenance plan
establishes motor vehicle emissions budgets. An area may choose to
explicitly establish motor vehicle emissions budgets for years in the
timeframe of the maintenance plan other than the last year. In such
cases, compliance with the budget test would have to be demonstrated
for those years. Some maintenance plans may include specific motor
vehicle emissions projections for some or all years in the timeframe of
the maintenance plan, without intending that such projections operate
as limitations on emissions. The budget test would not be required to
be demonstrated for these years unless it was the intent of the
maintenance plan to establish a budget for these years. Such issues
should be addressed when developing the control strategy SIP or
maintenance plan. For control strategy SIPs and maintenance plans that
have already been submitted, the state's intent regarding the use of
motor vehicle emissions budgets may be clarified
[[Page 36119]]
through the interagency consultation process.
In addition to the years for which the SIP establishes a motor
vehicle emissions budget, the budget test must be demonstrated for the
last year of the transportation plan's forecast period. If there are
more than ten years between the years for which the SIP specifically
establishes motor vehicle emissions budgets, the budget test must also
be demonstrated for some intermediate years so that the budget test is
demonstrated at ten-year (or shorter) intervals.
Regional emissions analysis. Satisfaction of the budget test
requires comparison of the motor vehicle emissions budget with regional
emissions predicted for a given year. A regional emissions analysis
must be performed for each pollutant and precursor for the last year of
the transportation plan's forecast period and the attainment year (if
it is in the timeframe of the transportation plan). For the other years
for which the budget test is required to be demonstrated, the estimate
of regional emissions does not necessarily need to be based on a
regional emissions analysis performed for that specific year; the
estimate of regional emissions may be based on an interpolation between
the years for which the regional emissions analysis was performed.
However, the years for which the regional emissions analysis is
performed must be no more than ten years apart.
D. Maintenance Plans
The proposal would require that if the maintenance plan does not
establish motor vehicle emissions budgets for any years other than the
last year of the maintenance plan, the demonstration of consistency
with the motor vehicle emissions budget(s) must be accompanied by a
qualitative finding that there are no factors which would cause or
contribute to a new violation or exacerbate an existing violation in
the years before the last year of the maintenance plan.
Because the maintenance plan is required by the Clean Air Act to
demonstrate maintenance of the standards over a 10-year period, general
consistency between the latest planning assumptions and the maintenance
plan's assumptions and projections is a basis for finding that there
will not be new or worsened violations during that period. Each
maintenance plan will have different assumptions and projections, so
the specific basis for an area's qualitative finding will need to be
determined through the interagency consultation process. The
qualitative finding would be contained in the documentation that
demonstrates that the budget test has been satisfied.
EPA believes a qualitative finding is necessary if the budget only
addresses the last year of the maintenance plan, because the budget
test alone is not sufficient to determine, as required by the Clean Air
Act, that the transportation action will not cause a new violation. The
emissions impacts in the initial ten years of the maintenance plan must
be considered in some manner in order to determine conformity.
EPA believes that requiring a qualitative finding is preferable to
requiring maintenance plans to establish motor vehicle emissions
budgets for specific years. Although maintenance plans contain
projections for intermediate years that could be used as motor vehicle
emissions budgets, EPA believes that the years for which budgets are
established should be decided by the state. EPA is willing to allow
states to establish budgets only for the last year of the maintenance
plan, provided conformity determinations are accompanied by a
qualitative finding addressing the intermediate years. Alternatively,
states could choose to establish motor vehicle emissions budgets for
intermediate years in the maintenance plan, which would then be used to
determine conformity.
IV. Non-federal Projects
A. Description of Proposal
This proposal would allow regionally significant transportation
projects that are funded or approved by a recipient of federal funds
designated under title 23 U.S.C. or the Federal Transit Laws (49 U.S.C.
Chapter 53) which do not rely at all on any FHWA/FTA funding or
approvals (i.e., ``non-federal projects'') to be adopted or approved
during a transportation plan/TIP conformity lapse, provided the project
was included in the regional emissions analysis supporting the most
recent transportation plan and TIP conformity determination. Also, the
project's design concept and scope could not have changed significantly
from that included in the previous emissions analysis.
The existing transportation conformity rule requires a currently
conforming transportation plan and TIP to be in place at the time a
recipient of federal funds adopts or approves a regionally significant
non-federal project. As a result, no regionally significant non-federal
projects can be adopted or approved during a transportation plan/TIP
conformity lapse.
Under both this proposal and the existing transportation conformity
rule, adoption or approval of non-federal projects that are not
regionally significant is not subject to any transportation conformity
requirements. In addition, under both this proposal and the existing
transportation conformity rule, there is a provision for regionally
significant non-federal projects to be added to the existing
transportation plan and TIP's regional emissions analysis, if the
transportation plan and TIP are currently conforming. That is, if a
regionally significant non-federal project has not previously been
included in the regional emissions analysis supporting the
transportation plan and TIP conformity determinations, another regional
emissions analysis could be performed including the transportation plan
and TIP projects and the additional regionally significant non-federal
project. If this analysis demonstrates that the currently conforming
transportation plan and TIP would still conform if the non-federal
project were implemented, the non-federal project could be adopted or
approved.
Some commenters have suggested that if certain non-federal projects
are to be permitted to be adopted or approved during a transportation
conformity lapse as EPA is currently proposing, each such project
should be approved by the Governor. This provision would provide
greater assurance that the emissions consequences of proceeding with
projects during a conformity lapse are consciously accepted. However,
EPA is not proposing this limitation at this time because such a
limitation is not explicitly required by the Clean Air Act, and it is
not clear which state and local government officials should have the
authority to adopt or approve non-federal projects during a conformity
lapse. EPA is interested in receiving comment on this subject.
B. Rationale
EPA is proposing to allow some regionally significant non-federal
projects to be adopted or approved during a conformity lapse in
response to comments from conformity implementers. These comments
stated that state and local governments should have the discretion to
accept the emissions consequences of projects that are under their
control to fund and approve, even when there was not a conforming
transportation plan and TIP. Future transportation plans and TIPs are
required to consider the emissions from regionally significant non-
federal
[[Page 36120]]
projects, so any necessary offsets would ultimately be achieved.
EPA believes this proposal is consistent with the requirements of
Clean Air Act section 176(c). Section 176(c)(2)(C) requires
transportation projects to ``come from a conforming plan and TIP.'' EPA
has interpreted this in the existing conformity rule to mean that a
conforming transportation plan and TIP must be in place at the time of
project adoption or approval, and that the project must be included in
the transportation plan and TIP (or regional emissions analysis
supporting the conformity determination for the transportation plan and
TIP). EPA now believes that because non-federal projects are not
federally funded or approved, it is not necessary for a conforming
transportation plan and TIP to be in place at the time of project
adoption or approval. The transportation plan and TIP are not relevant
as a funding mechanism for non-federal projects. The crucial
requirement for non-federal projects is previous inclusion in the
regional emissions analysis supporting a conforming transportation plan
and TIP. That is, the area had previously considered the emissions of
the non-federal project and concluded that they could be accommodated
in the planned transportation network without adversely affecting air
quality.
The option provided in section 176(c)(2)(D) for new projects that
were not previously included in a transportation plan/TIP or supporting
regional emissions analysis to demonstrate conformity cannot apply
during a transportation plan/TIP conformity lapse, because it requires
a demonstration that ``conforming transportation plans and TIPs'' would
still conform when the emissions of the new project are considered.
Without a conforming transportation plan and TIP in place, this cannot
be demonstrated.
This proposal would require that a regionally significant non-
federal project be included in the regional emissions analysis
supporting the most recent transportation plan and TIP conformity
determinations, rather than any previous conformity determination. This
is because each regional emissions analysis must include all regionally
significant transportation projects in the timeframe of the
transportation plan. Therefore, even if there is no current activity on
a particular non-federal project at the time of the most recent
transportation plan/TIP conformity determination, it still will have
been included in the regional emissions analysis. If a non-federal
project were included in the regional emissions analysis from an older
transportation plan/TIP conformity determination and not from the most
recent, this would indicate that the project is no longer expected to
occur in the timeframe of the transportation plan and TIP. As a result,
it could no longer be assumed that implementation of the project could
be accommodated with no adverse air quality impact.
EPA has received comment opposing the adoption or approval of non-
federal projects during a transportation conformity lapse. Commenters
believe that building new projects during a time when a conforming
transportation plan and TIP has not been developed would only increase
the difficulty of plan/TIP development in the future. However, as
described above, EPA believes that this proposal is consistent with the
Clean Air Act. In addition, the limitation that regionally significant
non-federal projects must have been part of the most recent prior
regional emissions analysis supporting the most recent conforming
transportation plan and TIP ensures that the emissions consequences of
the projects have been considered, and the decision to proceed with
such projects during a conformity lapse could be made with full
knowledge of the possible emissions implications. These non-federal
projects would then have been considered as part of the transportation
planning process, and because these projects are not able to avoid the
scrutiny of the metropolitan planning process during a conformity
lapse, there would not be unequal requirements that would provide an
incentive to shift the funding of projects from federal to non-federal
sources.
EPA has also received comment that any non-federal project, whether
or not it has previously been included in a regional emissions analysis
supporting a transportation plan/TIP conformity determination, should
be allowed to proceed during a transportation plan/TIP conformity
lapse. However, EPA continues to believe, as described in the preamble
to the November 24, 1993, transportation conformity rule, that Clean
Air Act section 176(c)(2)(C)'s requirements for ``transportation
projects'' refer to any highway or transit projects, not just those
that are federally funded or approved. Thus, EPA believes that
regionally significant non-federal projects must have been considered
in a previously conforming emissions analysis in order to be adopted or
approved.
V. Rural Nonattainment and Maintenance Areas
A. Description of Proposal
Isolated rural nonattainment and maintenance areas with submitted
or approved control strategy SIPs or maintenance plans would be
allowed, under this proposal, to choose among several tests for
demonstrating conformity for years after the time period addressed by
the SIP (e.g., years after the attainment year or the last year of the
maintenance plan).
These areas could either (1) demonstrate consistency with the most
recent motor vehicle emissions budget(s), as normally required; (2)
satisfy the emission reduction tests (``build/no-build test'' and/or
less-than-1990 test, depending upon classification); or (3) demonstrate
through air quality dispersion modeling that the FHWA/FTA project, in
combination with all other regionally significant projects expected in
the area in the timeframe of the statewide transportation plan,
satisfies the general definition of conformity in Clean Air Act section
176(c)(1) (i.e., the project will not cause or contribute to any new
violations; increase the frequency or severity of any existing
violation; or delay timely attainment or required interim emission
reductions).
The choice among these conformity tests and the methodology for air
quality dispersion modeling would be determined through the interagency
consultation process and reflect the consensus of the state and local
air and transportation agencies and the project sponsor. EPA and DOT
would also have to be consulted through the usual interagency
consultation process.
Isolated rural areas would be defined as nonattainment and
maintenance areas (or portions thereof) that do not have a metropolitan
transportation plan or TIP and whose projects are not part of the
emissions analysis of any MPO's transportation plan or TIP. This would
not include ``donut'' areas that are outside the metropolitan planning
boundary and inside the nonattainment/maintenance area boundary,
because these projects must be considered in the context of the MPO's
transportation plan and TIP, even if the MPO does not specifically
include them in the transportation plan/TIP or the MPO's own regional
emissions analysis.
Because air quality dispersion modeling for ozone is often complex
and resource-intensive, EPA does not expect that this particular option
will be viable for isolated rural ozone nonattainment and maintenance
areas. However, this is a more realistic option
[[Page 36121]]
for such CO and PM10 nonattainment and maintenance areas and is
being considered at the request of several commenters.
This proposal differs from the existing transportation conformity
rule by offering several options for demonstrating conformity in years
after the time period addressed by the SIP. The existing transportation
conformity rule would require the motor vehicle emissions budget
established for the most recent prior year to be used for the purpose
of demonstrating transportation conformity for all subsequent years in
the timeframe of the transportation plan.
B. Rationale
In response to comments from those implementing conformity as well
as from other interested parties, EPA is proposing flexibility for
isolated rural nonattainment and maintenance areas. The general issue
of conformity for years outside the timeframe of the SIP is explained
below in section VIII., ``Mismatch in SIP/Transportation Plan
Timeframe.'' EPA is here proposing flexibility for isolated rural
nonattainment and maintenance areas, and not for other areas, because
isolated rural areas face unique challenges in addressing this issue.
Isolated rural areas generally do not have a metropolitan
transportation planning process that could serve as a forum for
identifying and addressing long-term growth issues in years not
addressed by the SIP. In addition, regionally significant, federally
funded or approved projects usually occur infrequently in isolated
rural areas. Conformity demonstrations for such areas as required by
the existing conformity rule would place the burden of long-term
planning on a few or even a single transportation project.
EPA believes this places an inappropriately large burden on
sponsors of such federally funded or approved transportation projects.
Although conformity is intended to assure long-term planning, EPA
believes it is appropriate to impose conformity requirements involving
less rigorous long-term planning in areas where comprehensive planning
processes including land use and other issues do not otherwise exist or
are not otherwise required.
Some conformity implementers suggested that the flexibility for
isolated rural areas should apply for ``donut'' areas that are outside
MPO planning boundaries but within urbanized nonattainment areas. EPA
does not believe this is appropriate because donut areas do not face
the same challenges as truly isolated rural areas. Conformity
determinations by the MPO must consider motor vehicle emissions from
all projects in the nonattainment or maintenance area, including
emissions from projects in the donut area. Thus, there is a planning
process that in some manner addresses the donut area. The Intermodal
Surface Transportation Efficiency Act (ISTEA) envisioned that in most
cases, the MPO planning boundary would be consistent with the
nonattainment area boundary. To the extent that conformity poses a
burden on the donut area because the area does not have long-term
planning capabilities, arrangements could be made with the adjacent
MPO.
EPA believes that providing some flexibility for the years not
addressed by the SIP is consistent with the Clean Air Act (see section
VIII. below). The Clean Air Act requirement for consistency with the
SIP's emissions reduction goals could be construed to apply only for
the years that an individual SIP revision addresses. The time period
later than that addressed by SIPs is in some ways analogous to the time
period before SIPs are developed, and as such the emission reduction
tests (``build/no-build'' and less-than-1990 tests) may also be
appropriate for the time period after that addressed by SIPs. Air
dispersion modeling that directly demonstrates satisfaction of the
general definition of conformity is clearly also consistent with Clean
Air Act section 176(c).
EPA is proposing that the choice of conformity tests for isolated
rural areas for years not addressed by a SIP should be made with the
agreement of relevant state and local agencies. EPA believes this is
necessary because MPOs are authorized by the Clean Air Act to determine
conformity and there are no MPOs in isolated rural areas; thus, there
is no single state or local agency with authority for determining
conformity. Various state and local agencies may have differing
perspectives on the practicality and benefits of the different
conformity tests. As a result, EPA believes the method for
demonstrating conformity should be a consensual decision by all
relevant state and local agencies, so that all relevant actors in an
area can weigh the advantages and disadvantages of each method of
demonstrating conformity.
EPA also believes that the methodology for performing air quality
dispersion modeling should have the agreement of all relevant state and
local agencies. The air agency traditionally has responsibility for
performing air quality dispersion modeling, but some other agency may
take responsibility for such modeling with respect to a given project
for the purposes of transportation conformity in rural areas.
Therefore, EPA believes that all agencies should agree on the
methodology to be used.
EPA considered requiring EPA approval of the modeling methodology
used in isolated rural areas, because air quality dispersion modeling
used in SIPs is traditionally governed by EPA guidance and regulations.
If air quality dispersion modeling that is used to demonstrate
conformity with the purpose of the SIP is based on different
assumptions than the SIP itself used, the determination of conformity
could be suspect. However, commenters convincingly argued that
requiring concurrence of the state air agency accomplishes the goal of
assuring consistency with the SIP's air quality dispersion modeling
methodology, and that further concurrence by EPA would be an
unnecessary administrative burden for isolated rural areas.
The option to demonstrate conformity using air quality dispersion
modeling in certain cases was specifically requested by conformity
implementers. Because EPA believes using air quality dispersion
modeling for conformity demonstrations for years not addressed by SIPs
would be consistent with Clean Air Act section 176(c) requirements (see
above), EPA is proposing this additional flexibility for all isolated
rural areas. Areas for which air quality dispersion modeling is too
resource-intensive may of course choose one of the other methods of
demonstrating conformity.
EPA considered allowing isolated rural areas to include non-federal
projects in either the ``build'' or ``no-build'' case when performing
the ``build/no-build test,'' at the discretion of state and local air
and transportation agencies. Conformity implementers and interested
parties had noted that because regionally significant federally funded
or approved transportation projects occur relatively infrequently in
isolated rural areas, considering (and potentially offsetting) the
emissions impacts of non-federal projects posed an unfair burden on the
few federal projects. However, EPA believes that despite the differing
practical considerations for urban and rural areas, there is no legally
defensible distinction between what constitutes a contribution to
emissions reductions in rural vs. urban areas. Because EPA believes
that the ``build/no-build'' test demonstrates contribution to emissions
reductions only when new non-federal projects are included in the
``build'' case, EPA is not proposing to alter the build/no-build test's
treatment of non-federal projects in rural areas.
[[Page 36122]]
Some conformity implementers suggested to EPA that conformity in
isolated rural areas be demonstrated using a project-level ``build/no-
build test.'' Although it is true that isolated rural areas do not have
local transportation plans and TIPs as referred to in Clean Air Act
section 176(c)(2) (C) and (D), EPA believes that it is the intent of
the Clean Air Act for the regional emissions impacts of transportation
projects to be considered in the context of other transportation
projects in the nonattainment or maintenance area. Furthermore, EPA
questions whether it is possible for areas concerned with regional
pollutants to determine whether a project will cause or contribute to
new violations or exacerbate existing violations without considering
other transportation projects planned for the area. Therefore, EPA is
not proposing the option to use a project-level analysis for the build/
no-build test in rural areas.
VI. Modeling Requirements
A. Network Modeling Requirements
1. Deadline for Use of Network Models
This proposal would require that serious CO and serious, severe,
and extreme ozone areas use network models to support conformity
determinations by January 1, 1997. This requirement would apply only to
those metropolitan planning areas with an urbanized area population
over 200,000. Areas that are already using accepted network modeling
practices would be required to continue using them for conformity
analyses performed before January 1, 1997. Areas would continue to be
required to have a consultation process to select regional models and
assumptions.
The existing transportation conformity rule required that all
serious CO and serious and above ozone areas use network modeling for
conformity analyses by January 1, 1995. This proposal extends the
deadline to January 1, 1997. EPA received several comments related to
the ambitious nature of the 1995 deadline, and it has become
increasingly apparent that the original deadline is creating
difficulties for several areas that have been unable to comply by that
date. Based on comments received, EPA has determined that January 1,
1997, would be a reasonable extension of the deadline. EPA believes
that this deadline would allow areas experiencing difficulties to
improve and implement their network models, while requiring that areas
currently using network modeling continue to do so prior to that date.
In serious CO areas and serious and above ozone areas, conformity
determinations may be made after January 1, 1997, based on regional
emissions analysis that does not use network modeling only if that
regional emissions analysis was performed in support of the proposed
conformity determination before January 1, 1997. It is not necessary
for the MPO or DOT to complete its determination process before January
1, 1997, if the regional emissions analysis supporting the
determination was completed before January 1, 1997. It is also
permissible for a proposed transportation plan or TIP, and/or the
regional emissions analysis associated with it, to be modified to a
reasonable degree after January 1, 1997, as a result of the public
participation process.
This interpretation of the deadline for modeling improvements is
described in a December 30, 1994, letter from Philip A. Lorang, EPA's
Director of Emission Planning and Strategies Division, to Cynthia
Burbank, FHWA's Environmental Analysis Division Chief, and Samuel
Zimmerman, FTA's Director of the Office of Planning.
2. Areas Subject to Deadline for Use of Network Models
This proposal would limit the requirement to use network modeling
to metropolitan planning areas with an urbanized area population over
200,000, whereas the existing rule's requirements apply to all
nonattainment areas in these classifications, regardless of population
or urbanization. The proposed limitation results from a general concern
that the modeling requirements are overly burdensome for small and
rural areas within serious ozone nonattainment areas, such as Martha's
Vineyard Island, Massachusetts. EPA considered but is not proposing a
three-tiered scenario in which an area's modeling requirements would
have varying specificity based on its population and whether it was
urban or rural. Commenters believed that such a detailed proposal would
unnecessarily increase the rule's complexity. As a result, EPA decided
to specify requirements only for those serious, severe and extreme
areas with an urbanized area population over 200,000. The 200,000
population level was chosen because it is also the population level
used to delineate transportation management areas (TMAs). EPA believes
that these limitations would ensure that smaller areas no longer are
required to use unnecessarily stringent network modeling procedures and
methods.
EPA received a comment that suggested a specific, two-part process
for network model improvements in serious CO and serious and above
ozone nonattainment areas. The first part recommended an expanded,
tiered set of deadlines based on nonattainment status, population, and
growth rate, with added flexibility through a waiver provision if
mobile sources were clearly not a factor in an area's nonattainment
problem. The second part suggested that the MPO prepare a strategic
plan for the area's modeling improvements. The MPO would also be
responsible for encouraging public participation in this process and
making available for public comment the documentation of conformity
determinations and information relevant to improving the regional
analysis systems.
EPA decided not to propose this approach for several reasons.
First, the tiered deadline concept would expand the modeling
requirements to areas not currently affected under the existing rule.
EPA believes that these modeling requirements are not necessary in all
nonattainment areas and that this concept would further increase the
rule's complexity. Second, although EPA agrees with the importance of
strategic planning in modeling improvements, the Agency believes that
the existing interagency consultation process provides areas with the
necessary flexibility in planning for modeling improvements.
3. Content of Modeling Requirements: Request for Comment
In today's proposal, EPA is proposing regulatory text that would
amend the requirements addressing the characteristics of network
models. Under Sec. 51.452(b)(93.130(b)) of the November 1993 conformity
rule, network-based models used in serious and above CO and ozone areas
for conformity analyses are required to possess eleven specific
modeling attributes. EPA originally developed these eleven attributes
in consultation with conformity stakeholders and with the understanding
that they represented modeling procedures that are currently available
and in practice. EPA continues to believe that these modeling
attributes would encourage improved network-based modeling.
However, stakeholders have since suggested that the modeling
requirements in the existing rule create too much complexity and
rigidity in the conformity rule. As a result, EPA is proposing
regulatory text today that would remove these eleven modeling
attributes from the rule and replace them with modeling guidance
[[Page 36123]]
periodically issued by EPA and DOT. Today's proposal is described below
as Option 1.
Since several stakeholders have expressed concern over the primary
option EPA is proposing today (Option 1), two alternative options are
also described below. All three of the options described below would
apply to nonattainment areas with urbanized population over 200,000, as
described above. EPA requests comment on all of these options, and
depending on the public comment received, EPA may finalize one of these
alternative approaches, instead of the primary option EPA is proposing
today.
EPA believes that the conformity rule would still be consistent
with the letter and intent of Clean Air Act section 176(c) if any of
the proposed changes to the modeling requirements are adopted. Since
the statute does not specifically address modeling requirements, EPA
believes that so long as the modeling requirements continue to ensure
that conformity determinations are based on sound quantitative
analysis, EPA has the discretion to determine appropriate methods for
implementing those requirements.
Option 1: Address Network Modeling Attributes in Guidance. EPA
proposes today that the specific attributes of network models that are
required under the existing transportation conformity rule be removed
from the regulatory text and instead be addressed in guidance
documentation. EPA believes that this proposal will simplify the
conformity rule and ensure that areas will be able to choose the
modeling procedures that best match their current modeling and air
quality planning needs, resource constraints, and technical expertise
capability.
In order to ensure that appropriate modeling tools are employed,
EPA and DOT will periodically issue modeling guidance comprised of
technical documentation and other references describing available
modeling procedures. This guidance is likely to be a combination of
existing and new documents or references to technical information taken
from a variety of sources. Many of the detailed attributes required
under the existing transportation conformity rule will be referenced in
this guidance. By issuing technical guidance documents on a regular
basis, EPA and DOT will be able to communicate new modeling practices
and encourage continuous improvement over time.
EPA is aware that removing the regulatory requirements governing
network model performance may be perceived by some to be an endorsement
of less rigorous modeling practices. However, EPA and DOT remain
committed to developing and encouraging improved transportation models
and to ensuring that areas continue to employ good modeling practices.
Today's proposal is intended as a streamlining measure, not a
relaxation of standards for acceptable modeling. EPA believes that
guidance regarding available modeling techniques will facilitate model
improvement at least as well as including specific modeling
requirements in the conformity rule, while responding to local needs
for flexibility. The agencies believe that agreement regarding
appropriate modeling techniques and improvements for each area should
be an important focus of the interagency consultation process as
currently required by Sec. 51.402 (c)(1)(i) and (c)(6) and Sec. 93.105
(c)(1)(i) and (c)(6).
Option 2: Retain Network Model Performance Requirements in Existing
Conformity Rule. This option would retain all of the eleven
characteristics of network models that are required in the November
1993 conformity rule. For example, network models in these areas would
continue to be required to meet performance-based standards such as
capacity-sensitive assignment and reasonable agreement between travel
times used in trip distribution and resulting from assignment. EPA
continues to believe that these modeling attributes reflect the current
consensus in the transportation and air quality planning professions on
minimum acceptable modeling practices.
Option 3: Streamline Existing Modeling Attributes and Address
Additional Attributes in Guidance. This option would streamline the
existing conformity rule, but retain certain requirements that provide
for minimum acceptable model performance.
The streamlined requirements would be as follows: (1) Network-based
models must be validated against observed peak and off-peak ground
counts for a base year that is not more than 10 years prior to the date
of the conformity determination; (2) land use, population, employment,
and other network-based modeling inputs must be based on the best
available information and must be appropriate to the validation base
year; (3) peak and off-peak travel demand and travel times must be
provided, and a capacity-sensitive assignment methodology must be used;
(4) the model(s) must use and document a logical correspondence between
the assumed scenario of land development and use and the future
transportation system for which emissions are being estimated; and (5)
network-based models must be reasonably sensitive to trip-making
changes due to changes in the cost, travel time, capacity, and quality
of all travel choices, if the necessary information is available.
EPA would address the remaining attributes in modeling guidance
that would be jointly issued and regularly updated by EPA and DOT.
Conformity stakeholders would be involved in the development of this
modeling guidance to encourage a wide exchange of ideas about current
and available modeling practices. EPA believes that this process itself
would ensure that the modeling guidance is a useful, effective tool in
informing areas about available modeling improvements.
B. Adding Non-exempt Projects to the Plan/TIP Without Regional Analysis
1. Description of Proposal
This proposal would, under some circumstances, allow a
transportation plan and TIP to be amended to include additional non-
exempt projects without a full-scale regional emissions analysis based
on network modeling. The alternate emissions analysis procedure would
require the concurrence of the federal, state, and local air and
transportation agencies. This flexibility would not become effective
until EPA and DOT have completed their review and evaluation of
alternate procedures that are suggested during the public comment
period (see ``Request for Information for Guidance,'' below) and made
this documentation publicly available. This proposal would still
require a conformity determination for the plan/TIP amendment,
including public participation, interagency consultation, and other
relevant requirements of the transportation conformity rule. This
proposal would only change the rigor of the supporting regional
emissions analysis.
Under the existing rule, every plan/TIP and plan/TIP amendment
requires a conformity determination based on a regional emissions
analysis that meets the requirements of Sec. 51.452/Sec. 93.130. The
regional emissions analysis, which includes projects in the plan/TIP
and all other regionally significant projects in the nonattainment or
maintenance area, is used to demonstrate that the budget test and/or
emission reduction tests are satisfied. Under Sec. 51.452, certain
areas are required to use network modeling to perform this regional
emissions analysis.
This proposal would allow less rigorous analysis to demonstrate
that the plan/TIP as amended satisfies the budget test and/or emission
reduction tests. Subsequent plan/TIP conformity
[[Page 36124]]
determinations based on full regional emissions analysis would, of
course, include the recently added projects, because regional emissions
analysis must include all regionally significant projects that are
planned or underway. Any plan/TIP conformity determination based on
less rigorous analysis would not be considered a conformity
determination for the purposes of Sec. 51.400/Sec. 93.104, ``Frequency
of Conformity Determinations,'' which require that conformity
determinations be made no less frequently than every three years. The
less rigorous analysis would not provide a complete consideration of
projects in the transportation plan and TIP using the latest emissions
projections and assumptions. The transportation plan and TIP would
therefore have to be found to conform based on a full-scale regional
emissions analysis (including network modeling, where required) at
least every three years.
2. Rationale
EPA is proposing this change in response to stakeholder requests
for this flexibility. Some stakeholders commented that it may be costly
and resource-intensive to perform a full-scale regional emissions
analysis to add a regionally significant project to a transportation
plan and TIP. These stakeholders proposed that the conformity rule
allow areas the flexibility to establish alternative procedures for
regional emissions analysis that would demonstrate that an additional
project, when considered with emissions projected for the conforming
transportation plan and TIP, does not cause the plan/TIP to exceed the
motor vehicle emissions budget and/or fail to satisfy the emission
reduction tests. Stakeholders supporting this flexibility suggested
that it is necessary only in extraordinary circumstances and would not
be used on a routine basis. Other stakeholders expressed concern that
such flexibility could be used to advance significant projects without
the full scrutiny of the conformity process.
EPA agrees that there may be limited instances where the impact of
regionally significant non-exempt projects on emissions from the
currently conforming transportation plan and TIP could be determined
without full-scale regional analysis, and that exceptional
circumstances may arise where such flexibility is appropriate. However,
this flexibility is to be exercised as an exception and not on a
regular basis.
EPA would allow this flexibility to be used only after a review and
evaluation of types of alternate procedures has been documented,
because of the potential for this flexibility to undermine the
integrity of the conformity process if improperly used. Conformity's
purpose is to consider the long-term impacts of projects and to make
transportation planning decisions within the context of all proposed
projects, instead of on a project-by-project basis. In almost all
cases, regional emissions impacts cannot be determined on a project-by-
project basis or without considering the aggregate of projects in an
area and the interactions among them. The conformity provisions were in
part a response to the difficulty of assessing air quality impacts on a
project-by-project basis. As a result, it is not clear what type of
limited analysis would be appropriate and under what circumstances.
Areas will need guidance to address these issues. This guidance will be
provided in the review, evaluation, and documentation of alternate
procedures that are suggested during the public comment period, through
periodic updates of reasonable and available measures, and through the
interagency consultation process.
Stakeholders proposed that the federal, state, and local
transportation and air agencies should concur on each use of this
flexibility. EPA agrees with such a concurrence requirement since there
are not well-established, existing alternatives and because the
transportation planning process and the conformity process should not
be compromised if there is not agreement among all of the agencies that
the existing circumstances warrant the use of this flexibility. As
described in the conformity rule's consultation requirements, conflicts
among state agencies or between state agencies and an MPO shall be
escalated to the Governor if they cannot be resolved by the heads of
the involved agencies.
EPA foresees instances where use of this flexibility would not be
appropriate. For example, it would not be appropriate if planning
assumptions have changed, or if other information indicates that the
regional emissions analysis supporting the currently conforming
transportation plan and TIP is not adequate to determine that the
budget test and/or the emission reduction tests would be satisfied. It
would also be inappropriate if the transportation plan and TIP
amendment is not only adding projects, but deleting other projects and
changing implementation dates in order to remain fiscally constrained.
In this case, the plan/TIP amendment's scope would be too broad to
justify a limited emissions analysis.
3. Request for Information for Guidance
EPA and DOT recognize that there may be some alternate procedures
for determining the impact projects would have on regional
transportation-related emissions that are more expeditious and less
costly than a network-based analysis. As a result, EPA and DOT are
requesting suggestions for procedures to add non-exempt projects to the
plan/TIP without a complete network-based analysis. If documentation is
available for these procedures, please provide it if possible.
Reasonable methods or approaches may be included in guidance.
However, EPA and DOT believe that the flexibility for non-exempt
projects (as described above) should not be finalized if reasonable
alternate approaches have not been identified for determining the
regional emissions impacts from individual transportation projects.
Therefore, this flexibility would not be offered unless EPA and DOT
receive comment that identifies such alternate methods or approaches.
Some stakeholders commented about the resources needed to perform a
full-scale regional emissions analysis to add a regionally significant
project. EPA and DOT are therefore requesting information in the
following areas: (1) How often the need arises to add non-exempt
projects between TIP update cycles; (2) the number of projects that may
be delayed without this flexibility; (3) the full-scale network
modeling process currently used for the regional emissions analysis to
support conformity determinations (including number of model runs,
number of emissions model runs, etc.); (4) the difference in effort
required to add a single or limited number of projects as compared to a
full-scale conformity analysis; and (5) which agencies are responsible
for socioeconomic data development, travel modeling, and emissions
modeling, including the percentage of each agency's involvement in
conducting the conformity analysis.
VII. Consequences of SIP Disapproval
A. Description of Proposal
In today's action EPA proposes as a primary alternative regulatory
language that specifies that following a 120-day grace period after
final EPA disapproval of a control strategy SIP or maintenance plan
without a protective finding, the only transportation projects that
could be approved (and thus grandfathered from future conformity
lapses) would be those included in the first three years of the
currently conforming transportation plan and TIP (and exempt projects).
No
[[Page 36125]]
new transportation plans, TIPs, plan/TIP amendments or projects (or
projects in the out-years of the transportation plan and TIP) could be
approved. If any single phase of a transportation project is included
in the first three years of the transportation plan/TIP, all phases of
the project would be able to proceed following a disapproval, provided
that all phases of the project were included in the transportation
plan/TIP conformity analysis. Conformity determinations are required to
analyze entire projects rather than individual phases.
The ``freeze'' on new transportation plans, TIPs, and projects
would be removed once an area submits another control strategy SIP or
maintenance plan to replace the disapproved SIP, provided EPA does not
find the motor vehicle emissions budgets inadequate during its 45-day
review period. If such a replacement SIP does not become applicable to
conformity determinations by the time Clean Air Act highway sanctions
are imposed (two years after EPA's final disapproval), conformity would
lapse, and no new project- level conformity determinations could be
made, even for projects in the first three years of the currently
conforming plan and TIP.
During the 120-day grace period, transportation plans, TIPs, and
projects could be found to conform using the disapproved budgets (if no
replacement SIP applies for transportation conformity purposes). This
120-day grace period is intended to allow areas to complete conformity
determinations that were in process at the time of EPA's final
disapproval.
Under both today's proposal and the existing conformity rule,
consequences would occur following any EPA final disapproval action on
a control strategy SIP or maintenance plan without a protective
finding, even if the disapproval is limited or partial. The motor
vehicle emissions budget is sufficient only if the SIP as a whole
satisfies the Clean Air Act requirements for reasonable further
progress, attainment, or maintenance. If one part of a SIP is
disapproved without a protective finding (even if that part does not
address mobile sources), then there is no overall strategy for
reasonable further progress, attainment, or maintenance, and it is not
possible to determine whether consistency with the motor vehicle
emissions budget will result in a level of emissions consistent with
reasonable further progress, attainment, or maintenance.
B. Request for Comment
Pending the opportunity to consider thoughtful comments from all
interested parties, EPA is proposing today as a primary alternative the
regulatory text discussed above because EPA believes it balances the
conflicting goals articulated by stakeholders. EPA requests comment on
how this proposal addresses stakeholder issues and concerns identified
below. EPA also requests comment on whether other approaches are
preferable, such as aligning the conformity lapse timeframe with the
highway sanctions time clocks for SIP disapprovals without protective
findings to make this process consistent with the conformity lapse
process for other SIP failures. Alternatives to the primary option EPA
is proposing today are described below. Depending on the public comment
received, EPA may finalize one of these alternative approaches, instead
of the primary alternative.
C. Discussion of Issue
Conformity stakeholders have raised the issue of the appropriate
conformity consequences when EPA disapproves a control strategy SIP
without making a protective finding. EPA disapproval of a SIP without a
protective finding is essentially a finding that the SIP does not have
identified strategies to reach attainment (or reasonable further
progress or maintenance), and the motor vehicle emissions budget is not
adequate to satisfy Clean Air Act requirements. Final EPA SIP
disapprovals require full notice-and-comment rulemaking.
The November 1993 transportation conformity rule states that after
a 120-day grace period following final EPA SIP disapproval, no new
transportation plans, TIPs, or projects may be approved. Only
previously approved projects (``grandfathered'' projects) and exempt
projects may proceed. In other words, transportation plan/TIP
conformity lapses. The lapse is removed when a new control strategy SIP
or maintenance plan (including motor vehicle emissions budgets) is
submitted to EPA.
Some stakeholders have suggested that conformity should never lapse
as a result of a SIP failure before Clean Air Act highway sanctions are
imposed, because highway sanctions (not transportation conformity) are
the Clean Air Act mechanism for addressing SIP failures. To a
considerable degree EPA agrees with this reasoning, and EPA has amended
the conformity rule to align conformity lapse with highway sanctions
imposition in the case of all SIP failures except disapproval without a
protective finding.
However, there are substantive conformity issues with respect to
SIP disapproval without a protective finding. If an area does not have
sufficient adopted control strategies to attain the standards or make
reasonable further progress towards attainment, should the area be
committing funds to new transportation projects? If so, on what basis?
Should it proceed with projects that already have been planned and upon
which businesses and the public may already be relying in their own
future plans, but stop creating new plans and expectations? In these
cases, how would an area demonstrate that the transportation plan, TIP,
or project would not increase the frequency or severity of existing
violations, or contribute to new violations, or delay attainment?
These issues are particularly important in the context of the
conformity flexibilities in today's proposal. As described in sections
II. and III. of today's action, EPA is proposing that consistency with
submitted SIP budgets would become the sole emissions-related
conformity test for transportation plans and TIPs, even before EPA
approves the SIP and confirms that consistency with its motor vehicle
emissions budget is sufficient to achieve reasonable further progress,
attainment, or maintenance. Some stakeholders are concerned that
because a significant amount of time is likely to elapse between
initial submission of the control strategy SIP and any subsequent EPA
disapproval, a significant number of transportation projects could be
found to conform (and thus grandfathered) on the basis of an ultimately
unacceptable motor vehicle emissions budget before final EPA
disapproval actually occurs. These stakeholders are concerned about
irreversible commitments that might make Clean Air Act requirements
increasingly difficult to meet.
Other stakeholders emphasize that the disruption to the ongoing
transportation planning process should be minimized. They believe that
people and businesses begin to rely on projects in an approved plan and
TIP even though project-level conformity findings have not been made,
and conformity lapse immediately upon EPA's final disapproval is unduly
disruptive.
D. Discussion of Options
Stakeholders have identified a number of options to address the
consequences of EPA SIP disapproval without a protective finding. These
options address the concerns described
[[Page 36126]]
above to varying degrees. EPA is interested in receiving comments on
the alternative options described below and may finalize one of these
options, instead of the primary option described above.
1. No Project Approvals (Conformity Lapse) Beginning Immediately Upon
EPA Final Disapproval Without a Protective Finding
Some stakeholders have suggested that no more projects should be
approved (grandfathered) once EPA issues a final disapproval. However,
these stakeholders generally accept that projects found to conform
between submission and final disapproval should not be halted, even
once the SIP has been disapproved. This option would minimize
commitments that could ultimately be inconsistent with attainment or
maintenance, until another SIP that would be a better basis for
determining conformity is submitted to EPA.
2. Retain Existing Conformity Rule
As described above, the November 1993 transportation conformity
rule allows transportation plans, TIPs, and projects to be approved for
120 days following EPA's final disapproval of a SIP without a
protective finding. Following the 120-day grace period, no
transportation plans, TIPs, or projects can be approved. This approach
is similar to option 1 above, but the 120-day grace period helps reduce
disruption to approvals that are underway at the time of EPA's final
disapproval.
3. Allow Approval of Projects in the First Two Years of the
Transportation Plan/TIP
Some stakeholders advocate allowing previously planned
transportation projects to be approved and grandfathered, but not
approving new transportation plans, TIPs, or projects until a new SIP
has been submitted to EPA. For example, some stakeholders endorsed a
proposal that no transportation plans, TIPs, or amendments should be
found to conform after EPA's final disapproval of a SIP, and only those
projects scheduled for implementation during the first two years of the
TIP, and projects found by the MPO and the state air agency to
contribute to emissions reductions, should be allowed to proceed.
This option is similar to that being proposed by EPA today as the
primary alternative. This option prevents new commitments from being
made, but allows projects previously planned to occur in the short term
to proceed, in order to minimize disruption to the transportation
planning process.
4. No Consequences Until Clean Air Act Highway Sanctions Are Applied
Other stakeholders advocate allowing new transportation plans,
TIPs, and projects to be approved and grandfathered using the build/no-
build test or the disapproved motor vehicle emissions budget until
Clean Air Act highway sanctions are imposed. Highway sanctions under
section 179 would be imposed two years following EPA's final
disapproval unless the deficiency leading to the disapproval has been
corrected prior to that time. These stakeholders believe that it is
more consistent with the Clean Air Act to have Clean Air Act section
179 highway funding sanctions being the trigger for consequences of a
SIP disapproval. This change would also simplify the conformity rule by
having all conformity lapses associated with SIP failures occur when
highway sanctions are imposed.
E. Rationale for Primary Option Being Proposed
EPA believes that the primary option it is proposing today (as
described in section VII.A.) best balances the concerns expressed by
stakeholders. EPA is proposing to allow projects in the first three
years of the transportation plan/TIP to proceed, instead of those in
the first two years, as suggested in option 3. Some conformity
stakeholders expressed concern that restricting the ``grandfathering''
to the first two years of the transportation plan/TIP would be unduly
disruptive to the transportation planning process, especially because
the TIP normally addresses a minimum of three years. EPA believes that
the primary option provides a better balance between the competing
objectives of minimizing new commitments and minimizing disruption to
the transportation planning process.
VIII. Mismatch in SIP/Transportation Plan Timeframe
A. Description of the Issue
The existing transportation conformity rule requires the conformity
of transportation plans and TIPs to be demonstrated for the entire 20-
year timeframe of the transportation plan. However, control strategy
SIPs and maintenance plans generally address a significantly shorter
timeframe. For example, attainment demonstrations are only required to
address the years through the attainment year, and maintenance plans
are only required to initially address a 10-year period (with a
provision for a second 10-year appraisal).
For the years in the timeframe of the transportation plan that are
not addressed specifically by a SIP, the existing conformity rule
requires emissions to be consistent with the SIP motor vehicle
emissions budget(s) for the last year for which the SIP defines control
strategies and budgets. For example, before a maintenance plan has been
submitted, emissions predicted for the years after the attainment year
must be consistent with the attainment year budget(s). Emissions in
years after the first maintenance plan must be consistent with the
motor vehicle emissions budget(s) for the last year of that maintenance
plan.
Several conformity implementers have commented that there should be
a more flexible conformity test for the years that are not specifically
addressed by the SIP. Conformity implementers have pointed out several
difficulties caused by the existing transportation conformity rule's
requirements for the ``out-years'' of the transportation plan.
First, there are generally no adopted control measures to address
VMT growth in years that are not specifically addressed by the SIP. As
a result, it becomes the burden of the conformity process--and
potentially the MPO alone--to address long-term growth issues and
offset emissions increases. Placing the burden on the MPO to offset
emissions from long-term growth can be problematic because MPOs
generally lack the authority to adopt and enforce areawide emission
controls. In areas such as PM10 areas this problem is particularly
acute, because motor-vehicle-related PM10 emissions are directly
related to VMT. Technological improvements in the motor vehicle fleet
over time do not significantly reduce motor vehicle PM10 emissions
related to reentrained dust.
In addition, the existing conformity rule's requirement to use the
budget established for the last year of the maintenance plan for all
subsequent years poses special difficulties. In many areas, the motor
vehicle emissions budget will decline over the 10 years of the first
maintenance plan. This is generally because newer, cleaner cars will be
added to the motor vehicle fleet as older cars are retired, so the
emissions per VMT decrease. At the same time, emissions from stationary
sources are often related to economic and population growth, and are
thus projected to increase over time. As a result, many areas
demonstrate maintenance of air quality standards with declining motor
vehicle emissions
[[Page 36127]]
budgets and increasing stationary source emissions.
However, over time the effect of fleet turnover decreases, because
all cars in the fleet eventually meet applicable standards. In
addition, increases in VMT may begin to offset the emissions decreases
resulting from fleet turnover. Thus, motor vehicle emissions generally
are projected to increase in the years after the first 10-year
maintenance plan, and the motor vehicle emissions budget established
for the last year of that maintenance plan may in fact represent a low
point in the motor vehicle emissions projected for the 20-year
maintenance period. Requiring motor vehicle emissions in the years
after the first maintenance plan to be consistent with the budget for
the last year of that maintenance plan may be difficult without
additional control measures for stationary or mobile sources.
B. Request for Comment
EPA is not proposing specific regulatory text to address this
``mismatch'' issue at this time. However, EPA requests comment on three
options, and EPA proposes to include one of the options in the
regulatory text of the final rule.
1. Existing Transportation Conformity Rule
The first option is to continue the existing conformity rule's
requirements. According to the Clean Air Act, one of the purposes of
conformity is to ensure that transportation improvements do not cause
or contribute to new violations. The motor vehicle emissions budget for
the attainment year represents the level of motor vehicle emissions
that is consistent with attainment of the standard. Therefore, keeping
motor vehicle emissions in future years equal to or less than that
budget should ensure that motor vehicles will not cause or contribute
to a new violation. If motor vehicle emissions increase above levels
that the SIP identifies as necessary for attainment, it may be
difficult to state that a new violation would not result, as conformity
requires.
Regarding the comments that the existing conformity rule
inappropriately places the burden on the MPO to address long-term
growth issues, it is in fact an important goal of conformity to focus
attention on the long-term impacts of transportation investments and
policies. To the extent that an area has not reconciled the impacts of
growth and transportation policy with air quality goals, it is
appropriate that conformity provide the forum and impetus for state and
local governments to do so. Although the MPO may not itself have the
authority to adopt and enforce necessary measures, conformity is
determined through an interagency process which includes the state and
local governments which do have that authority. It is appropriate that
the long-term growth issues affecting a local area be addressed through
the cooperation of state and local air and transportation agencies. The
fact that the MPO has legal responsibility to determine conformity does
not mean it alone must develop and implement the additional control
measures that are necessary. The state also shares an interest in
developing conforming metropolitan transportation plans and TIPs and
would be expected to share responsibility for facilitating conformity.
Maintaining the existing conformity rule's requirements regarding
the applicability of motor vehicle emissions budgets for future years
would also encourage the SIP process to address longer timeframes,
which is ultimately the preferable solution. Doing so should avoid
costs and burdens of not addressing long-term issues now. The
difficulties associated with demonstrating conformity in years that are
not addressed by the SIP would be reduced if the SIP established
acceptable motor vehicle emission levels for such future years. This
has already occurred in some areas.
The existing conformity rule already has some provisions to address
the difficulties associated with using the budget for the last year of
the maintenance plan for subsequent years. For example, the maintenance
plan could establish larger motor vehicle emissions budgets for years
after the last year of the maintenance plan by projecting motor vehicle
emissions and emissions from other source categories in future years.
Provided the projected total emissions are less than the total
emissions in a previous year with clean data, the motor vehicle
emissions projections could be used to establish a motor vehicle
emissions budget. If the projected total emissions are less than the
total emissions in a previous year with clean data, the difference
(``safety margin'') could also be applied to the motor vehicle
emissions budget.
2. Emission Reduction Tests
A second option would be to require the emission reduction tests
(``build/no-build test'' and less-than-1990 test) for demonstrating
conformity in years not addressed by submitted or approved control
strategy SIPs or maintenance plans. Demonstrating conformity for years
later than those addressed by SIPs is in some ways analogous to the
situation of demonstrating conformity for years before SIPs are
submitted, that is, no budget has been specifically developed for
assessing conformity in such years. The Clean Air Act allows for
``contribution to annual emission reductions'' to serve as the test of
conformity in the latter case, so by extension, it could be argued that
such a test is also appropriate for years later than those addressed by
SIPs. The Clean Air Act requirement for consistency with emissions in
SIPs could be argued to apply only for those years that are
specifically addressed by the SIP.
Although this option provides more flexibility than the existing
rule for emissions increases due to population and economic growth, it
has several disadvantages. First, satisfying the emission reduction
tests would not ensure that motor vehicle emissions are at a level
consistent with attainment or maintenance. Although the conformity test
would ensure that motor vehicle emissions are no greater than they
would have been without further transportation improvements, the focus
is not on attainment or maintenance of air quality standards. As a
result, the impact of long-term growth on attainment and maintenance
will not necessarily be addressed.
The Clean Air Act requires a second 10-year maintenance plan to be
submitted eight years after an area's redesignation to attainment, so
the SIP process in redesignated areas will ultimately address the
emissions in the years after the first 10-year maintenance plan. In the
case of areas that have not yet been redesignated, however, allowing
motor vehicle emissions to increase above the attainment year budget
may make it increasingly difficult to develop a SIP demonstrating
maintenance, and thus may delay or complicate redesignation of such
areas to attainment.
Finally, conformity implementers and other interested parties have
commented that the emission reduction tests are not meaningful
indicators of air quality impacts, particularly because transportation
modeling and emission factor modeling are often not sufficiently
precise to determine significant differences between ``build'' and
``no-build'' scenarios. Experience to date has found that the emission
reduction tests are frustrating and difficult to explain because they
do not address the performance-oriented goals of attainment and
maintenance. Although practical alternatives have not been identified
for use during the period before SIPs have been developed, for years
later than those addressed by SIPs,
[[Page 36128]]
the previously established motor vehicle emissions budgets are
available.
3. Default Motor Vehicle Emissions Budget
A third option is to maintain the existing rule's requirements for
the years after the attainment deadline and before a maintenance plan
has been submitted, but to allow a default motor vehicle emissions
budget for the years outside the maintenance plan's timeframe. Instead
of requiring the motor vehicle emissions budget for the last year of
the maintenance plan to continue to apply for subsequent years, the
motor vehicle emissions budget for subsequent years could be the motor
vehicle emissions in the year of redesignation.
Like the emission reduction tests option, this option would not
ensure that motor vehicle emissions are consistent with maintenance of
air quality standards. Without considering emissions from sources other
than motor vehicles, there is no assurance that the motor vehicle
emissions in the year of redesignation will also be consistent with
continued maintenance of the standard in future years. However, this
problem could be at least somewhat reduced with additional features to
this option. For example, the rule could require the default budget to
be established in the maintenance plan and accompanied by some type of
demonstration that when the default motor vehicle emissions budget is
considered together with expected growth in area and stationary source
emissions, the standard will be maintained.
The default emissions budget option may be preferable to the
emission reduction tests option for the years after those addressed by
maintenance plans for two reasons. First, conformity implementers have
expressed a preference for budget tests instead of the more abstract
emission reduction tests. Second, unlike the emission reduction tests
option, this option would provide a cap on motor vehicle emissions
growth. Although the cap is not necessarily tied to maintenance, it
does not allow emissions due to population and economic growth to
revert back to 1990 levels, as the emission reduction tests allow. As a
result, the conformity process could still provide significant
protection for the public while providing the impetus for serious
consideration of long-term growth effects.
Unlike the emission reduction tests option, this option would
maintain the existing rule's requirements (i.e., the attainment budget
would continue to apply for the years after the attainment deadline)
until a maintenance plan is submitted. This will help prevent delays in
attainment and/or redesignation.
Allowing conformity to be demonstrated using a default emissions
budget that is not part of an overall maintenance strategy that
addresses all emissions sources could be considered inconsistent with
the Clean Air Act section 176(c) and the conformity rule's other
interpretations of those provisions. However, it is also possible to
argue that such an allowance is reasonable and defensible in the
special circumstance of demonstrating conformity for years that have
not yet been addressed by the maintenance plan.
For example, the legislative history of the Clean Air Act reveals a
specific choice to require maintenance plans to address 10-year
increments rather than an entire 20-year period. It could therefore be
argued that it is not conformity's responsibility to ensure maintenance
over a 20-year period; provided the transportation community keeps
motor vehicle emissions constrained to some level previously associated
with maintenance, future maintenance plans could address emissions from
other sources and revise motor vehicle emissions budgets as necessary
for an overall maintenance strategy. It could also be argued that the
Clean Air Act's Prevention of Significant Deterioration requirements
are intended to address growth in non-mobile source emissions in years
not addressed by maintenance plans, and that EPA can issue SIP calls if
growth in non-mobile source emissions threatens maintenance.
IX. Public Participation
A. Description of the Proposal
This proposal would clarify the timeframe within which information
must be provided for public access under the public participation
requirements in the existing conformity rule. The proposal would
specify that affected agencies must provide public access to
information considered by the agency in making transportation plan and
TIP conformity determinations at the beginning of the designated public
comment period and prior to taking formal action on conformity
determinations. This proposal would define the information to include
all technical and policy information considered by the agency in
supporting conformity determinations.
This proposal would continue to reference and be consistent with
DOT's metropolitan planning regulation (23 CFR 450.316(b)), which,
among other things, requires at least a 30-day comment period in
serious and above nonattainment areas. Agencies affected by this
proposal would be referred to DOT's January 1995 guidance, ``Public
Involvement and Questions and Answers'' (60 FR 5508-5512), for specific
identification of the types of information to be provided to the
public. EPA expects that affected agencies would refer to this guidance
in providing information for public comment. The guidance specifies
input assumptions such as population projections, land use projections,
fares, tolls, levels of service, the structure and specifications of
travel demand and other evaluation tools.
Since information supporting conformity determinations is stored in
many forms, EPA interprets that this proposal's requirement would apply
to information in written, graphic, and electronic form. Under this
proposal, any charges imposed by affected agencies for public
inspection and copying would be required to be consistent with the fee
schedule in 49 CFR 7.95, which EPA believes would ensure reasonable
public access to the information. EPA also notes that under the DOT
metropolitan planning regulations, each MPO conducts public involvement
under its own custom-tailored public involvement procedures. These
procedures describe how the MPO intends to meet the performance
standards of the conformity rule and metropolitan planning regulations.
B. Discussion of Proposal
EPA is proposing this clarification to address stakeholder concerns
that public participation is hindered when public access to information
relied on for conformity determinations is not provided in enough time
to allow for adequate public involvement. EPA agrees that public access
to all of the information considered by the agency at the beginning of
the public comment period is critical to ensuring effective public
participation in the conformity process.
In its ``Public Involvement and Questions and Answers'' guidance,
DOT emphasizes that an effective public involvement process should
provide for an open exchange of information and ideas between the
public and transportation decisionmakers, and as an overall objective,
an area's public involvement process should be proactive, provide
complete information, timely public notice, full public access to key
decisions, and opportunities for early and continuing involvement. EPA
believes that this
[[Page 36129]]
proposal would not only be consistent with these objectives, but that
it would further the purposes emphasized in the guidance.
EPA does not believe that this proposal would be burdensome for
affected agencies since it would only require that agencies provide
public access to information already in their possession. This proposal
would not require the affected agencies to edit, summarize existing
files, or to compile new files beyond those already prepared as a part
of the plan and TIP development process.
X. Interagency Consultation
This proposal includes several new provisions which require
interagency consultation, including the choice of conformity tests and
modeling methodology for rural areas; the establishment of a ``default
budget'' in clean data areas; and the addition of non-exempt projects
to the transportation plan/TIP without full regional emissions
analysis. EPA is not proposing to amend Sec. 51.402/Sec. 93.105
(``Consultation'') to add these consultation needs to the list of
specific processes that must be included in the conformity SIP's
consultation procedures. EPA believes that it is clear that
consultation procedures must be developed in order to use these new
provisions. As a result, EPA does not believe that the complexity
resulting from adding items to Sec. 51.402 is justified. Furthermore,
the proposed provisions involving additional consultation procedures
are for the most part optional flexibilities for unique situations, so
consultation procedures to implement these flexibilities will not be
relevant for all conformity SIPs.
However, EPA emphasizes that interagency consultation on these
specific provisions is a necessary part of their implementation. EPA
recommends that in order to facilitate future conformity
determinations, areas should develop appropriate consultation
procedures as soon as possible if they expect to use these provisions.
XI. Streamlining and Clarification
This proposal includes numerous wording and organizational changes
that would streamline and clarify the existing transportation
conformity rule. Although these changes affect most sections of the
existing transportation conformity rule, highlights are discussed
below.
A. Frequency of Conformity Determinations
1. Three-year Requirement
This proposal would clarify that both the MPO and DOT must
redetermine conformity of transportation plans/TIPs within three years
of DOT's transportation plan/TIP conformity determination. The existing
transportation conformity rule is not explicit regarding the start of
the three-year clock and which agencies' conformity determinations must
be completed before expiration of that clock. This clarification is
consistent with implementation practice to date and would help reduce
confusion and ambiguity for future implementers.
2. Triggers for Redetermination
This proposal would streamline the paragraph that describes which
events trigger an 18-month clock for redetermination of conformity.
This proposal would also move Sec. 51.448(a)(1)/Sec. 93.128(a)(1), as
amended on November 14, 1995, so that the requirement to determine
conformity within 18 months of the initial submission of a control
strategy SIP or maintenance plan is in the frequency section with the
other triggers for conformity redetermination. Although the substance
of the requirement is unchanged, the restructuring improves the flow
and clarity of the rule.
The relocation of Sec. 51.448(a)(1) highlights the fact that a
conformity determination is required within 18 months of both the
initial submission and final EPA approval of a control strategy SIP or
maintenance plan. Both submission and approval trigger a
redetermination of conformity, because it is not uncommon for the SIP
to change between initial submission and final approval. If conformity
was determined to the initial SIP submission and the SIP did not change
between initial submission and final approval, the requirement to
determine conformity after final approval could be satisfied without
new regional emissions analysis.
3. Requirement for TIP Conformity Within Six Months of Transportation
Plan Conformity
This proposal would clarify existing Sec. 51.400(a)(3)/
Sec. 93.104(a)(3) by specifying that the TIP must be determined by DOT
to conform within six months of DOT's conformity determination on a new
or revised transportation plan. The existing requirement starts the
six-month clock with the date of adoption of the plan.
EPA received comment suggesting that the six-month limit between
transportation plan and TIP conformity determinations is not necessary
and should be removed. EPA believes that this requirement should be
retained because of ISTEA's (and hence, conformity's) expectation that
the TIP will flow from, and be consistent with, the transportation
plan. The conformity rule requires TIP conformity to be based on a
consideration of all projects in the 20-year timeframe of the
transportation plan. As a result, changes to the transportation plan
should be reflected in the TIP's conformity determination in a timely
manner.
EPA expects that in almost all cases, the plan and TIP will be
developed concurrently and one regional emissions analysis will be
performed to support both conformity determinations. In cases where the
transportation plan and TIP are not developed concurrently, EPA
believes the six-month requirement is critical to ensure that, given
the changes to the transportation plan, projects from the TIP would
still result in a level of regional emissions in 20 years that would
not cause a new violation, worsen existing violations, or delay timely
attainment.
B. Criteria and Procedures for Determining Conformity of Transportation
Plans, Programs, and Projects: General
This proposal would consolidate several parts of the existing
transportation conformity rule into Sec. 51.410/Sec. 93.109 in order to
create a section that provides a comprehensive overview of when and in
what circumstances the budget test, emission reduction tests, and hot-
spot tests are required. The section would have separate paragraphs for
ozone, CO, PM10, and NO2 areas and isolated rural areas so
that the rule is easier to use and so that the conformity implications
of Clean Air Act requirements and classifications that are unique to
each pollutant are specifically addressed.
This consolidation would allow the elimination of existing
Sec. 51.464/Sec. 93.136 (``Special provisions for nonattainment areas
which are not required to demonstrate reasonable further progress and
attainment'') and Sec. 51.452(d)/Sec. 93.130(d) (``Projects not from a
conforming plan and TIP in isolated rural nonattainment and maintenance
areas''). The provisions for special situations would be discussed in
the same place as provisions for other areas, thus making these
provisions easier to locate and improving the clarity and user-
friendliness of the rule.
[[Page 36130]]
As discussed in section II., the existing rule's classification
system of ``Phase II interim period,'' ``transitional period,'' and
``control strategy period'' would be eliminated.
C. Latest Planning Assumptions
This proposal would clarify that conformity determinations must use
the latest existing information regarding the effectiveness of all
relevant SIP control measures, including TCMs, that have already been
implemented. This would reduce confusion regarding what emission
reduction credit should be assumed from vehicle inspection and
maintenance programs that are included in approved SIPs and that are
already being implemented.
D. Consultation Criterion
This proposal would clarify Sec. 51.416/Sec. 93.112 (``Criteria and
procedures: Consultation''), which is the section requiring conformity
to be determined according to the consultation procedures of the rule,
the conformity SIP, and DOT's planning regulations.
This proposal would remove the reference to the MPO so that it is
clear that rural areas must also abide by interagency and public
consultation requirements. In addition, this proposal removes ambiguous
language that could imply that areas are not required to comply with
public participation procedures after the conformity SIP is approved.
E. Hot-spot Tests
This proposal would consolidate and streamline existing
Secs. 51.424 and 51.434 (Secs. 93.116 and 93.121), which address
localized CO and PM10 violations (hot spots). The two sections
would be combined, and paragraph (c) of each of these sections would be
moved to the section addressing procedures for determining localized CO
and PM10 concentrations (hot-spot analysis). This would reduce
confusion regarding the distinction between the two hot-spot tests and
streamline the discussion of both the conformity tests and the
methodological requirements.
F. Compliance With PM10 Control Measures
This proposal would clarify the existing requirement of
Sec. 51.426/Sec. 93.117 for SIP PM10 control measures to be
included in the project's final plans, specifications, and estimates.
Because the final plans, specifications, and estimates are generally
not developed until after the project's conformity determination, it is
problematic for the existing rule to make the plans, specifications,
and estimates a condition of the project-level conformity
determination. This proposal would require the conformity determination
to include a written commitment to include SIP PM10 control
measures in the project's plans, specifications, and estimates. Such
commitments would be enforceable, as required by existing Sec. 51.458/
Sec. 93.133 (``Enforceability of design concept and scope and project-
level mitigation and control measures'').
G. Budget Test
This proposal would combine existing Secs. 51.428-51.432
(Secs. 93.118-93.120) into one streamlined section that describes the
budget test for the transportation plan, TIP, and project not from a
conforming plan and TIP. As described in section III. of this preamble,
the implementation of the budget test and the years for which budgets
apply would be clarified.
H. Emission Reduction Tests
This proposal would combine existing Secs. 51.436-51.446
(Secs. 93.122-93.127), which describe the tests for emission reductions
in the interim period for ozone, CO, PM10, and NO2 areas,
into one streamlined section that addresses all pollutants and the
transportation plan, TIP, and project not from a conforming plan and
TIP. This would avoid the repetition of the definitions of the
``Baseline'' and ``Action'' scenarios and improve the readability of
the transportation conformity rule.
This proposal would provide that the first analysis year shall be
no more than five years beyond the year in which the conformity
determination is being made. The existing conformity rule requires the
first analysis year to be 1995 in CO nonattainment areas and 1996 in
ozone nonattainment areas. This requirement is obviously no longer
appropriate, because conformity is not intended to be assessed
retrospectively.
This proposal would also modify the definition of the ``Baseline''
scenario so that only projects that come from the first year of the
previously conforming transportation plan/TIP are required to be
included in the ``Baseline'' scenario. The existing conformity rule
requires projects from the first three years of the previously
conforming transportation plan/TIP to be included in the ``Baseline''
scenario. The proposed modification is intended to correct the perverse
incentive that the existing requirement creates for areas to withhold
projects with air quality benefits. Some stakeholders have commented
that because the air quality benefits of projects in the second and
third year of the TIP are included in the ``Baseline'' after the
initial TIP conformity determination, areas are holding back some
projects for use in future ``Action''/``Baseline'' comparisons.
I. Transition From the Interim Period to the Control Strategy Period
Because the proposal would no longer use the terms ``interim
period'' and ``control strategy period,'' this proposal would
consolidate and streamline existing Sec. 51.448/Sec. 93.128 and better
integrate its provisions into the rest of the transportation conformity
rule.
Under the proposal, this section would address only the conformity
consequences of various SIP failures. This section would streamline the
existing requirements regarding conformity lapse resulting from SIP
failures, as amended August 7, 1995, and November 14, 1995. The term
``protective finding'' would be included in the definitions section in
order to decrease the wordiness of the requirements and improve the
readability of the rule.
Some of the existing requirements of Sec. 51.448 would be
incorporated in the frequency section, the general overview of the
criteria and procedures, and the budget test. Existing paragraphs (e)
through (i) would be eliminated. Existing Sec. 51.448(e) requires
consultation on individual capacity-increasing projects in areas that
have not yet submitted control strategy SIPs. Because all areas that
are already required to submit control strategy SIPs have made such
submissions, EPA believes that the requirements of paragraph (e) are no
longer necessary.
Existing Sec. 51.448(f) describes conditions under which new
regional emissions analysis is not necessary in order to determine
conformity to a newly submitted control strategy SIP. EPA continues to
believe that new regional emissions analysis would not be necessary
under the conditions described in paragraph (f). However, EPA does not
believe that this provision needs to be included in the regulatory
text, because the provision is not commonly used and EPA believes the
provision is sufficiently well understood.
Existing paragraphs 51.448 (g) through (i) are no longer relevant
given the other changes to the transportation conformity rule proposed
in this notice.
J. Procedures for Determining Regional Transportation-Related Emissions
This proposal would generally streamline and clarify existing
Sec. 51.452/Sec. 93.130. Some of the clarifications are highlighted
below.
[[Page 36131]]
1. Credit for Delayed Measures
This proposal would clarify that if TCMs or any other measures in
the approved SIP are delayed beyond the scheduled date, emission
reduction credit may not be included in the emissions analysis until
implementation is assured. This clarification would ensure that the
requirements for latest planning assumptions and restrictions on
assuming credit for regulatory measures are logically and consistently
applied. As described in the discussion of the clarification to the
``Latest planning assumptions'' section, broadening discussion of TCMs
to include other SIP measures would reduce confusion regarding emission
reduction credit for vehicle inspection and maintenance programs.
2. Credit for Future Measures
This proposal would streamline and clarify the conditions under
which emission reduction credit from future regulatory measures could
be assumed. In addition, the proposal would add language regarding
control measures that do not need a regulation in order to be
implemented, but are not included in the transportation plan/TIP or the
SIP. This language is intended to address measures such as increased
street sweeping or street sanding specifications, which are external to
the usual transportation planning process and which require some form
of commitment that may not be explicitly regulatory or included in the
SIP.
This proposal would allow emission reduction credit from such
measures to be assumed if the conformity determination includes written
commitments to implementation of the measures by appropriate entities
(e.g., government agencies, private project sponsors). The conformity
SIP would have to provide that written commitments that are included in
conformity determinations are enforceable under the SIP. This language
regarding enforceability is similar to that in existing Sec. 51.458/
Sec. 93.133 (``Enforceability of design concept and scope and project-
level mitigation and control measures'') and that included in the
general conformity rule (58 FR 63214, November 30, 1993).
The proposed additional language would reduce confusion regarding
these types of control measures and would allow more explicit
flexibility for these measures to be developed and credited in the
conformity process. The proposal would require written commitments to
be included as part of the conformity determination, but would not
require the commitments to be specifically included in the SIP. By
making such commitments enforceable under the SIP as a general matter,
the SIP would not have to be revised to include each specific
commitment.
The proposal would also allow regional emissions analyses to
include emission reductions from projects, programs, or activities that
are committed to in the control strategy SIP submission or the
maintenance plan submission, similar to the existing conformity rule's
Sec. 51.452(a)(4). Consistent with EPA's SIP policy, SIP commitments
must include a demonstration that the agency making the commitment has
authority to implement the measure and that adequate personnel and
funding are available for implementation.
3. Highway Performance Monitoring System (HPMS)
This proposal would clarify existing Sec. 51.452(b)(2)/
Sec. 93.130(b)(2) to specify that although HPMS estimates of VMT shall
be considered the primary measure of VMT in certain cases, locally
developed count-based programs and other variations from the procedure
described in the conformity rule are permitted subject to the
interagency consultation process. This paragraph applies to serious,
severe, and extreme ozone nonattainment areas and serious CO
nonattainment areas with an urbanized area population over than
200,000.
In its experience implementing the transportation conformity rule
since 1993, EPA has received several questions regarding what should be
used as the measure of VMT in areas that are not serious or above ozone
or CO areas. These areas may use HPMS (including the factoring
procedure described in existing Sec. 51.452(b)(2)/Sec. 93.130(b)(2)) or
other locally developed programs and procedures, subject to the
interagency consultation process.
4. Reliance on Previous Regional Emissions Analysis
This proposal would consolidate in the section on procedures for
regional emissions analysis the discussion of circumstances under which
new regional emissions analysis may not be necessary. This discussion
is currently included in the description of the budget test for TIPs
and projects not from a conforming plan and TIP (Sec. 51.430/
Sec. 93.119 and Sec. 51.432/Sec. 93.120). This change would streamline
these budget test sections and allow a simpler discussion of what must
be demonstrated in order to satisfy the budget test.
K. Procedures for Determining Localized CO and PM10 Concentrations
(Hot-spot Analysis)
This proposal would restructure the procedural requirements for
hot-spot analysis in order to clarify that the hot-spot tests should be
satisfied using EPA ``Guideline'' models in specified cases and in
other cases may be satisfied using other quantitative or qualitative
methods. This proposal would retain the existing rule's description of
what projects should have hot-spot analysis according to EPA's
``Guideline'' models, but would clarify that other methods may be
agreed upon through the interagency consultation process and with the
approval of the EPA Regional Administrator.
EPA is willing to consider methods that identify different
thresholds for determining which projects would require EPA
``Guideline'' models. For example, although the existing rule requires
all projects affecting intersections at Level-of-Service D, E, or F to
be quantitatively modeled using EPA ``Guideline'' models, an area may
develop other thresholds for quantitative analysis based on delay
times, traffic volume, queue lengths, background CO levels, and/or
receptor locations. EPA will consider alternative methods for
thresholds provided they are sufficient to determine that projects will
not cause or contribute to new CO violations or increase the frequency
or severity of existing CO violations (as described by the hot-spot
criterion).
In addition, if an individual project affects multiple
intersections, EPA is willing to approve procedures that require
quantitative modeling initially only for those intersections with the
greatest potential for CO violations. If quantitative modeling of those
intersections does not predict CO violations, the other intersections
affected by the project would not have to be quantitatively modeled.
L. Enforceability of Design Concept and Scope and Project-Level
Mitigation and Control Measures
This proposal would clarify existing Sec. 51.458/Sec. 93.133 by
stating that a waiver of mitigation measures is subject to the
conformity rule's public participation requirements for project-level
conformity determinations. The conformity rule requires public
involvement in conformity determinations for projects where otherwise
required by law (e.g., the National Environmental Policy Act (NEPA)).
This clarification is consistent with EPA's original intent for a
waiver of mitigation measures to be permitted
[[Page 36132]]
through a process similar to the original conformity determination.
This clarification is in response to the May 26, 1994, Petition for
Reconsideration by the Environmental Defense Fund, the Natural
Resources Defense Council, and the Sierra Club Legal Defense Fund.
M. Exempt Projects
This proposal would clarify Table 2 of existing Sec. 51.460/
Sec. 93.134 by specifying that the advance land acquisitions that are
exempt are those emergency/hardship acquisitions provided for by 23 CFR
712.204(d).
As described in the preamble to the November 1993 conformity rule
(58 FR 62213), the advance land acquisitions referred to in Table 2 are
those ``parcels that are acquired to protect a property from imminent
development and increased costs which would tend to limit a choice of
transportation alternatives, or are acquired to alleviate particular
hardship to a property owner at his or her request. This is only
allowed in emergency or extraordinary cases, and only after the state
department of transportation has given official notice to the public
that a preferred highway or transit location has been selected, held a
public hearing, or provided an opportunity for a public hearing.''
This proposal would make this intention clearer in the rule by
providing the specific citation that enables this type of hardship
acquisition and protective buying.
XII. TCM Flexibility
During the 1995 spring stakeholder meetings, EPA made a commitment
to provide sample language for a SIP mechanism that would allow
substitution of TCMs in a previously approved SIP without additional
EPA approvals. As EPA indicated at that time, EPA believes that such a
substitution mechanism is possible under existing EPA SIP policy, and
no conformity rule amendment is necessary. As a result, EPA is not
proposing language addressing TCM flexibility in today's action.
EPA will be drafting model SIP language and distributing it to
conformity stakeholders for comment.
XIII. PM10 Hot Spots
Section 51.454(d) (93.131(d)) of the existing conformity rule
requires quantitative PM10 hot-spot analysis in certain cases, but
states that the requirements will not take effect until EPA releases
modeling guidance and announces in the Federal Register that the
requirements are in effect.
EPA has not yet released guidance on dispersion modeling for
PM10 hot spots due to transportation projects. As a result, the
requirements for quantitative PM10 hot-spot analysis are not
currently in effect.
EPA has received comment requesting that these requirements should
continue to be deferred until research that is underway by other
organizations has been completed. For example, several PM10
studies are being sponsored by the California Air Resources Board and
the California Department of Transportation.
EPA hereby announces its intention to delay the further development
and issuance of its PM10 hot-spot modeling guidance pending the
completion of research by organizations external to EPA. EPA does not
intend to issue PM10 hot-spot modeling guidance before 1998. As a
result, the requirements of existing Sec. 51.454(d)/Sec. 93.131(d) will
continue to be deferred until such time as EPA releases modeling
guidance and announces in the Federal Register that the requirements
are in effect.
XIV. Signalization Projects
EPA has received several comments suggesting that signalization
projects, including areawide traffic signal synchronization projects
and automated traffic surveillance and control projects, should be
exempt from transportation conformity requirements. However, for the
reasons described below, EPA is not proposing to change the exempt
project lists (Tables 2 and 3 of the conformity rule) to exempt
signalization projects.
A. Background
The transportation conformity rule does not require conformity
determinations for certain types of projects. These ``exempt'' projects
are listed in Table 2 of the conformity rule. In contrast to other
transportation projects, exempt projects can proceed toward
implementation even if a currently conforming transportation plan or
TIP is not in place. These projects are exempt from conformity
requirements because EPA considers them to have a neutral or de minimis
impact on air quality. EPA does not exempt projects that could have
regional impacts--even if those impacts may be positive--because EPA
believes that regionally significant projects must be analyzed
together, in the context of all other regionally significant projects.
In this way, the interactions among projects may be considered, and
there is a meaningful estimate of regional emissions that can be
compared to the SIP's motor vehicle emissions budget.
In addition to the Table 2 projects that are exempt from conformity
requirements, the transportation conformity rule also exempts certain
projects from regional emissions analysis. These projects, which are
listed in Table 3 of the conformity rule, are not required to be
included in the regional emissions analysis for the transportation plan
and TIP, and can proceed toward implementation even if a currently
conforming transportation plan or TIP is not in place. However,
conformity determinations are required for these projects, and the
local effects of these projects on CO and PM10 concentrations must
be considered in CO and PM10 nonattainment and maintenance areas.
The existing transportation conformity rule exempts intersection
signalization projects at individual intersections from regional
emissions analysis, as indicated in Table 2.
B. Comments Supporting Exemption of Signalization Projects
EPA has received comments that advocate the exemption of
signalization projects because of positive air quality and congestion
mitigation impacts of signalization projects and because of the
implementation delays that may result from conformity requirements.
For example, some commenters state that signalization projects
decrease emissions by reducing acceleration, deceleration, and idling.
They cite studies of certain signalization efforts that indicate
significant reductions in CO, VOC, and NOx emissions. In addition,
they state that improved efficiency of the roadway network benefits
buses and high occupancy vehicle (HOV) users.
In addition, some commenters support exempting signalization
projects in order to avoid delays that could result from the
requirement for these projects to be included in the transportation
plan and TIP's regional emissions analysis. Some commenters expressed
concern that signalization projects could be delayed for up to a year
while going through conformity analysis.
C. Rationale For Decision Not To Exempt Signalization Projects
EPA is not proposing to exempt signalization projects from
conformity requirements because some of the projects may be complex,
regionally significant projects whose emissions impacts must be
assessed in the context of all regionally significant projects. For
signalization projects that are not regionally significant, options
exist to decrease the analysis burden and
[[Page 36133]]
potential delay of the conformity requirements, as described below.
As described above, EPA's list of exempt projects is intended to
include only those projects with neutral or de minimis emissions
impacts. The types of signalization projects that commenters suggest
exempting are clearly not de minimis. For example, some signalization
projects are areawide synchronizations that affect hundreds of
intersections. Even the more limited signalization projects are often
complex projects associated with roadway construction and improvement.
Traffic signalization projects are not always limited to simple
upgrades of hardware or installation of new signals.
In addition, signalization projects cannot generally be considered
de minimis because they may affect traffic flow on a regional level.
The emissions impacts may be positive or negative depending on the
pollutant of concern, the speeds on the affected roads, and the effects
on other roads in the network. For example, improved traffic flow and
corresponding increases in traffic speed may reduce CO emissions, but
may increase NOX emissions in certain speed ranges. PM10
emissions may also increase. Significant changes in travel time may
redistribute travel on other roads and affect mode choice. These
effects need to be considered at a regional level, and the cumulative
emissions impacts cannot be qualitatively determined.
EPA recognizes that not all signalization projects at multiple
intersections are regionally significant, particularly if they affect a
small number of miles in a large metropolitan area, or if an area's
modeling capabilities are not sensitive to the more subtle regional
effects of signalization projects. The existing conformity rule allows
projects that are not regionally significant to be amended into the
transportation plan and TIP without a new regional emissions analysis,
if the regional emissions analysis supporting the currently
transportation plan and TIP is still valid (e.g., planning assumptions
have not changed). As a result, EPA believes that there are already
sufficient opportunities to minimize the analysis burden and potential
project implementation delays in cases where the signalization projects
are relatively simple.
EPA considered trying to identify a threshold for determining which
signalization projects at multiple intersections would not be
considered regionally significant, so that these projects could be
included in Table 3's list of projects that are exempt from regional
emissions analysis. However, EPA decided that this approach would be
unnecessarily complex and unlikely to provide a threshold that was
appropriate for all areas. Areas currently have the discretion to
determine which projects are regionally significant through the
interagency consultation process, and thus have sufficient flexibility
to minimize the analysis burden associated with signalization projects
where appropriate.
Finally, although EPA agrees that the conformity process should
minimize project implementation delays as much as possible, EPA does
not believe the delays associated with regionally significant
signalization projects are unreasonable. If signalization projects are
identified at the time the transportation plan and TIP are being
developed, they can be included in the transportation plan and TIP's
regional emissions analysis initially, and implementation delays should
not occur. In many instances TIPs are developed annually. If
transportation plan/TIP amendments between TIP cycles can be avoided
with improved planning, implementation delays could be reduced.
XV. Conformity SIPs
Section 51.396(a) of the existing conformity rule (as amended
November 14, 1995) requires conformity SIP revisions to be submitted to
EPA within 12 months after the date of publication of final amendments
to the conformity rule. As a result, when EPA takes final action on
today's proposal, conformity SIP revisions consistent with that final
action will be due to EPA within 12 months.
As specified in Sec. 51.396(b) of the conformity rule, after EPA
approves a conformity SIP revision, the federal conformity rule does
not govern conformity determinations. Therefore, for areas whose
conformity SIP revision has already been approved by EPA, the final
amendments that will result from today's proposal will not be effective
until they are included in the conformity SIP revision and EPA approves
that SIP revision.
XVI. Public Hearing
Anyone who wants to present testimony about this proposal at the
public hearing (see DATES) should, if possible, notify the contact
person (see FOR FURTHER INFORMATION CONTACT) at least seven days prior
to the day of the hearing. The contact person should be given an
estimate of the time required for the presentation of testimony and
notification of any need for audio/visual equipment. A sign-up sheet
will be available at the registration table the morning of the hearing
for scheduling those who have not notified the contact earlier. This
testimony will be scheduled on a first-come,first-serve basis to follow
the previously scheduled testimony.
EPA requests that approximately 50 copies of the statement or
material to be presented be brought to the hearing for distribution to
the audience. In addition, EPA would find it helpful to receive an
advance copy of any statement or material to be presented at the
hearing at least one week before the scheduled hearing date. This is to
give EPA staff adequate time to review such material before the
hearing. Such advance copies should be submitted to the contact person
listed.
The official records of the hearing will be kept open until the
close of the comment period to allow submission of rebuttal and
supplementary testimony. All such submittals should be directed to the
Air Docket, Docket A-96-05 (see ADDRESSES). The hearing will be
conducted informally, and technical rules of evidence will not apply. A
written transcript of the hearing will be placed in the above docket
for review. Anyone desiring to purchase a copy of the transcript should
make individual arrangements with the court reporter recording the
proceeding.
XVII. Administrative Requirements
A. Administrative Designation
Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or otherwise adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or state, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(4) Raise novel or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
Pursuant to the terms of Executive Order 12866, it has been
determined
[[Page 36134]]
that this rule is a ``significant regulatory action'' because this
action raises novel legal or policy issues arising out of legal
mandates, the President's priorities, and the principles set forth in
the Executive Order. As such, this action was submitted to OMB for
review. Changes made in response to OMB suggestions or recommendations
will be documented in the public record.
B. Reporting and Recordkeeping Requirements
This rule does not contain any information collection requirements
from EPA which require approval by OMB under the Paperwork Reduction
Act of 1980, 44 U.S.C. 3501 et seq.
The information collection requirements of EPA's Transportation
Conformity Rule and these amendments to it are covered under the
Information Collection Request of the Department of Transportation
entitled ``Metropolitan and Statewide Transportation Planning'',
approved by OMB under the Paperwork Reduction Act through 11/96, with
OMB Control Number 2132-0529. Send any comments on the recordkeeping
and reporting requirements of Transportation Conformity to:
Mr. Sean Libberton, US Department of Transportation, TPL11, 400 7th
Street, SW., Washington, DC 20590,
and
Office of Information and Regulatory Affairs, Office of Management and
Budget, Attention: Desk Officer for EPA/OAR, Room 10202, 725 17th
Street, NW., Washington, DC 20503.
In any correspondence please refer to OMB Control Number 2132-0529.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 requires federal agencies to
identify potentially adverse impacts of federal regulations upon small
entities. In instances where significant impacts are possible on a
substantial number of these entities, agencies are required to perform
a Regulatory Flexibility Analysis (RFA).
EPA has determined that today's regulations will not have a
significant impact on a substantial number of small entities. This
regulation affects federal agencies and metropolitan planning
organizations, which by definition are designated only for metropolitan
areas with a population of at least 50,000. These organizations do not
constitute small entities.
Therefore, as required under section 605 of the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq., I certify that this regulation
does not have a significant impact on a substantial number of small
entities.
D. Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the aggregate.
EPA has determined that to the extent this rule imposes any mandate
within the meaning of the Unfunded Mandates Act, this final action does
not include a mandate that may result in estimated costs of $100
million or more to state, local, or tribal governments in the aggregate
or to the private sector. Therefore, EPA has not prepared a statement
with respect to budgetary impacts.
List of Subjects
40 CFR Part 51
Environmental protection, Administrative practice and procedure,
Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
40 CFR Part 93
Administrative practice and procedure, Air pollution control,
Carbon monoxide, Intergovernmental relations, Ozone.
Dated: June 21, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR parts 51 and 93 are
proposed to be amended as follows:
PART 51--[AMENDED]
1. The authority citation for part 51 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Subpart T is amended by removing Secs. 51.392 through 51.464 and
by revising Sec. 51.390 to read as follows:
Subpart T--Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Laws
Sec. 51.390 Implementation plan revision.
(a) States with areas subject to this rule must submit to the EPA
and DOT a revision to their implementation plan which contains criteria
and procedures for DOT, MPOs and other State or local agencies to
assess the conformity of transportation plans, programs, and projects,
consistent with these regulations. This revision is to be submitted by
November 25, 1994 (or within 12 months of an area's redesignation from
attainment to nonattainment, if the State has not previously submitted
such a revision). Further revisions to the implementation plan required
by amendments to part 93, subpart A of this chapter must be submitted
within 12 months of the date of publication of such final amendments.
EPA will provide DOT with a 30-day comment period before taking action
to approve or disapprove the submission. A State's conformity
provisions may contain criteria and procedures more stringent than the
requirements described in these regulations only if the State's
conformity provisions apply equally to non-federal as well as Federal
entities.
(b) The Federal conformity rules under this subpart and part 93 of
this chapter, in addition to any existing applicable State
requirements, establish the conformity criteria and procedures
necessary to meet the requirements of Clean Air Act section 176(c)
until such time as EPA approves the required conformity implementation
plan revision. Following EPA approval of the State conformity
provisions (or a portion thereof) in a revision to the applicable
implementation plan, conformity determinations would be governed by the
approved (or approved portion of the) State criteria and procedures.
The Federal conformity regulations contained in part 93 of this chapter
would apply only for the portion, if any, of the State's conformity
provisions that is not approved by EPA. In addition, any previously
applicable implementation plan conformity requirements remain
enforceable until the State revises its applicable implementation plan
to specifically remove them and that revision is approved by EPA.
(c) The implementation plan revision required by this section must
meet all of the requirements of part 93, subpart A of this chapter.
(d) In order for EPA to approve the implementation plan revision
submitted to EPA and DOT under this section, the plan must address all
requirements of this subpart in a manner which gives them full legal
effect. In particular, the revision shall incorporate the provisions of
the following sections of this subpart in verbatim form, except insofar
as needed to clarify or to give effect to a
[[Page 36135]]
stated intent in the revision to establish criteria and procedures more
stringent than the requirements stated in these sections of this
chapter: Secs. 93.101, 93.102, 93.103, 93.104, 93.106, 93.109, 93.110,
93.111, 93.112, 93.113, 93.114, 93.115, 93.116, 93.117, 93.118, 93.119,
93.120, 93.121, 93.126, and 93.127 of this chapter.
PART 93--[AMENDED]
3. The authority citation for part 93 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
4. Subpart A is revised to read as follows:
Subpart A--Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Laws
Sec.
93.100 Purpose.
93.101 Definitions.
93.102 Applicability.
93.103 Priority.
93.104 Frequency of conformity determinations.
93.105 Consultation.
93.106 Content of transportation plans.
93.107 Relationship of transportation plan and TIP conformity with
the NEPA process.
93.108 Fiscal constraints for transportation plans and TIPs.
93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
93.110 Criteria and procedures: Latest planning assumptions.
93.111 Criteria and procedures: Latest emissions model.
93.112 Criteria and procedures: Consultation.
93.113 Criteria and procedures: Timely implementation of TCMs.
93.114 Criteria and procedures: Currently conforming transportation
plan and TIP.
93.115 Criteria and procedures: Projects from a plan and TIP.
93.116 Criteria and procedures: Localized CO and PM10
violations (hot spots).
93.117 Criteria and procedures: Compliance with PM10 control
measures.
93.118 Criteria and procedures: Motor vehicle emissions budget.
93.119 Criteria and procedures: Emission reductions in areas
without motor vehicle emissions budgets.
93.120 Consequences of control strategy implementation plan
failures.
93.121 Requirements for adoption or approval of projects by other
recipients of funds designated under title 23 U.S.C. or the Federal
Transit Laws.
93.122 Procedures for determining regional transportation-related
emissions.
93.123 Procedures for determining localized CO and PM10
concentrations (hot-spot analysis).
93.124 Using the motor vehicle emissions budget in the applicable
implementation plan (or implementation plan submission).
93.125 Enforceability of design concept and scope and project-level
mitigation and control measures.
93.126 Exempt projects.
93.127 Projects exempt from regional emissions analyses.
Sec. 93.100 Purpose.
The purpose of this subpart is to implement Sec. 176(c) of the
Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and the
related requirements of 23 U.S.C. 109(j), with respect to the
conformity of transportation plans, programs, and projects which are
developed, funded, or approved by the United States Department of
Transportation (DOT), and by metropolitan planning organizations (MPOs)
or other recipients of funds under title 23 U.S.C. or the Federal
Transit Laws (49 U.S.C. Chapter 53). This subpart sets forth policy,
criteria, and procedures for demonstrating and assuring conformity of
such activities to an applicable implementation plan developed pursuant
to section 110 and Part D of the CAA.
Sec. 93.101 Definitions.
Terms used but not defined in this subpart shall have the meaning
given them by the CAA, titles 23 and 49 U.S.C., other Environmental
Protection Agency (EPA) regulations, or other DOT regulations, in that
order of priority.
Applicable implementation plan is defined in section 302(q) of the
CAA and means the portion (or portions) of the implementation plan, or
most recent revision thereof, which has been approved under section
110, or promulgated under section 110(c), or promulgated or approved
pursuant to regulations promulgated under section 301(d) and which
implements the relevant requirements of the CAA.
CAA means the Clean Air Act, as amended.
Cause or contribute to a new violation for a project means:
(1) To cause or contribute to a new violation of a standard in the
area substantially affected by the project or over a region which would
otherwise not be in violation of the standard during the future period
in question, if the project were not implemented, or
(2) To contribute to a new violation in a manner that would
increase the frequency or severity of a new violation of a standard in
such area.
Clean data means air quality monitoring data determined by EPA to
meet the requirements of 40 CFR part 58 that indicate attainment of the
national ambient air quality standard.
Control strategy implementation plan revision is the implementation
plan which contains specific strategies for controlling the emissions
of and reducing ambient levels of pollutants in order to satisfy CAA
requirements for demonstrations of reasonable further progress and
attainment (CAA sections 182(b)(1), 182(c)(2)(A), 182(c)(2)(B),
187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 192(a) and
192(b), for nitrogen dioxide).
Design concept means the type of facility identified by the
project, e.g., freeway, expressway, arterial highway, grade-separated
highway, reserved right-of-way rail transit, mixed-traffic rail
transit, exclusive busway, etc.
Design scope means the design aspects which will affect the
proposed facility's impact on regional emissions, usually as they
relate to vehicle or person carrying capacity and control, e.g., number
of lanes or tracks to be constructed or added, length of project,
signalization, access control including approximate number and location
of interchanges, preferential treatment for high-occupancy vehicles,
etc.
DOT means the United States Department of Transportation.
EPA means the Environmental Protection Agency.
FHWA means the Federal Highway Administration of DOT.
FHWA/FTA project, for the purpose of this subpart, is any highway
or transit project which is proposed to receive funding assistance and
approval through the Federal-Aid Highway program or the Federal mass
transit program, or requires Federal Highway Administration (FHWA) or
Federal Transit Administration (FTA) approval for some aspect of the
project, such as connection to an interstate highway or deviation from
applicable design standards on the interstate system.
FTA means the Federal Transit Administration of DOT.
Forecast period with respect to a transportation plan is the period
covered by the transportation plan pursuant to 23 CFR part 450.
Highway project is an undertaking to implement or modify a highway
facility or highway-related program. Such an undertaking consists of
all required phases necessary for implementation. For analytical
purposes, it must be defined sufficiently to:
(1) Connect logical termini and be of sufficient length to address
environmental matters on a broad scope;
(2) Have independent utility or significance, i.e., be usable and
be a reasonable expenditure even if no
[[Page 36136]]
additional transportation improvements in the area are made; and
(3) Not restrict consideration of alternatives for other reasonably
foreseeable transportation improvements.
Horizon year is a year for which the transportation plan describes
the envisioned transportation system according to Sec. 93.106 of this
subpart.
Hot-spot analysis is an estimation of likely future localized CO
and PM10 pollutant concentrations and a comparison of those
concentrations to the national ambient air quality standards. Hot-spot
analysis assesses impacts on a scale smaller than the entire
nonattainment or maintenance area, including, for example, congested
roadway intersections and highways or transit terminals, and uses an
air quality dispersion model to determine the effects of emissions on
air quality.
Increase the frequency or severity means to cause a location or
region to exceed a standard more often or to cause a violation at a
greater concentration than previously existed and/or would otherwise
exist during the future period in question, if the project were not
implemented.
ISTEA means the Intermodal Surface Transportation Efficiency Act of
1991.
Maintenance area means any geographic region of the United States
previously designated nonattainment pursuant to the CAA Amendments of
1990 and subsequently redesignated to attainment subject to the
requirement to develop a maintenance plan under section 175A of the
CAA, as amended.
Maintenance plan means an implementation plan under section 175A of
the CAA, as amended.
Metropolitan planning organization (MPO) is that organization
designated as being responsible, together with the State, for
conducting the continuing, cooperative, and comprehensive planning
process under 23 U.S.C. 134 and 49 U.S.C. 1607. It is the forum for
cooperative transportation decision-making.
Milestone has the meaning given in sections 182(g)(1) and 189(c) of
the CAA. A milestone consists of an emissions level and the date on
which it is required to be achieved.
Motor vehicle emissions budget is that portion of the total
allowable emissions defined in the submitted or approved control
strategy implementation plan revision or maintenance plan for a certain
date for the purpose of meeting reasonable further progress milestones
or demonstrating attainment or maintenance of the NAAQS, for any
criteria pollutant or its precursors, allocated to highway and transit
vehicle use and emissions.
National ambient air quality standards (NAAQS) are those standards
established pursuant to section 109 of the CAA.
NEPA means the National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321 et seq.).
NEPA process completion, for the purposes of this subpart, with
respect to FHWA or FTA, means the point at which there is a specific
action to make a determination that a project is categorically
excluded, to make a Finding of No Significant Impact, or to issue a
record of decision on a Final Environmental Impact Statement under
NEPA.
Nonattainment area means any geographic region of the United States
which has been designated as nonattainment under Sec. 107 of the CAA
for any pollutant for which a national ambient air quality standard
exists.
Project means a highway project or transit project.
Protective finding means a determination by EPA that the control
strategy contained in a submitted control strategy implementation plan
revision would have been considered approvable with respect to
requirements for emissions reductions if all committed measures had
been submitted in enforceable form as required by Clean Air Act section
110 (a)(2)(A).
Recipient of funds designated under title 23 U.S.C. or the Federal
Transit Laws means any agency at any level of State, county, city, or
regional government that routinely receives title 23 U.S.C. or Federal
Transit Laws funds to construct FHWA/FTA projects, operate FHWA/FTA
projects or equipment, purchase equipment, or undertake other services
or operations via contracts or agreements. This definition does not
include private landowners or developers, or contractors or entities
that are only paid for services or products created by their own
employees.
Regionally significant project means a transportation project
(other than an exempt project) that is on a facility which serves
regional transportation needs (such as access to and from the area
outside of the region, major activity centers in the region, major
planned developments such as new retail malls, sports complexes, etc.,
or transportation terminals as well as most terminals themselves) and
would normally be included in the modeling of a metropolitan area's
transportation network, including at a minimum all principal arterial
highways and all fixed guideway transit facilities that offer an
alternative to regional highway travel.
Standard means a national ambient air quality standard.
Transit is mass transportation by bus, rail, or other conveyance
which provides general or special service to the public on a regular
and continuing basis. It does not include school buses or charter or
sightseeing services.
Transit project is an undertaking to implement or modify a transit
facility or transit-related program; purchase transit vehicles or
equipment; or provide financial assistance for transit operations. It
does not include actions that are solely within the jurisdiction of
local transit agencies, such as changes in routes, schedules, or fares.
It may consist of several phases. For analytical purposes, it must be
defined inclusively enough to:
(1) Connect logical termini and be of sufficient length to address
environmental matters on a broad scope;
(2) Have independent utility or independent significance, i.e., be
a reasonable expenditure even if no additional transportation
improvements in the area are made; and
(3) Not restrict consideration of alternatives for other reasonably
foreseeable transportation improvements.
Transportation control measure (TCM) is any measure that is
specifically identified and committed to in the applicable
implementation plan that is either one of the types listed in section
108 of the CAA, or any other measure for the purpose of reducing
emissions or concentrations of air pollutants from transportation
sources by reducing vehicle use or changing traffic flow or congestion
conditions. Notwithstanding the above, vehicle technology-based, fuel-
based, and maintenance-based measures which control the emissions from
vehicles under fixed traffic conditions are not TCMs for the purposes
of this subpart.
Transportation improvement program (TIP) means a staged, multiyear,
intermodal program of transportation projects covering a metropolitan
planning area which is consistent with the metropolitan transportation
plan, and developed pursuant to 23 CFR part 450.
Transportation plan means the official intermodal metropolitan
transportation plan that is developed through the metropolitan planning
process for the metropolitan planning area, developed pursuant to 23
CFR part 450.
Transportation project is a highway project or a transit project.
[[Page 36137]]
Sec. 93.102 Applicability.
(a) Action applicability. (1) Except as provided for in paragraph
(c) of this section or Sec. 93.126, conformity determinations are
required for:
(i) The adoption, acceptance, approval or support of transportation
plans and transportation plan amendments developed pursuant to 23 CFR
part 450 or 49 CFR part 613 by an MPO or DOT;
(ii) The adoption, acceptance, approval or support of TIPs and TIP
amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by
an MPO or DOT; and
(iii) The approval, funding, or implementation of FHWA/FTA
projects.
(2) Conformity determinations are not required under this rule for
individual projects which are not FHWA/FTA projects. However,
Sec. 93.121 applies to such projects if they are regionally
significant.
(b) Geographic Applicability. The provisions of this subpart shall
apply in all nonattainment and maintenance areas for transportation-
related criteria pollutants for which the area is designated
nonattainment or has a maintenance plan.
(1) The provisions of this subpart apply with respect to emissions
of the following criteria pollutants: Ozone, carbon monoxide (CO),
nitrogen dioxide (NO2), and particles with an aerodynamic diameter
less than or equal to a nominal 10 micrometers (PM10).
(2) The provisions of this subpart apply with respect to emissions
of the following precursor pollutants:
(i) Volatile organic compounds (VOC) and nitrogen oxides (NOX)
in ozone areas;
(ii) NOX in NO2 areas; and
(iii) VOC, NOX, and PM10 in PM10 areas if the EPA
Regional Administrator or the director of the State air agency has made
a finding that transportation-related precursor emissions within the
nonattainment area are a significant contributor to the PM10
nonattainment problem and has so notified the MPO and DOT, or if the
applicable implementation plan (or implementation plan submission)
establishes a budget for such emissions as part of the reasonable
further progress, attainment or maintenance strategy.
(3) The provisions of this subpart apply to maintenance areas for
20 years from the date EPA approves the area's request under section
107(d) of the CAA for redesignation to attainment, unless the
applicable implementation plan specifies that the provisions of this
subpart shall apply for more than 20 years.
(c) Limitations. (1) Projects subject to this regulation for which
the NEPA process and a conformity determination have been completed by
DOT may proceed toward implementation without further conformity
determinations unless more than three years have elapsed since the most
recent major step (NEPA process completion; start of final design;
acquisition of a significant portion of the right-of-way; or approval
of the plans, specifications and estimates) occurred. All phases of
such projects which were considered in the conformity determination are
also included, if those phases were for the purpose of funding, final
design, right-of-way acquisition, construction, or any combination of
these phases.
(2) A new conformity determination for the project will be required
if there is a significant change in project design concept and scope,
if a supplemental environmental document for air quality purposes is
initiated, or if three years have elapsed since the most recent major
step to advance the project occurred.
(d) Grace period for new nonattainment areas. For areas or portions
of areas which have been designated attainment for either ozone, CO,
PM10 or NO2 since 1990 and are subsequently redesignated to
nonattainment for any of these pollutants, the provisions of this
subpart shall not apply for 12 months following the date of final
designation to nonattainment for such pollutant.
Sec. 93.103 Priority.
When assisting or approving any action with air quality-related
consequences, FHWA and FTA shall give priority to the implementation of
those transportation portions of an applicable implementation plan
prepared to attain and maintain the NAAQS. This priority shall be
consistent with statutory requirements for allocation of funds among
States or other jurisdictions.
Sec. 93.104 Frequency of conformity determinations.
(a) Conformity determinations and conformity redeterminations for
transportation plans, TIPs, and FHWA/FTA projects must be made
according to the requirements of this section and the applicable
implementation plan.
(b) Frequency of conformity determinations for transportation
plans.
(1) Each new transportation plan must be demonstrated to conform
before the transportation plan is approved by the MPO or accepted by
DOT.
(2) All transportation plan revisions must be found to conform
before the transportation plan revisions are approved by the MPO or
accepted by DOT, unless the revision merely adds or deletes exempt
projects listed in Sec. 93.126 or Sec. 93.127. The conformity
determination must be based on the transportation plan and the revision
taken as a whole.
(3) The MPO and DOT must determine the conformity of the
transportation plan no less frequently than every three years. If more
than three years elapse after DOT's conformity determination without
the MPO and DOT determining conformity of the transportation plan, the
existing conformity determination will lapse.
(c) Frequency of conformity determinations for transportation
improvement programs.
(1) A new TIP must be demonstrated to conform before the TIP is
approved by the MPO or accepted by DOT.
(2) A TIP amendment requires a new conformity determination for the
entire TIP before the amendment is approved by the MPO or accepted by
DOT, unless the amendment merely adds or deletes exempt projects listed
in Sec. 93.126 or Sec. 93.127.
(3) The MPO and DOT must determine the conformity of the TIP no
less frequently than every three years. If more than three years elapse
after DOT's conformity determination without the MPO and DOT
determining conformity of the TIP, the existing conformity
determination will lapse.
(4) After an MPO adopts a new or revised transportation plan,
conformity of the TIP must be redetermined by the MPO and DOT within
six months from the date of DOT's conformity determination for the
transportation plan, unless the new or revised plan merely adds or
deletes exempt projects listed in Secs. 93.126 and 93.127. Otherwise,
the existing conformity determination for the TIP will lapse.
(d) Projects. FHWA/FTA projects must be found to conform before
they are adopted, accepted, approved, or funded. Conformity must be
redetermined for any FHWA/FTA project if three years have elapsed since
the most recent major step to advance the project (NEPA process
completion; start of final design; acquisition of a significant portion
of the right-of-way; or approval of the plans, specifications and
estimates) occurred.
(e) Triggers for transportation plan and TIP conformity
determinations. Conformity of existing transportation plans and TIPs
must be redetermined within 18 months of the following, or the existing
conformity determination will lapse, and no new project-level
conformity determinations may be made
[[Page 36138]]
until conformity of the transportation plan and TIP has been determined
by the MPO and DOT:
(1) November 24, 1993;
(2) The date of the State's initial submission to EPA of each
control strategy implementation plan or maintenance plan establishing a
motor vehicle emissions budget;
(3) EPA approval of a control strategy implementation plan revision
or maintenance plan which establishes or revises a motor vehicle
emissions budget;
(4) EPA approval of an implementation plan revision that adds,
deletes, or changes TCMs; and
(5) EPA promulgation of an implementation plan which establishes or
revises a motor vehicle emissions budget or adds, deletes, or changes
TCMs.
Sec. 93.105 Consultation.
(a) General. The implementation plan revision required under
Sec. 51.390 of this chapter shall include procedures for interagency
consultation (Federal, State, and local) and resolution of conflicts.
(1) The implementation plan revision shall include procedures to be
undertaken by MPOs, State departments of transportation, and DOT with
State and local air quality agencies and EPA before making conformity
determinations, and by State and local air agencies and EPA with MPOs,
State departments of transportation, and DOT in developing applicable
implementation plans.
(2) Before EPA approves the conformity implementation plan revision
required by Sec. 51.390 of this chapter, MPOs and State departments of
transportation must provide reasonable opportunity for consultation
with State air agencies, local air quality and transportation agencies,
DOT, and EPA, including consultation on the issues described in
paragraph (c)(1) of this section, before making conformity
determinations.
(b) Interagency consultation procedures: General factors. (1)
States shall provide well-defined consultation procedures in the
implementation plan whereby representatives of the MPOs, State and
local air quality planning agencies, State and local transportation
agencies, and other organizations with responsibilities for developing,
submitting, or implementing provisions of an implementation plan
required by the CAA must consult with each other and with local or
regional offices of EPA, FHWA, and FTA on the development of the
implementation plan, the transportation plan, the TIP, and associated
conformity determinations.
(2) Interagency consultation procedures shall include at a minimum
the general factors listed below and the specific processes in
paragraph (c) of this section:
(i) The roles and responsibilities assigned to each agency at each
stage in the implementation plan development process and the
transportation planning process, including technical meetings;
(ii) The organizational level of regular consultation;
(iii) A process for circulating (or providing ready access to)
draft documents and supporting materials for comment before formal
adoption or publication;
(iv) The frequency of, or process for convening, consultation
meetings and responsibilities for establishing meeting agendas;
(v) A process for responding to the significant comments of
involved agencies; and
(vi) A process for the development of a list of the TCMs which are
in the applicable implementation plan.
(c) Interagency consultation procedures: Specific processes.
Interagency consultation procedures shall also include the following
specific processes:
(1) A process involving the MPO, State and local air quality
planning agencies, State and local transportation agencies, EPA, and
DOT for the following:
(i) Evaluating and choosing a model (or models) and associated
methods and assumptions to be used in hot-spot analyses and regional
emissions analyses;
(ii) Determining which minor arterials and other transportation
projects should be considered ``regionally significant'' for the
purposes of regional emissions analysis (in addition to those
functionally classified as principal arterial or higher or fixed
guideway systems or extensions that offer an alternative to regional
highway travel), and which projects should be considered to have a
significant change in design concept and scope from the transportation
plan or TIP;
(iii) Evaluating whether projects otherwise exempted from meeting
the requirements of this subpart (see Secs. 93.126 and 93.127) should
be treated as non-exempt in cases where potential adverse emissions
impacts may exist for any reason;
(iv) Making a determination, as required by Sec. 93.113(c)(1),
whether past obstacles to implementation of TCMs which are behind the
schedule established in the applicable implementation plan have been
identified and are being overcome, and whether State and local agencies
with influence over approvals or funding for TCMs are giving maximum
priority to approval or funding for TCMs. This process shall also
consider whether delays in TCM implementation necessitate revisions to
the applicable implementation plan to remove TCMs or substitute TCMs or
other emission reduction measures;
(v) Identifying, as required by Sec. 93.123(d), projects located at
sites in PM10 nonattainment areas which have vehicle and roadway
emission and dispersion characteristics which are essentially identical
to those at sites which have violations verified by monitoring, and
therefore require quantitative PM10 hot-spot analysis; and
(vi) Notification of transportation plan or TIP revisions or
amendments which merely add or delete exempt projects listed in
Sec. 93.126.
(2) A process involving the MPO and State and local air quality
planning agencies and transportation agencies for the following:
(i) Evaluating events which will trigger new conformity
determinations in addition to those triggering events established in
Sec. 93.104; and
(ii) Consulting on emissions analysis for transportation activities
which cross the borders of MPOs or nonattainment areas or air basins.
(3) Where the metropolitan planning area does not include the
entire nonattainment or maintenance area, a process involving the MPO
and the State department of transportation for cooperative planning and
analysis for purposes of determining conformity of all projects outside
the metropolitan area and within the nonattainment or maintenance area.
(4) A process to ensure that plans for construction of regionally
significant projects which are not FHWA/FTA projects (including
projects for which alternative locations, design concept and scope, or
the no-build option are still being considered), including those by
recipients of funds designated under title 23 U.S.C. or the Federal
Transit Laws, are disclosed to the MPO on a regular basis, and to
ensure that any changes to those plans are immediately disclosed;
(5) A process involving the MPO and other recipients of funds
designated under title 23 U.S.C. or the Federal Transit Laws for
assuming the location and design concept and scope of projects which
are disclosed to the MPO as required by paragraph (c)(4) of this
section but whose sponsors have not yet decided these features, in
sufficient
[[Page 36139]]
detail to perform the regional emissions analysis according to the
requirements of Sec. 93.122.
(6) A process for consulting on the design, schedule, and funding
of research and data collection efforts and regional transportation
model development by the MPO (e.g., household/travel transportation
surveys).
(7) A process for providing final documents (including applicable
implementation plans and implementation plan revisions) and supporting
information to each agency after approval or adoption. This process is
applicable to all agencies described in paragraph (a)(1) of this
section, including Federal agencies.
(d) Resolving conflicts. Conflicts among State agencies or between
State agencies and an MPO shall be escalated to the Governor if they
cannot be resolved by the heads of the involved agencies. The State air
agency has 14 calendar days to appeal to the Governor after the State
DOT or MPO has notified the State air agency head of the resolution of
his or her comments. The implementation plan revision required by
Sec. 51.390 of this chapter shall define the procedures for starting
the 14-day clock. If the State air agency appeals to the Governor, the
final conformity determination must have the concurrence of the
Governor. If the State air agency does not appeal to the Governor
within 14 days, the MPO or State department of transportation may
proceed with the final conformity determination. The Governor may
delegate his or her role in this process, but not to the head or staff
of the State or local air agency, State department of transportation,
State transportation commission or board, or an MPO.
(e) Public consultation procedures. Affected agencies making
conformity determinations on transportation plans, programs, and
projects shall establish a proactive public involvement process which
provides opportunity for public review and comment by, at a minimum,
providing reasonable public access to technical and policy information
considered by the agency at the beginning of the public comment period
and prior to taking formal action on a conformity determination for all
transportation plans and TIPs, consistent with these requirements and
those of 23 CFR 450.316(b). Any charges imposed for public inspection
and copying should be consistent with the fee schedule contained in 49
CFR 7.95. In addition, these agencies must specifically address in
writing all public comments that known plans for a regionally
significant project which is not receiving FHWA or FTA funding or
approval have not been properly reflected in the emissions analysis
supporting a proposed conformity finding for a transportation plan or
TIP. These agencies shall also provide opportunity for public
involvement in conformity determinations for projects where otherwise
required by law.
Sec. 93.106 Content of transportation plans.
(a) Transportation plans adopted after January 1, 1997 in serious,
severe, or extreme ozone nonattainment areas and in serious CO
nonattainment areas. If the metropolitan planning area contains an
urbanized area population greater than 200,000, the transportation plan
must specifically describe the transportation system envisioned for
certain future years which shall be called horizon years.
(1) The agency or organization developing the transportation plan
may choose any years to be horizon years, subject to the following
restrictions:
(i) Horizon years may be no more than 10 years apart.
(ii) The first horizon year may be no more than 10 years from the
base year used to validate the transportation demand planning model.
(iii) If the attainment year is in the time span of the
transportation plan, the attainment year must be a horizon year.
(iv) The last horizon year must be the last year of the
transportation plan's forecast period.
(2) For these horizon years:
(i) The transportation plan shall quantify and document the
demographic and employment factors influencing expected transportation
demand, including land use forecasts, in accordance with implementation
plan provisions and the consultation requirements specified by
Sec. 93.105;
(ii) The highway and transit system shall be described in terms of
the regionally significant additions or modifications to the existing
transportation network which the transportation plan envisions to be
operational in the horizon years. Additions and modifications to the
highway network shall be sufficiently identified to indicate
intersections with existing regionally significant facilities, and to
determine their effect on route options between transportation analysis
zones. Each added or modified highway segment shall also be
sufficiently identified in terms of its design concept and design scope
to allow modeling of travel times under various traffic volumes,
consistent with the modeling methods for area-wide transportation
analysis in use by the MPO. Transit facilities, equipment, and services
envisioned for the future shall be identified in terms of design
concept, design scope, and operating policies that are sufficient for
modeling of their transit ridership. Additions and modifications to the
transportation network shall be described sufficiently to show that
there is a reasonable relationship between expected land use and the
envisioned transportation system; and
(iii) Other future transportation policies, requirements, services,
and activities, including intermodal activities, shall be described.
(b) Moderate areas reclassified to serious Ozone or CO
nonattainment areas which are reclassified from moderate to serious
must meet the requirements of paragraph (a) of this section within two
years from the date of reclassification.
(c) Transportation plans for other areas Transportation plans for
other areas must meet the requirements of paragraph (a) of this section
at least to the extent it has been the previous practice of the MPO to
prepare plans which meet those requirements. Otherwise, the
transportation system envisioned for the future must be sufficiently
described within the transportation plans so that a conformity
determination can be made according to the criteria and procedures of
Secs. 93.109--93.119.
(d) Savings The requirements of this section supplement other
requirements of applicable law or regulation governing the format or
content of transportation plans.
Sec. 93.107 Relationship of transportation plan and TIP conformity
with the NEPA process.
The degree of specificity required in the transportation plan and
the specific travel network assumed for air quality modeling do not
preclude the consideration of alternatives in the NEPA process or other
project development studies. Should the NEPA process result in a
project with design concept and scope significantly different from that
in the transportation plan or TIP, the project must meet the criteria
in Secs. 93.109--93.119 for projects not from a TIP before NEPA process
completion.
Sec. 93.108 Fiscal constraints for transportation plans and TIPs.
Transportation plans and TIPs must be fiscally constrained
consistent with DOT's metropolitan planning regulations at 23 CFR part
450 in order to be found in conformity.
[[Page 36140]]
Sec. 93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
(a) In order for each transportation plan, program, and FHWA/FTA
project to be found to conform, the MPO and DOT must demonstrate that
the applicable criteria and procedures in this subpart are satisfied,
and the MPO and DOT must comply with all applicable conformity
requirements of implementation plans and of court orders for the area
which pertain specifically to conformity. The criteria for making
conformity determinations differ based on the action under review
(transportation plans, TIPs, and FHWA/FTA projects), the relevant
pollutant(s), and the status of the implementation plan.
(b) The following table indicates the criteria and procedures in
Secs. 93.110-93.119 which apply for transportation plans, TIPs, and
FHWA/FTA projects. Paragraphs (c) through (f) of this section explain
when the budget, emission reduction, and hot spot tests are required
for each pollutant. Paragraph (g) of this section addresses isolated
rural nonattainment and maintenance areas.
Table 1.--Conformity Criteria
All Actions at All Times
------------------------------------------------------------------------
Sec. 93.110....... Latest planning
assumptions.
Sec. 93.111....... Latest emissions model.
Sec. 93.112....... Consultation.
------------------------------------------------------------------------
Transportation Plan
------------------------------------------------------------------------
Sec. 93.113(b).... TCMs.
Sec. 93.118 OR Emissions budget OR
Sec. 93.119. Emission reduction.
------------------------------------------------------------------------
TIP
------------------------------------------------------------------------
Sec. 93.113(c).... TCMs.
Sec. 93.118 OR Emissions budget OR
Sec. 93.119. Emission reduction.
------------------------------------------------------------------------
Project (From a Conforming Plan and TIP)
------------------------------------------------------------------------
Sec. 93.114....... Currently conforming plan
and TIP.
Sec. 93.115....... Project from a conforming
plan and TIP.
Sec. 93.116....... CO and PM10 hot spots.
Sec. 93.117....... PM10 control measures.
------------------------------------------------------------------------
Project (Not From a Conforming Plan and TIP)
------------------------------------------------------------------------
Sec. 93.113(d).... TCMs.
Sec. 93.114....... Currently conforming plan
and TIP.
Sec. 93.116....... CO and PM10 hot spots.
Sec. 93.117....... PM10 control measures.
Sec. 93.118 OR Emissions budget OR
Sec. 93.119. Emission reduction.
(c) Ozone nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 that are required to be satisfied at all
times, in ozone nonattainment and maintenance areas conformity
determinations must include a demonstration that the budget and/or
emission reduction tests are satisfied as described in the following
paragraphs.
(1) In ozone areas the budget test must be satisfied as required by
Sec. 93.118 for conformity determinations made:
(i) 45 days after a control strategy implementation plan revision
or maintenance plan has been submitted to EPA, unless EPA has declared
the motor vehicle emissions budget inadequate for transportation
conformity purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(2) In moderate and above ozone nonattainment areas the emission
reduction tests must be satisfied as required by Sec. 93.119 for
conformity determinations made:
(i) During the first 45 days after a control strategy
implementation plan revision or maintenance plan has been submitted to
EPA, unless EPA has declared a motor vehicle emissions budget adequate
for transportation conformity purposes; or
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
SIP or a previously submitted control strategy implementation plan
revision or maintenance plan.
(3) An ozone nonattainment area must satisfy the emission reduction
test for NOX, as required by Sec. 93.119, if the implementation
plan or plan submission that is applicable for the purposes of
conformity determinations is a 15% SIP or Phase I attainment
demonstration that does not include a motor vehicle emissions budget
for NOX. The implementation plan will be considered to establish a
motor vehicle emissions budget for NOX if the implementation plan
or plan submission contains an explicit NOX motor vehicle
emissions budget that is intended to act as a ceiling on future
NOX emissions, and the NOX motor vehicle emissions budget is
a net reduction from NOX emissions levels in 1990.
(4) Marginal and below ozone nonattainment areas that have three
consecutive years of clean data and that have not submitted a
maintenance plan must satisfy one of the following requirements:
(i) The emission reduction tests as required by Sec. 93.119;
(ii) The State air quality agency shall determine (subject to the
interagency consultation process required by Sec. 93.105) the motor
vehicle emissions of ozone precursors in the most recent year of clean
data. The budget test required by Sec. 93.118 must be satisfied, with
these motor vehicle emission levels serving as the motor vehicle
emissions budget; or
(iii) The State shall submit to EPA an implementation plan revision
that contains motor vehicle emissions budget(s) and an attainment or
maintenance demonstration, and the budget test required by Sec. 93.118
must be satisfied using the submitted motor vehicle emissions budget(s)
(as described in paragraph (c)(1) of this section).
(5) Marginal and below ozone nonattainment areas that do not have
three consecutive years of clean data must satisfy one of the following
requirements:
(i) The emission reduction tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
that contains motor vehicle emissions budget(s) and an attainment
demonstration, and the budget test required by Sec. 93.118 must be
satisfied using the submitted motor vehicle emissions budget(s) (as
described in paragraph (c)(1) of this section).
(6) Notwithstanding paragraphs (c)(1) and (c)(2) of this section,
moderate and above ozone nonattainment areas with three years of clean
data that have not submitted a maintenance plan and that EPA has
determined are not subject to the Clean Air Act reasonable further
progress and attainment demonstration requirements must satisfy one of
the following requirements:
(i) The emission reduction tests as required by Sec. 93.119;
(ii) The budget test as required by Sec. 93.118, using the motor
vehicle emissions budgets in the submitted control strategy
implementation plan (subject to the timing requirements of paragraph
(c)(1) of this section); or
(iii) The State air quality agency shall determine (subject to the
interagency consultation process required by
[[Page 36141]]
Sec. 93.105) the motor vehicle emissions of ozone precursors in the
most recent year of clean data. The budget test required by Sec. 93.118
must be satisfied, with these motor vehicle emission levels serving as
the motor vehicle emissions budget.
(d) CO nonattainment and maintenance areas. In addition to the
criteria listed in Table 1 that are required to be satisfied at all
times, in CO nonattainment and maintenance areas conformity
determinations must include a demonstration that the hot spot, budget
and/or emission reduction tests are satisfied as described in the
following paragraphs.
(1) FHWA/FTA projects in CO nonattainment or maintenance areas must
satisfy the hot spot test required by Sec. 93.116 at all times. Until a
CO attainment demonstration or maintenance plan is approved by EPA,
FHWA/FTA projects must also satisfy the hot spot test required by
Sec. 93.116(b).
(2) In CO areas the budget test must be satisfied as required by
Sec. 93.118 for conformity determinations made:
(i) 45 days after a control strategy implementation plan revision
or maintenance plan has been submitted to EPA, unless EPA has declared
the motor vehicle emissions budget inadequate for transportation
conformity purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(3) In moderate CO nonattainment areas with a design value greater
than 12.7 ppm and serious CO nonattainment areas the emission reduction
tests must be satisfied as required by Sec. 93.119 for conformity
determinations made:
(i) During the first 45 days after a control strategy
implementation plan revision or maintenance plan has been submitted to
EPA, unless EPA has declared a motor vehicle emissions budget adequate
for transportation conformity purposes; or
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
SIP or a previously submitted control strategy implementation plan
revision or maintenance plan.
(4) If a moderate CO nonattainment area with a design value of 12.7
ppm or less or a not classified CO nonattainment area has two
consecutive years of clean data and has not submitted a maintenance
plan, one of the following requirements must be satisfied:
(i) The emission reduction tests as required by Sec. 93.119;
(ii) The State air quality agency shall determine (subject to the
interagency consultation process required by Sec. 93.105) the motor
vehicle emissions of CO in the most recent year of clean data. The
budget test required by Sec. 93.118 must be satisfied, with these motor
vehicle emission levels serving as the motor vehicle emissions budget;
or
(iii) The State shall submit to EPA an implementation plan revision
that contains motor vehicle emissions budget(s) and an attainment or
maintenance demonstration, and the budget test required by Sec. 93.118
must be satisfied using the submitted motor vehicle emissions budget(s)
(as described in paragraph (d)(1) of this section).
(5) If a moderate CO nonattainment area with a design value of 12.7
ppm or less or a not classified CO nonattainment area does not have two
consecutive years of clean data, one of the following requirements must
be satisfied:
(i) The emission reduction tests required by Sec. 93.119; or
(ii) The State shall submit to EPA an implementation plan revision
that contains motor vehicle emissions budget(s) and an attainment
demonstration, and the budget test required by Sec. 93.118 must be
satisfied using the submitted motor vehicle emissions budget(s) (as
described in paragraph (d)(1) of this section).
(e) PM10 nonattainment and maintenance areas. In addition to
the criteria listed in Table 1 that are required to be satisfied at all
times, in PM10 nonattainment and maintenance areas conformity
determinations must include a demonstration that the hot spot, budget
and/or emission reduction tests are satisfied as described in the
following paragraphs.
(1) FHWA/FTA projects in PM10 nonattainment or maintenance
areas must satisfy the hot spot test required by Sec. 93.116.
(2) In PM10 areas the budget test must be satisfied as
required by Sec. 93.118 for conformity determinations made:
(i) 45 days after a control strategy implementation plan revision
or maintenance plan has been submitted to EPA, unless EPA has declared
the motor vehicle emissions budget inadequate for transportation
conformity purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(3) In PM10 nonattainment areas the emission reduction tests
must be satisfied as required by Sec. 93.119 for conformity
determinations made:
(i) During the first 45 days after a control strategy
implementation plan revision or maintenance plan has been submitted to
EPA, unless EPA has declared a motor vehicle emissions budget adequate
for transportation conformity purposes;
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
SIP or a previously submitted control strategy implementation plan
revision or maintenance plan; or
(iii) The submitted implementation plan revision is a demonstration
of impracticability under CAA section 189(a)(1)(B)(ii) and does not
demonstrate attainment.
(f) NO2 nonattainment and maintenance areas. In addition to
the criteria listed in Table 1 that are required to be satisfied at all
times, in NO2 nonattainment and maintenance areas conformity
determinations must include a demonstration that the budget and/or
emission reduction tests are satisfied as described in the following
paragraphs.
(1) In NO2 areas the budget test must be satisfied as required
by Sec. 93.118 for conformity determinations made:
(i) 45 days after a control strategy implementation plan revision
or maintenance plan has been submitted to EPA, unless EPA has declared
the motor vehicle emissions budget inadequate for transportation
conformity purposes; or
(ii) After EPA has declared that the motor vehicle emissions budget
in a submitted control strategy implementation plan revision or
maintenance plan is adequate for transportation conformity purposes.
(2) In NO2 areas the emission reduction tests must be
satisfied as required by Sec. 93.119 for conformity determinations
made:
(i) During the first 45 days after a control strategy
implementation plan revision or maintenance plan has been submitted to
EPA, unless EPA has declared a motor vehicle emissions budget adequate
for transportation conformity purposes; or
(ii) If EPA has declared the motor vehicle emissions budget in a
submitted control strategy implementation plan revision or maintenance
plan
[[Page 36142]]
inadequate for transportation conformity purposes, and there is no
previously established motor vehicle emissions budget in the approved
SIP or a previously submitted control strategy implementation plan
revision or maintenance plan.
(g) Isolated rural nonattainment and maintenance areas. This
paragraph applies to any nonattainment or maintenance area (or portion
thereof) which does not have a metropolitan transportation plan or TIP
and whose projects are not part of the emissions analysis of any MPO's
metropolitan transportation plan or TIP. This paragraph does not apply
to ``donut'' areas which are outside the metropolitan planning boundary
and inside the nonattainment/maintenance area boundary.
(1) FHWA/FTA projects in all isolated rural nonattainment and
maintenance areas must satisfy the requirements of Secs. 93.110,
93.111, 93.112, 93.113(d), 93.116, and 93.117. Until EPA approves the
control strategy implementation plan or maintenance plan for a rural CO
nonattainment or maintenance area, FHWA/FTA projects must also satisfy
the requirements of Sec. 93.116(b) (``Localized CO and PM10
violations (hot spots)'').
(2) Isolated rural nonattainment and maintenance areas are subject
to the budget and/or emission reduction tests as described in
paragraphs (c)-(f) of this section, with the following modifications:
(i) When the requirements of Secs. 93.118 and 93.119 apply to
isolated rural nonattainment and maintenance areas, references to
``transportation plan'' or ``TIP'' should be taken to mean those
projects in the statewide transportation plan or statewide TIP which
are in the rural nonattainment or maintenance area.
(ii) In isolated rural nonattainment and maintenance areas that are
subject to Sec. 93.118, FHWA/FTA projects must be consistent with motor
vehicle emissions budget(s) for the years in the timeframe of the
attainment demonstration or maintenance plan. For years after the
attainment year (if a maintenance plan has not been submitted) or after
the last year of the maintenance plan, FHWA/FTA projects must satisfy
one of the following requirements:
(A) Sec. 93.118;
(B) Sec. 93.119 (Emission reductions in areas without motor vehicle
emissions budgets); or
(C) Air quality dispersion modeling must demonstrate that the FHWA/
FTA project, in combination with all other regionally significant
projects expected in the area in the timeframe of the statewide
transportation plan, will not cause or contribute to any new violation
of any standard in any areas; increase the frequency or severity of any
existing violation of any standard in any area; or delay timely
attainment of any standard or any required interim emission reductions
or other milestones in any area. Control measures assumed in the
analysis must be enforceable.
(iii) The choice of requirements in paragraph (g)(2)(ii) of this
section and the methodology used to meet the requirements of paragraph
(g)(2)(ii)(C) of this section must be determined through the
interagency consultation process required in Sec. 93.105 through which
the relevant recipients of title 23 U.S.C. or Federal Transit Laws
funds, the local air quality agency, the State air quality agency, and
the State DOT should reach consensus about the option and methodology
selected. EPA and DOT must be consulted through this process as well.
In the event of unresolved disputes, conflicts may be escalated to the
Governor consistent with the procedure in Sec. 93.105(d), which applies
for any State air agency comments on a conformity determination.
Sec. 93.110 Criteria and procedures: Latest planning assumptions.
(a) The conformity determination, with respect to all other
applicable criteria in Secs. 93.111-93.119, must be based upon the most
recent planning assumptions in force at the time of the conformity
determination. The conformity determination must satisfy the
requirements of paragraphs (b) through (f) of this section.
(b) Assumptions must be derived from the estimates of current and
future population, employment, travel, and congestion most recently
developed by the MPO or other agency authorized to make such estimates
and approved by the MPO. The conformity determination must also be
based on the latest assumptions about current and future background
concentrations.
(c) The conformity determination for each transportation plan and
TIP must discuss how transit operating policies (including fares and
service levels) and assumed transit ridership have changed since the
previous conformity determination.
(d) The conformity determination must include reasonable
assumptions about transit service and increases in transit fares and
road and bridge tolls over time.
(e) The conformity determination must use the latest existing
information regarding the effectiveness of the TCMs and other
implementation plan measures which have already been implemented.
(f) Key assumptions shall be specified and included in the draft
documents and supporting materials used for the interagency and public
consultation required by Sec. 93.105.
Sec. 93.111 Criteria and procedures: Latest emissions model.
(a) The conformity determination must be based on the latest
emission estimation model available. This criterion is satisfied if the
most current version of the motor vehicle emissions model specified by
EPA for use in the preparation or revision of implementation plans in
that State or area is used for the conformity analysis. Where EMFAC is
the motor vehicle emissions model used in preparing or revising the
applicable implementation plan, new versions must be approved by EPA
before they are used in the conformity analysis.
(b) EPA will consult with DOT to establish a grace period following
the specification of any new model.
(1) The grace period will be no less than three months and no more
than 24 months after notice of availability is published in the Federal
Register.
(2) The length of the grace period will depend on the degree of
change in the model and the scope of re-planning likely to be necessary
by MPOs in order to assure conformity. If the grace period will be
longer than three months, EPA will announce the appropriate grace
period in the Federal Register.
(c) Transportation plan and TIP conformity analyses for which the
emissions analysis was begun during the grace period or before the
Federal Register notice of availability of the latest emission model
may continue to use the previous version of the model. Conformity
determinations for projects may also be based on the previous model if
the analysis was begun during the grace period or before the Federal
Register notice of availability, and if the final environmental
document for the project is issued no more than three years after the
issuance of the draft environmental document.
Sec. 93.112 Criteria and procedures: Consultation.
Conformity must be determined according to the consultation
procedures in this rule and in the applicable implementation plan, and
according to the public involvement procedures established in
compliance with 23 CFR part 450. Until the implementation plan revision
required by Sec. 51.390 of this chapter is fully approved by EPA, the
conformity
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determination must be made according to Sec. 93.105(a)(2) and
Sec. 93.105(e) and the requirements of 23 CFR part 450.
Sec. 93.113 Criteria and procedures: Timely implementation of TCMs.
(a) The transportation plan, TIP, or any FHWA/FTA project which is
not from a conforming plan and TIP must provide for the timely
implementation of TCMs from the applicable implementation plan.
(b) For transportation plans, this criterion is satisfied if the
following two conditions are met:
(1) The transportation plan, in describing the envisioned future
transportation system, provides for the timely completion or
implementation of all TCMs in the applicable implementation plan which
are eligible for funding under title 23 U.S.C. or the Federal Transit
Laws, consistent with schedules included in the applicable
implementation plan.
(2) Nothing in the transportation plan interferes with the
implementation of any TCM in the applicable implementation plan.
(c) For TIPs, this criterion is satisfied if the following
conditions are met:
(1) An examination of the specific steps and funding source(s)
needed to fully implement each TCM indicates that TCMs which are
eligible for funding under title 23 U.S.C. or the Federal Transit Laws
are on or ahead of the schedule established in the applicable
implementation plan, or, if such TCMs are behind the schedule
established in the applicable implementation plan, the MPO and DOT have
determined that past obstacles to implementation of the TCMs have been
identified and have been or are being overcome, and that all State and
local agencies with influence over approvals or funding for TCMs are
giving maximum priority to approval or funding of TCMs over other
projects within their control, including projects in locations outside
the nonattainment or maintenance area.
(2) If TCMs in the applicable implementation plan have previously
been programmed for Federal funding but the funds have not been
obligated and the TCMs are behind the schedule in the implementation
plan, then the TIP cannot be found to conform if the funds intended for
those TCMs are reallocated to projects in the TIP other than TCMs, or
if there are no other TCMs in the TIP, if the funds are reallocated to
projects in the TIP other than projects which are eligible for Federal
funding intended for air quality improvement projects, e.g., the
Congestion Mitigation and Air Quality Improvement Program.
(3) Nothing in the TIP may interfere with the implementation of any
TCM in the applicable implementation plan.
(d) For FHWA/FTA projects which are not from a conforming
transportation plan and TIP, this criterion is satisfied if the project
does not interfere with the implementation of any TCM in the applicable
implementation plan.
Sec. 93.114 Criteria and procedures: Currently conforming
transportation plan and TIP.
There must be a currently conforming transportation plan and
currently conforming TIP at the time of project approval.
(a) Only one conforming transportation plan or TIP may exist in an
area at any time; conformity determinations of a previous
transportation plan or TIP expire once the current plan or TIP is found
to conform by DOT. The conformity determination on a transportation
plan or TIP will also lapse if conformity is not determined according
to the frequency requirements specified in Sec. 93.104.
(b) This criterion is not required to be satisfied at the time of
project approval for a TCM specifically included in the applicable
implementation plan, provided that all other relevant criteria of this
subpart are satisfied.
Sec. 93.115 Criteria and procedures: Projects from a plan and TIP.
(a) The project must come from a conforming plan and program. If
this criterion is not satisfied, the project must satisfy all criteria
in Table 1 for a project not from a conforming transportation plan and
TIP. A project is considered to be from a conforming transportation
plan if it meets the requirements of paragraph (b) of this section and
from a conforming program if it meets the requirements of paragraph (c)
of this section. Special provisions for TCMs in an applicable
implementation plan are provided in paragraph (d) of this section.
(b) A project is considered to be from a conforming transportation
plan if one of the following conditions applies:
(1) For projects which are required to be identified in the
transportation plan in order to satisfy Sec. 93.106 (``Content of
transportation plans''), the project is specifically included in the
conforming transportation plan and the project's design concept and
scope have not changed significantly from those which were described in
the transportation plan, or in a manner which would significantly
impact use of the facility; or
(2) For projects which are not required to be specifically
identified in the transportation plan, the project is identified in the
conforming transportation plan, or is consistent with the policies and
purpose of the transportation plan and will not interfere with other
projects specifically included in the transportation plan.
(c) A project is considered to be from a conforming program if the
following conditions are met:
(1) The project is included in the conforming TIP and the design
concept and scope of the project were adequate at the time of the TIP
conformity determination to determine its contribution to the TIP's
regional emissions, and the project design concept and scope have not
changed significantly from those which were described in the TIP; and
(2) If the TIP describes a project design concept and scope which
includes project-level emissions mitigation or control measures,
written commitments to implement such measures must be obtained from
the project sponsor and/or operator as required by Sec. 93.125(a) in
order for the project to be considered from a conforming program. Any
change in these mitigation or control measures that would significantly
reduce their effectiveness constitutes a change in the design concept
and scope of the project.
(d) TCMs. This criterion is not required to be satisfied for TCMs
specifically included in an applicable implementation plan.
Sec. 93.116 Criteria and procedures: Localized CO and PM10
violations (hot spots).
(a) This paragraph applies at all times. The FHWA/FTA project must
not cause or contribute to any new localized CO or PM10 violations
or increase the frequency or severity of any existing CO or PM10
violations in CO and PM10 nonattainment and maintenance areas.
This criterion is satisfied if it is demonstrated that no new local
violations will be created and the severity or number of existing
violations will not be increased as a result of the project. The
demonstration must be performed according to the consultation
requirements of Sec. 93.105(c)(1)(i) and the methodology requirements
of Sec. 93.123.
(b) This paragraph applies for CO nonattainment areas as described
in Sec. 93.109(d)(1). Each FHWA/FTA project must eliminate or reduce
the severity and number of localized CO violations in the area
substantially affected by the project (in CO nonattainment areas).
[[Page 36144]]
This criterion is satisfied with respect to existing localized CO
violations if it is demonstrated that existing localized CO violations
will be eliminated or reduced in severity and number as a result of the
project. The demonstration must be performed according to the
consultation requirements of Sec. 93.105(c)(1)(i) and the methodology
requirements of Sec. 93.123.
Sec. 93.117 Criteria and procedures: Compliance with PM10 control
measures.
The FHWA/FTA project must comply with PM10 control measures in
the applicable implementation plan. This criterion is satisfied if the
project-level conformity determination contains a written commitment
from the project sponsor to include in the final plans, specifications,
and estimates for the project those control measures (for the purpose
of limiting PM10 emissions from the construction activities and/or
normal use and operation associated with the project) that are
contained in the applicable implementation plan.
Sec. 93.118 Criteria and procedures: Motor vehicle emissions budget.
(a) The transportation plan, TIP, and project not from a conforming
transportation plan and TIP must be consistent with the motor vehicle
emissions budget(s) in the applicable implementation plan (or
implementation plan submission). This criterion applies as described in
Sec. 93.109 (c)-(g). This criterion is satisfied if it is demonstrated
that emissions of the pollutants or pollutant precursors described in
paragraph (c) of this section are less than or equal to the motor
vehicle emissions budget(s) established in the applicable
implementation plan or implementation plan submission.
(b) Consistency with the motor vehicle emissions budget(s) must be
demonstrated for each year for which the applicable (and/or submitted)
implementation plan specifically establishes motor vehicle emissions
budget(s), for the last year of the transportation plan's forecast
period, and for any intermediate years as necessary so that the years
for which consistency is demonstrated are no more than ten years apart,
as follows:
(1) Until a maintenance plan is submitted:
(i) Emissions in each year (such as milestone years and the
attainment year) for which the control strategy implementation plan
revision establishes motor vehicle emissions budget(s) must be less
than or equal to that year's motor vehicle emissions budget(s); and
(ii) Emissions in years for which no motor vehicle emissions
budget(s) are specifically established must be less than or equal to
the motor vehicle emissions budget(s) established for the most recent
prior year. For example, emissions in years after the attainment year
for which the SIP does not establish a budget must be less than or
equal to the motor vehicle emissions budget(s) for the attainment year.
(2) When a maintenance plan has been submitted:
(i) Emissions must be less than or equal to the motor vehicle
emissions budget(s) established for the last year of the maintenance
plan, and for any other years for which the maintenance plan
establishes motor vehicle emissions budgets. If the maintenance plan
does not establish motor vehicle emissions budgets for any years other
than the last year of the maintenance plan, the demonstration of
consistency with the motor vehicle emissions budget(s) must be
accompanied by a qualitative finding that there are no factors which
would cause or contribute to a new violation or exacerbate an existing
violation in the years before the last year of the maintenance plan.
The interagency consultation process required by Sec. 93.105 shall
determine what must be considered in order to make such a finding;
(ii) For years after the last year of the maintenance plan,
emissions must be less than or equal to the maintenance plan's motor
vehicle emissions budget(s) for the last year of the maintenance plan;
and
(iii) If an approved control strategy implementation plan has
established motor vehicle emissions budgets for years in the timeframe
of the transportation plan, emissions in these years must be less than
or equal to the control strategy implementation plan's motor vehicle
emissions budget(s) for these years.
(c) Consistency with the motor vehicle emissions budget(s) must be
demonstrated for each pollutant or pollutant precursor in
Sec. 93.102(b)(3) for which the area is in nonattainment or maintenance
and for which the applicable implementation plan (or implementation
plan submission) establishes a motor vehicle emissions budget.
(d) Consistency with the motor vehicle emissions budget(s) must be
demonstrated by including emissions from the entire transportation
system, including all regionally significant projects contained in the
transportation plan and all other regionally significant highway and
transit projects expected in the nonattainment or maintenance area in
the timeframe of the transportation plan.
(1) Consistency with the motor vehicle emissions budget(s) must be
demonstrated with a regional emissions analysis that meets the
requirements of Secs. 93.122 and 93.105(c)(1)(i).
(2) The regional emissions analysis may be performed for any years
in the timeframe of the transportation plan provided they are not more
than ten years apart and provided the analysis is performed for the
attainment year (if it is in the timeframe of the transportation plan)
and the last year of the plan's forecast period. Emissions in years for
which consistency with motor vehicle emissions budgets must be
demonstrated, as required in paragraph (b) of this section, may be
determined by interpolating between the years for which the regional
emissions analysis is performed.
(e) Motor vehicle emissions budgets in submitted control strategy
implementation plan revisions and submitted maintenance plans.
(1) Consistency with the motor vehicle emissions budgets in
submitted control strategy implementation plan revisions or maintenance
plans must be demonstrated if EPA has declared the motor vehicle
emissions budget(s) adequate for transportation conformity purposes, or
beginning 45 days after the control strategy implementation plan
revision or maintenance plan has been submitted (unless EPA has
declared the motor vehicle emissions budget(s) inadequate for
transportation conformity purposes). However, submitted implementation
plans do not supersede the motor vehicle emissions budgets in approved
implementation plans for the years addressed by the approved
implementation plan.
(2) If EPA has declared an implementation plan submission's motor
vehicle emissions budget(s) inadequate for transportation conformity
purposes, the inadequate budget(s) shall not be used to satisfy the
requirements of this section. Consistency with the previously
established motor vehicle emissions budget(s) must be demonstrated. If
there are no previous approved implementation plans or implementation
plan submissions with motor vehicle emissions budgets, the emission
reduction tests required by Sec. 93.119 must be satisfied.
(3) If EPA declares an implementation plan submission's motor
vehicle emissions budget(s) inadequate for transportation conformity
purposes more than 45 days after its submission to EPA, and conformity
of a transportation plan or TIP has already
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been determined by DOT using the budget(s), the conformity
determination will remain valid. Projects included in that
transportation plan or TIP could still satisfy Secs. 93.114 and 93.115,
which require a currently conforming transportation plan and TIP to be
in place at the time of a project's conformity determination and that
projects come from a conforming transportation plan and TIP.
(4) When the motor vehicle emissions budget(s) used to satisfy the
requirements of this section are established by an implementation plan
submittal that has not yet been approved or disapproved by EPA, the MPO
and DOT's conformity determination will be deemed to be a statement
that the MPO and DOT are not aware of any information that would
indicate that emissions consistent with the motor vehicle emissions
budget will cause or contribute to any new violation of any standard;
increase the frequency or severity of any existing violation of any
standard; or delay timely attainment of any standard or any required
interim emission reductions or other milestones.
Sec. 93.119 Criteria and procedures: Emission reductions in areas
without motor vehicle emissions budgets.
(a) The transportation plan, TIP, and project not from a conforming
transportation plan and TIP must contribute to emissions reductions.
This criterion applies as described in Sec. 93.109 (c)-(g). It applies
to the net effect of the action (transportation plan, TIP, or project
not from a conforming transportation plan and TIP) on motor vehicle
emissions from the entire transportation system.
(b) This criterion may be met in moderate and above ozone
nonattainment areas that are subject to the reasonable further progress
requirements of Clean Air Act section 182(b)(1) and in moderate with
design value greater than 12.7 ppm and serious CO nonattainment areas
if a regional emissions analysis that satisfies the requirements of
Sec. 93.12 2 and paragraphs (e) through (h) of this section
demonstrates that for each analysis year and for each of the pollutants
described in paragraph (d) of this section:
(1) The emissions predicted in the ``Action'' scenario are less
than the emissions predicted in the ``Baseline'' scenario, and this can
be reasonably expected to be true in the periods between the analysis
years; and
(2) The emissions predicted in the ``Action'' scenario are lower
than 1990 emissions by any nonzero amount.
(c) This criterion may be met in PM10 and NO2
nonattainment areas; marginal and below ozone nonattainment areas and
other ozone nonattainment areas that are not subject to the reasonable
further progress requirements of Clean Air Act section 182(b)(1), and
moderate with design value less than 12.7 ppm and below CO
nonattainment areas if a regional emissions analysis that satisfies the
requirements of Sec. 93.122 and paragraphs (e) through (h) of this
section demonstrates that for each analysis year and for each of the
pollutants described in paragraph (d) of this section, one of the
following requirements is met:
(1) The emissions predicted in the ``Action'' scenario are less
than the emissions predicted in the ``Baseline'' scenario, and this can
be reasonably expected to be true in the periods between the analysis
years; or
(2) The emissions predicted in the ``Action'' scenario are not
greater than baseline emissions. Baseline emissions are those estimated
to have occurred during calendar year 1990, unless the conformity
implementation plan revision required by Sec. 51.390 of this chapter
defines the baseline emissions for a PM10 area to be those
occurring in a different calendar year for which a baseline emissions
inventory was developed for the purpose of developing a control
strategy implementation plan.
(d) Pollutants. The regional emissions analysis must be performed
for the following pollutants:
(1) VOC in ozone nonattainment areas;
(2) NOX in ozone nonattainment areas, unless the EPA
Administrator determines that additional reductions of NOX would
not contribute to attainment;
(3) CO in CO nonattainment areas;
(4) PM10 in PM10 areas;
(5) Transportation-related precursors of PM10 in PM10
nonattainment areas if the EPA Regional Administrator or the director
of the State air agency has made a finding that such precursor
emissions from within the nonattainment area are a significant
contributor to the PM10 nonattainment problem and has so notified
the MPO and DOT; and
(6) NOX in NO2 nonattainment areas.
(e) Analysis years. The regional emissions analysis must be
performed for analysis years that are no more than ten years apart. The
first analysis year must be no more than five years beyond the year in
which the conformity determination is being made. The last year of
transportation plan's forecast period must also be an analysis year.
(f) ``Baseline'' scenario. The regional emissions analysis required
by paragraphs (b) and (c)(1) of this section must estimate the
emissions that would result from the ``Baseline'' scenario in each
analysis year. The ``Baseline'' scenario must be defined for each of
the analysis years. The ``Baseline'' scenario is the future
transportation system that will result from current programs, including
the following (except that exempt projects listed in Sec. 93.126 and
projects exempt from regional emissions analysis as listed in
Sec. 93.127 need not be explicitly considered):
(1) All in-place regionally significant highway and transit
facilities, services and activities;
(2) All ongoing travel demand management or transportation system
management activities; and
(3) Completion of all regionally significant projects, regardless
of funding source, which are currently under construction or are
undergoing right-of-way acquisition (except for hardship acquisition
and protective buying); come from the first year of the previously
conforming transportation plan and/or TIP; or have completed the NEPA
process.
(g) ``Action'' scenario. The regional emissions analysis must
estimate the emissions that would result from the ``Action'' scenario
in each analysis year. The ``Action'' scenario must be defined for each
of the analysis years. The ``Action'' scenario is the transportation
system that would result from the implementation of the proposed action
(transportation plan, TIP, or project not from a conforming
transportation plan and TIP) and all other expected regionally
significant projects in the nonattainment area. The ``Action'' scenario
must include the following (except that exempt projects listed in
Sec. 93.126 and projects exempt from regional emissions analysis as
listed in Sec. 93.127 need not be explicitly considered):
(1) All facilities, services, and activities in the ``Baseline''
scenario;
(2) Completion of all TCMs and regionally significant projects
(including facilities, services, and activities) specifically
identified in the proposed transportation plan which will be
operational or in effect in the analysis year, except that regulatory
TCMs may not be assumed to begin at a future time unless the regulation
is already adopted by the enforcing jurisdiction or the TCM is
identified in the applicable implementation plan;
(3) All travel demand management programs and transportation system
management activities known to the MPO, but not included in the
applicable implementation plan or utilizing any Federal funding or
approval, which have been fully adopted and/or funded by the enforcing
jurisdiction or
[[Page 36146]]
sponsoring agency since the last conformity determination;
(4) The incremental effects of any travel demand management
programs and transportation system management activities known to the
MPO, but not included in the applicable implementation plan or
utilizing any Federal funding or approval, which were adopted and/or
funded prior to the date of the last conformity determination, but
which have been modified since then to be more stringent or effective;
(5) Completion of all expected regionally significant highway and
transit projects which are not from a conforming transportation plan
and TIP; and
(6) Completion of all expected regionally significant non-FHWA/FTA
highway and transit projects that have clear funding sources and
commitments leading toward their implementation and completion by the
analysis year.
(h) Projects not from a conforming transportation plan and TIP. For
the regional emissions analysis required by paragraphs (b) and (c)(1)
of this section, if the project which is not from a conforming
transportation plan and TIP is a modification of a project currently in
the plan or TIP, the ``Baseline'' scenario must include the project
with its original design concept and scope, and the ``Action'' scenario
must include the project with its new design concept and scope.
Sec. 93.120 Consequences of control strategy implementation plan
failures.
(a) Disapprovals. (1) If EPA disapproves any submitted control
strategy implementation plan revision (with or without a protective
finding), the conformity status of the transportation plan and TIP
shall lapse on the date that highway sanctions as a result of the
disapproval are imposed on the nonattainment area under section
179(b)(1) of the Clean Air Act. No new transportation plan, TIP, or
project may be found to conform until another control strategy
implementation plan revision fulfilling the same Clean Air Act
requirements is submitted and conformity to this submission is
determined.
(2) If EPA disapproves a submitted control strategy implementation
plan revision without making a protective finding, then beginning 120
days after such disapproval, only projects in the first three years of
the currently conforming transportation plan and TIP may be found to
conform. This means that beginning 120 days after disapproval without a
protective finding, no transportation plan, TIP, or project not in the
first three years of the currently conforming plan and TIP may be found
to conform until another control strategy implementation plan revision
fulfilling the same Clean Air Act requirements is submitted and
conformity to this submission is determined. During the first 120 days
following EPA's disapproval without a protective finding,
transportation plan, TIP, and project conformity determinations shall
be made using the motor vehicle emissions budget in the disapproved
control strategy implementation plan, unless another control strategy
implementation plan revision has been submitted and its motor vehicle
emissions budget applies for transportation conformity purposes,
pursuant to Sec. 93.109.
(b) Failure to submit and incompleteness. In areas where EPA
notifies the State, MPO, and DOT of the State's failure to submit a
control strategy implementation plan or submission of an incomplete
control strategy implementation plan revision (either of which
initiates the sanction process under Clean Air Act sections 179 or
110(m)), the conformity status of the transportation plan and TIP shall
lapse on the date that highway sanctions are imposed on the
nonattainment area for such failure under section 179(b)(1) of the
Clean Air Act, unless the failure has been remedied and acknowledged by
a letter from the EPA Regional Administrator.
(c) Federal implementation plans. If EPA promulgates a Federal
implementation plan that contains motor vehicle emissions budget(s) as
a result of a State failure, the conformity lapse imposed by this
section because of that State failure is removed.
Sec. 93.121 Requirements for adoption or approval of projects by other
recipients of funds designated under title 23 U.S.C. or the Federal
Transit Laws.
(a) Except as provided in paragraph (b) of this section, no
recipient of Federal funds designated under title 23 U.S.C. or the
Federal Transit Laws shall adopt or approve a regionally significant
highway or transit project, regardless of funding source, unless the
recipient finds that the requirements of one of the following
paragraphs are met:
(1) The project was included in the regional emissions analysis
supporting the most recent transportation plan and TIP conformity
determination (even if conformity status is currently lapsed), and the
project's design concept and scope has not changed significantly from
those analyses; or
(2) There is a currently conforming transportation plan and TIP,
and a new regional emissions analysis including the project and the
currently conforming transportation plan and TIP demonstrates that the
transportation plan and TIP would still conform if the project were
implemented (consistent with the requirements of Secs. 93.118 and/or
93.119 for a project not from a conforming transportation plan and
TIP).
(b) In isolated rural nonattainment and maintenance areas subject
to Sec. 93.109(g), no recipient of Federal funds designated under title
23 U.S.C. or the Federal Transit Laws shall adopt or approve a
regionally significant highway or transit project, regardless of
funding source, unless the recipient finds that the requirements of one
of the following paragraphs are met:
(1) The project was included in the regional emissions analysis
supporting the most recent conformity determination for the portion of
the statewide transportation plan and TIP which are in the
nonattainment or maintenance area, and the project's design concept and
scope has not changed significantly; or
(2) A new regional emissions analysis including the project and all
other regionally significant projects expected in the nonattainment or
maintenance area demonstrates that those projects in the statewide
transportation plan and statewide TIP which are in the nonattainment or
maintenance area would still conform if the project were implemented
(consistent with the requirements of Secs. 93.118 and/or 93.119 for
projects not from a conforming transportation plan and TIP).
Sec. 93.122 Procedures for determining regional transportation-related
emissions.
(a) General requirements. (1) The regional emissions analysis
required by Secs. 93.118 and 93.119 for the transportation plan, TIP,
or project not from a conforming plan and TIP must include all
regionally significant projects expected in the nonattainment or
maintenance area. The analysis shall include FHWA/FTA projects proposed
in the transportation plan and TIP and all other regionally significant
projects which are disclosed to the MPO as required by Sec. 93.105.
Projects which are not regionally significant are not required to be
explicitly modeled, but vehicles miles traveled (VMT) from such
projects must be estimated in accordance with reasonable professional
practice. The effects of TCMs and similar projects that are not
regionally significant may also be estimated in accordance with
reasonable professional practice.
[[Page 36147]]
(2) The emissions analysis may not include for emissions reduction
credit any TCMs or other measures in the applicable implementation plan
which have been delayed beyond the scheduled date(s) until such time as
their implementation has been assured. If the measure has been
partially implemented and it can be demonstrated that it is providing
quantifiable emission reduction benefits, the emissions analysis may
include that emissions reduction credit.
(3) Emissions reduction credit from projects, programs, or
activities which require a regulatory action in order to be implemented
may not be included in the emissions analysis unless:
(i) The regulatory action is already adopted by the enforcing
jurisdiction;
(ii) The project, program, or activity is included in the
applicable implementation plan;
(iii) The control strategy implementation plan submission or
maintenance plan submission that establishes the motor vehicle
emissions budget(s) for the purposes of Sec. 93.118 contains a
commitment to the project, program, or activity by the agency with
authority to implement it; or
(iv) EPA has approved an opt-in to a Federally enforced program,
EPA has promulgated the program (if the control program is a Federal
responsibility, such as vehicle tailpipe standards), or the Clean Air
Act requires the program without need for individual State action and
without any discretionary authority for EPA to set its stringency,
delay its effective date, or not implement the program.
(4) Emissions reduction credit from control measures that are not
included in the transportation plan and TIP and that do not require a
regulatory action in order to be implemented may not be included in the
emissions analysis unless the conformity determination includes written
commitments to implementation from the appropriate entities.
(i) Persons or entities voluntarily committing to control measures
must comply with the obligations of such commitments.
(ii) The conformity implementation plan revision required in
Sec. 51.390 of this chapter must provide that written commitments to
control measures that are not included in the transportation plan and
TIP must be obtained prior to a conformity determination and that such
commitments must be fulfilled.
(5) A regional emissions analysis for the purpose of satisfying the
requirements of Sec. 93.119 must make the same assumptions in both the
``Baseline'' and ``Action'' scenarios regarding control measures that
are external to the transportation system itself, such as vehicle
tailpipe or evaporative emission standards, limits on gasoline
volatility, vehicle inspection and maintenance programs, and oxygenated
or reformulated gasoline or diesel fuel.
(6) The ambient temperatures used for the regional emissions
analysis shall be consistent with those used to establish the emissions
budget in the applicable implementation plan. All other factors, for
example the fraction of travel in a hot stabilized engine mode, must be
consistent with the applicable implementation plan, unless modified
after interagency consultation according to Sec. 93.105(c)(1)(i) to
incorporate additional or more geographically specific information or
represent a logically estimated trend in such factors beyond the period
considered in the applicable implementation plan.
(7) Reasonable methods shall be used to estimate nonattainment area
vehicle miles traveled on off-network roadways within the urban
transportation planning area, and on roadways outside the urban
transportation planning area.
(b) Regional emissions analysis in serious, severe, and extreme
ozone nonattainment areas and serious CO nonattainment areas must meet
the requirements of paragraphs (b) (1) and (2) of this section if their
metropolitan planning area contains an urbanized area population over
200,000.
(1) By January 1, 1997, estimates of regional transportation-
related emissions used to support conformity determinations must be
made at a minimum using network modeling according to procedures and
methods that are available and in practice and supported by current and
available documentation. These procedures, methods, and practices are
available from DOT and will be updated periodically. Areas performing
network modeling with some or all procedures and methods that are
available and in practice elsewhere as of January 1, 1995, must
continue to do so.
(2) Reasonable methods in accordance with good practice must be
used to estimate traffic speeds and delays in a manner that is
sensitive to the estimated volume of travel on each roadway segment
represented in the network model.
(3) Highway Performance Monitoring System (HPMS) estimates of VMT
shall be considered the primary measure of VMT within the portion of
the nonattainment or maintenance area and for the functional classes of
roadways included in HPMS, for urban areas which are sampled on a
separate urban area basis. For areas with network models, a factor (or
factors) may be developed to reconcile and calibrate the network-based
model estimates of VMT in the base year of its validation to the HPMS
estimates for the same period. These factors may then be applied to
model estimates of future VMT. In this factoring process, consideration
will be given to differences in the facility coverage of the HPMS and
the modeled network description. Locally developed count-based programs
and other departures from these procedures are permitted subject to the
interagency consultation procedures of Sec. 93.105(c)(1)(i).
(4) A transportation plan and TIP may satisfy the requirements of
Secs. 93.118 and 93.119 based on an alternate emissions analysis that
does not use network modeling, if Federal, State, and local air and
transportation agencies concur in the emissions analysis approach, and
if the transportation plan and TIP in question is a revision of the
previously conforming transportation plan and TIP to include a limited
number of additional projects. This paragraph will not be effective
until EPA and DOT review and evaluate suggested alternate methods and
approaches for determining the regional emissions impact of projects
and make documentation of this review and evaluation publicly
available.
(5) A conformity determination based on an alternate emissions
analysis as described in paragraph (b)(4) of this section would not
fulfill the requirements of Sec. 93.104(b)(3) and Sec. 93.104(c)(3)
regarding frequency of conformity determinations. Conformity must be
determined according to all the otherwise applicable criteria and
procedures of this subpart within three years of the last determination
which did not rely on paragraph (b)(4) of this section.
(c) In all areas not otherwise subject to paragraph (b) of this
section, regional emissions analyses must use those procedures
described in paragraph (b) of this section if the use of those
procedures has been the previous practice of the MPO. Otherwise, areas
not subject to paragraph (b) of this section may estimate regional
emissions using any appropriate methods that account for VMT growth by,
for example, extrapolating historical VMT or projecting future VMT by
considering growth in population and historical growth trends for
vehicle miles traveled per person. These methods must also consider
future economic activity, transit alternatives, and transportation
system policies.
[[Page 36148]]
(d) PM10 from construction-related fugitive dust.
(1) For areas in which the implementation plan does not identify
construction-related fugitive PM10 as a contributor to the
nonattainment problem, the fugitive PM10 emissions associated with
highway and transit project construction are not required to be
considered in the regional emissions analysis.
(2) In PM10 nonattainment and maintenance areas with
implementation plans which identify construction-related fugitive
PM10 as a contributor to the nonattainment problem, the regional
PM10 emissions analysis shall consider construction-related
fugitive PM10 and shall account for the level of construction
activity, the fugitive PM10 control measures in the applicable
implementation plan, and the dust-producing capacity of the proposed
activities.
(e) Reliance on previous regional emissions analysis. (1) The TIP
may be demonstrated to satisfy the requirements of Sec. 93.118 (``Motor
vehicle emissions budget'') or Sec. 93.119 (``Emission reductions in
areas without motor vehicle emissions budgets'') without new regional
emissions analysis if the regional emissions analysis already performed
for the plan also applies to the TIP. This requires a demonstration
that:
(i) The TIP contains all projects which must be started in the
TIP's timeframe in order to achieve the highway and transit system
envisioned by the transportation plan;
(ii) All TIP projects which are regionally significant are included
in the transportation plan with design concept and scope adequate to
determine their contribution to the transportation plan's regional
emissions at the time of the transportation plan's conformity
determination; and
(iii) The design concept and scope of each regionally significant
project in the TIP is not significantly different from that described
in the transportation plan.
(2) A project which is not from a conforming transportation plan
and a conforming TIP may be demonstrated to satisfy the requirements of
Sec. 93.118 or Sec. 93.119 without additional regional emissions
analysis if allocating funds to the project will not delay the
implementation of projects in the transportation plan or TIP which are
necessary to achieve the highway and transit system envisioned by the
transportation plan, and if the project is either:
(i) Not regionally significant; or
(ii) Included in the conforming transportation plan (even if it is
not specifically included in the latest conforming TIP) with design
concept and scope adequate to determine its contribution to the
transportation plan's regional emissions at the time of the
transportation plan's conformity determination, and the design concept
and scope of the project is not significantly different from that
described in the transportation plan.
Sec. 93.123 Procedures for determining localized CO and PM10
concentrations (hot-spot analysis).
(a) CO hot-spot analysis. (1) The demonstrations required by
Sec. 93.116 (``Localized CO and PM10 violations'') must be based
on quantitative analysis using the applicable air quality models, data
bases, and other requirements specified in 40 CFR part 51 Appendix W
(``Guideline on Air Quality Models (Revised)'' (1988), supplement A
(1987) and supplement B (1993), EPA publication no. 450/2-78-027R).
These procedures shall be used in the following cases, unless different
procedures are developed through the interagency consultation process
required in Sec. 93.105 and approved by the EPA Regional Administrator:
(i) For projects in or affecting locations, areas, or categories of
sites which are identified in the applicable implementation plan as
sites of violation or possible violation;
(ii) For projects affecting intersections that are at Level-of-
Service D, E, or F, or those that will change to Level-of-Service D, E,
or F because of increased traffic volumes related to the project;
(iii) For any project affecting one or more of the top three
intersections in the nonattainment or maintenance area with highest
traffic volumes, as identified in the applicable implementation plan;
and
(iv) For any project affecting one or more of the top three
intersections in the nonattainment or maintenance area with the worst
level of service, as identified in the applicable implementation plan.
(2) In cases other than those described in paragraph (a)(1) of this
section, the demonstrations required by Sec. 93.116 may be based on
either:
(i) Quantitative methods that represent reasonable and common
professional practice; or
(ii) A qualitative consideration of local factors, if this can
provide a clear demonstration that the requirements of Sec. 93.116 are
met.
(b) PM10 hot-spot analysis: (1) The hot-spot demonstration
required by Sec. 93.116 must be based on quantitative analysis methods
for the following types of projects:
(i) Projects which are located at sites at which violations have
been verified by monitoring;
(ii) Projects which are located at sites which have vehicle and
roadway emission and dispersion characteristics that are essentially
identical to those of sites with verified violations (including sites
near one at which a violation has been monitored); and
(iii) New or expanded bus and rail terminals and transfer points
which increase the number of diesel vehicles congregating at a single
location require hot-spot analysis.
(2) Where quantitative analysis methods are not required, the
demonstration required by Sec. 93.116 may be based on a qualitative
consideration of local factors.
(3) The identification of the sites described in paragraph (b)(1)
(i) and (ii) of this section, and other cases where quantitative
methods are appropriate, shall be determined through the interagency
consultation process required in Sec. 93.105. DOT may choose to make a
categorical conformity determination on bus and rail terminals or
transfer points based on appropriate modeling of various terminal
sizes, configurations, and activity levels.
(4) The requirements for quantitative analysis contained in
paragraph (b) of this section will not take effect until EPA releases
modeling guidance on this subject and announces in the Federal Register
that these requirements are in effect.
(c) General requirements. (1) Estimated pollutant concentrations
must be based on the total emissions burden which may result from the
implementation of the project, summed together with future background
concentrations. The total concentration must be estimated and analyzed
at appropriate receptor locations in the area substantially affected by
the project.
(2) Hot-spot analyses must include the entire project, and may be
performed only after the major design features which will significantly
impact concentrations have been identified. The future background
concentration should be estimated by multiplying current background by
the ratio of future to current traffic and the ratio of future to
current emission factors.
(3) Hot-spot analysis assumptions must be consistent with those in
the regional emissions analysis for those inputs which are required for
both analyses.
(4) PM10 or CO mitigation or control measures shall be assumed
in the hot-
[[Page 36149]]
spot analysis only where there are written commitments from the project
sponsor and/or operator to implement such measures, as required by
Sec. 93.125(a).
(5) CO and PM10 hot-spot analyses are not required to consider
construction-related activities which cause temporary increases in
emissions. Each site which is affected by construction-related
activities shall be considered separately, using established
``Guideline'' methods. Temporary increases are defined as those which
occur only during the construction phase and last five years or less at
any individual site.
Sec. 93.124 Using the motor vehicle emissions budget in the applicable
implementation plan (or implementation plan submission).
(a) In interpreting an applicable implementation plan (or
implementation plan submission) with respect to its motor vehicle
emissions budget(s), the MPO and DOT may not infer additions to the
budget(s) that are not explicitly intended by the implementation plan
(or submission). Unless the implementation plan explicitly quantifies
the amount by which motor vehicle emissions could be higher while still
allowing a demonstration of compliance with the milestone, attainment,
or maintenance requirement and explicitly states an intent that some or
all of this additional amount should be available to the MPO and DOT in
the emissions budget for conformity purposes, the MPO may not interpret
the budget to be higher than the implementation plan's estimate of
future emissions. This applies in particular to applicable
implementation plans (or submissions) which demonstrate that after
implementation of control measures in the implementation plan:
(1) Emissions from all sources will be less than the total
emissions that would be consistent with a required demonstration of an
emissions reduction milestone;
(2) Emissions from all sources will result in achieving attainment
prior to the attainment deadline and/or ambient concentrations in the
attainment deadline year will be lower than needed to demonstrate
attainment; or
(3) Emissions will be lower than needed to provide for continued
maintenance.
(b) If an applicable implementation plan submitted before November
24, 1993, demonstrates that emissions from all sources will be less
than the total emissions that would be consistent with attainment and
quantifies that ``safety margin,'' the State may submit a SIP revision
which assigns some or all of this safety margin to highway and transit
mobile sources for the purposes of conformity. Such a SIP revision,
once it is endorsed by the Governor and has been subject to a public
hearing, may be used for the purposes of transportation conformity
before it is approved by EPA.
(c) A conformity demonstration shall not trade emissions among
budgets which the applicable implementation plan (or implementation
plan submission) allocates for different pollutants or precursors, or
among budgets allocated to motor vehicles and other sources, without a
SIP revision or a SIP which establishes mechanisms for such trades.
(d) If the applicable implementation plan (or implementation plan
submission) estimates future emissions by geographic subarea of the
nonattainment area, the MPO and DOT are not required to consider this
to establish subarea budgets, unless the applicable implementation plan
(or implementation plan submission) explicitly indicates an intent to
create such subarea budgets for the purposes of conformity.
(e) If a nonattainment area includes more than one MPO, the SIP may
establish motor vehicle emissions budgets for each MPO, or else the
MPOs must collectively make a conformity determination for the entire
nonattainment area.
Sec. 93.125 Enforceability of design concept and scope and project-
level mitigation and control measures.
(a) Prior to determining that a transportation project is in
conformity, the MPO, other recipient of funds designated under title 23
U.S.C. or the Federal Transit Laws, FHWA, or FTA must obtain from the
project sponsor and/or operator written commitments to implement in the
construction of the project and operation of the resulting facility or
service any project-level mitigation or control measures which are
identified as conditions for NEPA process completion with respect to
local PM10 or CO impacts. Before a conformity determination is
made, written commitments must also be obtained for project-level
mitigation or control measures which are conditions for making
conformity determinations for a transportation plan or TIP and are
included in the project design concept and scope which is used in the
regional emissions analysis required by Secs. 93.118 (``Motor vehicle
emissions budget'') and 93.119 (``Emission reductions in areas without
motor vehicle emissions budgets'') or used in the project-level hot-
spot analysis required by Sec. 93.116.
(b) Project sponsors voluntarily committing to mitigation measures
to facilitate positive conformity determinations must comply with the
obligations of such commitments.
(c) The implementation plan revision required in Sec. 51.390 of
this chapter shall provide that written commitments to mitigation
measures must be obtained prior to a positive conformity determination,
and that project sponsors must comply with such commitments.
(d) If the MPO or project sponsor believes the mitigation or
control measure is no longer necessary for conformity, the project
sponsor or operator may be relieved of its obligation to implement the
mitigation or control measure if it can demonstrate that the applicable
hot-spot requirements of Sec. 93.116, emission budget requirements of
Sec. 93.118, and emission reduction requirements of Sec. 93.119 are
satisfied without the mitigation or control measure, and so notifies
the agencies involved in the interagency consultation process required
under Sec. 93.105. The MPO and DOT must find that the transportation
plan and TIP still satisfy the applicable requirements of Secs. 93.118
and/or 93.119 and that the project still satisfies the requirements of
Sec. 93.116, and therefore that the conformity determinations for the
transportation plan, TIP, and project are still valid. This finding is
subject to the applicable public consultation requirements in
Sec. 93.105(e) for conformity determinations for projects.
Sec. 93.126 Exempt projects.
Notwithstanding the other requirements of this subpart, highway and
transit projects of the types listed in Table 2 are exempt from the
requirement to determine conformity. Such projects may proceed toward
implementation even in the absence of a conforming transportation plan
and TIP. A particular action of the type listed in Table 2 is not
exempt if the MPO in consultation with other agencies (see
Sec. 93.105(c)(1)(iii)), the EPA, and the FHWA (in the case of a
highway project) or the FTA (in the case of a transit project) concur
that it has potentially adverse emissions impacts for any reason.
States and MPOs must ensure that exempt projects do not interfere with
TCM implementation.
[[Page 36150]]
Table 2.--Exempt Projects
------------------------------------------------------------------------
-------------------------------------------------------------------------
Safety
------------------------------------------------------------------------
Railroad/highway crossing.
Hazard elimination program.
Safer non-Federal-aid system roads.
Shoulder improvements.
Increasing sight distance.
Safety improvement program.
Traffic control devices and operating assistance other than
signalization projects.
Railroad/highway crossing warning devices.
Guardrails, median barriers, crash cushions.
Pavement resurfacing and/or rehabilitation.
Pavement marking demonstration.
Emergency relief (23 U.S.C. 125).
Fencing.
Skid treatments.
Safety roadside rest areas.
Adding medians.
Truck climbing lanes outside the urbanized area.
Lighting improvements.
Widening narrow pavements or reconstructing bridges (no additional
travel lanes).
Emergency truck pullovers.
------------------------------------------------------------------------
Mass Transit
------------------------------------------------------------------------
Operating assistance to transit agencies.
Purchase of support vehicles.
Rehabilitation of transit vehicles.1
Purchase of office, shop, and operating equipment for existing
facilities.
Purchase of operating equipment for vehicles (e.g., radios, fareboxes,
lifts, etc.).
Construction or renovation of power, signal, and communications systems.
Construction of small passenger shelters and information kiosks.
Reconstruction or renovation of transit buildings and structures (e.g.,
rail or bus buildings, storage and maintenance facilities, stations,
terminals, and ancillary structures).
Rehabilitation or reconstruction of track structures, track, and
trackbed in existing rights-of-way.
Purchase of new buses and rail cars to replace existing vehicles or for
minor expansions of the fleet.1
Construction of new bus or rail storage/maintenance facilities
categorically excluded in 23 CFR part 771.
------------------------------------------------------------------------
Air Quality
------------------------------------------------------------------------
Continuation of ride-sharing and van-pooling promotion activities at
current levels.
Bicycle and pedestrian facilities.
------------------------------------------------------------------------
Other
------------------------------------------------------------------------
Specific activities which do not involve or lead directly to
construction, such as:
Planning and technical studies.
Grants for training and research programs.
Planning activities conducted pursuant to titles 23 and 49 U.S.C.
Federal-aid systems revisions.
Engineering to assess social, economic, and environmental effects of the
proposed action or alternatives to that action.
Noise attenuation.
Emergency or hardship advance land acquisitions (23 CFR 712.204(d)).
Acquisition of scenic easements.
Plantings, landscaping, etc.
Sign removal.
Directional and informational signs.
Transportation enhancement activities (except rehabilitation and
operation of historic transportation buildings, structures, or
facilities).
Repair of damage caused by natural disasters, civil unrest, or terrorist
acts, except projects involving substantial functional, locational or
capacity changes.
------------------------------------------------------------------------
\1\ In PM10 nonattainment or maintenance areas, such projects are exempt
only if they are in compliance with control measures in the applicable
implementation plan.
Sec. 93.127 Projects exempt from regional emissions analyses.
Notwithstanding the other requirements of this subpart, highway and
transit projects of the types listed in Table 3 are exempt from
regional emissions analysis requirements. The local effects of these
projects with respect to CO or PM10 concentrations must be
considered to determine if a hot-spot analysis is required prior to
making a project-level conformity determination. These projects may
then proceed to the project development process even in the absence of
a conforming transportation plan and TIP. A particular action of the
type listed in Table 3 is not exempt from regional
[[Page 36151]]
emissions analysis if the MPO in consultation with other agencies (see
Sec. 93.105(c)(1)(iii)), the EPA, and the FHWA (in the case of a
highway project) or the FTA (in the case of a transit project) concur
that it has potential regional impacts for any reason.
Table 3.--Projects Exempt From Regional Emissions Analyses
------------------------------------------------------------------------
-------------------------------------------------------------------------
Intersection channelization projects.
Intersection signalization projects at individual intersections.
Interchange reconfiguration projects.
Changes in vertical and horizontal alignment.
Truck size and weight inspection stations.
Bus terminals and transfer points.
------------------------------------------------------------------------
[FR Doc. 96-16581 Filed 7-8-96; 8:45 am]
BILLING CODE 6560-50-P