UMTED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
MEMORANDUM OFF1CE OF
ifMH-rf*-*"
SUBJECT: Interim Conformity Guidance
FROM: Richard D. Wilson, Director
Office of Mobile Sources
TO: Air Management Division Directors
Regions 1, 3, 5, 9
Air and Waste Management Division Director
Region 2
Air and Toxics Division Directors
Regions 7, 8, 10
Air, Pesticides, and Toxics Management Divisions
Directors Regions 4, 6
Attached is the Joint EPA/DOT Guidance for Determining
Conformity of Transportation Plans, Programs, and Projects
with Clean Air Act Implementation Plans During Phase 1 of the
Interim Period. We have come to agreement with DOT for the
purpose of issuing this guidance, although several issues
with strong regional concern have not been closed
definitively.
The guidance contains language explaining that we still
disagree over the application of conformity to non-federal
projects and attainment areas. Until this is settled in a
final rule on conformity criteria and procedures (due
November 15, 1991), we anticipate that DOT will' apply its
interpretation. In addition, discussions of implementation
of previous TCM commitments now quote the statute
(transportation improvement programs must provide for
expeditious implementation of TCM's) rather than provide
resolution on whether all federally assistable TCM's actually
must be included in the TIP, or whether a TIP can be
considered to "provide for" a locally funded TCM merely by
not interfering. The distinction was important to some
commenters but should be of little immediate practical
import. EPA Regional Offices meanwhile are free to press for
actual inclusion in the TIP. Finally, the guidance states
that N02 and PM10 conformity determinations are required, but
through November 15, 1991, EPA, DOT, and the affected MPO can
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-2-
agree that the Determinations may be qualitative in nature
instead of quantitative. Since the rulemaking process will
allow extra time to identify and expand issues and will also
enjoy the benefit of public comment on the NPRM, we felt it
was best to leave these issues unresolved during Phase 1 and
seek closure in the fina.1 rule.
Also included is draft guidance for making
conformity determinations of highway and transit projects
which do not involve FHWA or UMTA, but do require some other
type of federal permit, action, or approval. In keeping with
DOT's preference that they not be involved in any way, this
additional guidance was developed separately by us (OMS). We
are only starting to coordinate this guidance with your stzff
and other agencies, particularly the Coast Guard and th« Army
Corps of Engineers. It should be treated only as a draft.
Attachment
cc: Mike Shapiro, OAR
Rob Brenner, OPAR
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U.S. Environmental Protection Agency
U.S.- Department of Transportation
GUIDANCE FOR DETERMINING CONFORMITY OF
TRANSPORTATION PLANS, PROGRAMS AND PROJECTS WITH
CLEAN AIR ACT IMPLEMENTATION PLANS
DURING PHASE 1 OF THE INTERIM PERIOD
1.0 PURPOSE AND LEGAL STATUS
The purpose of this document is to provide guidance regarding the
criteria and procedures to be followed by Metropolitan Planning
Organizations (MPOs), other recipients of funds designated under Title
23 United States Code (U.S.C.) or the Urban Mass Transportation Act (49
U.S.C. 1601 et seq)1, and the United States Department of Transportation
(DOT) in making conformity determinations regarding transportation
plans2, programs3, and projects during the first part of the interim
period referred to in §176(c)(3) of the Clean Air Act (the Act), as
amended by the Clean Air Act Amendments (the Amendments) of 19904.
These conformity determinations must be made with respect to the
1 In most urban areas, the organization or governmental unit that performs the
transportation planning required under §134 of Title 23 U.S.C. is not designated as
an MPO under state law. For purposes of clarity in this guidance, references to
MPOs will include these planning units in their MPO-like role if treated as an MPO
by DOT. Where 'other recipients of funds' is specifically referenced, it refers to
State and local transportation officials that receive funds under Title 23 U.S.C. or
the Urban Mass Transportation Act.
2Only those transportation plans developed pursuant to Title 23 U.S.C. or the Urban
Mass Transportation Act.
3Only those transportation improvement programs developed pursuant to Title 23
U.S.C. or the Urban Mass Transportation Act.
4Unless otherwise specified, all section references throughout the guidance will
be to the Act as amended.
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applicable implementation plan5 developed to control those pollutants
for which national ambient air quality standards (NAAQS) exist6.
This guidance is a joint interpretation of the Act by the United States
Environmental Protection Agency (EPA) and DOT as it applies during
'Phase 1' of the interim period7. There is no statutory requirement for
this guidance, and it should,vnot be construed as regulatory in nature. It
is not a final action by either EPA or DOT, but rathei a first step toward
the development of productive interactions between the transportation
and air quality planning processes. It is meant to assist MPOs, other
recipients of funds, and DOT in determining the conformity of
transportation plans, programs, and projects during the transition from
criteria and procedures in use prior to November 15, 1990 (date of
enactment of the 1990 Amendments), to those promulgated criteria and
procedur3s which will ultimately govern the conformity process. It is
also meant to assist EPA and State/local air quality officials in
reviewing proposed conformity determinations during the same period.
This guidance does not establish or affect legal rights or obligations. It
does not establish a binding norm and it is not finally determinative of
the issues addressed. Agency decisions in any particular case will be
made by applying the applicable law and regulations to the specific
facts of that case. In any proceeding in which the policy articulated in
this guidance may be applied, the Agencies will thoroughly consider the
policy's applicability to the facts, the underlying validity of the policy,
and whether changes should be made in the policy based on submissions
made by any person.
It should be noted that in accordance with the General Savings Clause
(§193), this interim guidance does not supersede criteria and
procedures which may already have been included in an implementation
plan. Any such criteria and procedures must still be met along with
those contained in this guidance until the implementation plan revision
referred to in paragraph (4)(C) is approved by EPA and DOT. It also does
5The term 'applicable implementation plan' is defined in §302(q) as "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 this Act".
6NAAQS pollutants which are of interest in any discussion of mobile sources
include ozone and NO2 precursors (VOC and/or NOx), carbon monoxide (CO), and
particulate matter (PM10).
7Phase 1 of the interim period is defined in section 2.0 of this guidance.
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not supersede any agreements reached prior to its issuance among EPA,
DOT, and MPOs regarding analytical methodologies, approval criteria, or
completed MPO conformity findings.
2.0 DEFINITION OF THE INTERIM PERIOD
AND RELATIONSHIP TO THE CONTROL STRATEGY PERIOD
2.1 Definition of The Interim Period
Section 176(c)(3) of the Act provides criteria that apply "until such
time as the implementation plan revision referred to in paragraph (4)(C)
is approved." Paragraph (4)(C) refers to the implementation plan
revision which States must submit by November 15, 1992, and which
must contain specific criteria and procedures for assessing the
conformity of transportation plans, programs, and projects.
However, the full measure of §176(c) conformity requirements cannot
be applied to any pollutant until EPA approves the implementation plan
revision containing specific strategies for controlling and reducing its
emissions in accordance with §182, §187, or §189 of the Act, therefore
the actual length of the interim period may extend beyond the time EPA
approves the paragraph (4)(C) plan revisions. As a result, there will be
two distinct phases of the interim period:
Phase 1: The period between enactment and promulgation
of the EPA/DOT final rule containing criteria and procedures
for determining conformity as required by §176(c)(4)(A). The
criteria and procedures for determining conformity of
transportation plans, programs, and projects during Phase 1
is discussed in sections 4, 5, and 6 (respectively) of this
guidance.
Phase 2: The period between promulgation of the EPA/DOT
final rule and EPA approval of the ozone/CO/PMio control
strategy implementation plan revisions. The EPA/DOT final
rule will contain criteria and procedures for determining
conformity of transportation plans, programs, and projects
during Phase 2 and, if necessary, any subphases of Phase 2.
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Once the control strategy implementation plan revisions and conformity
procedures have been approved by EPA, the full requirements of §176(c)
will apply, and conformity determinations of transportation plans,
programs, and projects will be dependent upon the area-wide
transportation emissions budget for each pollutant established in the
implementation plan. This control strategy pariod will remain in effect
until the area is redesignated as an attainment area, at which point the
requirements for conformity determinations will be based on the
maintenance plan approved for the area in accordance with the criteria
and procedures established in the EPA/DOT final rule.
2.2 Relationship of the Interim and Control Strategy Periods
The 1990 Amendments give States several years to develop new
implementation plan revisions which contain sufficient emission
control strategies to assure attainment by the applicable deadlines.
The Amendments also contain many new provisions and requirements to
assist States in meeting these dates, including the §176(c) conformity
review process (especially as it applies in the case of transportation
plans, programs, and projects). Although some conformity requirements
apply immediately upon enactment, the ultimate purpose and function of
conformity is best understood in terms of its application after States
have revised their implementation plans to include control strategies
and emissions projections8. Only then will it be possible to calculate
the contribution of transportation sources to the reduction of emissions
annually until attainment is achieved, and the full requirements of
§176(c)(2) can be applied to conformity determinations regarding
transportation plans and transportation improvement programs (TIPs).
In most urbanized areas, the transportation planning process is the
most practical means for identifying transportation measures which
benefit air quality and for incorporating these strategies into an area's
transportation plans and programs so that they conform to the
applicable implementation plan. Among the most effective strategies
are those which reduce the amount of emissions from single occupant
vehicles. This can be achieved in a number of ways including reducing
the actual number of trips made by single occupant vehicles, the
construction and operation of better facilities and/or services, the use
8An emissions budget will be available for moderate and above areas which submit
new attainment demonstrations. For other areas, an emissions budget will likely
be established as part of the maintenance demonstration, if not sooner.
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of positive or negative monetary incentives, or even outright
restrictions on the use of single occupant vehicles. In the long run,
local governments participating in the transportation planning process
can also influence the demand for transportation by their own growth
management policies.
Depending on the severity ^pf the air quality problem, the local
population and economic growth forecasts, the number and character of
non-transportation sources, and local preferences, the new attainment
plan may rely to a greater or lesser extent on transportation control
measures to reduce single occupant vehicle usage and emissions. In all
areas, the attainment strategy will include a specific estimate or
budget for emissions in the nonattainment area allocated to mobile-
sources. Should actual emissions exceed these budgeted levels,
prngresc- toward attainment would be slower than planned, jeopardizing
attainment by the required dates unless changes were instituted. In
this context, the transportation conformity review process will serve
three primary functions: (1) it will prevent changes to transportation
systems that exacerbate air quality problems, (2) it will provide for the
expeditious implementation of transportation control measures (TCMs)
in the applicable implementation plan, and (3) most importantly, the
periodic review requirement [§176(c)(4)(B)(ii)j will ensure that
transportation plans and HP's in nonattainment areas will remain
consistent with the budgets established in the applicable
implementation plan, in tight of actual transportation demand due to
population and economic growth.
The transportation and air quality planning processes are part of the
larger urban planning process and are influenced by many dynamic,
sometimes conflicting variables. It is impossible to develop
comprehensive long-term plans that precisely predict future conditions,
no matter how carefully each variable is incorporated, since local
conditions are constantly changing to reflect emerging constraints and
opportunities. Therefore, it should be expected that future realities and
conditions may not resemble those forecasted in the implementation
plans. The conformity review process requires the transportation
system plan to change in order to continue to meet the overall
emissions budget in the applicable implementation plan, unless that
implementation plan is revised to allocate a greater percentage of the
area's total allowable emissions to mobile sources or to require a
reduction in per vehicle emissions. Should neither of these courses of
action occur, and the area exceeds its attainment date, it would be
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reclassified to a higher category, thereby providing extra time to reduce
vehicle emissions, albeit at a cost of more restrictive control
requirements on various other sources of emissions.
The conformity of transportation plans and TIPs must be assured
through periodic demonstrations (by law not less than every three
years, although EPA and DOT may specify a shorter period) that
resultant motor vehicle emissions are within the implementation plan
budget limits. Failure to provide such assurance will prevent MPO
endorsement or DOT acceptance of, and conformity findings for, new
transportation plans and TIPs, and will result in a loss of federal funds
for transportation projects until the situation is corrected.
Once an area has achieved attainment of the NAAQS for any pollJtant(s)
for which- the area is currently in a nonattainment status, it may
request formal redesignation as an attainment area and submit to EPA a
plan for the maintenance of the ambient standard(s) which have been
achieved. The maintenance plan will resemble the attainment plan by
containing a budget of allowable emissions allocated to stationary and
mobile sources. The conformity review process will continue during the
maintenance period using this budget as a target.
Section 176(c)(3) allows transportation-related conformity
determinations to be made for a period of time after enactment with
special interim criteria and procedures that are not the same as those
in §176(c)(2). The special interim criteria recognize both the need for a
transition period to allow for new analyses or revisions of previously
planned transportation activities, and the temporary lack of an overall
air quality improvement strategy consistent with the new Clean Air Act
requirements as discussed above. It is not necessary to the purpose of
the Act that this interim guidance become, in effect, a requirement for
more accelerated development of control strategies. Congress clearly
intended that previously planned transportation control measures be
implemented without delay during the interim period. It appears to have
accepted the need for a new planning period for additional measures,
however. A variation of a year or two in their implementation will not
affect their long term impact too greatly. However, capital facilities
once constructed can rarely, if ever, be reversed. Therefore, there is a
need during the interim period to ensure that capital projects which
would be adverse to air quality do not proceed before they can be
considered by the conformity review process and modified or mitigated,
unless offsetting projects are also implemented in the same time
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frame. The requirement of §176(c)(3)(A)(iii) that transportation plans
and programs contribute to emission reductions will ensure that
adverse facility changes, if any, are offset.
Despite the difficulty in defining a future control scenario and its exact
effects on overall emissions, there is no doubt that CO, VOC, NOx, and
participate emissions from motor vehicles will decline between 1990
and 1995, 1996, or 2000, in all areas, taking regional growth into
account, due to fleet turnover and new control measures imposed by the
Amendments. Thus, air quality should not deteriorate in the period it
takes for States to prepare control strategies that meet the
requirements of the new law, despite the fact that during the interim
period transportation-related emissions will not be required to remain
within any pre-determined set limit.
30 APPLICATION
Section 176(c)(1) states that "No department, agency, or
instrumentality of the Federal Government shall engage in, support in
any way or provide financial assistance for, license or permit, or
approve, any activity which does not conform to an implementation plan
after it has been approved or promulgated under section 110. No
metropolitan planning organization designated under section 134 of
Title 23 U.S.C., shall give its approval to any project, program, or plan
which does not conform to an implementation plan approved or
promulgated under section 110." A project may be approved by an MPO,
DOT, or any recipient of federal transportation assistance under Title
23 U.S.C. or the Urban Mass Transportation Act only if it meets the three
tests outlined in §176(c)(2)(C) for projects from existing
transportation plans and TIPs, or if it meets the requirements of
§176(c)(2)(D) for case-by-case approvals otherwise. Yet the.title of
§176 - "Limitations on Certain Federal Assistance" - and past
interpretations give support to a view that Congress intended only
federally approved or assisted projects to be affected by the provisions
of §176(c). Likewise, since §176 is contained in Part D - Plan
Requirements for Nonattainment Areas, there are arguable ambiguities
as to the geographic areas to which §176(c) is meant to apply. EPA and
DOT agree to interpret §176(c) during Phase 1 as certainly applying to
conformity determinations for transportation plans, programs, and
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federally-assisted9 or approved10 (hereinafter referred to as 'federal')
transportation projects, with respect to each pollutant for which
NAAQS exist in the areas designated as nonattainment for that
pollutant. This guidance will not specifically address any criteria and
procedures for NOz and PMio conformity determinations, instead
deferring guidance on these pollutants to further discussions between
EPA and DOT and/or the EPA/DOT rulemaking. In Phase 1, conformity
determinations for NOaand PMio may be based upon a qualitative
assessment jointly agreed upon by the MPO, DOT, and EPA.
EPA and DOT do not yet agree upon an interpretation of the Act language
in the case of projects which do not receive federal assistance or
approval, or in the case of pollutant-specific impacts of projects in •
areas which are now in attainment with the NAAQS for that pohutant
ana have not in the past been in nonattainment with that same NAAQS.
The Notice of Proposed Rulemaking (NPRM) will propose that §176(c)
applies to such projects, but will also propose in the alternative that it
does not apply, and seek public comment on the legal and policy issues
involved. Meanwhile, this guidance is intended to clarify procedures for
issues where agreement has been reached, and to expedite
transportation planning action in nonattainment areas in general.
In addition, development of the NPRM will allow EPA and DOT time to
further examine all issues in greater detail, and as a result, the
EPA/DOT final rule may contain supplemental criteria and procedures
for determining conformity during Phase 2 of the interim period and the
subsequent control strategy period that differ significantly from this
interim guidance; affected parties are cautioned that no guarantees can
be offered concerning any similarities between guidance in effect
during Phase 1 and that guidance which will be promulgated as part of
the final rule.
By agreement between EPA and DOT, this interim guidance does not
explicitly apply to those projects which do not receive federal
assistance or approval. However, both agree that once into the control
strategy period, the collective prospective impact of regionally
significant non-federal projects must be considered in periodically
9These are projects which receive funding assistance through the Federal-Aid
Highway program or the Federal mass transit program.
10Some transportation projects may not utilize federal assistance, but may require
FHWA approval for some aspect of the project, such as connection to an interstate
highway, etc. Conformity determinations are required in all such cases.
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determining the conformity {or non-conformity) of transportation plans
and TIPs with respect to emissions milestones, and may prevent all
project sponsors from implementing their federal projects. (The point
of disagreement is essentially whether new non-federal projects would
be able to proceed, or would be stopped.) Therefore, to exclude non-
federal projects from the formal, federally imposed conformity process
would not reduce the practical need to include them within the local
transportation/air quality planning process, and MPOs should begin to
consider the emissions and VMT impacts of them as they prepare plan
and program revisions for the federal projects.
Where the applicable implementation plan establishes a process of local
conformity reviews, the present lack of an EPA/DOT agreement on t!ie
coverage of non-federal projects does not in any way reduce the
applicability of the local process from that provided by the
implementation plan.
4.Q SPECIFIC REQUIREMENTS FOR MAKING CONFORMITY
DETERMINATIONS FOR TRANSPORTATION PLANS
4.1 Overview
A transportation plan describes policies, strategies and transportation
facilities of regional significance within an urbanized area based on
existing and future transportation needs, with due consideration given
to comprehensive long-range land use plans and forecasts. It is
developed through a cooperative process between State and local
officials and can be modified as future changes in policy dictate. It is
required under the regulations implementing §134 of Titfe 23 U.S.C., and
§8 of Title 49 U.S.C., and is intended to foster a continuing, cooperative,
and comprehensive planning process; it must be endorsed by the MPO as
evidence of this process in order for DOT to accept any TIP or approve
any project. Under the old §176(c), and DOT regulations thereunder, DOT
was required to find that the transportation plan conforms to the
applicable SIP in order to find that the TIP also conforms.
The Clean Air Act requires transportation plans to conform to
applicable implementation plans. Specifically, transportation plans
must meet the requirements set forth in §176(c)(1) and §176(c)(2)(A),
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except that during Phase 1, the three tests established in §176(c)(3)(A)
may be applied instead of the requirements of §176(c}(2)(A). Of the
three criteria listed in §§176(c){1)(B)(i)-(iii), EPA and DOT have agreed
that only §176(c){1)^B)(ii) has meaning for a transportation plan in the
interim period in a nonattainment area. In all cases, the conformity
determination must be based on the most recent estimates of
emissions, and those emissions estimates must be based upon the most
recent population, employment, travel, and congestion estimates as
determined by the MPO. In addition, transportation plans must provide
for the expeditious implementation of TCMs from the applicable
implementation plan. MPOs must make conformity determinations for
transportation plans developed under their jurisdiction and endorsed by
them prior to their transmittal to DOT. DOT must, in turn, make a
conformity determination based upon its review of the MPO conformity
analysis .for the transportation plan, and must always seek EPA
comment before doing so; early consultation with EPA regarding
conformity issues will avoid the potential for negative comments later
in the process. During Phase 1, there is no requirement that the
existing transportation plan be modified to conform under the new
provisions of §176(c), since projects may proceed without a conforming
plan as long as they come from a conforming TIP (see section 5.2
below). As of November 15, 1991, the lack of a conforming plan may
become an obstacle to the funding and approval of new projects, and
transportation plan conformity must have been determined according to
the new criteria. MPOs may wish to take action on a new transportation
plan, or to analyze and reaffirm the conformity of their current plan, as
soon as possible in Phase 1 to avoid an interruption in project funding.
Since there are no federal guidelines regulating format and content of
existing transportation plans, planning data on future projects have not
been consistently provided, and current plans may not contain sufficient
specificity, detail, and quality necessary to perform a detailed
emissions analysis. The transportation plans now ready for conformity
determinations may not be commitments to particular, well-described
options, and may not be easily adapted for analysis of air quality
emissions. Not all MPOs have the immediate ability to perform long-
range emissions forecasts, even if their transportation plan is
relatively specific. Also, during the interim period, there may be no
applicable implementation plan strategy, hence no emission reduction
milestones to avoid delaying, although the requirement to contribute to
emission reductions would still apply. On the other hand, some
transportation plans are quite specific, and some nonattainment areas
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have locally adopted air quality plans which do contain transportation
control measure commitments and/or emission reduction schedules and
milestones. Because of the short duration of Phase 1 and the diversity
of local situations, it does not seem possible, appropriate, or necessary
to the purpose of the Act to require MPOs to add specificity where it is
now lacking, or to perform emissions analyses not previously performed
at the plan stage, for transportation plans reaffirmed or adopted during
this period. However, MPOs should be advised that this specificity may
be required of transportation plans under the EPA/DOT final rule.
Although the exact criteria and procedures will be established in the
EPA/DOT final rule, MPOs should be aware that §176(c)(2) treats
transportation plans and transportation improvement programs with
nearly identical wording. Also, the purpose of the Act can only oe
served if- conformity determinations are made for plans and programs
that are realistic with regard to resources for implementation.
Therefore, EPA and DOT consider it important that in a longer time
frame, the transportation plan should be reasonable when compared to
all likely public and private funding sources, that it affirmatively
provides for the expeditious implementation of TCMs in the applicable
implementation plan, and that it provides a reasonable demonstration
that emissions estimates for at least one reasonably specific and
realistic option shown in it are consistent with the emissions reduction
estimates in the applicable implementation plan over the entire period
addressed by both the transportation plan and the applicable
implementation plan, recognizing that the transportation plan may lack
complete network detail for this and other options.
4.2 Conformity Criteria
Unlike transportation programs and projects, no transportation plans
are grandfathered as a result of the Amendments. During Phase 1, this
situation does not directly affect the ability of MPOs or other
recipients of funds, or DOT to proceed with project funding, approval, or
implementation, since the Act does not specifically require the
existence of a conforming transportation plan. However, after
November 15, 1991, any transportation project approved by DOT must
either come from a conforming transportation plan and program, or meet
the requirements of §176(c)(2)(D). This will require all transportation
plans to be found to conform to the new Act in order to avoid an
interruption in project funding.
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The EPA/DOT final rule will include criteria and procedures for making
conformity determinations after November 15, 1991, and must also by
law contain a requirement that conformity determinations for
transportation plans (and programs) be reaccomplished periodically,
with a frequency (to be established by EPA and DOT in the final rule) of
not less than every three years; if the conformity determination is not
reaccomplished, approval of. new projects (except those which the final
rule categorically exempts from the conformity process) will halt.
Transportation plans endorsed by MPOs and found to conform by the MPO
and DOT prior to November 15, 1991, and therefore subject to the
interim criteria contained in this guidance, will not immediately be
superseded or voided as a result of promulgation of the final rule, but
will remain in effect after promulgation and will expire no later than
November 15, 1994, depending upon the frequency for reaccompJishment
as established in the final rule. All initial and reaccomplished
conformity determinations of transportation plans after promulgation
of the final rule must meet the criteria and procedures established in
the rule. All conformity determinations reaccomplished after the start
of the implementation plan control strategy period will not only be
based upon the final rule criteria and procedures, but will also be
required to conform to the applicable implementation plan's control
strategy for mobile source emissions.
In light of the more thorough reassessment that will occur within a few
years, EPA and DOT suggest the following as criteria and procedures to
use in making conformity determinations of transportation plans during
Phase 1:
1. The MPO and DOT should determine that the
transportation plan as endorsed will generally conform to the
applicable implementation plan by supporting its broad
intentions of achieving and maintaining the NAAQS.
2. The MPO and DOT should assure that no goals,
directives, recommendations, or projects identified in the
transportation plan contradict in a negative manner any
specific requirements or commitments of the applicable
implementation plan (e.g., a plan which states that a SIP TCM
will not be implemented, or which make it impossible to
implement any SIP TCM) for the area as it exists at the time
of the conformity determination. This assurance is a
precondition for the MPO's own conformity determination
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whenever that determination occurs. DOT will also require
written assurance to this effect as part of the* next annual (or
biennial) revision of "the TIP, or as a separate statement
accompanying the TIP submission.
3. The MPO and DOT should assure that the plan provides
for the expeditious implementation of transportation control
measures in the applicable implementation plan. If the
transportation plan lacks the necessary specificity, the MPO
should commit (by a statement in the plan or by a separate
document) that TIP'S developed under the transportation plan
will provide for the expeditious implementation of those
TCMs committed to in the applicable implementation plan for
the area as it exists at the time of the conformity
determination for the transportation plan. The details of how
TIP'S must provide for TCMs are discussed in section 5.3.2
below.
4. The MPO and DOT must determine that the
transportation plan contributes to reductions in annual
emissions in carbon monoxide and ozone nonattainment areas.
The definition of what constitutes a contribution to
reductions and the future period which must be considered are
the same as described in section 5.3.3 below. The 'build/no-
build' determination of such a reduction must be based upon
reasonable assumptions and logic, and may be based on a
qualitative determination rather than a quantitative analysis.
Where they exist, quantitative methods should be exercised
and the results considered.
5. EPA and DOT agree that satisfying §176(c)(1)(B)(ii) in
the interim period requires that the MPO and DOT must
determine that the plan does not increase the frequency or
severity of the existing violation of the NAAQS for which the
area is designated as nonattainment. This can be based on a
finding that the plan does not increase emissions of the
relevant pollutants in the future, relative to emissions over
the same period without the plan. This is a similar test to
the 'build/no-build' determination on whether the plan (and
the TIP) contribute to emissions reductions, except that the
criteria is that there be no increase (as opposed to a
requirement for some finite decrease) in emissions. Also, for
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a transportation plan, the "will not increase the frequency or
severity" test applies over the entire period of the plan. As
explained in section 5 below, in contrast, the test for
"contributes to reductions" strictly applies only for the
period up to the attainment deadline. As with #4 above, this
determination must be based upon reasonable assumptions and
logic, and may be based on a qualitative determination rather
than a quantitative analysis. Where they exist, 'quantitative
methods should be exercised and the results considered.
5.0 SPECIFIC REQUIREMENTS FOR MAKING CONFORMITY
DETERMINATIONS FOR TRANSPORTATION IMPROVEMENT PROGRAMS
5.1 Overview
The TIP is a program or schedule of intended transportation
improvements (or continuations of current activities) usually covering a
three to five year period, developed as part of the process of applying
for Federal funds from the Federal Highway Administration or the Urban
Mass Transportation Administration. TIP acceptance by these agencies
is usually a precondition for funding, with conformity a precondition to
TIP acceptance. Projects in the TIP are taken from the transportation
plan or are consistent with the plan; EPA and DOT consider it important
that the TIP be reasonable when compared to likely available funds.
Among the requirements which must be met (section 5.3 below) in order
to make a conformity determination for the TIP during Phase 1, is a
finding regarding the total emissions impacts from federal projects in
the TIP. MPOs should be advised that after the start of the control
strategy period, the emissions impacts from non-federal projects may
influence the conformity of the TIP with respect to emissions
milestones, and analyses will need to consider all transportation
projects with regional impacts, regardless of funding source, in order
to determine the cumulative impact of transportation related
emissions. It is advantageous, but not required, to begin analysis of
non-federal projects with potential regional impacts during the interim
period so as to avoid any future problems in making conformity
determinations of federal projects.
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5.2 TIP'S Requiring No Further Conformity Determinations
Section 176(c)(3)(B)(i) allows transportation projects to proceed, for
12 months after the date of enactment without further emissions
analysis provided they come "from a transportation program found tc
conform within 3 years prior to such date of enactment." This, in
effect, grandfathers those TfPs that were found to conform and
accepted by DOT between November 15, 1987, and November 15, 1990.
Any TIPs so affected are to be treated as if they conform to the new
statutory criteria until November 15, 1991, and require no further
conformity determination during Phase 1". After that time, all TIPs
must have been developed and approved under the new substantive
criteria contained in section 5.3 of this guidance. As with
transportation plans, MPOs may wish to develop and get DOT acceptance
for a new TIP prior to November 15, 1991 so as to avoid an interruption
in project funding. TIPs accepted by DOT after November 15, 1991 must
also meet any additional criteria which may be promulgated in the
EPA/DOT final rule.
5.3 Conformity Criteria and Procedures For New TIP'S and TIP
Amendments
All TIPs which are not grandfathered will require conformity
determinations in accordance with these procedures. In order for MPOs
and DOT to determine that a TIP conforms to the applicable
implementation plan during Phase 1, the TIP must meet the
requirements of §176(c){1) and pass the three tests described in
§176(c)(3)(A). All TIPs accepted by DOT after enactment, and all TIPs
endorsed by MPOs and submitted to DOT prior to enactment but which
did not receive DOT acceptance by that date now require a-conformity
determination that meets the requirements of the amended Act. EPA
1' This would also apply to TIPs in nonattainmeni areas where the applicable
implementation plan did not contain TCMs. Under 23 CFR 770 and the June 12 1980
DOT/EPA procedures (which treated conformity primarily as a matter of TCM
implementation) for conformance of plans, programs, and projects, conformity did
not apply in nonatlainment areas where the applicable implementation plan did
not contain TCMs. Since conformity was considered as not applying, MPOs and DOT
did not make individual findings of conformity for such TIPs. To deny them
grandfather ing now would not be fair or in keeping with the apparent inienl of
the Act. Therefore, these plans, programs, and projects are also grandfathered for
the same period.
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and DOT agree on the following criteria and procedures for meeting
these tests and making a .conformity determination during Phase 1:
5.3.1 Consistency With Mobile Source Emissions Estimates
In accordance with §176(c){1)(B), all conformity determinations must
be "based upon the most recent estimates of emissionr. and such
estimates shall be determined from the most recent population,
employment, travel and congestion estimates as determined by the
metropolitan planning organization or other agency authorized to make
such estimates." The TIP documentation must reference the published
source of these estimates and the authority of those sources to make
such estimates.
Section 176(c)(3)(A)(i) also requires TIPs to be "consistent with the
most recent estimates of mobile source emissions." Since most
currently applicable implementation plans do not contain projections
beyond 1987, they will not contain estimates of emissions for the
period covered by the TIP. Therefore, an analysis of the emissions
impact of TIP execution (accounting for the emissions impact of all
transportation projects) using the MOBILE4 emissions model12 will be
adequate for TtPs accepted by DOT after enactment. EPA is currently
working to update the MOBILE model, with release of MOBILE4.1
scheduled for June 1991. All TIPs whose emissions analysis work
starts later than 3 months after release of the model update must have
a conformity determination based on an emissions analysis using the
updated model version in lieu of any earlier model versions. TIPs with
analysis in progress may continue to use MOBILE4. EPA Regional Office
agreement should be obtained for any exceptions made necessary by
unusual local circumstances.
5.3.2 Provision For Expeditious Implementation of TCMs
Section 176(c)(3)(A)(ii) requires transportation plans and TIPs to
"provide for the expeditious implementation of TCMs in the applicable
implementation plan." This provision does not apply in areas whose
applicable implementation plan does not contain TCMs, or in areas newly
12As explained in section 5.3.3 of this guidance, during Phase 1, the TIP conformity
test is based on a comparison of future emission levels for the 'baseline' and 'new
TIP' scenarios, not on the absolute level of those future emissions compared to
current (1990) emissions.
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designated as nonattainment for which no implementation plan
containing emission control strategies exists.
The definition of 'expeditious implementation1 is generally accepted to
mean as soon as practicable, but in no event longer than the project
would have taken to implement under the original implementation plan
schedule. This requires current and future TIPs to provide for the
implementation of TCMs which were committed to in the applicable
implementation plan but which have not yet been fully implemented.
Some TCMs may be non-implementable as a practical matter because
they are unspecific as to the degree of commitment (i.e., absolute vs.
contingent), proposed scale and location(s), unit of government
responsible for implementation, source and level of funding, etc. Only
those TCMs which are described in the applicable implementation plan
in enough detail to allow development of specific implementation steps
are required to be provided for by the TIP. Classification of TCM
references in the applicable implementation plan as specific or non-
specific will depend on the wording in the implementation plan, and
must be done in consultation and with the agreement of the air agencies
involved13.
The TIP submission must include the status of each TCM in the
applicable implementation plan, regardless of funding source(s). Such
status must be discussed with each TIP submission until the TCMs are
fully implemented; this discussion should be a document attached to,
but not part of the TIP itself. In addition, SIP-related transportation
measures must retain a high priority, and funding decisions must
promote timely implementation of eligible implementation plan
measures to the extent that funds are available. The projects in-the TIP
must not interfere with or cause delay in the implementation of any
TCM. Any failure to implement TCMs, regardless of funding source and
unit of government responsible, must be recognized in the emissions
analysis when making or renewing conformity determinations14.
general, the test for specificity and reality of commitment must be about the
same as would be applied if EPA or a citizen were to seek a court order for
implementation of the specific TCM.
14A11 TCMs in the applicable implementation plan require consideration under
this section and inclusion in the status report, except for programs which may
have in the past been called TCMs (such as Inspection/Maintenance) but which
are no longer listed in §108 and are not eligible for funding under Title 23 U.S.C. or
the Urban Mass Transportation Act.
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If the applicable implementation plan contains real commitments to
sufficiently specific TCMs which no longer appear to" be beneficial to
the air quality goals -of the area, are not consistent with the most
recent TCM planning, or generally now appear to be illogical or non-
implementable, then the first year action in the TIP may consist of a
re-evaluation of any such TCM, rather than an immediate
implementation step involving capital expense. The TIP may still be
found to conform if it is accompanied by a commitment and a resource
plan for the re-analysis, and the second and following years provide for
capital and other steps of the TCM implementation process, to be
implemented should the TCM(s) remain in the implementation plan after
reevaluation.
Should the re-evaluation find a particular TCM no longer appropriate, a
revision of the applicable implementation plan is the only mechanism to
replace existing commitments to obsolete TCMs with commitments to
current and effective measures. For any TCM being re-analyzed, the TIP
submission should include new TCM(s) proposed to be implemented
through a revision to the applicable implementation plan, evidence of
coordination with EPA and appropriate State and local air quality
agencies in the development of new measures, and a discussion of the
steps being taken to submit a revised implementation plan. This
information should be included in each TIP until the TCM portion of the
applicable implementation plan is revised. The General Savings Clause
(§193 of the Act) requires emissions reductions from any new TCM to be
equal to or greater than those attributable to the outdated TCM being
replaced in this manner. Only after EPA approval of the implementation
plan revision containing the new TCM(s) and deleting the obsolete
TCM(s) may subsequent TIP submissions delete obsolete TCMs. The
provisions of this paragraph apply only to TCMs eligible for funding
under Title 23 U.S.C. or the Urban Mass Transportation Act.,
5.3.3 Contributions to Annual Emissions Reductions
Section 176(c)(3)(A)(iii) requires TIPs developed in ozone or CO
nonattainment areas to "contribute to annual emissions reductions
consistent with sections 182(b)(1) and 187(a)(7)." The language in the
Amendments does not specify a contribution of any particular size,
however. Legislative history on the subject is limited and provides no
discussion of the details or intended exclusions, if any, needed to
develop a workable pass/fail test for specific annual emissions
reductions.
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The provisions of the Amendments relating to implementation plans
give the States up to 36 months to develop and prepare an overall
strategy to meet the emission reduction timetables specified in
§182(b){1) and §187(a)(7) for the purpose of achieving the NAAQS for
ozone and CO. The States are required to have a completed 1990
inventory available 24 months after enactment; CO and VOC control
strategies are required 24 and 36 months, respective1-/, after
enactment. PMio plans must be submitted within 12 months of
enactment. To support the development of the control strategies, EPA
must issue guidance on emission reductions attributable to the new
mobile source measures contained in the Amendments. This guidance (in
effect, a revision to the mobile source emission factor model) is not
anticipated until after the end of Phase 1 of the interim period. As L-
result, in the interim period, States and MPOs will not be able to use the
newly mandated vehicle and fuel controls to demonstrate that aggregate
emissions of a TIP conform to a specific, decreasing allowable level of
emissions from transportation activities.
Therefore, a finding during Phase 1 that the TIP contributes to
reductions consistent with §182(b)(1) and §187(a)(7) may be made if
the future emissions that result from implementation of the TIP are
less by any amount than the emissions that result in the same future
time period from the current situation. The procedure for performing
this analysis is described as follows:
1. Define the 'New TIP' Scenario: The 'new TIP'
scenario is defined as the future situation that will result
from implementation of all federal projects scheduled in the
TIP and any non-federal projects which are required to be
included in the TIP (i.e., non-federal projects which cannot-
proceed without endorsement in the form of inclusion-in the
TIP) as a result of State or local law or agreement. All non-
federal projects that have clear funding sources and
commitments leading to their implementation and completion
by the analysis year should be included in the 'new TIP*
scenario (and in the 'baseline* scenario also, since in the
absence of an EPA/DOT agreement on whether to treat non-
federal projects as subject to conformity, it should be
assumed that these would proceed even if the TIP is not
approved). The future situation shall reflect the best
estimate of future population, employment, travel, and
congestion in the area affected by the TIP projects. Any
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project which will not be completed by the year of analysis
should not be included in the 'new TIP1 scenario. Projects
which obviously-do not impact regional emissions (including
those listed in the Appendix to this guidance) need not be
included in the 'new TIP1 scenario for analysis purposes. MPOs
should ensure that the design concept15 and scope16 of all
projects is described in' sufficient detail to perform the
emissions analysis described in item 3 below. The 'new-TIP1
scenario may not include, for emissions credit relative to the
'baseline1 scenario, planned but not yet adopted and/or funded
future non-TIP TCMs such as proposed local ordinances. It
does include fully adopted regulatory TCMs (e.g., a new
mandatory employer ridesharing ordinance) and fully funded
non-regulatory TCMs (e.g., funding for ridesharing, or new
facilities for transit and HOVs) which will be implemented as
part of the TIP program over the course of the TIP period. The
'new-TIP1 scenario should also include TCMs adopted since
November 15, 1990, and any prior TCMs which have been
amended since that date to be more stringent or effective,
even if not yet incorporated into the applicable
implementation plan. (The 'baseline' scenario excludes these
recent changes, so their benefit will be available as an offset
to any emissions increase from new projects in the TIP.)
MPOs should submit reasonable evidence of the resources
available for implementation of all projects in the TIP17.
2. Define the 'Baseline' Scenario: The 'baseline'
scenario is considered to be the future transportation
situation that would result from current programs, composed
of all in-place facilities and on-going travel demand
management (TDM) or transportation system management
(TSM) activities, all projects currently under construction,
15The 'design concept' shall mean the type of facility identified by the project,
e.g., freeway, expressway, arterial highway, grade-separated or mixed-traffic rail.
transit, etc.
l6The 'design scope1 shall mean the design aspects which will affect the proposed
facility's impact on regional emissions, usually as it relates to vehicle or person
carrying capacity and control, e.g., number of lanes to be constructed or added,
location and length of project, signalization. access control, preferential treatment
for HOVs, etc.
17The promulgated criteria and procedures in the final EPA/DOT rule may
establish more explicit requirements for the showing that there will be funding
for all beneficial projects during Phase 2 and the long-term period.
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projects currently contained in the annual or biennial funding
element of a conforming TIP which will be completed by the
year of analysis, and" all non-federal projects that have clear
funding sources and commitments leading toward their
implementation and completion by the year of analysis,
except for those projects so closely relatad to a new federal
project that the local sponsor would not proceed in the
absence of the federal project. Projects which obviously do
not impact regional emissions (including those listed in the
Appendix to this guidance) need not be included in the
'baseline1 scenario for analysis calculation purposes.
3. Perform the Emissions Impact Analysis: The
intent in describing the 'new-TIP1 and 'baseline' scenarios iii
this way is to compare the transportation system as a whole
in both cases, to determine the impact of TIP approval. An
emissions analysis must be performed to estimate the
differences in the area-wide VOC (for all ozone areas) and CO
(for CO areas with an area-wide CO problem) emissions
between the 'new TIP' and 'baseline* scenarios. The emissions
analysis for TIP approval should use the locally available
transportation models and tools, and must in all cases be
adequate to make a reasoned determination of whether the
TIP makes a contribution to emission reductions.18
The analysis will be performed in the first milestone year19
and in the attainment year. The Act does not explicitly
require a showing for dates beyond the attainment year, but
at least for areas with a 1995 or 1996 attainment deadline,
it is advisable to verify that the 'new TIP* scenario does not
increase emissions for 5-10 years beyond the attainment
date. The difference in emissions should best be determined
from detailed scenario-specific estimates of demographic,
employment, and transportation variables for the end-point
years (e.g., VMT and traffic speeds), followed by application
of MOBILE4.
18Readily available improvements to past local practices should be made wherever
possible. More rigorous analysis requirements may be developed as part of the
EPA/DOT final rule and applied to the remainder of the interim period.
19The first milestone year is defined to be 1995 for CO nonattainmeni areas as
described in §l87(a)(7) of the Act. or 1996 for ozone nonattainmeni areas as
described in §l82(b)(l) of the Act.
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4. Make The Conformity Determination: The TIP
contributes to emissions reductions if emissions with the
'new TIP' scenario are shown to be less than those with the
'baseline' scenario for the two end-point years, and there is a
logical basis for expecting that emissions from the 'new TIP*
scenario are lower than the 'baseline' scenario for each of the
intervening years. The MPO must consider and address any
reasons why this expectation might not be valid, for example
a project timing problem in which congestion is temporarily
increased until completion of a later project.
Any construction-related measures that cause temporary and
self-correcting emissions increases or NAAQS violations will
not by themselves prevent a conformity determination, but
will be subject to standard practices to minimize pollution
during construction.
6.0 SPECIFIC REQUIREMENTS FOR MAKING CONFORMITY
DETERMINATIONS OF TRANSPORTATION PROJECTS
6.1 General Discussion
For the purposes of determining conformity, a project is defined20
according to §111 (f) of 23 CFR 771. This section requires actions
evaluated under the National Environmental Policy Act to: (1) connect to
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 usable and 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.
Projects which received all necessary approvals by DOT, the MPO, or a
State or local transportation agency prior to enactment may proceed
toward completion without further conformity determinations under the
20This definition of a project would also apply to a project as it appears in
discussions of plans and programs.
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Amended Act. All segments21 of such projects which were considered
in the pre-enactment approval are also included, if the segmentation
was for purposes of-funding or construction only. DOT approval for this
purpose is defined as a Final Environmental Impact Statement (FEIS)
with record of decision issued, a Finding Of No Significant Impact
(FONSI), or a categorical exclusion.
During Phase 1, all other federal projects, and non-federal projects
which require action by an MPO due to State or local law or agreement
must be found to conform under the new Act using the criteria and
procedures in this guidance. Projects requiring conformity
determinations may be categorized as those that do not impact regional
emissions, those that come from conforming TIP'S, and those that r.re
not in a TIP for any reason. It should be noted that the project-level
conformity determination may not by itself remove the last obstacle to
implementation, since in most cases DOT cannot fund projects that do
not come from an approved and conforming TIP.
6.2 Projects That Do Not Impact Regional or Local Emissions
EPA and DOT agree that certain types of projects (listed in the Appendix
to this guidance) obviously have no impact, either negative or positive,
on regional CO and VOC emissions and therefore do not require analysis
of regional impacts. Most also have no local CO impact, so CO analysis
is also not a requirement, except as otherwise noted for three of the
project types22. Despite their lack of emissions impacts, during Phase
1 these projects must be formally found to conform to the applicable
implementation plan in accordance with §176(c)(3) if from a
grandfathered pre-enactment TIP, or (optionally) with §§176(c)(2)(C)-
(D) provided the area has a currently conforming TIP. However, the
previous sentence notwithstanding, DOT may make a categorical
conformity finding for project types on this list, except for the three
identified as possible contributors to new local CO violations. The
NPRM for Phase 2 of the interim period and the control strategy period
21 In the FEIS or FONSI. a project is defined in its entirely so that its total impacts
may be determined. As the project proceeds toward implementation, it is of I en
split into smaller segments or TIP line items for funding and construction
purposes. However, there is no requirement to analyze these segments beyond the
analysis for the project as defined in the FEIS or FONSI.
22These projects may be excluded from emissions analysis when located in an
urban planning area and included in a transportation plan or TIP (see sections 4.2
and 5.3.3 of this guidance).
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will seek public comment on a categorical exclusion from conformity
review for at least some of these projects unless contrary indications
exist in specific cases.
6.3 Projects in TIPs
This category encompasses all federally assisted or approved projects
that are included in TIPs found to conform during Phase 1 according to
the procedures described elsewhere in this guidance. These can be
further sub-categorized to include projects in grandfathered TIPs (as
defined in section 6.3.1 below) and projects in TIP'S found to conform
since enactment (as described in section 6.3.2 below).
In order to make a conformity determination for projects in this
category, the design concept and scope of such projects must not have
changed significantly since the TIP from which they were derived was
found to conform. Projects which are located in a CO nonattainment
area must also be accompanied by an analysis showing they eliminate or
reduce the number and severity of CO NAAQS violations in the area
substantially affected by the project." This analysis should extend at
least through the attainment deadline for that area. Projects may not
cause or contribute to any new CO violations in an area to which
conformity applies for CO; a seemingly new CO violation in a CO
nonattainment area can be considered to be merely a relocation and
reduction of an existing violation, but only if it is reasonably close to
the site(s) of previous violations that will be reduced in number or
severity as a result of the project.24
6.3.1 Projects in TIPs Grandfathered Under Section 176fcM3WBMil
This sub-category includes those projects which are grandfathered as
part of TIP'S found to conform within three years prior to enactment (as
described in section 5.2 of this guidance). Section 176(c)(3)(B)(i)
clearly allows these projects to proceed during Phase 1. All projects
23The CO analysis has in the past usually been completed at the HIS stage of project
development, following approval of the TIP. The Act now allows, but does not
require, this analysis to be completed prior to TIP approval, and approved along
with the TIP. As the criteria are the same in either case, it will be necessary to
have the project defined with adequate specificity if the analysis is completed
prior to TIP approval.
24Possible further mitigation of the relocated violation should be addressed in the
E1S process.
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included in the TIP are grandfathered, even if not included in the annual
or biennial funding element. This may be beneficial in areas
experiencing delays irl adoption of a new conforming TIP. The
grandfathering provision expires November 15, 1991, after which time
all projects which have not yet received a DOT conformity finding a. id
NEPA approval must come from a TIP found to conform under the new
statutory criteria.
6.3.2 Projects In TIPs Found to Conform After Enactment
This sub-category includes all projects in TIPs which are found to
conform after enactment using the criteria and procedures described in
section 5.3 of this guidance or any criteria and procedures prorr-jlgated
after thi? date.
6.4 Projects Not in a TIP For Anv Reason
This category encompasses all projects that are within the
nonattainment area but are not included in a conforming TIP for any
reason. This category can be further sub-categorized to include any
project outside the urban planning area but within the nonattainment
area (as defined in section 6.4.1 below), and projects within the urban
planning area that have been newly proposed since the last TIP was
found to conform (as defined in section 6.4.2 below). It also includes
any project within an urban planning area that has no conforming TIP (as
defined in section 6.4.3 below), although this may be an empty sub-
category during Phase 1 since all areas should have at least a
grandfathered pre-enactment TIP.
Section 176(c)(2)(D) is the only statutory provision that explicitly
addresses conformity criteria for projects not from a conforming TIP,
but the general provisions of §176(c)(1) also apply, and the provisions
of §176(c)(3)(B) may be used as a guide to statutory intent. Since
projects in this category are not included in conforming TIPs, they
require analysis similar to that of both TIPs (TCM implementation and
area-wide emissions analysis) and projects (localized hot-spot CO
analysis) on a project-by-project basis during Phase 1 in order to make
a conformity determination. All such projects must therefore be
accompanied by a finding that they do not adversely affect the
implementation of TCMs from the applicable implementation plan, and
an analysis (resembling that for TIPs as described in section 5.3.3 of
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this guidance) of their effect on regional emissions. Criteria for
regional emissions impacts are discussed below by sub-category.
Projects which are located" in CO nonattainment areas must also be
accompanied by an analysis showing they eliminate or reduce the
number and severity of CO NAAQS violations in the area substantial!*/
affected by the project. These projects may not cause or contribute to
new CO violations in an area; to which conformity applies for CO, unless
the new violation is demonstrated to be merely a relocation and
reduction of an existing violation and it is reasonably close to the
site(s) of previous violations that will be reduced in number or severity
as a result of the project.25. MPOs and project sponsors should take
note that project-by-project approvals may not be much different in
analytical requirements or criteria than a TIP amendment since ,•
§176(c)(2)(D) requires such projects to be considered together with all
other projects in a conforming plan and program. Therefore, the long-
term approach requiring the least effort may be to include in the TIP as
many projects of the types described below as possible.
6.4.1 Projects Outside The Urban Planning Area
But Within The Nonattainment Area
This sub-category of projects does not require MPO action under
existing federal law or DOT regulations. As a result, few if any such
projects have been included in past TIPs, and therefore such projects
usually cannot be grandfathered. The Act does not address a process by
which to determine the conformity of these projects during the interim
period. Since there is no reason not to allow projects with favorable
regional and local emissions impacts to proceed toward
implementation, EPA and DOT agree during Phase 1 to interpret
§176(c)(2)(D)26 (which most directly addresses project-by-projact
approvals during the control strategy period, since it refers to
implementation plan projections and schedules that exist only in that
period) such that conformity determinations may be made on a project-
by-project basis by DOT using the concept of the interim criteria for
TIPs and projects specified in §176(c)(3). That is, each project must
25See Footnote 23.
26EPA and DOT also interpret §176(c)(2)(D) to require the existence of a
conforming TIP and transportation plan in order for projects to be found to
conform individually under that section. Strictly speaking, the portion of the
nonattainment area outside the urban planning area is not now covered by a TIP,
conforming or otherwise. For Phase 1 of the interim period the concept of
project-by-project approvals may be applied outside the urban area, provided (hat
the urban area itself has a conforming TIP.
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not interfere with TCMs, must contribute to regional emissions
reductions, and must reduce local CO violations.
6.4.2 Projects in an Urban Area
But Not In The Most Recent Conforming TIP
This sub-category includes projects which, for whatever reason, require
approval (and therefore conformity determinations) prior to the next
TIP submission or formal TIP amendment but were not included in the
most recent conforming TIP. EPA and DOT agree to interpret
§176(c)(2)(D) during Phase 1 such that conformity determinations may
be made on a project-by-project basis by the recipient of funds and DOT
using the concept of the interim criteria for TIP's and projects
specified in §176(c)(3).27 This applies only to new projects in urban
areas where the most recent conforming TIP is a new one found to
conform after enactment using the criteria and procedures in section
5.3 of this guidance.
The above approval criteria do not apply to new federal projects in
urban areas where the most recent 'conforming* TIP is still the one
treated as conforming by way of the grandfathering provision (section
5.2) of this guidance. To allow such projects to proceed individually
toward implementation during Phase 1 would undermine the Act's intent
that a new round of comprehensive planning be completed soon. They
must therefore be processed in a TIP revision subject to the full
criteria for TIP conformity determinations after enactment (section 5.3
of this guidance), unless they fall into the criteria for projects that do
not impact air quality as listed in the Appendix to this guidance. Since
federal funding in an urbanized area usually requires that projects come
from an accepted TIP, for them this restrictive policy has a practical
additional impact only for projects requiring DOT approval but not
funding action.
6.4.3 Projects In Urban Areas With No Conforming TIP
This sub-category includes projects in urban areas which do not have a
current conforming TIP. This could occur in Phase 1 if an MPO's draft
TIP has not been found to conform after enactment and the most recent
pre-enactment TIP was found to conform prior to November 15, 1987. It
is possible, even likely, there are no areas so affected during Phase 1.
27See Footnote 25.
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During Phase 1, no project in this sub-category may be found to
conform, even in light of the project-by-project provision in
§176(c)(2)(D), becausa this provision requires there to be a conforming
plan and TIP at the time of project approval. Therefore, these projects
must be held for inclusion in the next TIP submission or amendment and
be analyzed in the aggregate with all other projects in the area.
DATE:
June 7, 1991
Ricfiard D. Wilson
Director, Office of Mobile Sources
Environmental Protection Agency
^
B^Canny
Sputy Assistant Secretary for
Policy and International Affairs
Department of Transportation
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APPENDIX
PROJECTS THAT DO NOT IMPACT REGIONAL EMISSIONS.
AND PROJECTS'THAT ALSO DO NOT RFQUIRE
LOCAL CO IMPACT ANALYSIS
Certain transportation projects eligible for funding under Title 23 U.S.C.
or the Urban Mass Transportation Act have no impact on regional,
emissions. These are 'neutral1 projects that, because of their nature,
will not affect the outcome of any regional emissions analyses and add
no substance to those analyses. As a result, DOT and EPA agree that.
during Phase 1, such projects may be excluded from the regional
emissions analyses required in order to determine conformity of TIPs
(as described in section 5.3.3 of this guidance). With the exception of
those projects marked with an asterisk on the following list, DOT and
EPA also agree that project level analysis of local CO impacts is not
necessary. Projects eligible for this treatment include:
SAFETY
Railroad/highway crossing
Pavement marking demonstration
Hazard elimination program
Safer off-system roads (non-Federal-aid system)
Emergency relief (23 U.S.C. 125)
Also specific projects for:
intersection channelization projects* noise attenuation
shoulder improvements fencing
truck size and weight inspection stations skid treatments
safety improvement program safety roadside rest areas
intersection signalization projects* other traffic control devices
railroad/highway crossing warning devices truck climbing lanes
changes In vertical and horizontal alignment* lighting improvements
increasing sight distance adding medians
guardrails, median barriers, crash cushions
pavement resurfacing and/or rehabilitation
widening narrow pavements or reconstructing bridges (less than one travel lane)
These project types require consideration of possible new local CO violations.
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MASS TRANSIT
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 sys'ems
Operating assistance
Rehabilitation of transit vehicles
Reconstruction or renovation of transit buildings and structures (e.g.. rail or bus
buildings, storage and maintenance facilities, stations, terminals. 2nd ancillary
structures)
Construction of small passenger shelters and information kiosks
Rehabilitation or reconstruction of track structures, track, and trackbed in existing
rights-of-way
Noise attenuation
Purchase of support vehicles (e.g., autos, vans)
Purchase of new buses and rail cars to replace existing vehicles or for minor expansions
of the fleet to provide new service
Construction of new bus and rail storage and maintenance facilities which meet the
conditions for categorical exclusion specified in 23 CFR 771
AIR QUALITY
Continuation of ride-sharing and van-pooling promotion activities at current levels
Bicycle projects
Pedestrian facilities
OTHER
Engineering to define elements of proposed action or alternatives to assess social, economic,
and environmental effects
Advance land acquisitions as prescribed in 23 CFR 771
Acquisition of scenic easements
Plantings, landscaping, etc.
Sign removal
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