&EPA
Air and Radiation EPA420-B-04-017
November 2004
United States
Environmental Protection
Agency
Conformity SIP
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EPA420-B-04-017
November 2004
Conformity SIP Guidance
Transportation and Regional Programs Division
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
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EPA Conformity SIP Guidance November 18, 2004
Conformity SIP Guidance
Introduction
This document provides guidance on the requirement that states adopt their own criteria
and procedures for determining transportation conformity; these state conformity rules
are known as "conformity SIPs." Where EPA has approved a state's conformity SIP, the
approved conformity SIP governs conformity determinations instead of the federal rule,
for those aspects of the rule that it addresses.
EPA recently published a new final rule for transportation conformity on July 1, 2004 (69
FR 40004). This guidance document will help areas that have approved conformity SIPs
know which provisions of the July 1, 2004, conformity rule amendments apply
immediately in their areas, and which provisions cannot apply until their conformity SIPs
are revised. In addition, this guidance document includes questions and answers on other
aspects of conformity SIPs.
1. Q. How is this guidance organized?
A. This document is organized by questions and answers under the following
headings:
• Introduction (Q&A 1 - 4).
• Applying the July 1, 2004, Transportation Conformity Rule (O&A 5-11).
This section includes Q & As that specifically address what aspects of the July
1, 2004, transportation conformity rule (69 FR 40004) apply in areas with and
without conformity SIPs, and other questions regarding that rulemaking.
• New 8-hour Ozone and PM^ Standards (Q&A 12 & 13). These two
questions specifically address areas designated nonattainment under the new
air quality standards.
• General Questions About Conformity SIPs (Q&A 14 - 18). This section
includes Q & As about using a Memorandum of Agreement or Memorandum
of Understanding for a conformity SIP, incorporating the rule by reference,
whether existing conformity SIPs apply to new areas, and which parts of the
conformity rule need to be tailored for specific areas.
This document also includes an appendix:
• Appendix A is a table that indicates whether a new federal rule provision
applies in areas with approved conformity SIPs.
2. Q. Does this guidance create new policy?
A. No, this guidance does not create new policy, it merely explains the current
conformity SIP requirements in the conformity rule at 40 CFR Subpart T, codified at
40 CFR 51.390. This portion of the conformity regulation was published in the
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EPA Conformity SIP Guidance November 18, 2004
August 15, 1997, conformity rule (62 FR 43801). In addition, the July 1, 2004,
conformity rule includes a discussion of conformity SIPs, at 69 FR 40068.
3. Q. Who can I contact for additional questions regarding conformity SIPs?
A. If this guidance document does not answer a specific question, please contact the
transportation conformity staff person responsible for your state at the appropriate
EPA Regional Headquarters Office. A listing of Regional Offices, the states they
cover, and contact information for the EPA Regional conformity staff people can be
found at the following website:
http://www.epa.gov/otaq/transp/conform/contacts.htm
For questions of a general nature about conformity SIPs, please contact:
Laura Berry, berry.lauratg.epa.gov , 734-214-4858; or
Rudy Kapichak, kapichak.rudolphtg.epa.gov , 734-214-4574.
4. Q. How can I find out if a conformity SIP applies in my area?
A. Please contact the transportation conformity staff person at the appropriate EPA
Regional Office (see previous Q & A for the website that lists these staff people).
This staff person will have the most up-to-date information regarding the status of a
specific state or area's approved or submitted conformity SIP.
Applying the July 1, 2004, Transportation Conformity Rule
5. Q. Do the provisions of the July 1, 2004, transportation conformity rule (69 FR
40004; "July 2004 rule") apply in states without approved conformity SIPs? What if
the SIP has been submitted to EPA but has not been approved?
A. All of the provisions contained in the July 2004 conformity rule apply upon the
effective date of EPA's rulemaking in states without previously approved conformity
SIPs, including those states that have submitted SIPs that have not been approved by
EPA.
Q. Does the July 2004 rule apply if a state has a state conformity rule under which it
has been operating, but which has not been approved by EPA into the SIP?
A. Yes. If a state's conformity rule has not been approved by EPA as a conformity
SIP (note that a conformity SIP could also take the form of a Memorandum of
Understanding (MOU) or Memorandum of Agreement (MOA), see Q&A 14 and 15,
below), then the state does not have an approved conformity SIP. In this case, all of
the July 2004 rule changes apply.
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7. Q. What portions of the July 2004 conformity rule apply in areas that have approved
conformity SIPs?
A. The answer to this question is found in Appendix A for each section of the
conformity rule. The table indicates which conformity rulemaking finalized each
specific section and briefly indicates how the provision changed as a result of the July
2004 rulemaking. The last column of the table answers whether the July 2004 rule
changes apply in areas with approved conformity SIPs.
There are three possible answers to whether a provision applies and though we have
provided general examples for each of these three answers, readers should not rely on
these generalizations. States should thoroughly consider all the information provided
in the table for each specific provision, in conjunction with review of the specifics of
the particular state conformity rule.
The three possible answers to whether or not a provision of the July 2004 rule applies
are as follows:
(1) Yes, the change applies. The answer is yes, for example, for all provisions that
address the new air quality standards or the March 2, 1999, conformity court decision.
(2) No, the change does not apply. The answer is no for major changes that are not
the result of either the new air quality standards or the court decision. Such
provisions cannot apply until the conformity SIP is revised to include it.
(3) States can interpret their existing rules consistent with the July 2004 rule so
that the substance of the new rule applies. However, specific language of the
July 2004 rule clearly does not apply until SIPs are changed. This statement is
the answer in the table for some types of minor clarifications, such as when
references have been updated by the July 2004 rule. In addition, this statement
applies in other situations, such as when the July 2004 rule added a pre-existing
interpretation or policy into the rule for the purpose of codifying it. EPA believes that
where changes merely codify an interpretation of the prior conformity regulations or
change a reference without changing the requirement, states can and may want to
interpret their existing conformity regulations consistent with the interpretation as
EPA had done under the previous federal rule. Note, although a state is not
compelled to interpret their conformity SIP in the same way as the July 2004 rule,
some pre-existing or current EPA policy interpretations may still apply to their
conformity SIP. The decision to interpret a conformity SIP in the same way as the
July 2004 regulation should be made within interagency consultation process.
Q. Does a provision in the July 2004 conformity rule apply if a state has an approved
conformity SIP, but it does not address that particular section?
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A. If a conformity SIP does not include a complete section (i.e., an entire numbered
portion, such as §93.106 or §93.122) then that section of the federal rule applies in
that state. Therefore, if any section of the conformity rule is missing from a state's
conformity SIP, that section as amended by the July 2004 rule applies immediately.
However, if a state conformity SIP includes a particular section, then the state is still
considered to have a rule addressing that section. In such cases, whether or not the
new federal provision can apply immediately will depend on the specific section and
nature of the change at issue. As discussed above, the Appendix A table indicates
whether or not a specific July 2004 amendment or addition in such a section can
apply in these circumstances.
Q. Can EPA approve a state conformity SIP that is based on an earlier version of the
conformity rule rather than the July 2004 conformity rule?
A: EPA can only approve SIPs that meet the regulations as updated by the July 2004
rule. Some provisions of the July 2004 rule change requirements from the previous
version of the rule. Areas should include these new provisions in their conformity
SIPs in accordance with 40 CFR 51.390. EPA regions can only approve conformity
SIPs that address the current rule's requirements, including the 2004 rule revisions.
10. Q. What changes in the July 2004 rule that are not the result of either the new air
quality standards or the court decision could make the most difference to areas that
have approved conformity SIPs?
A. Among the updates EPA made to the rule that are not the result of either the new
air quality standards or the court decision, two stand out as those that could have the
greatest impact on how conformity is done. First, EPA has streamlined the frequency
requirements in §93.104 in the August 2002 and July 2004 rulemakings. States with
approved conformity SIPs that do not include these changes may be required to make
conformity determinations sooner and more frequently than the federal rule now
requires. Specifically, state conformity SIPs may contain the requirement found in
the August 1997 rule to determine conformity within 18 months of submission of a
SIP that includes budgets, rather than within 18 months of EPA's adequacy finding
for budgets in a submitted SIP. Another example is that state conformity SIPs may
contain the requirement to determine conformity within 18 months of EPA's approval
of any SIP that contains budgets found in the August 1997 rule, but the updated
federal rule requires a conformity determination in this case only if those budgets
have not already been used in a conformity determination.
The second rule change that stands out is the update to the latest planning
assumptions requirement in §93.110. Under the updated federal rule, areas can
determine conformity based on the latest planning assumptions that are available at
the time the conformity analysis begins. However, areas with approved conformity
SIPs that include §93.110 as it existed in the August 1997 rule must use the latest
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planning assumptions that are available at the time DOT makes its conformity
determination. Areas may want to update their SIPs quickly to take advantage of
these two rule changes as well as others made in the July 2004 rule.
11. Q. Can EPA expedite a state's conformity SIP revision so that an area could take
advantage of the changes in the July 2004 rule that are not the result of either the new
air quality standards or the court decision as soon as possible?
A. Yes. EPA will work with states to approve conformity SIP revisions as
expeditiously as possible by using approaches such as parallel processing or direct
final rulemaking, so that areas can then take advantage of all of the amendments
included in the July 2004 rule and subsequent rulemakings.
12. Q. Are two conformity SIP revisions required for areas designated for both the 8-
hour ozone standard and the PM2.5 standard?
A. Not necessarily; states may be able to address all conformity rule provisions
within the same conformity SIP. The July 2004 conformity rule includes criteria and
procedures for determining conformity for the 8-hour ozone standard, as well as for
the PM2 5 standard. However, there are two conformity requirements for the PM2 5
standard that were not addressed in July 2004 rule: PM2 5 hot-spot requirements, and
requirements for addressing PM2.5 precursors in transportation conformity
determinations. EPA intends to publish a supplemental notice of proposed
rulemaking in the near future to request additional comment on options related to
PM2.s and PMio hot-spot requirements. EPA intends to finalize both the hot-spot
requirements and the requirements for addressing PM2.5 precursors as soon as
possible; we anticipate these final rules to be completed in 2005.
State and local agencies can consider addressing the July 2004 rule amendments and
the upcoming PM2 5 rule requirements within the same conformity SIP revision, to the
extent possible given the requirements in §51.390, to minimize the work involved in
creating or revising the conformity SIP. However, the drawback of this approach for
a state with an approved conformity SIP is that it may need to wait longer before it
can apply some of the provisions of the July 2004 rule (see Q&A 7, and Appendix A).
If states decide to address all provisions in one conformity SIP, states should make
sure that the conformity SIP includes the consultation procedures that apply
specifically in PM2 5 areas as well as in ozone areas.
State and local agencies should keep in mind that any federal rule provisions that
specifically address the new standards, whether they are included in the July 2004
final rule or an upcoming rulemaking, apply upon the federal rule's effective date for
all areas that determine conformity. Therefore, the PM2.5 hot-spot and precursor
requirements will apply upon the effective date of EPA's final rule published in the
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Federal Register, even if an area has already updated its conformity SIP to include
the July 2004 final rule.
13. Q. If a state has consultation procedures that refer to general types of agencies (e.g.,
MPOs) rather than specific agencies (e.g., an MPO for a specific area), do the
provisions of the conformity SIP apply for new or expanded nonattainment areas?
A. As indicated previously, the answer depends on the wording of the conformity
SIP itself. If the SIP's wording could be interpreted to include expanded or new
nonattainment areas in the state, the provisions of the conformity SIP would apply to
these areas. However, if the conformity SIP includes wording that limits its
applicability to particular areas, then it may not apply to new or expanded areas. If
your state has an approved conformity SIP and you are unsure whether or not it
applies to your particular area, please consult with your EPA Regional Office (see
Q&A 3 for where to find contact information).
General Questions About Conformity SIPs
14. Q. In what part of the regulations is the requirement for conformity SIPs found?
A. The regulations that explain the requirements for a conformity SIP are found in 40
CFR Part 51, subpart T, at 40 CFR 51.390. This portion of the conformity regulation
was published in the August 15, 1997, conformity rule (62 FR 43801). In addition,
the July 1, 2004, conformity rule includes a discussion of conformity SIPs, at 69 FR
40068.
15. Q. What are the requirements for conformity SIP MOUs and MO As?
A. Some states use a memorandum of understanding (MOU) or memorandum of
agreement (MO A) to include the criteria and procedures of the conformity rule
instead of a state regulation. Some states have used MOUs and MOAs to codify their
consultation procedures, and have used a SIP revision to codify the remainder of the
rule. In either case, a state can use an MOU or MOA if such a memo meets the
following requirements:
a) it is fully enforceable under state law against all parties involved in interagency
consultation and in approving, adopting and implementing transportation projects,
TIPs, or transportation plans (see d below for how this is done).
b) it is submitted for inclusion in the SIP, and
c) it has been signed by all agencies that are covered by the conformity rule,
including federal agencies and the recipients of funds designated under title 23
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U.S.C. or the Federal Transit Laws (see the definition in §93.101). For example,
MOU signers would include MPOs, local and state air agencies, state DOTs,
transit agencies, FHWA, FTA, and EPA, and all current recipients of federal
surface transportation funds, both public and private.
In addition, a state rule must be adopted which:
d) requires all future parties covered by the rule, including new recipients of funds
designated under title 23 U.S.C. or the Federal Transit Laws, to sign the MOU.
16. Q. If a state wants to revise its MOU, must it be done through the SIP process, or
can the state just have everyone sign a new MOU?
A: An MOU revision would have to be approved through the SIP process because
the MOU is part of the SIP.
17. Q. If a state has prepared its conformity SIP by incorporating the federal rule into
the SIP by reference rather than repeating the rule verbatim, do the changes made to
the federal rule automatically apply in that state, or does the state still have to update
the conformity SIP to take advantage of changes to the federal rule?
A. The answer depends on what the conformity SIP indicates:
• If a state incorporates the federal rule into its SIP by reference, it may have
incorporated the federal rule that existed as of the date of the incorporation. If
so, subsequent updates to the federal rule do not automatically apply and a
revision to the conformity SIP must be submitted within 12 months of a
change to the federal rule.
• However, a conformity SIP that incorporates the federal rule by reference
could also indicate that it also incorporates by reference any future changes
made to the federal rule, although this is rare. In this case, the conformity SIP
does not need to be revised when the federal conformity rule is updated.
If your state has an approved conformity SIP that incorporates the rule by reference,
and you are unsure about whether or not it also includes all future changes to the
federal rule, please consult with your EPA Regional Office (see Q&A 3 for where to
find contact information).
18. Q. What sections of a state's conformity SIP should be tailored for a specific area?
A. Section 51.390(d) states that a conformity SIP must address all requirements of
part 93, subpart A (e.g., all provisions of the conformity rule). In preparing
transportation conformity SIPs, states can either adopt the language of the federal
conformity rule verbatim or incorporate the rule into their SIP by reference.
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However, there are some parts of the rule that either must be tailored in order to make
them enforceable, or could be tailored to improve readability. These provisions are as
follows:
Section 93.105: This section requires the adoption of area-specific consultation
procedures. By definition, these procedures must be developed by local agencies
in consultation with state and federal agencies. It is important that the state's
consultation procedures are clearly defined and enforceable.
Several sections of the conformity rule include references to §93.105. If a state
adopts these references verbatim, EPA could still approve the conformity SIP.
Regardless of the cross-references, the state's consultation section would exist
and explain how and when agencies should consult. However, if the state has the
ability to change the §93.105 references, doing so would help to clarify their rule.
The state can either change the reference in each section to reflect the proper state
rule's reference, or include a generic provision in the SIP that says that "federal
rule references to §93.105 correspond to §**** in the SIP."
Section 93.112: The second sentence in this section can be omitted from a state
conformity SIP, because this language is not relevant once a conformity SIP is
approved. However, a state could include this sentence without negative
consequences.
Section 93.119(d)(2): This provision is required to be adopted verbatim. But, if a
PMio area "defines the baseline emissions...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," then the
conformity SIP should specify the baseline year here. An NC>2 area could choose
either to include this additional PMio area-specific language verbatim, or delete
everything after "calendar year 1990" in order to make it more readable. Either
choice will not change the enforceability of this section.
Section 93.122(a)(4)(ii): This provision stipulates that the conformity SIP
submission must require that written commitments to implement control measures
be obtained prior to conformity determinations and that the commitments be
fulfilled. The following is example language that could be substituted in the
conformity SIP for 93.122(a)(4)(ii):
"Written commitments to control measures that are not included in the
transportation plan and TIP must be obtained prior to a conformity
determination and such commitments must be fulfilled."
However, if a state has already developed its conformity SIP and included the
federal rule's language for §93.119(d)(2), it would still be enforceable.
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Section 93.125(c): This provision is similar to 93.122(a)(4)(ii) and states that the
SIP submission must require that written commitments for mitigation measures be
obtained before conformity determinations are made and such commitments must
be met. The following is example language that could be substituted in the
conformity SIP for 93.125(c):
"Written commitments to mitigation measures must be obtained prior to a
positive conformity determination and project sponsors must comply with
such commitments."
However, if a state has already developed its conformity SIP without adapting
§93.125(c) and submitted it to EPA, this provision would still be enforceable.
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Appendix A: What Provisions of the Conformity Rule Apply in Areas with Conformity SIPs?
Provision of current federal
conformity rule
What rule finalized this provision?
Does the change to this provision apply immediately in
areas with an approved conformity SIP based on the 1997
rule, if the SIP includes this provision?
—Why or why not?
51.390 Implementation plan
revision.
August 1997 rule: This provision is not included in
conformity SIPs
(N/A)
93.100 Purpose.
August 1997 rule; not changed in July 2004 rule
(N/A)
93.101 Definitions.
August 1997 rule for majority of definitions, except the
following:
July 2004 rule additions:
• 1-hour ozone NAAQS
• 8-hour ozone NAAQS
• Donut areas
• Isolated rural nonattainment and maintenance areas.
• Limited maintenance plan
July 2004 rule clarifications:
• Control strategy implementation plan revision
• Milestone
Yes for the newly added July 2004 definitions:
• 1 -hour ozone NAAQS
• 8-hour ozone NAAQS
• Donut areas
• Isolated rural nonattainment and maintenance areas.
• Limited maintenance plan
These definitions apply immediately because no approved conformity SIP
includes them.
For the July 2004 clarified definitions:
• Control strategy implementation plan revision
• Milestone
States can interpret their existing rules consistent with the definitions in
the July 2004 rule. However, the specific language of the July 2004
clearly does not apply until SIPs are changed.
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Provision of current federal
conformity rule
93.102 Applicability.
93.103 Priority.
What rule finalized this provision?
August 1997 rule, except the following
August 2002 rule addition:
(d) added one-year grace period provision, as a result of
CAA amendment which applied immediately
July 2004 rule additions:
(b)(l) PM2.5 added to list of pollutants
(b)(3) road dust for PM2.5 areas
(c) requires currently conforming plan and TIP for project
phase approvals
(d) PM2.5 areas added to grace period provision
July 2004 rule clarification:
(b)(2)(iii) clarified only; no practical change
August 1997 rule-- not changed in July 2004 rule
Does the change to this provision apply immediately in
areas with an approved conformity SIP based on the 1997
rule, if the SIP includes this provision?
—Why or why not?
Yes for the August 2002 rule addition:
(d). This provision applies immediately as it implements a provision of
the statute, which applies as a matter of law.
Yes for the July 2004 rule additions in this section:
(b)(l): new standards
(b)(3): new standards
(c): court decision
(d): new standards
These provisions apply immediately, because they are related to the new
standards or court decision.
For the July 2004 clarification:
(b)(2)(iii)
States can interpret their existing rules consistent with the July 2004 rule
so that the substance of the new rule applies. However, specific language
of the July 2004 clearly does not apply until SIPs are changed.
(N/A)
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Provision of current federal
conformity rule
What rule finalized this provision?
Does the change to this provision apply immediately in
areas with an approved conformity SIP based on the 1997
rule, if the SIP includes this provision?
—Why or why not?
93.104 Frequency of conformity
determinations.
*Note: By "old," we mean a
provision as it existed in the CFR as
of the August 1997 rulemaking.
"Old" provisions have either been
deleted or renumbered.
By "new," we mean a provision that
has been updated or added by the
July 2004 rulemaking.
August 1997 rule, except the following:
August 2002 rule revision:
Old* (e)(2): provision changed so 18-month clock starts
upon EPA's adequacy finding instead of SIP submission
July 2004 rule revisions and deletions:
Old (c)(4) deleted; this was the requirement to determine
conformity of the TIP within 6 months of the plan
Old (e)(l) deleted; this was the 18-month trigger for
November 1993 date
Old (e)(3) revised so that 18-month clock for SIP
approvals applies only if budgets not already used
Old (e)(4) deleted; this was the 18-month trigger for TCM
changes
Old (e)(5) revised so that a FIP change to a TCM does not
trigger an 18-month clock
July 2004 rule renumbering:
Old (e)(2) -^ new (e)(l)
Old (e)(3) -> new (e)(2), revised as noted above
Old (e)(5) -> new (e)(3), revised as noted above
July 2004 rule clarifications:
(b)(3) clarified only; no practical change
(c)(3) clarified only; no practical change
(d) clarified and combined provisions; no practical
change
No for the following August 2002 and July 2004 revisions/deletions:
Old (c)(4),
Old (e)(l),
Old (e)(2), (updated by August 2002 rule)
Old (e)(3)
Old (e)(4), and
Old (e)(5)
These provisions continue to apply in states with approved conformity
SIPs that include them, because revisions to these provisions are not
related to the new standards or court decision.
For July 2004 clarifications:
(b)(3),(c)(3),and(d),
States can interpret their existing rules consistent with the July 2004 rule
so that the substance of the new rule applies. However, the specific
language of the July 2004 rule clearly does not apply until SIPs are
changed. Although these provisions have been revised, they reflect what
has been EPA's existing policy, which continues to apply.
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Provision of current federal
conformity rule
What rule finalized this provision?
Does the change to this provision apply immediately in
areas with an approved conformity SIP based on the 1997
rule, if the SIP includes this provision?
—Why or why not?
93.105 Consultation.
August 1997 rule, except
July 2004:
(c)(l)(vii): minor nonsubstantive change to update a
reference
States can interpret their existing rules consistent with the July 2004 rule
so that the substance of the new rule applies (in this case, merely reference
changes). However, the specific language of the July 2004 rule clearly
does not apply until SIPs are changed.
93.106 Content of transportation
plans.
August 1997 rule, except
July 2004 revision:
(b) expanded; now includes additional situations under
which a 2-year grace period for transportation plan
content would apply, for certain CO and ozone areas.
No for revisions to (b):
i.e., (b)(2) and (b)(3) do not apply. The expanded provisions of (b) are not
related to the new standards or court decision.
93.107 Relationship of
transportation plan and TIP
conformity with the NEPA process.
August 1997 rule- not changed in July 2004 rule.
(N/A)
93.108 Fiscal constraints for
transportation plans and TIPs.
August 1997 rule- not changed in July 2004 rule.
(N/A)
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Provision of current federal
conformity rule
What rule finalized this provision?
Does the change to this provision apply immediately in
areas with an approved conformity SIP based on the 1997
rule, if the SIP includes this provision?
—Why or why not?
93.109 Criteria and procedures for
determining conformity of
transportation plans, programs, and
projects: General.
August 1997 rule:
(a) introduction
July 2004 rule revisions:
(b) table 1, conformity criteria
(c) 1-hour ozone areas
(f) CO areas
(g) PM10 areas
(h) NO2 areas
(1) isolated rural areas
In these paragraphs, the phrase "emissions reduction tests" is
replaced by "interim emissions tests." In addition, in (c)(l),
(f)(2), (g)(2), and (h)(2), the July 2004 provisions clarify
when budgets in SIPs must be used for conformity:
(i) Upon the effective date of EPA's adequacy finding;
(ii) Upon the publication date of EPA's approval of a SIP;
and
(iii) Upon the effective date of EPA's approval of a SIP
made via a direct final rule.
July 2004 rule additions:
(d) 8-hour ozone areas without budgets
(e) 8-hour ozone areas with 1-hour budgets
(i) PM2.5 areas
(j) limited maintenance plans
(k) insignificance
July 2004 rule revisions:
With regard to the change in the name of tests (from "emissions reduction
tests" to "interim emissions tests") in paragraphs (b), (c), (f), (g), (h), and
(1), states with approved conformity SIPs can interpret their existing rules
consistent with the July 2004 rule.
Yes for provisions in (c)(l)(i), (f)(2)(i), (g)(2)(i), and (h)(l)(i), because
these provisions are a result of the court decision. They state that the
budget test must be used upon the effective date of EPA's adequacy
finding.
For the remaining changes in paragraphs (c), (f), (g), and (h), such as the
addition of (c)(l)(ii) and (iii), (f)(2)(ii) and (iii), etc., states can interpret
their existing rules consistent with the July 2004 rule. Though these
regulatory text provisions are new, they reflect what has been EPA's
existing policy, which continues to apply.
For July 2004 rule additions:
Yes for paragraphs (d), (e), and (i), as they address the new standards.
For paragraphs (j) and (k), states can interpret their existing rules
consistent with the July 2004 rule so that the substance of the new rule
applies. These two paragraphs address limited maintenance plans and
insignificance respectively. Though these regulatory text provisions are
new, they reflect what has been conformity policy since 1993.
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Provision of current federal
conformity rule
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
What rule finalized this provision?
August 1997 rule, except for:
July 2004 rule revision:
(a) changed the point at which latest planning assumptions
are determined for a conformity determination.
August 1997 rule - not changed in July 2004 rule
August 1997 rule - not changed in July 2004 rule
August 1997 rule - not changed in July 2004 rule
August 1997 rule - not changed in July 2004 rule
August 1997 rule - not changed in July 2004 rule
Does the change to this provision apply immediately in
areas with an approved conformity SIP based on the 1997
rule, if the SIP includes this provision?
—Why or why not?
July 2004 rule revision:
No, this change to (a) does not apply in areas with approved conformity
SIPs, because this change is not related to the new standards or court
decision. Areas in states with an approved conformity SIP must continue
to use the latest planning assumptions available when the conformity
determination is made, until the SIP is revised to reflect the July 2004 rule.
(N/A)
(N/A)
(N/A)
(N/A)
(N/A)
16
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EPA Conformity SIP Guidance
November 18, 2004
Provision of current federal
conformity rule
What rule finalized this provision?
Does the change to this provision apply immediately in
areas with an approved conformity SIP based on the 1997
rule, if the SIP includes this provision?
—Why or why not?
93.116 Criteria and procedures:
Localized CO and PM10 violations
(hot spots).
July 2004 rule clarified the time period to be addressed in
hot-spot analyses.
States can interpret their existing rules consistent with the July 2004 rule
so that the substance of the new rule applies. However, the specific
language of the July 2004 rule clearly does not apply until SIPs are
changed.
EPA believes the July 2004 rule change simply clarifies previous existing
hot-spot requirements established in the 1997 rule. The July 2004
preamble states "EPA does not anticipate that today's clarification would
significantly change how project-level analyses are being conducted in
practice," (69 FR 40056). In other words, in areas with approved
conformity SIPs, EPA expects that the year(s) chosen for the hot-spot
analysis would be the year where emissions are expected to be the
greatest. In choosing such a year, the hot-spot analysis would meet the
requirement to consider the 20 year period as described in the 2004 rule.
93.117 Criteria and procedures:
Compliance with PM10 and PM2 5
control measures.
July 2004 rule added PM2.5 to this provision, so that
compliance with SIP control measures is required in PM2.5
areas.
Yes, because this change is related to the new PM2.5 standard.
17
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EPA Conformity SIP Guidance
November 18, 2004
Provision of current federal
conformity rule
What rule finalized this provision?
Does the change to this provision apply immediately in
areas with an approved conformity SIP based on the 1997
rule, if the SIP includes this provision?
—Why or why not?
93.118 Criteria and procedures:
Motor vehicle emissions budget.
August 1997 rule except the following:
July 2004 rule additions:
(b)(2)(iv): analysis years before last year of maintenance
plan must be < budgets from most recent prior year.
(f): adequacy procedures
July 2004 rule revisions:
(a): reference updated
(b): intro text revised to include attainment year as a year
for which consistency must be demonstrated;
(b)(2)(iii) revised;
(e):
(e3)
July 2004 rule additions:
For paragraph (b)(2)(iv), states can interpret their existing rules consistent
with the July 2004 rule so that the substance of the July 2004 provision
applies. However, the specific language of the July 2004 rule clearly does
not apply until SIPs are changed. Though this regulatory text provision is
new, it reflects what has been EPA's existing policy which continues to
apply. The provision also mirrors the 1997 provision in (b)(l)(ii), which
covers the period of time before maintenance plans are submitted.
Yes for paragraph (f), because this addition of the adequacy process to the
rule is a result of the court decision.
July 2004 rule revisions:
For provisions in (a), (b) introductory text, and (b)(2)(iii), states can
interpret their existing rules consistent with the July 2004 rule so that the
substance of the July 2004 provision applies. The July 2004 rule language
for paragraph (b) introductory text clarifies that the attainment year is a
year for which consistency with budgets must be demonstrated. However,
EPA assumes most areas were doing so prior to July 2004 rule because of
the requirement to analyze the attainment year in §93.118(d). The July
2004 rule language for (b)(2)(iii) clarifies an ambiguity in the prior 1997
rule, but even before this clarification EPA interpreted this paragraph to
require conformity to budgets in submitted adequate SIPs.
Yes for paragraph (e) - (e)(l), (e)(2), and (e)(3), because these changes
are a result of the court decision.
18
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EPA Conformity SIP Guidance
November 18, 2004
Provision of current federal
conformity rule
What rule finalized this provision?
Does the change to this provision apply immediately in
areas with an approved conformity SIP based on the 1997
rule, if the SIP includes this provision?
—Why or why not?
93.119 Criteria and procedures:
Interim emissions in areas without
motor vehicle emissions budgets.
August 1997 rule, except the following:
July 2004 rule revisions:
Title of section
(a) intro
(b) ozone areas
(c) CO areas
(d) PM10 and NO2 areas
(f) pollutants
(g) analysis years
July 2004 rule additions:
(b)(l)(ii)(B) and (b)(2)(ii)(B), 2002 test for 8-hour ozone
areas
(e) PM2 5 areas
(f)(7) and (8), PM2.5 pollutants
(g)(2): allows areas to skip an analysis year in the
build/no-build test if action and baseline scenarios are the
same
July 2004 rule revisions:
No for the following paragraphs:
(a),
(b) except for (b)(l)(ii)(B) and (b)(2)(ii)(B),
(c),
(d),
(f) except for (f)(7) and (f)(8), and
(g)
because these revisions were made to interim emissions test(s) in 1-hour
ozone, CO, NO2, and PM10 nonattainment or maintenance areas. These
revisions do not address the new standards or the court decision.
July 2004 rule additions:
Yes for the following paragraphs:
(b)(l)(ii)(B) and (b)(2)(ii)(B)
(e), and
(f)(7)and(8),
because these provisions address the new 8-hour ozone and PM2.5
standards.
For (g)(2), states with approved SIP could make an interpretation that if
the build and no-build scenarios are the same, they have in effect done the
analysis per se, but should consult EPA before doing so. Prior to the July
2004 rule, this provision did not specify this flexibility.
93.120 Consequences of control
strategy implementation plan
failures.
August 1997 rule except for the following:
July 2004 revision:
(a)(2) specifying when conformity freezes start for SIP
disapprovals without a protective finding.
Yes, (a)(2) applies because this change is a result of the March 1999 court
decision.
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EPA Conformity SIP Guidance
November 18, 2004
Provision of current federal
conformity rule
What rule finalized this provision?
Does the change to this provision apply immediately in
areas with an approved conformity SIP based on the 1997
rule, if the SIP includes this provision?
—Why or why not?
93.121 Requirements for adoption
of projects by other recipients of
funds designated under title 23
U.S.C. or the Federal Transit Laws.
August 1997 rule except for the following:
July 2004 revisions:
(a) revised
(b) references updated, minor change to (b)(l)
(c) added for limited maintenance plans and areas where
motor vehicles are insignificant
Yes for paragraph (a), because these changes directly result from the court
decision
For paragraph (b), states can interpret their existing rules consistent with
the July 2004 rule, so that the substance of the new rule applies. However,
the specific language of the July 2004 rule clearly does not apply until
SIPs are changed.
No for paragraph (c), because (c) creates an exception that is not included
in states' approved conformity SIPs.
93.122 Procedures for determining
regional transportation-related
emissions
August 1997 rule except for the following:
July 2004 revisions/additions:
(c) expands two year grace period before modeling
requirements apply
(f) PM2.5 construction dust
(g)(3) clarifies conformity determination that relies on a
previous regional emissions analysis does not satisfy
frequency requirements
No for paragraph (c), which creates an exception that is not included in
states' approved conformity SIPs. However, practical impact is expected
to be limited if any.
Yes for paragraph (f), which applies to the new PM2.5 air quality standard
For paragraph (g)(3), states can interpret their existing rules consistent
with the July 2004 rule so that the substance of the new rule applies. Even
though this provision is not included in states' conformity SIPs, it simply
clarifies an existing requirement and describes how the conformity rule
has always been interpreted.
93.123 Procedures for determining
localized CO and PM10
concentrations (hot-spot analysis)
August 1997 rule - not changed in July 2004 rule
(N/A)
20
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EPA Conformity SIP Guidance
November 18, 2004
Provision of current federal
conformity rule
What rule finalized this provision?
Does the change to this provision apply immediately in
areas with an approved conformity SIP based on the 1997
rule, if the SIP includes this provision?
—Why or why not?
93.124 Using the motor vehicle
emissions budget in the applicable
implementation plan (or
implementation plan submission)
August 1997 rule, except for the following:
July 2004 rule deletion:
(b) deleted (re: safety margins in SIPs submitted before
1993), remaining paragraphs relettered.
Yes, because this change resulted from the court decision
93.125 Enforceablity of design
concept and scope and project-level
mitigation and control measures
August 1997 rule except for the following:
July 2004 rule revision:
Reference changes
States can interpret their existing rules consistent with the July 2004 rule
so that the substance of the new rule applies (in this case, reference
updates). However, the specific language of the July 2004 rule does not
apply until SIPs are changed.
93.126 Exempt projects
August 1997 rule except for the following:
July 2004 rule revision:
Reference change to be consistent with DOT's regulations
States can interpret their existing rules consistent with the July 2004 rule
so that the substance of the new rule applies (in this case, reference
updates). However, the specific language of the July 2004 rule does not
apply until SIPs are changed.
93.127 Projects exempt from
regional emissions analyses
August 1997 rule - not changed in July 2004 rule
(N/A)
93.128 Traffic signal
sychronization projects
August 1997 rule - not changed in July 2004 rule
(N/A)
21
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