Office of Transportation                               EPA420-F-04-043
                   and Air quality                                      June 2004
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                   77?e U.S. Environmental Protection Agency (EPA) is revising the
                   transportation conformity rule to: 1) provide transportation conformity
                   regulations for the new 8-hour ozone and fine particulate matter (PM2 J
                   national ambient air quality standards (NAAQS); 2) incorporate existing
                   federal guidance that is consistent with a U.S. Court of Appeals
                   decision; and 3) streamline and improve ERA'S existing transportation
                   conformity rule.  Transportation  conformity is a Clean Air Act
                   requirement that ensures that federally-supported highway and transit
                   project activities are consistent with ("conform to") the purpose of a
                        air quality implementation plan (SIP). Conformity ensures that
                   public health is protected by early consideration of transportation
                   decisions in cities with air quality challenges.
                   Background and Description of Final Rule
                   EPA developed this final rule in response to two proposals that were
                   published last year. On November 5, 2003, EPA published a proposal to

address conformity requirements under the new ozone and PM2 5 air
quality standards (68 FR 62690). On June 30, 2003, EPA proposed to
incorporate existing federal guidance into the conformity rule consistent
with a March 2, 1999, U.S. Circuit Court of Appeals decision (68 FR
38974). EPA is now combining both of these rulemaking efforts into one
final rule to provide a complete package to all existing and new nonat-
tainment and maintenance areas. The following paragraphs provide
further information on the main issues addressed in this final conformity

First, we are conducting this rulemaking in the context of EPAs broader
strategies for implementing the new air quality standards. EPAs nonat-
tainment area designations for the new 8-hour ozone standard are effec-
tive on June 15, 2004, and EPA anticipates designating areas for the new
PM25 standard in December 2004. Through this final rule, EPA is pro-
viding clear guidance and procedures for implementing conformity for
both new standards.

The final rule describes when conformity first applies in new ozone and
PM2 5 nonattainment areas. The Clean Air Act and transportation confor-
mity rule allow a one-year grace period before conformity applies for
the new standards, and this grace period begins upon the effective date
of EPA's nonattainment designation for either new standard.

The final rule also describes the general requirements for doing confor-
mity under the new standards, such as the regional emissions test(s) that
would apply before and after SIP motor vehicle emissions budgets are
established for the new  standards. A motor vehicle emissions budget (or
"budget") is the level of emissions from cars and trucks that the state has
determined to be consistent with local air quality goals. Through this
final rule, EPA is providing certain 8-hour ozone areas and all PMj5
areas a choice between what conformity emissions test can be used for
ensuring that transportation decisions are consistent with clean air. EPA
is also providing additional flexibility for areas with less severe air
quality problems. SIP budgets for the existing 1-hour ozone standard
will be used for 8-hour ozone conformity prior to establishing 8-hour
SIPs, unless other tests are deemed more appropriate through an area's
interagency consultation process. Using existing 1-hour ozone SIP
budgets in the interim will ensure that progress continues towards
achieving the new ozone standard.

Second, the final rule incorporates existing EPA and Department of
Transportation (DOT) guidance for a March 2, 1999, decision from the
U. S. Court of Appeals for the District of Columbia Circuit. In Environ-
mental Defense Fund v. EPA, et al., 167 F. 3d 641, D.C. Cir. 1999, the
U.S. Court of Appeals ruled against EPA on several provisions of the
transportation conformity regulations. One significant rule revision
resulting from the court decision affects the procedures for advancing
highway and transit projects during a conformity lapse. These projects
may proceed, consistent with the court decision, during a conformity
lapse as long as they have received the appropriate federal approvals
before the lapse. A conformity lapse occurs when an area  does not meet
conformity deadlines on time. The final rule also establishes in regulation
EPAs existing administrative process for determining whether the motor
vehicle emissions budgets in SIP submissions are appropriate to use in
conformity determinations.

Finally, EPA is making several other changes to clarify the conformity
regulations and improve implementation. Of particular interest is a final
rule revision that streamlines the current requirements for redetermining
conformity after certain SIP actions have occurred (e.g., after EPAs
approval of a SIP). This revision ensures that a new conformity determi-
nation is required only for SIP budgets that have never been used in the
conformity process. Another significant revision implements the Clean
Air Act in a more reasonable and practicable manner by allowing trans-
portation planners to base regional emissions analyses on  assumptions
available at the beginning of the conformity process. Under the current
conformity rule, transportation agencies must include the latest planning
assumptions available at the end of the conformity process (i.e., after a
regional analysis has already been completed).
Key Elements of the Final  Rule
  •  The final rule directly supports EPAs broader strategy for imple-
     menting the new ozone and PM25 standards. Providing clear guid-
     ance on how to implement transportation conformity under the new
     standards will ensure that transportation and air quality planning is
     coordinated and that clean air is achieved.

  •  EPA has worked closely with DOT in the development of all aspects
     of this final rule. Additionally, EPA consulted with state  and local
     transportation and air quality agencies and interest groups in its
     initial development of the conformity options for the new standards
     that were proposed in November 2003.

     The final rule provides guidance for when conformity first applies
     in new ozone and PM2 5 nonattainment areas. It also describes the
     general requirements for doing conformity under the new standards,
     such as what conformity emissions test(s) would apply before and
     after a SIP is established for the new standards.  EPA is also provid-
     ing additional flexibility for implementing these tests in areas with
     less severe air quality.

     EPA notes that the final rule does not address transportation confor-
     mity requirements for PM25 precursors and PM hot-spot analyses.
     EPA will consider conformity requirements for addressing PM25
     precursors after the close of the comment period on the EPAs soon
     to be proposed general PM25 implementation rule. EPA will also be
     publishing a supplemental notice of proposed rulemaking to request
     additional comment on options related to new PM25 and existing
     PM10 hot-spot requirements for individual transportation projects.
     EPA intends to finalize any  conformity provisions for PM25 precur-
     sors and PM hot-spots before PM25 designations are effective.

     This final rule also revises the transportation conformity regulations
     to incorporate current guidance issued by EPA and DOT to imple-
     ment a March 1999 U.S. Court of Appeals decision. This final rule
     provides clear guidance and rules that will assist all nonattainment
     and maintenance areas in implementing conformity consistent with
     the court's ruling. State and local governments have been success-
     fully implementing this guidance for almost five years.

     EPA is making other rule changes to clarify and improve the exist-
     ing conformity regulations in existing and new areas. Of particular
     interest are final rule amendments for streamlining when a confor-
     mity determination is needed and using latest planning assumptions
     in a more practicable manner.
Health and Environmental Impacts
The final rule will not result in any change in health and environmental
benefits of the conformity program. This rulemaking will ensure that
conformity is practicably implemented for the new and current air qual-
ity standards in a manner consistent with the Clean Air Act's public
health and environmental goals.

For        information
You can access the final rule and related documents electronically on the
Office of Transportation and Air Quality Web site at:

For further information about the final rule, please contact:

    Meg Patulski
    U.S. Environmental Protection Agency
    Transportation and Regional Programs Division
    2000 Traverwood Drive
    Ann Arbor, MI 48105
    Rudy Kapichak
    U.S. Environmental Protection Agency
    Transportation and Regional Programs Division
    2000 Traverwood Drive
    Ann Arbor, MI 48105
    Laura Berry
    U.S. Environmental Protection Agency
    Transportation and Regional Programs Division
    2000 Traverwood Drive
    Ann Arbor, MI 48105