V    ,c<^         NATIONAL
  **t PRO^*

  MAY 14
  W» J. *
                                                                          AIR AND
               Regional and State Programs Division           
1.      Q: Can I use a submitted state implementation plan (SIP) budget for conformity

       A: Yes, once EPA affirmatively finds the submitted SIP motor vehicle emissions budget
       adequate for conformity purposes, through the processes described below.
2.     Q: What if I have a submitted budget now or will soon submit a new budget, and this
       budget was never used in a previous conformity determination? Can I use it in future
       conformity determinations?

       A: Yes, once EPA affirmatively finds the budget adequate for conformity purposes.1
       EPA has worked closely with the litigants     DOT to       a new adequacy
       which is consistent with the court's ruling and provides for public involvement on EPA's
       adequacy determination. EPA intends to review the adequacy of newly submitted
       budgets through this process within 90      of EPA's receipt of the SIP.2 EPA will work
       quickly to determine the adequacy of            are already submitted but have not
       used in previous conformity determinations.

       We will propose our new adequacy process as a conformity rale amendment, and we will
       follow this process as an administrative matter until a final rule amendment is effective.
       The substantive criteria by which we determine adequacy will be the     as those
       currently included in 40 CFR 93.118(e)(4).  EPA's new adequacy review       is
       described below.

       "     NoJificationofSIPsubmission: Within 10 days after a control strategy SIP or
       'Submitted budgets cannot be used if     is an          SIP covering the
timeframe and Clean Air Act requirements as the newly submitted SIP. This       of the 1997
rule was unchanged by the court.

       2EPA will only review the adequacy of those submitted budgets which could apply for
conformity purposes before EPA approves them (see footnote 1).


             maintenance plan is formally submitted3'4, EPA will notify the public by posting a
             notice on EPA's Office of Mobile Sources website
             (www.epa.gov/oms/transp/adequacy.htm) and by notifying      who have
             previously requested notification of the SIP's submission.  EPA's        will
             provide EPA Regional contact Information so                    can        or
             discuss notification processes. EPA will use postcards, letters, email or phone
             calls to notify requesters.  The website will include information on how to obtain
             copies of the SIP.

       *•     PuMic.gQniMig.gli A 30-day public comment period commences immediately upon
             the website posting in two circumstances: (1) if the      has      the SIP
             electronically available to the public via a website, electronic bulletin board, etc.;
             or (2) if no one has requested copies of the SIP within 15 days      the     of
             EPA posting notification. If someone does request a copy of the SIP    EPA
             receives the request within the first 15 days, the 30-day public comment period
             won't start until the    that EPA mails the copy, EPA is not committing to
             make SIP submissions electronically available on its  OMS website. EPA's
             website will     when the public comment period begins and ends. If someone
             requests a copy of the SIP, the website will be        to      any         of
             the public comment period.

       *"     _EEA^s^dj£uacy^djtermination:. EPA will issue Its adequacy determination,
             including a response to comments, by posting it on EPA's Office of Mobile
             Sources website (www.epa.gov/oms/transp/adequacy.htm)     by mailing it to
             requesters. EPA could also send the adequacy determination             to
             comments by email, if both the EPA       and the                  to it. EPA
             will also subsequently announce the determination in the Federal Register, The
             adequacy determination would     effect 15 days after publication in the Federal
             Register. Adequate budgets must be     in future conformity
             inadequate budgets cannot be used.

       If you have questions about the new adequacy process, contact your EPA Regional
3.      Q: Is EPA willing to use other processes for determining the adequacy of submitted
       3The control strategy SIPs that must have       vehicle          budgets for conformity
are 15% plans, 9% plans, and attainment demonstrations.

       4EPA will consider a SIP to be formally submitted on the date that the EPA regional
office receives it (62 FR 43782, August 17, 1997).



       A: Yes, if EPA is moving forward to quickly        action on a SIP, for         in
       response to a court order, EPA could propose and take comment on adequacy as     of
       its proposed action on the SIP, in lieu of the                 in Q & A. 2. In
       cases, EPA could take final action on adequacy by posting the determination on the web
       and announcing it in the Federal Register, as         in Q & A. 2.  Alternatively, if
       EPA has followed the notification and comment process described in Q & A. 2., it could
       finalize its adequacy determination with response to          as part of a         or
       final  rulemaking action on the SIP.
4.      Q: For budgets that have already      submitted to EPA but haven't          in
       conformity determinations, when will EPA notify the public that the submission has
       received    the new adequacy review       has begun?

       A: As described above, EPA will notify the public of                       10      of
       receiving them.  For submitted budgets that are currently in-house, EPA will soon be
       notifying the public by posting a notice on EPA's Office of Mobile               and
       by mailing, emaiiing, or calling those who have previously requested notification of the
       SIP's submission.  If you are interested in receiving such notification, please contact your
       EPA Regional Office.  The public comment period will begin according to the process
       highlighted in Q &A 2. (see "Public comment").
5.      Q: What conformity test do I use before EPA has found the submitted budget adequate?

       A: You use whatever conformity test applied before the new budget was submitted. For
       example, if your     has no other submitted or                 for the
       pollutant, you would use the emission reduction tests that are required by 40 CFR 93.119
       of the conformity rule. If you had previously         budget(s) for a given         or
       previously submitted budget(s) that EPA had found adequate, you would     to     the
       approved or adequate budget(s) for all analysis years.  The                 is not
       until EPA finds it adequate. Contact your EPA. Regional Office if you     questions
       about what conformity     apply in your area.
6.      Q: What criteria will EPA use to determine the adequacy of a submitted budget?

       A: EPA will continue to use the adequacy criteria contained in 40 CFR 93.118(e)(4) of
       the conformity rule. See the preamble for the final 1997 conformity rale (62 PR 43781-2,
       August 15, 1997) for more information about the adequacy criteria. EPA           air


       quality                        to                EPA               to
          the SIP                                                            Close
                        the SIP's            will      EPA in
7.     Q: How      EPA's                      to                    or             of
       the SIP?

       A: EPA's completeness review of a submitted SIP Is        from the conformity
       adequacy process, and it uses different criteria. Likewise, EPA's approval
       requires a more detailed examination of the SIP's control             technical
       than the conformity adequacy process. Although the minimum criteria for
       allow EPA to      a cursory review of the
       and      vehicle                 for                    EPA          that
                        be in the SIP for it to          be

       EPA's                      not be     to         EPA's                 or
                 of the SIP,                              be
                        the                                            EPA to
       the                   A               SIP or                            an
                                             in     for EPA to        the SIP.

       EPA's                will only be          on SIPs
                           in                        (i.e., 15% SIPs, 9% SIPs,
                               and             plans).
       Q: If EPA finds a submitted budget inadequate, can it reevaluate the decision later
       call it adequate based on further analysis or if new information on the adequacy of the
       budget is submitted?  Can the opposite occur?

       A; Yes, but EPA would         to     a      on the
                       EPA's intention, so     the public           an
                 to          EPA             the
                     with       to the newly
9,      Q; What if I     a          SIP       in a                               and


      EPA had declared the budget adequate prior to the March 2, 1999 court ruling?  Is my
      previous determination still valid?

      A: Yes. In      where the emissions budget has     declared adequate by EPA in
      compliance with 40 CFR 93.118(e)(4), the conformity determination remains valid, EPA
      will publish a list of the     with         SIP        in the Federal         shortly.
      These budgets continue to apply and must be      in future conformity determinations. If
      you have questions      whether your area's       was                     the
      March 2, 1999 court ruling, contact your EPA         Office.
10.    Q: What if I used a submitted SIP budget in a previous             before March 2,
      1999, EPA had not formally found it adequate,    EPA has since approved the
      submitted SIP? Is my previous              still valid?

      A: Yes, the previous determination is still valid.
11.    Q: What if I used a submitted SIP budget in a previous conformity determination, and
      EPA had not formally found it adequate before March 2, 1999?  Is my previous
      determination still valid?

      A: Yes, if one of the following occurs:

      »      EPA formally finds the budget         according to the adequacy criteria in 40
             CFR 93.118(e)(4) of the existing conformity rale. EPA is in the process of finding
             these budgets adequate quickly according to the following schedule:

             *•      If the record of the state's public        contained no        comments
                    about the budget's adequacy which remain unaddressed by the     and
                    EPA believes the budget is              EPA has     a letter
                    confirming the adequacy              to the      MPOs, etc. EPA will
                    announce      adequacy determinations in a Federal Register notice
                    shortly (no public comment).  These                continue to apply
                    for future conformity determinations.  The                notice will
                        list the     where EPA                      prior to March 2,
                    1999 (seeQ&A7. above).

             *•      If the record of the state's public process contains adverse comments about
                    the budget's adequacy that weren't          by the     but EPA
                    believes the budgets is adequate, EPA intends to issue by approximately
                    May 31, 1999 an interim final rule that finds the budget          The


                    adequacy determination would    effect Immediately upon publication,
                    to be followed by a public          period and      rale. These
                    budgets continue to apply for future conformity determinations.

       »     In      where EPA cannot find the budget adequate, the MPO    DOT must
             reaffirm that the previous detenmnation is still valid      on
             conformity tests.  See DOT'S May 7, 1999,             guidance for
             details. EPA and DOT are working closely with         are in this situation, so
             that their previous determinations can be          quickly.  EPA will shortly
             announce in the Federal        the list of submitted        that EPA has
             recently found inadequate.


12.    Q: When can a project which requires       approval, but no       funding, be
       advanced during a conformity lapse?

       A: Whether or not        funds are involved, if a project               approval, the
       Federal Highway Administration (FHWA) cannot grant the final approval until     the
       National Environmental Policy Act (NEPA)        is completed. Therefore, the
       could proceed during the lapse only if all of the NEPA requirements are met and the
       final federal approval was       before the lapse.
13,    Q: What are non-federal projects,     which      are covered by the transportation
       conformity rule?

       A: A non-federal project is a highway or       project which        DO
       funding or approval, but is funded or approved by an agency that routinely receives
       funds from FHWA or the Federal Transit Administration (FTA). A     DOT or public
       transit agency would be an example of a routine recipient of       funds. Only
       regionally significant non-federal projects are covered by the conformity rule.
       Interagericy consultation is used to           who are routine recipients of        funds
       and whether a project is regionally significant. See 40 CFR 93.101 for the rale's
       definitions of "recipient of funds          under title 23 U.S.C. or the Federal Transit
       Laws" and "regionally significant project.™
14.     Q: How does the court's ruling affect the implementation of regionally significant non-
       federal projects?


       A: The court's ruling does not affect the        Implementation of non-federal projects.
       However, the ruling does eliminate the narrowly-targeted flexibility from the 1997
       conformity rule which had allowed non-federal         to be          during a      if
       they had been included in the first          of the previously conforming
       transportation plan and transportation improvement        (TIP) (or
       regional emissions analyses). In sum, the court requires regionally significant non-
       federal projects to be approved by the non-federal entity      a     in      to
       proceed during the lapse. Once approved, non-federal projects can         to
       construction, even during a lapse, as long as the project's              and
       doesn't change significantly.
15.    Q: When is a regionally significant non-federal project considered to be "approved" by
       the non-federal entity?

       A: The definition of non-federal project "approval" is        at the     and local level
       through the interagency consultation process     should be formalized in the area's
       conformity SD?.S  For example, some      have defined "adopt or approve a regionally
       significant highway or transit project" to be one of the following actions:

       •      Policy board action or resolution     is necessary for a regionally significant
              project to proceed.
       *      Administrative permits issued under the authority of the agency, policy board, or
              commission for a regionally significant project.
       »      The execution of a contract to construct, or any final action by an       or
              appointed commission or administrator directing or            the
              commencement of construction of a regionally significant project.
       *      Providing grants, loans or similar financial support, for the construction of a
              regionally  significant project.

       EPA discussed defining non-federal project "approval" in the          to the November
       24, 1993  transportation conformity rule:  "EPA believes that adoption/approval is never
       later than the execution of a contract for site           or construction.
       Adoption/approval will often be earlier, for example, when an        or appointed
       commission or administrator      a final action allowing or directing lower-level
       personnel to proceed (58 FR       November 24, 1993)."
       5The conformity SIP is required by 40 CFR 51.390, and includes area-specific conformity
procedures tailored to local and state agency needs. The conformity SIP does not contain a motor
vehicle emissions budget.

       Of course, to be approved, a regionally significant non-federal project must be included
       in a conforming plan/TIP and/or supporting plan/TIP                          prior
       to a conformity lapse.

       Please contact your local or      air agency if you have questions about how your
       conformity SIP defines the point of approval for non-federal projects. If EPA has not
       approved your conformity SIP, the interagency consultation        should be used to
       determine the point of approval for non-federal projects.
16.     Q: How does the court's ruling affect when conformity consequences of SIP
       disapprovals apply?

       A: The 1997 conformity rale        a 120-day             following EPA's
       disapproval of a SIP without a protective finding,     which conformity         A
       "freeze"       that only projects in the first           of the transportation     and
       program can proceed. The court eliminated this       period, so now a conformity
       freeze begins on the effective date of EPA's disapproval. There are currently no
       that are in this situation.     the preamble of the 1997 conformity rule (62 FR 43796-7)
       for more information about SIP disapprovals, protective         and conformity

       However, EPA believes that it can still effectively provide transportation         a
       short time period prior to the impacts of "a conformity freeze. EPA has administrative
       discretion to      disapprovals of control        SUPs         60-90          the
       publication of the disapproval in the Federal Register, A conformity       would
       upon the effective     of the disapproval. EPA believes    such a        effective
       date is appropriate to allow transportation         to complete conformity
       determinations that were well underway when EPA disapproves a SIP without a
       protective finding.
17.     Q: When will a conformity           in the     where a conditional approval converts
       to a SIP disapproval without a protective finding?

       A:  Unlike other types of SIP actions, conditional          automatically convert to SIP
       disapprovals if the condition of EPA's approval is not met within a            not to
       exceed one year.  Therefore, a conformity       would      immediately      the
       conversion of a conditional approval to a disapproval without a protective finding.

       However, EPA notes that conditional approvals, by their very nature, inform
       transportation agencies well in advaaee that future conformity consequences could result
       if the conditions of the approval are not met. Because transportation        will be
       aware of potential conformity impacts approximately one year       they could occur,
       EPA believes that the practical impact of not providing a delayed effective     in these
       cases will be minimal.
18.    Q: What was the court's decision on safety margins? Who is affected?

       A: There is currently only one     that is        by the elimination of this flexibility.
       The court's ruling eliminated the flexibility       to            under 40 CFR
       93.124(b) of the conformity rule. This section was a narrowly         provision for
            that submitted SEPs before the original 1993 conformity rale. These      could
       subsequently submit SIP revisions in order to allocate portions of the approved safety
       margin to the SEP's motor vehicle emissions budgets. The 1997 rule allowed      SIP
       revisions to be used before EPA approved them. The court        that EPA      fully
       approve these safety margin allocations before they can be used for conformity.
19.    Q: Are previous conformity determinations still valid if a submitted safety margin was
       used according to 40 CFR 93.124(b)?

       A: Yes.  Any    conformity               that      on an
       allocation under 93.124(b) remains valid. EPA has approved most of the       margin
       allocations that      used in past determinations, which        the court's decision.
       Of course, future conformity determinations cannot be       on such submitted safety
       margin allocations, but must await EPA approval of the submitted allocation. EPA and
       DOT believe that to invalidate previous determinations that were      on submitted
       safety margin allocations under 93.124(b) would       grave disruption to the
       transportation planning process.
20.    Q: Can safety margins still be          to motor vehicle emissions        for use in
       conformity determinations?

       A: Yes.  The court eliminated the safety       flexibility in        93.124(b), but the
       majority of areas that allocate safety margins to their budgets are not affected by the
       court's ruling.  In general,      that do not have approved SEPs can use
       margins in conformity determinations once EPA finds them adequate.  Areas that have


       approved SIPs and wish to reallocate their safety        could use such a revision for
       conformity              EPA has          it.
If you              on this                                       (734) 214-4441,
                      or       Voss

cc:     Jim
       Abbe        FTA