EPA420-F-99-025
V ,c<^ NATIONAL
**t PRO^*
PLYMOUTH
ANN
MAY 14
W» J. *
OFFCEOF
AIR AND
Gay
Regional and State Programs Division
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1. Q: Can I use a submitted state implementation plan (SIP) budget for conformity
determinations?
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).
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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
Office.
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).
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budgets?
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
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quality to EPA to
the SIP Close
the SIP's will EPA in
on
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
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
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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
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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.
ErojectsjeguiringJMerajagjmjyal:
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?
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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.
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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
freezes,
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.
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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
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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
Ho,
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