United States Air and Radiation EPA420-B-03-011
Environmental Protection October 2003
Agency
svEPA Complete Transportation
Conformity Regulations
that Incorporate Recent
Proposed Rules
Reference Document for
Commenters
@9 Printed on Recycled
Paper
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EPA420-B-03-011
October 2003
Conformity
Document for Commenters
Transportation & Regional Programs Division
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
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Complete Transportation Conformity Regulations
that Incorporate Recent Proposed Rules
Reference Document for Commenters
NOTE; This document includes the current transportation
conformity rule as it appears in the Code of Federal Regulations,
and incorporates the June 30, 2003, proposal that addresses the
March 1999 conformity court decision1 and the October 22, 2003,
signed proposal that addresses conformity for the new ozone and
PM2 5 air quality standards.2 Reviewers may find this document
useful in understanding how the recent proposed amendments fit
within the current regulations.
EPA is providing this outreach document for information purposes
only. This document does not supercede existing conformity
regulations and guidance that currently apply for conformity
determinations. This document provides an example of what the
conformity rules could look like if EPA finalized all changes in
both recent proposals as they were proposed. The document does
not change any aspect of the existing conformity rules; any such
changes will only be made when EPA finalizes the proposals. The
document also does not reopen for comment any provisions in the
conformity rule that were not the subject of the two recent
proposals. All comments on those proposals must be submitted
consistent with the public comment periods established in the
proposals.
1 Transportation Conformity Rule Amendments: Response to
Court Decision and Additional Rule Changes; proposed rule
published June 30, 2003 (68 FR 38974)
2 Transportation Conformity Rule Amendments for the New 8-
hour Ozone and PM25 National Ambient Air Quality Standards and
Miscellaneous Revisions for Existing Areas; proposed rule signed
October 22, 2003 (currently awaiting publication in the Federal
Register)
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TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND
SUBMITTAL OF IMPLEMENTATION PLANS
Subpart T--Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Laws
§51.390 Implementation plan revision.
(a) States with areas subject to this subpart and part 93,
subpart A, of this chapter must submit to the EPA and DOT a
revision to their implementation plan which contains criteria and
procedures for DOT, MPOs and other State or local agencies to
assess the conformity of transportation plans, programs, and
projects, consistent with this subpart and part 93, subpart A, of
this chapter. This revision is to be submitted by November 25,
1994 (or within 12 months of an area's redesignation from
attainment to nonattainment, if the State has not previously
submitted such a revision). Further revisions to the
implementation plan required by amendments to part 93, subpart A,
of this chapter must be submitted within 12 months of the date of
publication of such final amendments. EPA will provide DOT with a
30-day comment period before taking action to approve or
disapprove the submission. A State's conformity provisions may
contain criteria and procedures more stringent than the
requirements described in this subpart and part 93, subpart A, of
this chapter only if the State's conformity provisions apply
equally to non-federal as well as Federal entities.
(b) The Federal conformity rules under part 93, subpart A,
of this chapter, in addition to any existing applicable State
requirements, establish the conformity criteria and procedures
necessary to meet the requirements of Clean Air Act section
176(c) until such time as EPA approves the conformity
implementation plan revision required by this subpart. Following
EPA approval of the State conformity provisions (or a portion
thereof) in a revision to the applicable implementation plan,
conformity determinations would be governed by the approved (or
approved portion of the) State criteria and procedures. The
Federal conformity regulations contained in part 93, subpart A,
of this chapter would apply only for the portion, if any, of the
State's conformity provisions that is not approved by EPA. In
addition, any previously applicable implementation plan
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conformity requirements remain enforceable until the State
submits a revision to its applicable implementation plan to
specifically remove them and that revision is approved by EPA.
(c) The implementation plan revision required by this
section must meet all of the requirements of part 93, subpart A,
of this chapter.
(d) In order for EPA to approve the implementation plan
revision submitted to EPA and DOT under this subpart, the plan
must address all requirements of part 93, subpart A, of this
chapter in a manner which gives them full legal effect. In
particular, the revision shall incorporate the provisions of the
following sections of part 93, subpart A, of this chapter in
verbatim form, except insofar as needed to clarify or to give
effect to a stated intent in the revision to establish criteria
and procedures more stringent than the requirements stated in the
following sections of this chapter: §§93.101, 93.102, 93.103,
93.104, 93.106, 93.109, 93.110, 93.111,93.112, 93.113, 93.114,
93.115, 93.116, 93.117, 93.118, 93.119, 93.120, 93.121, 93.126,
and 93.127.
PART 93--DETERMINING CONFORMITY OF FEDERAL ACTIONS
TO STATE OR FEDERAL IMPLEMENTATION PLANS
Subpart A--Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Laws
Sec.
93.100 Purpose.
93.101 Definitions.
93.102 Applicability.
93.103 Priority.
93.104 Frequency of conformity determinations.
93.105 Consultation.
93.106 Content of transportation plans.
93.107 Relationship of transportation plan and TIP conformity
with the NEPA process.
93.108 Fiscal constraints for transportation plans and TIPs.
93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
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
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transportation plan and TIP.
93.115 Criteria and procedures: Projects from a plan and TIP.
93.116 Criteria and procedures: Localized CO and PM10 violations
(hot spots) .
93.117 Criteria and procedures: Compliance with PM10 and PM2 .5
control measures.
93.118 Criteria and procedures: Motor vehicle emissions budget.
93.119 Criteria and procedures: Interim emissions in areas
without motor vehicle emissions budgets.
93.120 Consequences of control strategy implementation plan
failures.
93.121 Requirements for adoption or approval of projects by other
recipients of funds designated under title 23 U.S.C. or the
Federal Transit Laws.
93.122 Procedures for determining regional transportation-related
emissions.
93.123 Procedures for determining localized CO and PM10
concentrations (hot-spot analysis).
93.124 Using the motor vehicle emissions budget in the applicable
implementation plan (or implementation plan submission).
93.125 Enforceability of design concept and scope and
project-level mitigation and control measures.
93.126 Exempt projects.
93.127 Projects exempt from regional emissions analyses.
93.128 Traffic signal synchronization projects.
93.129 Special exemptions from conformity requirements for pilot
program areas.
§93.100 Purpose.
The purpose of this subpart is to implement section 176(c)
of the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.),
and the related requirements of 23 U.S.C. 109(j), with respect to
the conformity of transportation plans, programs, and projects
which are developed, funded, or approved by the United States
Department of Transportation (DOT), and by metropolitan planning
organizations (MPOs) or other recipients of funds under title 23
U.S.C. or the Federal Transit Laws (49 U.S.C. Chapter 53). This
subpart sets forth policy, criteria, and procedures for
demonstrating and assuring conformity of such activities to an
applicable implementation plan developed pursuant to section 110
and Part D of the CAA.
§93.101 Definitions.
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Terms used but not defined in this subpart shall have the
meaning given them by the CAA, titles 23 and 49 U.S.C., other
Environmental Protection Agency (EPA) regulations, or other DOT
regulations, in that order of priority.
1-hour ozone NAAQS means the 1-hour ozone national ambient
air quality standard codified at 40 CFR 50.9.
8-hour ozone NAAQS means the 8-hour ozone national ambient
air quality standard codified at 40 CFR 50.10.
Applicable implementation plan is defined in section 302(q)
of the CAA and means the portion (or portions) of the
implementation plan, or most recent revision thereof, which has
been approved under section 110, or promulgated under section
110(c), or promulgated or approved pursuant to regulations
promulgated under section 301(d) and which implements the
relevant requirements of the CAA.
CAA means the Clean Air Act, as amended (42 U.S.C. 7401 et
seq.) .
Cause or contribute to a new violation for a project means:
(1) To cause or contribute to a new violation of a standard
in the area substantially affected by the project or over a
region which would otherwise not be in violation of the standard
during the future period in question, if the project were not
implemented; or
(2) To contribute to a new violation in a manner that would
increase the frequency or severity of a new violation of a
standard in such area.
Clean data means air quality monitoring data determined by
EPA to meet the requirements of 40 CFR part 58 that indicate
attainment of the national ambient air quality standard.
Control strategy implementation plan revision is the
implementation plan which contains specific strategies for
controlling the emissions of and reducing ambient levels of
pollutants in order to satisfy CAA requirements for
demonstrations of reasonable further progress and attainment
(including implementation plan revisions submitted to satisfy CAA
sections 172 (c), 182(b) (1), 182 (c) (2) (A) , 182 (c) (2) (B) ,
187(a)(7), 187(g), 189(a)(1)(B), 189(b)(1)(A), and 189(d);
sections 192(a) and 192(b), for nitrogen dioxide; and any other
applicable CAA provision requiring a demonstration of reasonable
further progress or attainment).
Design concept means the type of facility identified by the
project, e.g., freeway, expressway, arterial highway,
grade-separated highway, reserved right-of-way rail transit,
mixed-traffic rail transit, exclusive busway, etc.
Design scope means the design aspects which will affect the
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proposed facility's impact on regional emissions, usually as they
relate to vehicle or person carrying capacity and control, e.g.,
number of lanes or tracks to be constructed or added, length of
project, signalization, access control including approximate
number and location of interchanges, preferential treatment for
high-occupancy vehicles, etc.
Donut areas are geographic areas outside a metropolitan
planning area boundary, but inside the boundary of a
nonattainment or Clean Air Act section 175(a) maintenance plan
area that is dominated by a metropolitan area(s). These areas
are not "isolated rural nonattainment or rural maintenance
areas".
DOT means the United States Department of Transportation.
EPA means the Environmental Protection Agency.
FHWA means the Federal Highway Administration of DOT.
FHWA/FTA project, for the purpose of this subpart, is any
highway or transit project which is proposed to receive funding
assistance and approval through the Federal-Aid Highway program
or the Federal mass transit program, or requires Federal Highway
Administration (FHWA) or Federal Transit Administration (FTA)
approval for some aspect of the project, such as connection to an
interstate highway or deviation from applicable design standards
on the interstate system.
Forecast period with respect to a transportation plan is the
period covered by the transportation plan pursuant to 23 CFR part
450.
FTA means the Federal Transit Administration of DOT.
Highway project is an undertaking to implement or modify a
highway facility or highway-related program. Such an undertaking
consists of all required phases necessary for implementation. For
analytical purposes, it must be defined sufficiently to:
(1) Connect logical termini and be of sufficient length to
address environmental matters on a broad scope;
(2) Have independent utility or significance, i.e., be
usable and be a reasonable expenditure even if no additional
transportation improvements in the area are made; and
(3) Not restrict consideration of alternatives for other
reasonably foreseeable transportation improvements.
Horizon year is a year for which the transportation plan
describes the envisioned transportation system according to
§93.106.
Hot-spot analysis is an estimation of likely future
localized CO and PM10 pollutant concentrations and a comparison
of those concentrations to the national ambient air quality
standards. Hot-spot analysis assesses impacts on a scale smaller
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than the entire nonattainment or maintenance area, including, for
example, congested roadway intersections and highways or transit
terminals, and uses an air quality dispersion model to determine
the effects of emissions on air quality.
Increase the frequency or severity means to cause a location
or region to exceed a standard more often or to cause a violation
at a greater concentration than previously existed and/or would
otherwise exist during the future period in question, if the
project were not implemented.
Isolated rural nonattainment and maintenance areas are
areas that do not contain or are not part of any metropolitan
planning area as designated under the transportation planning
regulations. Isolated rural areas do not have Federally required
metropolitan transportation plans or TIPs and do not have
projects that are part of the emissions analysis of any MPO's
metropolitan transportation plan or TIP. Projects in such areas
are instead included in statewide transportation improvement
programs. These areas are not donut areas.
Lapse means that the conformity determination for a
transportation plan or TIP has expired, and thus there is no
currently conforming transportation plan and TIP.
Limited maintenance plan is a maintenance plan that EPA has
determined meets EPA's limited maintenance plan policy criteria
for a given NAAQS and pollutant. To qualify for a limited
maintenance plan, for example, an area must have a design value
that is below a given NAAQS, and it must be reasonable to expect
that a NAAQS violation will not result from any level of future
motor vehicle emissions growth.
Maintenance area means any geographic region of the United
States previously designated nonattainment pursuant to the CAA
Amendments of 1990 and subsequently redesignated to attainment
subject to the requirement to develop a maintenance plan under
section 175A of the CAA, as amended.
Maintenance plan means an implementation plan under section
175A of the CAA, as amended.
Metropolitan planning organization (MPO) is that
organization designated as being responsible, together with the
State, for conducting the continuing, cooperative, and
comprehensive planning process under 23 U.S.C. 134 and 49 U.S.C.
5303. It is the forum for cooperative transportation
decision-making.
Milestone has the meaning given in CAA sections 182(g)(1)
and 189(c) for serious and above ozone nonattainment areas and
PM10 nonattainment areas, respectively. For all other
nonattainment areas, a milestone consists of an emissions level
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and the date on which that level is to be achieved as required by
the applicable CAA provision for reasonable further progress
towards attainment.
Motor vehicle emissions budget is that portion of the total
allowable emissions defined in the submitted or approved control
strategy implementation plan revision or maintenance plan for a
certain date for the purpose of meeting reasonable further
progress milestones or demonstrating attainment or maintenance of
the NAAQS, for any criteria pollutant or its precursors,
allocated to highway and transit vehicle use and emissions.
National ambient air quality standards (NAAQS) are those
standards established pursuant to section 109 of the CAA.
NEPA means the National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321 et seq.).
NEPA process completion, for the purposes of this subpart,
with respect to FHWA or FTA, means the point at which there is a
specific action to make a determination that a project is
categorically excluded, to make a Finding of No Significant
Impact, or to issue a record of decision on a Final Environmental
Impact Statement under NEPA.
Nonattainment area means any geographic region of the United
States which has been designated as nonattainment under section
107 of the CAA for any pollutant for which a national ambient air
quality standard exists.
Project means a highway project or transit project.
Protective finding means a determination by EPA that a
submitted control strategy implementation plan revision contains
adopted control measures or written commitments to adopt
enforceable control measures that fully satisfy the emissions
reductions requirements relevant to the statutory provision for
which the implementation plan revision was submitted, such as
reasonable further progress or attainment.
Recipient of funds designated under title 23 U.S.C. or the
Federal Transit Laws means any agency at any level of State,
county, city, or regional government that routinely receives
title 23 U.S.C. or Federal Transit Laws funds to construct
FHWA/FTA projects, operate FHWA/FTA projects or equipment,
purchase equipment, or undertake other services or operations via
contracts or agreements. This definition does not include
private landowners or developers, or contractors or entities
that are only paid for services or products created by their own
employees.
Regionally significant project means a transportation
project (other than an exempt project) that is on a facility
which serves regional transportation needs (such as access to and
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from the area outside of the region, major activity centers in
the region, major planned developments such as new retail malls,
sports complexes, etc., or transportation terminals as well as
most terminals themselves) and would normally be included in the
modeling of a metropolitan area's transportation network,
including at a minimum all principal arterial highways and all
fixed guideway transit facilities that offer an alternative to
regional highway travel.
Safety margin means the amount by which the total projected
emissions from all sources of a given pollutant are less than the
total emissions that would satisfy the applicable requirement for
reasonable further progress, attainment, or maintenance.
Standard means a national ambient air quality standard.
Transit is mass transportation by bus, rail, or other
conveyance which provides general or special service to the
public on a regular and continuing basis. It does not include
school buses or charter or sightseeing services.
Transit project is an undertaking to implement or modify a
transit facility or transit-related program; purchase transit
vehicles or equipment; or provide financial assistance for
transit operations. It does not include actions that are solely
within the jurisdiction of local transit agencies, such as
changes in routes, schedules, or fares. It may consist of
several phases. For analytical purposes, it must be
defined inclusively enough to:
(1) Connect logical termini and be of sufficient length to
address environmental matters on a broad scope;
(2) Have independent utility or independent significance,
i.e., be a reasonable expenditure even if no additional
transportation improvements in the area are made; and
(3) Not restrict consideration of alternatives for other
reasonably foreseeable transportation improvements.
Transportation control measure (TCM) is any measure that is
specifically identified and committed to in the applicable
implementation plan that is either one of the types listed in
section 108 of the CAA, or any other measure for the purpose of
reducing emissions or concentrations of air pollutants from
transportation sources by reducing vehicle use or changing
traffic flow or congestion conditions. Notwithstanding the first
sentence of this definition, vehicle technology-based,
fuel-based, and maintenance-based measures which control the
emissions from vehicles under fixed traffic conditions are not
TCMs for the purposes of this subpart.
Transportation improvement program (TIP) means a staged,
multiyear, intermodal program of transportation projects covering
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a metropolitan planning area which is consistent with the
metropolitan transportation plan, and developed pursuant to 23
CFR part 450.
Transportation plan means the official intermodal
metropolitan transportation plan that is developed through the
metropolitan planning process for the metropolitan planning area,
developed pursuant to 23 CFR part 450.
Transportation project is a highway project or a transit
project.
Written commitment for the purposes of this subpart means a
written commitment that includes a description of the action to
be taken; a schedule for the completion of the action; a
demonstration that funding necessary to implement the action has
been authorized by the appropriating or authorizing body; and an
acknowledgment that the commitment is an enforceable obligation
under the applicable implementation plan.
§93.102 Applicability.
(a) Action applicability.
(1) Except as provided for in paragraph (c) of this section
or §93.126, conformity determinations are required for:
(i) The adoption, acceptance, approval or support of
transportation plans and transportation plan amendments developed
pursuant to 23 CFR part 450 or 49 CFR part 613 by an MPO or DOT;
(ii) The adoption, acceptance, approval or support of TIPs
and TIP amendments developed pursuant to 23 CFR part 450 or 49
CFR part 613 by an MPO or DOT; and
(iii) The approval, funding, or implementation of FHWA/FTA
projects.
(2) Conformity determinations are not required under this
subpart for individual projects which are not FHWA/FTA projects.
However, §93.121 applies to such projects if they are regionally
significant.
(b) Geographic applicability. The provisions of this subpart
shall apply in all nonattainment and maintenance areas for
transportation-related criteria pollutants for which the area is
designated nonattainment or has a maintenance plan.
(1) The provisions of this subpart apply with respect to
emissions of the following criteria pollutants: ozone, carbon
monoxide (CO), nitrogen dioxide (N02) , particles with an
aerodynamic diameter less than or equal to a nominal 10
micrometers (PM10); and particles with an aerodynamic diameter
less than or equal to a nominal 2.5 micrometers (PM2 5) .
(2) The provisions of this subpart also apply with respect
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to emissions of the following precursor pollutants:
(i) Volatile organic compounds (VOC) and nitrogen oxides
(NOx) in ozone areas;
(ii) NOx in N02 areas;
(iii) VOC and/or NOX in PM10 areas if the EPA Regional
Administrator or the director of the State air agency has made a
finding that transportation-related emissions of one or both of
these precursors within the nonattainment area are a significant
contributor to the PM10 nonattainment problem and has so notified
the MPO and DOT, or if the applicable implementation plan (or
implementation plan submission) establishes an approved (or
adequate) budget for such emissions as part of the reasonable
further progress, attainment or maintenance strategy;
Option 1 for paragraphs (b) (2) (iv) and (v) :
(iv) VOC and/or NOX in PM2 5 areas, unless the EPA Regional
Administrator or the director of the State air agency has made a
finding that transportation-related emissions of one or both of
these precursors within the nonattainment area are not a
significant contributor to the PM2 5 nonattainment problem and has
so notified the MPO and DOT, or if the applicable implementation
plan (or implementation plan submission) does not establish an
approved (or adequate) budget for such emissions as part of the
reasonable further progress, attainment or maintenance strategy;
and
(v) Oxides of sulfur (SOX) and/or ammonia (NH3) in PM2 5 areas
if the EPA Regional Administrator or the director of the State
air agency has made a finding that transportation-related
emissions of one or both of these precursors within the
nonattainment area are a significant contributor to the PM25
nonattainment problem and has so notified the MPO and DOT, or if
the applicable implementation plan (or implementation plan
submission) establishes an approved (or adequate) budget for such
emissions as part of the reasonable further progress, attainment
or maintenance strategy.
Option 2 for paragraph (b) (2) (iv) without paragraph
(b) (2) (v) :
(iv) VOC, NOX oxides of sulfur (SOX) and/or ammonia (NH3) in
PM2 5 areas if the EPA Regional Administrator or the director of
the State air agency has made a finding that transportation-
related emissions of any of these precursors within the
nonattainment area are a significant contributor to the PM25
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nonattainment problem and has so notified the MPO and DOT, or if
the applicable implementation plan (or implementation plan
submission) establishes an approved (or adequate) budget for such
emissions as part of the reasonable further progress, attainment
or maintenance strategy.
(3) The provisions of this subpart apply to PM25
nonattainment and maintenance areas with respect to PM25 from re-
entrained road dust if the EPA Regional Administrator or the
director of the State air agency has made a finding that re-
entrained road dust emissions within the area are a significant
contributor to the PM25 nonattainment problem and has so notified
the MPO and DOT, or if the applicable implementation plan (or
implementation plan submission) includes re-entrained road dust
in the approved (or adequate) budget as part of the reasonable
further progress, attainment or maintenance strategy. Re-
entrained road dust emissions are produced by travel on paved and
unpaved roads (including emissions from anti-skid and deicing
materials).
(4) The provisions of this subpart apply to maintenance
areas for 20 years from the date EPA approves the area's request
under section 107(d) of the CAA for redesignation to attainment,
unless the applicable implementation plan specifies that the
provisions of this subpart shall apply for more than 20 years.
(c) Limitations. In order to receive any FHWA/FTA approval
or funding actions, including NEPA approvals, for a project phase
subject to this subpart, the project must come from a currently
conforming transportation plan and TIP.
(d) Grace period for new nonattainment areas. For areas or
portions of areas which have been continuously designated
attainment or not designated for any NAAQS for ozone, CO, PM10,
PM2 5 or N02 since 1990 and are subsequently redesignated to
nonattainment or designated nonattainment for any NAAQS for any
of these pollutants, the provisions of this subpart shall not
apply with respect to that standard for 12 months following the
effective date of final designation to nonattainment for each
NAAQS for such pollutant.
§93.103 Priority.
When assisting or approving any action with air
quality-related consequences, FHWA and FTA shall give priority to
the implementation of those transportation portions of an
applicable implementation plan prepared to attain and maintain
the NAAQS. This priority shall be consistent with statutory
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requirements for allocation of funds among States or other
jurisdictions.
§93.104 Frequency of conformity determinations.
(a) Conformity determinations and conformity
redeterminations for transportation plans, TIPs, and FHWA/FTA
projects must be made according to the requirements of this
section and the applicable implementation plan.
(b) Frequency of conformity determinations for
transportation plans. (1) Each new transportation plan must be
demonstrated to conform before the transportation plan is
approved by the MPO or accepted by DOT.
(2) All transportation plan revisions must be found to
conform before the transportation plan revisions are approved by
the MPO or accepted by DOT, unless the revision merely adds or
deletes exempt projects listed in §93.126 or §93.127. The
conformity determination must be based on the transportation plan
and the revision taken as a whole.
(3) The MPO and DOT must determine the conformity of the
transportation plan no less frequently than every three years. If
more than three years elapse after DOT'S conformity determination
without the MPO and DOT determining conformity of the
transportation plan, the existing conformity determination will
lapse.
(c) Frequency of conformity determinations for
transportation improvement programs. (1) A new TIP must be
demonstrated to conform before the TIP is approved by the MPO or
accepted by DOT.
(2) A TIP amendment requires a new conformity determination
for the entire TIP before the amendment is approved by the MPO or
accepted by DOT, unless the amendment merely adds or deletes
exempt projects listed in §93.126 or §93.127.
(3) The MPO and DOT must determine the conformity of the TIP
no less frequently than every three years. If more than three
years elapse after DOT'S conformity determination without the MPO
and DOT determining conformity of the TIP, the existing
conformity determination will lapse.
(d) Projects. FHWA/FTA projects must be found to conform
before they are adopted, accepted, approved, or funded.
Conformity must be redetermined for any FHWA/FTA project if one
of the following occurs: a significant change in the project's
design concept and scope; if three years elapse since the most
recent major step to advance the project; or initiation of a
supplemental environmental document for air quality purposes.
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Major steps include NEPA process completion; start of final
design; acquisition of a significant portion of the right-of-way;
and, construction (including Federal approval of plans,
specifications and estimates).
(e) Triggers for transportation plan and TIP conformity
determinations. Conformity of existing transportation plans and
TIPs must be redetermined within 18 months of the following, or
the existing conformity determination will lapse, and no new
project-level conformity determinations may be made until
conformity of the transportation plan and TIP has been determined
by the MPO and DOT:
(1) The effective date of EPA's finding that motor vehicle
emissions budgets from an initially submitted control strategy
implementation plan or maintenance plan are adequate pursuant to
§93.118(e) and can be used for transportation conformity
purposes;
(2) The effective date of EPA approval of a control strategy
implementation plan revision or maintenance plan which
establishes or revises a motor vehicle emissions budget if that
budget has not yet been used in a conformity determination prior
to approval; and
(3) The effective date of EPA promulgation of an
implementation plan which establishes or revises a motor vehicle
emissions budget.
§93.105 Consultation.
(a) General. The implementation plan revision required under
§51.390 of this chapter shall include procedures for interagency
consultation (Federal, State, and local), resolution of
conflicts, and public consultation as described in paragraphs (a)
through (e) of this section. Public consultation procedures will
be developed in accordance with the requirements for public
involvement in 23 CFR part 450.
(1) The implementation plan revision shall include
procedures to be undertaken by MPOs, State departments of
transportation, and DOT with State and local air quality agencies
and EPA before making conformity determinations, and by State and
local air agencies and EPA with MPOs, State departments of
transportation, and DOT in developing applicable implementation
plans.
(2) Before EPA approves the conformity implementation plan
revision required by §51.390 of this chapter, MPOs and State
departments of transportation must provide reasonable opportunity
for consultation with State air agencies, local air quality and
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transportation agencies, DOT, and EPA, including consultation on
the issues described in paragraph (c)(1) of this section, before
making conformity determinations.
(b) Interagency consultation procedures: General factors.
(1) States shall provide well-defined consultation procedures in
the implementation plan whereby representatives of the MPOs,
State and local air quality planning agencies, State and local
transportation agencies, and other organizations with
responsibilities for developing, submitting, or implementing
provisions of an implementation plan required by the CAA must
consult with each other and with local or regional offices of
EPA, FHWA, and FTA on the development of the implementation plan,
the transportation plan, the TIP, and associated conformity
determinations.
(2) Interagency consultation procedures shall include at a
minimum the following general factors and the specific processes
in paragraph (c) of this section:
(i) The roles and responsibilities assigned to each agency
at each stage in the implementation plan development process and
the transportation planning process, including technical
meetings;
(ii) The organizational level of regular consultation;
(iii) A process for circulating (or providing ready access
to) draft documents and supporting materials for comment before
formal adoption or publication;
(iv) The frequency of, or process for convening,
consultation meetings and responsibilities for establishing
meeting agendas;
(v) A process for responding to the significant comments of
involved agencies; and
(vi) A process for the development of a list of the TCMs
which are in the applicable implementation plan.
(c) Interagency consultation procedures: Specific processes.
Interagency consultation procedures shall also include the
following specific processes:
(1) A process involving the MPO, State and local air quality
planning agencies, State and local transportation agencies, EPA,
and DOT for the following:
(i) Evaluating and choosing a model (or models) and
associated methods and assumptions to be used in hot-spot
analyses and regional emissions analyses;
(ii) Determining which minor arterials and other
transportation projects should be considered "regionally
significant" for the purposes of regional emissions analysis (in
addition to those functionally classified as principal arterial
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or higher or fixed guideway systems or extensions that offer an
alternative to regional highway travel), and which projects
should be considered to have a significant change in design
concept and scope from the transportation plan or TIP;
(iii) Evaluating whether projects otherwise exempted from
meeting the requirements of this subpart (see §§93.126 and
93.127) should be treated as non-exempt in cases where potential
adverse emissions impacts may exist for any reason;
(iv) Making a determination, as required by §93.113(c)(1) ,
whether past obstacles to implementation of TCMs which are behind
the schedule established in the applicable implementation plan
have been identified and are being overcome, and whether State
and local agencies with influence over approvals or funding for
TCMs are giving maximum priority to approval or funding for TCMs.
This process shall also consider whether delays in TCM
implementation necessitate revisions to
the applicable implementation plan to remove TCMs or substitute
TCMs or other emission reduction measures;
(v) Identifying, as required by §93.123(b), projects located
at sites in PM10 nonattainment areas which have vehicle and
roadway emission and dispersion characteristics which are
essentially identical to those at sites which have violations
verified by monitoring, and therefore require quantitative PM10
hot-spot analysis;
(vi) Notification of transportation plan or TIP revisions or
amendments which merely add or delete exempt projects listed in
§93.126 or §93.127; and
(vii) Choosing conformity tests and methodologies for
isolated rural nonattainment and maintenance areas, as required
by §93.109(1) (2) (iii) .
(2) A process involving the MPO and State and local air
quality planning agencies and transportation agencies for the
following:
(i) Evaluating events which will trigger new conformity
determinations in addition to those triggering events established
in §93.104; and
(ii) Consulting on emissions analysis for transportation
activities which cross the borders of MPOs or nonattainment areas
or air basins.
(3) Where the metropolitan planning area does not include
the entire nonattainment or maintenance area, a process involving
the MPO and the State department of transportation for
cooperative planning and analysis for purposes of determining
conformity of all projects outside the metropolitan area and
within the nonattainment or maintenance area.
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(4) A process to ensure that plans for construction of
regionally significant projects which are not FHWA/FTA projects
(including projects for which alternative locations, design
concept and scope, or the no-build option are still being
considered), including those by recipients of funds designated
under title 23 U.S.C. or the Federal Transit Laws, are disclosed
to the MPO on a regular basis, and to ensure that any changes to
those plans are immediately disclosed.
(5) A process involving the MPO and other recipients of
funds designated under title 23 U.S.C. or the Federal Transit
Laws for assuming the location and design concept and scope of
projects which are disclosed to the MPO as required by paragraph
(c) (4) of this section but whose sponsors have not yet decided
these features, in sufficient detail to perform the regional
emissions analysis according to the requirements of §93.122.
(6) A process for consulting on the design, schedule, and
funding of research and data collection efforts and regional
transportation model development by the MPO (e.g., household/
travel transportation surveys).
(7) A process for providing final documents (including
applicable implementation plans and implementation plan
revisions) and supporting information to each agency after
approval or adoption. This process is applicable to all agencies
described in paragraph (a)(1) of this section, including Federal
agencies.
(d) Resolving conflicts. Conflicts among State agencies or
between State agencies and an MPO shall be escalated to the
Governor if they cannot be resolved by the heads of the involved
agencies. The State air agency has 14 calendar days to appeal to
the Governor after the State DOT or MPO has notified the State
air agency head of the resolution of his or her comments. The
implementation plan revision required by §51.390 of this chapter
shall define the procedures for starting the 14-day clock. If the
State air agency appeals to the Governor, the final conformity
determination must have the concurrence of the Governor. If the
State air agency does not appeal to the Governor within 14 days,
the MPO or State department of transportation may proceed with
the final conformity determination. The Governor may delegate his
or her role in this process, but not to the head or staff of the
State or local air agency, State department of transportation,
State transportation commission or board, or an MPO.
(e) Public consultation procedures. Affected agencies making
conformity determinations on transportation plans, programs, and
projects shall establish a proactive public involvement process
which provides opportunity for public review and comment by, at a
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minimum, providing reasonable public access to technical and
policy information considered by the agency at the beginning of
the public comment period and prior to taking formal action on a
conformity determination for all transportation plans and TIPs,
consistent with these requirements and those of 23 CFR
450.316(b). Any charges imposed for public inspection and copying
should be consistent with the fee schedule contained in 49 CFR
7.95. In addition, these agencies must specifically address in
writing all public comments that known plans for a regionally
significant project which is not receiving FHWA or FTA funding or
approval have not been properly reflected in the emissions
analysis supporting a proposed conformity finding for a
transportation plan or TIP. These agencies shall also provide
opportunity for public involvement in conformity determinations
for projects where otherwise required by law.
§93.106 Content of transportation plans.
(a) Transportation plans adopted after January 1, 1997 in
serious, severe, or extreme ozone nonattainment areas and in
serious CO nonattainment areas. If the metropolitan planning area
contains an urbanized area population greater than 200,000, the
transportation plan must specifically describe the transportation
system envisioned for certain future years which shall be called
horizon years.
(1) The agency or organization developing the transportation
plan may choose any years to be horizon years, subject to the
following restrictions:
(i) Horizon years may be no more than 10 years apart;
(ii) The first horizon year may be no more than 10 years
from the base year used to validate the transportation demand
planning model;
(iii) If the attainment year is in the time span of the
transportation plan, the attainment year must be a horizon year;
and
(iv) The last horizon year must be the last year of the
transportation plan's forecast period.
(2) For these horizon years:
(i) The transportation plan shall quantify and document the
demographic and employment factors influencing expected
transportation demand, including land use forecasts, in
accordance with implementation plan provisions and the
consultation requirements specified by §93.105;
(ii) The highway and transit system shall be described in
terms of the regionally significant additions or modifications to
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the existing transportation network which the transportation plan
envisions to be operational in the horizon years. Additions and
modifications to the highway network shall be sufficiently
identified to indicate intersections with existing regionally
significant facilities, and to determine their effect on route
options between transportation analysis zones. Each added or
modified highway segment shall also be sufficiently identified in
terms of its design concept and design scope to allow modeling of
travel times under various traffic volumes, consistent with the
modeling methods for area-wide transportation analysis in use by
the MPO. Transit facilities, equipment, and services envisioned
for the future shall be identified in terms of design concept,
design scope, and operating policies that are sufficient for
modeling of their transit ridership. Additions and modifications
to the transportation network shall be described sufficiently to
show that there is a reasonable relationship between expected
land use and the envisioned transportation system; and
(iii) Other future transportation policies, requirements,
services, and activities, including intermodal activities, shall
be described.
(b) Two-year grace period for transportation plan
requirements in certain ozone and CO areas. The requirements of
paragraph (a) of this section shall not apply for two years from
the following:
(i) The effective date of EPA's reclassification of a
moderate ozone or CO area that has an urbanized area population
greater than 200,000 to serious or severe (ozone only); or,
(ii) The official notice by the Census Bureau that
determines the urbanized area population of a serious or above
ozone or CO area to be greater than 200,000.
(c) Transportation plans for other areas. Transportation
plans for other areas must meet the requirements of paragraph (a)
of this section at least to the extent it has been the previous
practice of the MPO to prepare plans which meet those
requirements. Otherwise, the transportation system envisioned for
the future must be sufficiently described within the
transportation plans so that a conformity determination can be
made according to the criteria and procedures of §§93.109 through
93.119.
(d) Savings. The requirements of this section supplement
other requirements of applicable law or regulation governing the
format or content of transportation plans.
§93.107 Relationship of transportation plan and TIP conformity
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with the NEPA process.
The degree of specificity required in the transportation
plan and the specific travel network assumed for air quality
modeling do not preclude the consideration of alternatives in the
NEPA process or other project development studies. Should the
NEPA process result in a project with design concept and scope
significantly different from that in the transportation plan or
TIP, the project must meet the criteria in §§93.109 through
93.119 for projects not from a TIP before NEPA process
completion.
§93.108 Fiscal constraints for transportation plans and TIPs.
Transportation plans and TIPs must be fiscally constrained
consistent with DOT'S metropolitan planning regulations at 23 CFR
part 450 in order to be found in conformity.
§93.109 Criteria and procedures for determining conformity of
transportation plans, programs, and projects: General.
(a) In order for each transportation plan, program, and
FHWA/FTA project to be found to conform, the MPO and DOT must
demonstrate that the applicable criteria and procedures in this
subpart are satisfied, and the MPO and DOT must comply with all
applicable conformity requirements of implementation plans and of
court orders for the area which pertain specifically to
conformity. The criteria for making conformity determinations
differ based on the action under review (transportation plans,
TIPs, and FHWA/FTA projects), the relevant pollutant(s), and the
status of the implementation plan.
(b) Table 1 in this paragraph indicates the criteria and
procedures in §§93.110 through 93.119 which apply for
transportation plans, TIPs, and FHWA/FTA projects. Paragraphs
(c) through (i) of this section explain when the budget, interim
emissions, and hot-spot tests are required for each pollutant and
NAAQS. Paragraph (j) of this section addresses conformity
requirements for areas with approved or adequate limited
maintenance plans. Paragraph (k) of this section addresses
nonattainment and maintenance areas which EPA has determined have
insignificant motor vehicle emissions. Paragraph (1) of this
section addresses isolated rural nonattainment and maintenance
areas. Table 1 follows:
Table 1--Conformity Criteria
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All Actions at all times:
§93.110
§93.111
§93.112
Transportation Plan:
§93.113(b)
§93.118 or §93.119
TIP:
§93.113 (c)
§93.118 or §93.119
Latest planning assumptions
Latest emissions model
Consultation
TCMs
Emissions budget and/or Interim
emissions
TCMs
Emissions budget and/or Interim
emissions
Project (From a Conforming Plan and
TIP) :
§93 .114
§93.115
§93.116
§93.117
Currently conforming plan and
TIP
Project from a conforming plan
and TIP
CO and PM10 hot spots
PM10 and PM2.5 control measures
Project (Not From a Conforming Plan and
TIP) :
§93.113(d) TCMs
§93.114 Currently conforming plan and
TIP
§93.116 CO and PM10 hot spots
§93.117 PM10 and PM2.5 control measures
§93.118 or §93.119 Emissions budget and/or Interim
emissions
(c) 1-hour ozone NAAQS nonattainment and maintenance areas.
This paragraph applies when an area is nonattainment or
maintenance for the 1-hour ozone NAAQS (i.e., until the effective
date of any revocation of the 1-hour ozone NAAQS for an area).
In addition to the criteria listed in Table 1 in paragraph (b) of
this section that are required to be satisfied at all times, in
such ozone nonattainment and maintenance areas conformity
determinations must include a demonstration that the budget
and/or interim emissions tests are satisfied as described in the
following:
(1) In all 1-hour ozone nonattainment and maintenance areas
the budget test must be satisfied as required by §93.118 for
conformity determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation
plan revision or maintenance plan for the 1-hour ozone NAAQS is
adequate for transportation conformity purposes;
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(ii) The publication date of EPA's approval of such a budget
in the Federal Register,- or
(iii) The effective date of EPA's approval of such a budget
in the Federal Register, if such approval is completed through
direct final rulemaking.
(2) In ozone nonattainment areas that are required to submit
a control strategy implementation plan revision for the 1-hour
ozone NAAQS (usually moderate and above areas), the interim
emissions tests must be satisfied as required by §93.119 for
conformity determinations made when there is no approved motor
vehicle emissions budget from an applicable implementation plan
for the 1-hour ozone NAAQS and no adequate motor vehicle
emissions budget from a submitted control strategy implementation
plan revision or maintenance plan for the 1-hour ozone NAAQS.
(3) An ozone nonattainment area must satisfy the interim
emissions test for NOX; as required by §93.119, if the
implementation plan or plan submission that is applicable for the
purposes of conformity determinations is a 15% plan or Phase I
attainment demonstration that does not include a motor vehicle
emissions budget for NOX. The implementation plan for the 1-hour
ozone NAAQS will be considered to establish a motor vehicle
emissions budget for NOX if the implementation plan or plan
submission contains an explicit NOX motor vehicle emissions
budget that is intended to act as a ceiling on future NOX
emissions, and the NOX motor vehicle emissions budget is a net
reduction from NOX emissions levels in 1990.
(4) Ozone nonattainment areas that have not submitted a
maintenance plan and that are not required to submit a control
strategy implementation plan revision for the 1-hour ozone NAAQS
(usually marginal and below areas) must satisfy one of the
following requirements:
(i) The interim emissions tests required by §93.119; or
(ii) The State shall submit to EPA an implementation plan
revision for the 1-hour ozone NAAQS that contains motor vehicle
emissions budget(s) and a reasonable further progress or
attainment demonstration, and the budget test required by §93.118
must be satisfied using the adequate or approved motor vehicle
emissions budget(s) (as described in paragraph (c)(1) of this
section).
(5) Notwithstanding paragraphs (c)(1) and (c)(2) of this
section, moderate and above ozone nonattainment areas with three
years of clean data that have not submitted a maintenance plan
and that EPA has determined are not subject to the Clean Air Act
reasonable further progress and attainment demonstration
requirements for the 1-hour ozone NAAQS must satisfy one of the
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following requirements:
(i) The interim emissions tests as required by §93.119;
(ii) The budget test as required by §93.118, using the
adequate or approved motor vehicle emissions budgets in the
submitted or applicable control strategy implementation plan for
the 1-hour ozone NAAQS (subject to the timing requirements of
paragraph (c)(1) of this section); or
(iii) The budget test as required by §93.118, using the
motor vehicle emissions of ozone precursors in the most recent
year of clean data as motor vehicle emissions budgets, if such
budgets are established by the EPA rulemaking that determines
that the area has clean data for the 1-hour ozone NAAQS.
(d) 8-hour ozone NAAQS nonattainment and maintenance areas
without motor vehicle emissions budgets for the 1-hour ozone
NAAQS for any portion of the 8-hour nonattainment area. This
paragraph applies to areas that were never designated
nonattainment for the 1-hour ozone NAAQS and areas that were
designated nonattainment for the 1-hour ozone NAAQS but that
never submitted a control strategy SIP or maintenance plan with
approved or adequate motor vehicle emissions budgets. This
paragraph applies 1 year after the effective date of EPA's
nonattainment designation for the 8-hour ozone NAAQS, according
to §93.102(d). In addition to the criteria listed in Table 1 in
paragraph (b) of this section that are required to be satisfied
at all times, in such 8-hour ozone nonattainment and maintenance
areas conformity determinations must include a demonstration that
the budget and/or interim emissions tests are satisfied as
described in the following:
(1) In such 8-hour ozone nonattainment and maintenance areas
the budget test must be satisfied as required by §93.118 for
conformity determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation
plan revision or maintenance plan for the 8-hour ozone NAAQS is
adequate for transportation conformity purposes;
(ii) The publication date of EPA's approval of such a budget
in the Federal Register,- or
(iii) The effective date of EPA's approval of such a budget
in the Federal Register, if such approval is completed through
direct final rulemaking.
(2) In ozone nonattainment areas that are required to submit
a control strategy implementation plan revision for the 8-hour
ozone NAAQS (moderate and above and certain subpart 1 areas), the
interim emissions tests must be satisfied as required by §93.119
for conformity determinations made when there is no approved
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motor vehicle emissions budget from an applicable implementation
plan for the 8-hour ozone NAAQS and no adequate motor vehicle
emissions budget from a submitted control strategy implementation
plan revision or maintenance plan for the 8-hour ozone NAAQS.
(3) Such an 8-hour ozone nonattainment area must satisfy the
interim emissions test for NOX; as required by §93.119, if the
implementation plan or plan submission that is applicable for the
purposes of conformity determinations is a 15% plan or other
control strategy SIP that addresses reasonable further progress
that does not include a motor vehicle emissions budget for NOX.
The implementation plan for the 8-hour ozone NAAQS will be
considered to establish a motor vehicle emissions budget for NOX
if the implementation plan or plan submission contains an
explicit NOX motor vehicle emissions budget that is intended to
act as a ceiling on future NOX emissions, and the NOX motor
vehicle emissions budget is a net reduction from NOX emissions
levels in 2002.
(4) Ozone nonattainment areas that have not submitted a
maintenance plan and that are not required to submit a control
strategy implementation plan revision for the 8-hour ozone NAAQS
(usually marginal and below areas) must satisfy one of the
following requirements:
(i) The interim emissions tests required by §93.119; or
(ii) The State shall submit to EPA an implementation plan
revision for the 8-hour ozone NAAQS that contains motor vehicle
emissions budget(s) and a reasonable further progress or
attainment demonstration, and the budget test required by §93.118
must be satisfied using the adequate or approved motor vehicle
emissions budget(s) (as described in paragraph (d)(1) of this
section).
(5) Notwithstanding paragraphs (d)(1) and (d)(2) of this
section, moderate and above ozone nonattainment areas with three
years of clean data for the 8-hour ozone NAAQS that have not
submitted a maintenance plan and that EPA has determined are not
subject to the Clean Air Act reasonable further progress and
attainment demonstration requirements for the 8-hour ozone NAAQS
must satisfy one of the following requirements:
(i) The interim emissions tests as required by §93.119;
(ii) The budget test as required by §93.118, using the
adequate or approved motor vehicle emissions budgets in the
submitted or applicable control strategy implementation plan for
the 8-hour ozone NAAQS (subject to the timing requirements of
paragraph (d)(1) of this section); or
(iii) The budget test as required by §93.118, using the
motor vehicle emissions of ozone precursors in the most recent
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year of clean data as motor vehicle emissions budgets, if such
budgets are established by the EPA rulemaking that determines
that the area has clean data for the 8-hour ozone NAAQS.
(e) 8-hour ozone NAAQS nonattainment and maintenance areas
with motor vehicle emissions budgets for the 1-hour ozone NAAQS
that cover all or a portion of the 8-hour nonattainment area.
This provision applies 1 year after the effective date of EPA's
nonattainment designation for the 8-hour ozone NAAQS, according
to §93.102(d). In addition to the criteria listed in Table 1 in
paragraph (b) of this section that are required to be satisfied
at all times, in such 8-hour ozone nonattainment and maintenance
areas conformity determinations must include a demonstration that
the budget and/or interim emissions tests are satisfied as
described in the following:
(1) In such 8-hour ozone nonattainment and maintenance areas
the budget test must be satisfied as required by §93.118 for
conformity determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation
plan revision or maintenance plan for the 8-hour ozone NAAQS is
adequate for transportation conformity purposes;
(ii) The publication date of EPA's approval of such a budget
in the Federal Register,- or
(iii) The effective date of EPA's approval of such a budget
in the Federal Register, if such approval is completed through
direct final rulemaking.
(2) Prior to the effective date of EPA's finding that a
motor vehicle emissions budget in a submitted control strategy
implementation plan or maintenance plan for the 8-hour ozone
NAAQS is adequate or the publication of EPA's approval of such a
budget in the Federal Register, one of the following test(s) must
be satisfied:
(i) The interim emissions tests as required by §93.119 for
the entire 8-hour ozone nonattainment area; or
(ii) The budget test and interim emissions tests as required
by §93.118 and 93.119 as follows:
(A) If the 8-hour ozone nonattainment area covers the same
geographic area as the 1-hour ozone nonattainment or maintenance
area, the budget test as required by §93.118 for the entire 8-
hour nonattainment area using the approved or adequate motor
vehicle emissions budgets in the 1-hour ozone applicable
implementation plan or implementation plan submission;
(B) If the 8-hour ozone nonattainment area covers a smaller
geographic area within the 1-hour ozone nonattainment or
maintenance area, the budget test as required by §93.118 for
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either the 1-hour nonattainment or 8-hour nonattainment area
using the approved or adequate motor vehicle emissions budgets or
corresponding portions thereof in the 1-hour ozone applicable
implementation plan or implementation plan submission,
respectively. If additional control measures are necessary to
meet the budget test for the 8-hour ozone NAAQS, such control
measures could only be established within the 8-hour
nonattainment area; or
(C) If the 8-hour ozone nonattainment area covers a larger
geographic area and encompasses the entire or a portion of the 1-
hour ozone nonattainment or maintenance area:
(1.) The budget test as required by §93.118 for the portion
of the 8-hour ozone nonattainment area covered by the approved or
adequate motor vehicle emissions budgets or corresponding
portions thereof in the 1-hour ozone applicable implementation
plan or implementation plan submission; and
(2.) The interim emissions tests as required by §93.119 for
the portion of the 8-hour ozone nonattainment area not covered by
the approved or adequate budgets in the 1-hour ozone
implementation plan.
(3) Such an 8-hour ozone nonattainment area must satisfy the
interim emissions test for NOX; as required by §93.119, if the
only implementation plan or plan submission that is applicable
for the purposes of conformity determinations is a 15% plan or
other control strategy SIP that addresses reasonable further
progress that does not include a motor vehicle emissions budget
for NOX. The implementation plan for the 8-hour ozone NAAQS will
be considered to establish a motor vehicle emissions budget for
NOX if the implementation plan or plan submission contains an
explicit NOX motor vehicle emissions budget that is intended to
act as a ceiling on future NOX emissions, and the NOX motor
vehicle emissions budget is a net reduction from NOX emissions
levels in 2002. Prior to an adequate or approved NOX motor
vehicle emissions budget in the implementation plan submission
for the 8-hour ozone NAAQS, the implementation plan for the 1-
hour ozone NAAQS will be considered to establish a motor vehicle
emissions budget for NOX if the implementation plan contains an
explicit NOX motor vehicle emissions budget that is intended to
act as a ceiling on future NOX emissions, and the NOX motor
vehicle emissions budget is a net reduction from NOX emissions
levels in 1990.
(4) Notwithstanding paragraphs (e)(1) and (e)(2) of this
section, ozone nonattainment areas with three years of clean data
for the 8-hour ozone NAAQS that have not submitted a maintenance
plan and that EPA has determined are not subject to the Clean Air
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Act reasonable further progress and attainment demonstration
requirements for the 8-hour ozone NAAQS must satisfy one of the
following requirements:
(i) The interim emissions tests as required by §93.119 and
as described in paragraph (e)(2) of this section;
(ii) The budget test as required by §93.118 and as described
in paragraph (e)(2)(ii) of this section;
(iii) The budget test as required by §93.118, using the
adequate or approved motor vehicle emissions budgets in the
submitted or applicable control strategy implementation plan for
the 8-hour ozone NAAQS (subject to the timing requirements of
paragraph (e)(1) of this section); or
(iv) The budget test as required by §93.118, using the motor
vehicle emissions of ozone precursors in the most recent year of
clean data as motor vehicle emissions budgets, if such budgets
are established by the EPA rulemaking that determines that the
area has clean data for the 8-hour ozone NAAQS.
(f) CO nonattainment and maintenance areas. In addition to
the criteria listed in Table 1 in paragraph (b) of this section
that are required to be satisfied at all times, in CO
nonattainment and maintenance areas conformity determinations
must include a demonstration that the hot-spot, budget and/or
interim emissions tests are satisfied as described in the
following:
(1) FHWA/FTA projects in CO nonattainment or maintenance
areas must satisfy the hot spot test required by §93.116(a) at
all times. Until a CO attainment demonstration or maintenance
plan is approved by EPA, FHWA/FTA projects must also satisfy the
hot spot test required by §93.116(b).
(2) In CO nonattainment and maintenance areas the budget
test must be satisfied as required by §93.118 for conformity
determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation
plan revision or maintenance plan is adequate for transportation
conformity purposes;
(ii) The publication date of EPA's approval of such a budget
in the Federal Register,- or
(iii) The effective date of EPA's approval of such a budget
in the Federal Register, if such approval is completed through
direct final rulemaking.
(3) Except as provided in paragraph (d)(4) of this section,
in CO nonattainment areas the interim emissions tests must be
satisfied as required by §93.119 for conformity determinations
made when there is no approved motor vehicle emissions budget
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from an applicable implementation plan and no adequate motor
vehicle emissions budget from a submitted control strategy
implementation plan revision or maintenance plan.
(4) CO nonattainment areas that have not submitted a
maintenance plan and that are not required to submit an
attainment demonstration (e.g., moderate CO areas with a design
value of 12.7 ppm or less or not classified CO areas) must
satisfy one of the following requirements:
(i) The interim emissions tests required by §93.119; or
(ii) The State shall submit to EPA an implementation plan
revision that contains motor vehicle emissions budget(s) and an
attainment demonstration, and the budget test required by §93.118
must be satisfied using the adequate or approved motor vehicle
emissions budget(s) (as described in paragraph (f)(2) of this
section).
(g) PM-m nonattainment and maintenance areas. In addition to
the criteria listed in Table 1 in paragraph (b) of this section
that are required to be satisfied at all times, in PM10
nonattainment and maintenance areas conformity determinations
must include a demonstration that the hot-spot, budget and/or
interim emissions tests are satisfied as described in the
following:
(1) FHWA/FTA projects in PM10 nonattainment or maintenance
areas must satisfy the hot spot test required by §93.116(a).
(2) In PM10 nonattainment and maintenance areas the budget
test must be satisfied as required by §93.118 for conformity
determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation
plan revision or maintenance plan is adequate for transportation
conformity purposes;
(ii) The publication date of EPA's approval of such a budget
in the Federal Register,- or
(iii) The effective date of EPA's approval of such a budget
in the Federal Register, if such approval is completed through
direct final rulemaking.
(3) In PM10 nonattainment areas the interim emissions tests
must be satisfied as required by §93.119 for conformity
determinations made:
(i) If there is no approved motor vehicle emissions budget
from an applicable implementation plan and no adequate motor
vehicle emissions budget from a submitted control strategy
implementation plan revision or maintenance plan; or
(ii) If the submitted implementation plan revision is a
demonstration of impracticability under CAA section
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189(a)(1)(B)(ii) and does not demonstrate attainment.
(h) NOo nonattainment and maintenance areas. In addition to
the criteria listed in Table 1 in paragraph (b) of this section
that are required to be satisfied at all times, in N02
nonattainment and maintenance areas conformity determinations
must include a demonstration that the budget and/or interim
emissions tests are satisfied as described in the following:
(1) In N02 nonattainment and maintenance areas the budget
test must be satisfied as required by §93.118 for conformity
determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation
plan revision or maintenance plan is adequate for transportation
conformity purposes;
(ii) The publication date of EPA's approval of such a budget
in the Federal Register,- or
(iii) The effective date of EPA's approval of such a budget
in the Federal Register, if such approval is completed through
direct final rulemaking.
(2) In N02 nonattainment areas the interim emissions tests
must be satisfied as required by §93.119 for conformity
determinations made when there is no approved motor vehicle
emissions budget from an applicable implementation plan and no
adequate motor vehicle emissions budget from a submitted control
strategy implementation plan revision or maintenance plan.
(i) PM0 K nonattainment and maintenance areas. In addition to
the criteria listed in Table 1 in paragraph (b) of this section
that are required to be satisfied at all times, in PM2 5
nonattainment and maintenance areas conformity determinations
must include a demonstration that the budget and/or interim
emissions tests are satisfied as described in the following:
(1) In PM2 5 nonattainment and maintenance areas the budget
test must be satisfied as required by §93.118 for conformity
determinations made on or after:
(i) The effective date of EPA's finding that a motor vehicle
emissions budget in a submitted control strategy implementation
plan revision or maintenance plan is adequate for transportation
conformity purposes;
(ii) The publication date of EPA's approval of such a budget
in the Federal Register,- or
(iii) The effective date of EPA's approval of such a budget
in the Federal Register, if such approval is completed through
direct final rulemaking.
(2) In PM2 5 nonattainment areas the interim emissions tests
must be satisfied as required by §93.119 for conformity
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determinations made if there is no approved motor vehicle
emissions budget from an applicable implementation plan and no
adequate motor vehicle emissions budget from a submitted control
strategy implementation plan revision or maintenance plan.
(j) Areas with limited maintenance plans. Notwithstanding
the other paragraphs of this section, an area is not required to
satisfy the regional emissions analysis for §93.118 and/or
§93.119 for a given pollutant and NAAQS, if the area has an
adequate or approved limited maintenance plan for such pollutant
and NAAQS. A limited maintenance plan would have to demonstrate
that it would be unreasonable to expect that such an area would
experience enough motor vehicle emissions growth for a NAAQS
violation to occur. A conformity determination that meets other
applicable criteria in Table 1 of paragraph (b) of this section
is still required, including the hot-spot requirements for
projects in CO and PM10 areas.
(k) Areas with insignificant motor vehicle emissions.
Notwithstanding the other paragraphs in this section, an area is
not required to satisfy a regional emissions analysis for §93.118
and/or §93.119 for a given pollutant/precursor and NAAQS, if EPA
finds through the adequacy or approval process that a SIP
demonstrates that regional motor vehicle emissions are an
insignificant contributor to the air quality problem for that
pollutant/precursor and NAAQS. The SIP would have to demonstrate
that it would be unreasonable to expect that such an area would
experience enough motor vehicle emissions growth in that
pollutant/precursor for a NAAQS violation to occur. Such a
finding would be based on a number of factors, including the
percentage of motor vehicle emissions in the context of the total
SIP inventory, the current state of air quality as determined by
monitoring data for that NAAQS, the absence of SIP motor vehicle
control measures, and historical trends and future projections of
the growth of motor vehicle emissions. A conformity
determination that meets other applicable criteria in Table 1 of
paragraph (b) of this section is still required, including
regional emissions analyses for §93.118 and/or §93.119 for other
pollutants/precursors and NAAQS that apply. Hot-spot
requirements for projects in CO and PM10 areas must also be
satisfied, unless EPA determines that the SIP demonstrates that
hot-spot emissions are also insignificant. If EPA subsequently
finds that motor vehicle emissions of a given pollutant/precursor
are significant, this paragraph would no longer apply for future
conformity determinations for that pollutant/precursor and NAAQS.
(1) Isolated rural nonattainment and maintenance areas. This
paragraph applies to any nonattainment or maintenance area (or
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portion thereof) which does not have a metropolitan
transportation plan or TIP and whose projects are not part of the
emissions analysis of any MPO's metropolitan transportation plan
or TIP. This paragraph does not apply to "donut" areas which are
outside the metropolitan planning boundary and inside the
nonattainment/maintenance area boundary.
(1) FHWA/FTA projects in all isolated rural nonattainment
and maintenance areas must satisfy the requirements of §§93.110,
93.111, 93.112, 93.113(d), 93.116, and 93.117. Until EPA approves
the control strategy implementation plan or maintenance plan for
a rural CO nonattainment or maintenance area, FHWA/FTA projects
must also satisfy the requirements of §93.116(b) ("Localized CO
and PM10 violations (hot spots)").
(2) Isolated rural nonattainment and maintenance areas are
subject to the budget and/or interim emissions tests as described
in paragraphs (c) through (k) of this section, with the following
modifications:
(i) When the requirements of §§93.118 and 93.119 apply to
isolated rural nonattainment and maintenance areas, references to
"transportation plan" or "TIP" should be taken to mean those
projects in the statewide transportation plan or statewide TIP
which are in the rural nonattainment or maintenance area.
(ii) In isolated rural nonattainment and maintenance areas
that are subject to §93.118, FHWA/FTA projects must be consistent
with motor vehicle emissions budget(s) for the years in the
timeframe of the attainment demonstration or maintenance plan.
For years after the attainment year (if a maintenance plan has
not been submitted) or after the last year of the maintenance
plan, FHWA/FTA projects must satisfy one of the following
requirements:
(A) §93.118;
(B) §93.119 (including regional emissions analysis for
NOX in all ozone nonattainment and maintenance areas,
notwithstanding §93.119(f)(2)); or
(C) As demonstrated by the air quality dispersion model or
other air quality modeling technique used in the attainment
demonstration or maintenance plan, the FHWA/FTA project, in
combination with all other regionally significant projects
expected in the area in the timeframe of the statewide
transportation plan, must not cause or contribute to any new
violation of any standard in any areas; increase the frequency or
severity of any existing violation of any standard in any area;
or delay timely attainment of any standard or any required
interim emission reductions or other milestones in any area.
Control measures assumed in the analysis must be enforceable.
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(ill) The choice of requirements in paragraph (1)(2)(ii) of
this section and the methodology used to meet the requirements of
paragraph (1)(2)(ii)(C) of this section must be determined
through the interagency consultation process required in
§93.105(c)(1)(vii) through which the relevant recipients of title
23 U.S.C. or Federal Transit Laws funds, the local air quality
agency, the State air quality agency, and the State department of
transportation should reach consensus about the option and
methodology selected. EPA and DOT must be consulted through this
process as well. In the event of unresolved disputes, conflicts
may be escalated to the Governor consistent with the procedure in
§93.105(d), which applies for any State air agency comments on a
conformity determination.
§93.110 Criteria and procedures: Latest planning assumptions.
(a) The conformity determination, with respect to all other
applicable criteria in §§93.111 through 93.119, must be based
upon the most recent planning assumptions in force at the time
the conformity analysis begins. The conformity determination must
satisfy the requirements of paragraphs (b) through (f) of this
section using the planning assumptions available at the time the
analysis begins as determined through the interagency
consultation process required in §93.105 (c) (1) (i) .
(b) Assumptions must be derived from the estimates of
current and future population, employment, travel, and congestion
most recently developed by the MPO or other agency authorized to
make such estimates and approved by the MPO. The conformity
determination must also be based on the latest assumptions about
current and future background concentrations.
(c) The conformity determination for each transportation
plan and TIP must discuss how transit operating policies
(including fares and service levels) and assumed transit
ridership have changed since the previous conformity
determination.
(d) The conformity determination must include reasonable
assumptions about transit service and increases in transit fares
and road and bridge tolls over time.
(e) The conformity determination must use the latest
existing information regarding the effectiveness of the TCMs and
other implementation plan measures which have already been
implemented.
(f) Key assumptions shall be specified and included in the
draft documents and supporting materials used for the interagency
and public consultation required by §93.105.
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§93.111 Criteria and procedures: Latest emissions model.
(a) The conformity determination must be based on the latest
emission estimation model available. This criterion is satisfied
if the most current version of the motor vehicle emissions model
specified by EPA for use in the preparation or revision of
implementation plans in that State or area is used for the
conformity analysis. Where EMFAC is the motor vehicle emissions
model used in preparing or revising the applicable implementation
plan, new versions must be approved by EPA before they are used
in the conformity analysis.
(b) EPA will consult with DOT to establish a grace period
following the specification of any new model.
(1) The grace period will be no less than three months and
no more than 24 months after notice of availability is published
in the Federal Register.
(2) The length of the grace period will depend on the degree
of change in the model and the scope of re-planning likely to be
necessary by MPOs in order to assure conformity. If the grace
period will be longer than three months, EPA will announce the
appropriate grace period in the Federal Register.
(c) Transportation plan and TIP conformity analyses for
which the emissions analysis was begun during the grace period or
before the Federal Register notice of availability of the latest
emission model may continue to use the previous version of the
model. Conformity determinations for projects may also be based
on the previous model if the analysis was begun during the grace
period or before the Federal Register notice of availability, and
if the final environmental document for the project is issued no
more than three years after the issuance of the draft
environmental document.
§93.112 Criteria and procedures: Consultation.
Conformity must be determined according to the consultation
procedures in this subpart and in the applicable implementation
plan, and according to the public involvement procedures
established in compliance with 23 CFR part 450. Until the
implementation plan revision required by §51.390 of this chapter
is fully approved by EPA, the conformity determination must be
made according to §93.105 (a)(2) and (e) and the requirements of
23 CFR part 450.
§93.113 Criteria and procedures: Timely implementation of TCMs
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(a) The transportation plan, TIP, or any FHWA/FTA project
which is not from a conforming plan and TIP must provide for the
timely implementation of TCMs from the applicable implementation
plan.
(b) For transportation plans, this criterion is satisfied if
the following two conditions are met:
(1) The transportation plan, in describing the envisioned
future transportation system, provides for the timely completion
or implementation of all TCMs in the applicable implementation
plan which are eligible for funding under title 23 U.S.C. or the
Federal Transit Laws, consistent with schedules included in the
applicable implementation plan.
(2) Nothing in the transportation plan interferes with the
implementation of any TCM in the applicable implementation plan.
(c) For TIPs, this criterion is satisfied if the following
conditions are met:
(1) An examination of the specific steps and funding
source(s) needed to fully implement each TCM indicates that TCMs
which are eligible for funding under title 23 U.S.C. or the
Federal Transit Laws are on or ahead of the schedule established
in the applicable implementation plan, or, if such TCMs are
behind the schedule established in the applicable implementation
plan, the MPO and DOT have determined that past obstacles to
implementation of the TCMs have been identified and have been or
are being overcome, and that all State and local agencies with
influence over approvals or funding for TCMs are giving maximum
priority to approval or funding of TCMs over other projects
within their control, including projects in locations outside
the nonattainment or maintenance area.
(2) If TCMs in the applicable implementation plan have
previously been programmed for Federal funding but the funds have
not been obligated and the TCMs are behind the schedule in the
implementation plan, then the TIP cannot be found to conform if
the funds intended for those TCMs are reallocated to projects in
the TIP other than TCMs, or if there are no other TCMs in the
TIP, if the funds are reallocated to projects in the TIP other
than projects which are eligible for Federal funding intended for
air quality improvement projects, e.g., the Congestion Mitigation
and Air Quality Improvement Program.
(3) Nothing in the TIP may interfere with the implementation
of any TCM in the applicable implementation plan.
(d) For FHWA/FTA projects which are not from a conforming
transportation plan and TIP, this criterion is satisfied if the
project does not interfere with the implementation of any TCM in
the applicable implementation plan.
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§93.114 Criteria and procedures: Currently conforming
transportation plan and TIP.
There must be a currently conforming transportation plan and
currently conforming TIP at the time of project approval.
(a) Only one conforming transportation plan or TIP may exist
in an area at any time; conformity determinations of a previous
transportation plan or TIP expire once the current plan or TIP is
found to conform by DOT. The conformity determination on a
transportation plan or TIP will also lapse if conformity is not
determined according to the frequency requirements specified in
§93.104.
(b) This criterion is not required to be satisfied at the
time of project approval for a TCM specifically included in the
applicable implementation plan, provided that all other relevant
criteria of this subpart are satisfied.
§93.115 Criteria and procedures: Projects from a plan and TIP.
(a) The project must come from a conforming plan and
program. If this criterion is not satisfied, the project must
satisfy all criteria in Table 1 of §93.109(b) for a project not
from a conforming transportation plan and TIP. A project is
considered to be from a conforming transportation plan if it
meets the requirements of paragraph (b) of this section and from
a conforming program if it meets the requirements of paragraph
(c) of this section. Special provisions for TCMs in an applicable
implementation plan are provided in paragraph (d) of this
section.
(b) A project is considered to be from a conforming
transportation plan if one of the following conditions applies:
(1) For projects which are required to be identified in the
transportation plan in order to satisfy §93.106 ("Content of
transportation plans"), the project is specifically included in
the conforming transportation plan and the project's design
concept and scope have not changed significantly from those which
were described in the transportation plan, or in a manner which
would significantly impact use of the facility; or
(2) For projects which are not required to be specifically
identified in the transportation plan, the project is identified
in the conforming transportation plan, or is consistent with the
policies and purpose of the transportation plan and will not
interfere with other projects specifically included in the
transportation plan.
(c) A project is considered to be from a conforming program
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if the following conditions are met:
(1) The project is included in the conforming TIP and the
design concept and scope of the project were adequate at the time
of the TIP conformity determination to determine its contribution
to the TIP'S regional emissions, and the project design concept
and scope have not changed significantly from those which were
described in the TIP; and
(2) If the TIP describes a project design concept and scope
which includes project-level emissions mitigation or control
measures, written commitments to implement such measures must be
obtained from the project sponsor and/or operator as required by
§93.125(a) in order for the project to be considered from a
conforming program. Any change in these mitigation or control
measures that would significantly reduce their effectiveness
constitutes a change in the design concept and scope of the
project.
(d) TCMs. This criterion is not required to be satisfied for
TCMs specifically included in an applicable implementation plan.
§93.116 Criteria and procedures: Localized CO and PM10
violations (hot spots).
(a) This paragraph applies at all times. The FHWA/FTA
project must not cause or contribute to any new localized CO or
PM10 violations or increase the frequency or severity of any
existing CO or PM10 violations in CO and PM10 nonattainment and
maintenance areas. This criterion is satisfied if it is
demonstrated that during the time frame of the transportation
plan (or regional emissions analysis) no new local violations
will be created and the severity or number of existing violations
will not be increased as a result of the project. The
demonstration must be performed according to the consultation
requirements of §93.105(c)(1)(i) and the methodology requirements
of §93.123.
(b) This paragraph applies for CO nonattainment areas as
described in §93.109(d)(1). Each FHWA/FTA project must eliminate
or reduce the severity and number of localized CO violations in
the area substantially affected by the project (in CO
nonattainment areas). This criterion is satisfied with respect to
existing localized CO violations if it is demonstrated that
during the time frame of the transportation plan (or regional
emissions analysis) existing localized CO violations will be
eliminated or reduced in severity and number as a result of the
project. The demonstration must be performed according to the
consultation requirements of §93.105(c)(1)(i) and the methodology
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requirements of §93.123.
§93.117 Criteria and procedures: Compliance with PM10 and PM2 5
control measures.
The FHWA/FTA project must comply with any PM10 and PM2 5
control measures in the applicable implementation plan. This
criterion is satisfied if the project-level conformity
determination contains a written commitment from the project
sponsor to include in the final plans, specifications, and
estimates for the project those control measures (for the purpose
of limiting PM10 and PM25 emissions from the construction
activities and/or normal use and operation associated with the
project) that are contained in the applicable implementation
plan.
§93.118 Criteria and procedures: Motor vehicle emissions budget.
(a) The transportation plan, TIP, and project not from a
conforming transportation plan and TIP must be consistent with
the motor vehicle emissions budget(s) in the applicable
implementation plan (or implementation plan submission). This
criterion applies as described in §93.109 (c) through (1). This
criterion is satisfied if it is demonstrated that emissions of
the pollutants or pollutant precursors described in paragraph (c)
of this section are less than or equal to the motor vehicle
emissions budget(s) established in the applicable implementation
plan or implementation plan submission.
(b) Consistency with the motor vehicle emissions budget(s)
must be demonstrated for each year for which the applicable
(and/or submitted) implementation plan specifically establishes
motor vehicle emissions budget(s), for the attainment year (if it
is within the timeframe of the transportation plan), for the last
year of the transportation plan's forecast period, and for any
intermediate years as necessary so that the years for which
consistency is demonstrated are no more than ten years apart, as
follows:
(1) Until a maintenance plan is submitted:
(i) Emissions in each year (such as milestone years and the
attainment year) for which the control strategy implementation
plan revision establishes motor vehicle emissions budget(s) must
be less than or equal to that year's motor vehicle emissions
budget(s); and
(ii) Emissions in years for which no motor vehicle emissions
budget(s) are specifically established must be less than or equal
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to the motor vehicle emissions budget(s) established for the most
recent prior year. For example, emissions in years after the
attainment year for which the implementation plan does not
establish a budget must be less than or equal to the motor
vehicle emissions budget(s) for the attainment year.
(2) When a maintenance plan has been submitted:
(i) Emissions must be less than or equal to the motor
vehicle emissions budget(s) established for the last year of the
maintenance plan, and for any other years for which the
maintenance plan establishes motor vehicle emissions budgets. If
the maintenance plan does not establish motor vehicle emissions
budgets for any years other than the last year of the maintenance
plan, the demonstration of consistency with the motor vehicle
emissions budget(s) must be accompanied by a qualitative finding
that there are no factors which would cause or contribute to a
new violation or exacerbate an existing violation in the years
before the last year of the maintenance plan. The interagency
consultation process required by §93.105 shall determine what
must be considered in order to make such a finding;
(ii) For years after the last year of the maintenance plan,
emissions must be less than or equal to the maintenance plan's
motor vehicle emissions budget(s) for the last year of the
maintenance plan;
(iii) If an approved and/or submitted control strategy
implementation plan has established motor vehicle emissions
budgets for years in the time frame of the transportation plan,
emissions in these years must be less than or equal to the
control strategy implementation plan's motor vehicle emissions
budget(s) for these years; and
(iv) For any analysis years before the last year of the
maintenance plan, emissions must be less than or equal to the
motor vehicle emissions budget(s) established for the most recent
prior year.
(c) Consistency with the motor vehicle emissions budget(s)
must be demonstrated for each pollutant or pollutant precursor in
§93.102(b) for which the area is in nonattainment or maintenance
and for which the applicable implementation plan (or
implementation plan submission) establishes a motor vehicle
emissions budget.
(d) Consistency with the motor vehicle emissions budget(s)
must be demonstrated by including emissions from the entire
transportation system, including all regionally significant
projects contained in the transportation plan and all other
regionally significant highway and transit projects expected in
the nonattainment or maintenance area in the timeframe of the
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transportation plan.
(1) Consistency with the motor vehicle emissions budget(s)
must be demonstrated with a regional emissions analysis that
meets the requirements of §§93.122 and 93.105(c) (1) (i) .
(2) The regional emissions analysis may be performed for any
years in the timeframe of the transportation plan provided they
are not more than ten years apart and provided the analysis is
performed for the attainment year (if it is in the timeframe of
the transportation plan) and the last year of the plan's forecast
period. Emissions in years for which consistency with motor
vehicle emissions budgets must be demonstrated, as required in
paragraph (b) of this section, may be determined by interpolating
between the years for which the regional emissions analysis is
performed.
(e) Motor vehicle emissions budgets in submitted control
strategy implementation plan revisions and submitted maintenance
plans. (1) Consistency with the motor vehicle emissions budgets
in submitted control strategy implementation plan revisions or
maintenance plans must be demonstrated if EPA has declared the
motor vehicle emissions budget(s) adequate for transportation
conformity purposes, and the adequacy finding is effective.
However, motor vehicle emissions budgets in submitted
implementation plans do not supersede the motor vehicle emissions
budgets in approved implementation plans for the same Clean Air
Act requirement and the period of years addressed by the approved
implementation plan, unless EPA specifies otherwise in its
approval of a SIP.
(2) If EPA has not declared an implementation plan
submission's motor vehicle emissions budget(s) adequate for
transportation conformity purposes, the budget(s) shall not be
used to satisfy the requirements of this section. Consistency
with the previously established motor vehicle emissions budget(s)
must be demonstrated. If there are no previous approved
implementation plans or implementation plan submissions with
adequate motor vehicle emissions budgets, the interim emissions
tests required by §93.119 must be satisfied.
(3) If EPA declares an implementation plan submission's
motor vehicle emissions budget(s) inadequate for transportation
conformity purposes after EPA had previously found the budget(s)
adequate, and conformity of a transportation plan or TIP has
already been determined by DOT using the budget(s), the
conformity determination will remain valid. Projects included in
that transportation plan or TIP could still satisfy §§93.114 and
93.115, which require a currently conforming transportation plan
and TIP to be in place at the time of a project's conformity
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determination and that projects come from a conforming
transportation plan and TIP.
(4) EPA will not find a motor vehicle emissions budget in a
submitted control strategy implementation plan revision or
maintenance plan to be adequate for transportation conformity
purposes unless the following minimum criteria are satisfied:
(i) The submitted control strategy implementation plan
revision or maintenance plan was endorsed by the Governor (or his
or her designee) and was subject to a State public hearing;
(ii) Before the control strategy implementation plan or
maintenance plan was submitted to EPA, consultation among
federal, State, and local agencies occurred; full implementation
plan documentation was provided to EPA; and EPA's stated
concerns, if any, were addressed;
(iii) The motor vehicle emissions budget(s) is clearly
identified and precisely quantified;
(iv) The motor vehicle emissions budget(s), when considered
together with all other emissions sources, is consistent with
applicable requirements for reasonable further progress,
attainment, or maintenance (whichever is relevant to the given
implementation plan submission);
(v) The motor vehicle emissions budget(s) is consistent with
and clearly related to the emissions inventory and the control
measures in the submitted control strategy implementation plan
revision or maintenance plan; and
(vi) Revisions to previously submitted control strategy
implementation plans or maintenance plans explain and document
any changes to previously submitted budgets and control measures;
impacts on point and area source emissions; any changes to
established safety margins (see §93.101 for definition); and
reasons for the changes (including the basis for any changes
related to emission factors or estimates of vehicle miles
traveled).
(5) Before determining the adequacy of a submitted motor
vehicle emissions budget, EPA will review the State's compilation
of public comments and response to comments that are required to
be submitted with any implementation plan. EPA will document its
consideration of such comments and responses in a letter to the
State indicating the adequacy of the submitted motor vehicle
emissions budget.
(6) When the motor vehicle emissions budget(s) used to
satisfy the requirements of this section are established by an
implementation plan submittal that has not yet been approved or
disapproved by EPA, the MPO and DOT'S conformity determinations
will be deemed to be a statement that the MPO and DOT are not
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aware of any information that would indicate that emissions
consistent with the motor vehicle emissions budget will cause or
contribute to any new violation of any standard; increase the
frequency or severity of any existing violation of any standard;
or delay timely attainment of any standard or any required
interim emission reductions or other milestones.
(f) Adequacy review process for implementation plan
submissions. EPA will use the procedure listed in paragraphs
(f)(1) or (f)(2) of this section to review the adequacy of an
implementation plan submission:
(1) When EPA reviews the adequacy of an implementation plan
submission prior to EPA's final action on the implementation
plan,
(i) EPA will notify the public through EPA's website when
EPA receives an implementation plan submission that will be
reviewed for adequacy.
(ii) The public will have a minimum of 30 days to comment on
the adequacy of the implementation plan submission. If the
complete implementation plan is not accessible electronically
through the internet and a copy is requested within 15 days of
the date of the website notice, the comment period will be
extended for 30 days from the date that a copy of the
implementation plan is mailed.
(iii) After the public comment period closes, the EPA
Regional Office will inform the State in writing whether EPA has
found the submission adequate or inadequate for use in
transportation conformity, or EPA will include the determination
of adequacy or inadequacy in a proposed or final action approving
or disapproving the implementation plan under paragraph
(f)(2)(iii) of this section.
(iv) EPA will publish a Federal Register notice to inform
the public of EPA's finding. If EPA finds the submission
adequate, the effective date of this adequacy finding will be 15
days from the date the notice is published.
(v) EPA will announce whether the implementation plan
submission is adequate or inadequate for use in transportation
conformity on EPA's website. The website will also include EPA's
response to comments if any comments were received during the
public comment period.
(vi) If after EPA has found a submission adequate, EPA has
cause to find that budget inadequate, EPA will repeat actions
described in paragraphs (f)(1)(i)-(v) of this section, with one
exception. EPA will first inform the State in writing of its
interim inadequacy finding, effective immediately upon the date
of EPA's letter. EPA will then repeat actions described in
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paragraphs (f)(1)(i)-(v) of this section unless EPA determines
that there is no need for additional public comment given the
deficiencies of the implementation plan submission.
(vii) If after EPA has found a submission inadequate, EPA
has cause to reconsider the adequacy of that budget, EPA will
repeat actions described in paragraphs (f)(1)(i)-(v) of this
section.
(2) When EPA reviews the adequacy of an implementation plan
submission simultaneously with EPA's approval of the
implementation plan,
(i) EPA's Federal Register notice of proposed or direct
final rulemaking will serve to notify the public that EPA will be
reviewing the implementation plan submission for adequacy.
(ii) The publication of the notice of proposed rulemaking
will start a public comment period of at least 30 days.
(iii) EPA will indicate whether the implementation plan
submission is adequate and thus can be used for conformity either
in EPA's final rulemaking or through the process described in
paragraphs (f)(1)(iii)-(v) of this section. EPA will respond to
comments received directly and to comments related to adequacy
made through the state process and include the response to
comments in the applicable docket.
§93.119 Criteria and procedures: Interim emissions in areas
without motor vehicle emissions budgets.
(a) The transportation plan, TIP, and project not from a
conforming transportation plan and TIP must satisfy the interim
emissions test(s) as described in §93.109(c) through (1). This
criterion applies to the net effect of the action (transportation
plan, TIP, or project not from a conforming plan and TIP) on
motor vehicle emissions from the entire transportation system.
(b) Ozone areas. The requirements of this paragraph apply
to all 1-hour ozone and 8-hour ozone NAAQS areas, except for
certain requirements as indicated. This criterion may be met:
(1) In moderate and above ozone nonattainment areas that are
subject to the reasonable further progress requirements of CAA
section 182(b)(1) if a regional emissions analysis that satisfies
the requirements of §93.122 and paragraphs (g) through (j) of
this section demonstrates that for each analysis year and for
each of the pollutants described in paragraph (f) of this
section:
(i) The emissions predicted in the "Action" scenario are
less than the emissions predicted in the "Baseline" scenario, and
this can be reasonably expected to be true in the periods between
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the analysis years; and
(ii) The emissions predicted in the "Action" scenario are
lower than:
(A) 1990 emissions by any nonzero amount, in areas for the
1-hour ozone NAAQS as described in §93.109(c); or
(B) 2002 emissions by any nonzero amount, in areas for the
8-hour ozone NAAQS as described in §93.109(d) and (e).
(2) In marginal and below ozone nonattainment areas and
other ozone nonattainment areas that are not subject to the
reasonable further progress requirements of CAA section 182(b)(1)
if a regional emissions analysis that satisfies the requirements
of §93.122 and paragraphs (g) through (j) of this section
demonstrates that for each analysis year and for each of the
pollutants described in paragraph (f) of this section:
(i) The emissions predicted in the "Action" scenario are not
greater than the emissions predicted in the "Baseline" scenario,
and this can be reasonably expected to be true in the periods
between the analysis years; or
(ii) The emissions predicted in the "Action" scenario are
not greater than:
(A) 1990 emissions, in areas for the 1-hour ozone NAAQS as
described in §93.109 (c); or
(B) 2002 emissions, in areas for the 8-hour ozone NAAQS as
described in §93.109(d) and (e).
(c) CO areas. This criterion may be met:
(1) In moderate areas with design value greater than 12.7
ppm and serious CO nonattainment areas that are subject to CAA
section 187(a)(7) if a regional emissions analysis that satisfies
the requirements of §93.122 and paragraphs (g) through (j) of
this section demonstrates that for each analysis year and for
each of the pollutants described in paragraph (f) of this
section:
(i) The emissions predicted in the "Action" scenario are
less than the emissions predicted in the "Baseline" scenario, and
this can be reasonably expected to be true in the periods between
the analysis years; and
(ii) The emissions predicted in the "Action" scenario are
lower than 1990 emissions by any nonzero amount.
(2) In moderate areas with design value less than 12.7 ppm
and not classified CO nonattainment areas if a regional emissions
analysis that satisfies the requirements of §93.122 and
paragraphs (g) through (j) of this section demonstrates that for
each analysis year and for each of the pollutants described in
paragraph (f) of this section:
(i) The emissions predicted in the "Action" scenario are not
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greater than the emissions predicted in the "Baseline" scenario,
and this can be reasonably expected to be true in the periods
between the analysis years; or
(ii) the emissions predicted in the "Action" scenario are
not greater than 1990 emissions.
(d) PM-m and N00 areas. This criterion may be met in PM10
and N02 nonattainment areas if a regional emissions analysis that
satisfies the requirements of §93.122 and paragraphs (g) through
(j) of this section demonstrates that for each analysis year and
for each of the pollutants described in paragraph (f) of this
section, one of the following requirements is met:
(1) The emissions predicted in the "Action" scenario are not
greater than the emissions predicted in the "Baseline" scenario,
and this can be reasonably expected to be true in the periods
between the analysis years; or
(2) The emissions predicted in the "Action" scenario are not
greater than baseline emissions. Baseline emissions are those
estimated to have occurred during calendar year 1990, unless the
conformity implementation plan revision required by §51.390 of
this chapter defines the baseline emissions for a PM10 area 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.
(e) PMo K areas. This criterion may be met in PM2 5
nonattainment areas if a regional emissions analysis that
satisfies the requirements of §93.122 and paragraphs (g) through
(j) of this section demonstrates that for each analysis year and
for each of the pollutants described in paragraph (f) of this
section, one of the following requirements is met:
(1) The emissions predicted in the "Action" scenario are not
greater than the emissions predicted in the "Baseline" scenario,
and this can be reasonably expected to be true in the periods
between the analysis years; or
(2) The emissions predicted in the "Action" scenario are not
greater than 2002 emissions.
(f) Pollutants. The regional emissions analysis must be
performed for the following pollutants:
(1) VOC in ozone areas;
(2) NOX in ozone areas, unless the EPA Administrator
determines that additional reductions of NOX would not
contribute to attainment;
(3) CO in CO areas;
(4) PM10 in PM10 areas;
(5) VOC and/or NOX in PM10 areas if the EPA Regional
Administrator or the director of the State air agency has made a
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finding that one or both of such precursor emissions from within
the area are a significant contributor to the PM10 nonattainment
problem and has so notified the MPO and DOT;
(6) NOX in N02 areas;
(7) PM2 5 in PM2 5 areas;
Option 1 for paragraphs (f) (8), (f) (9) and (f) (10) :
(8) VOC and/or NOX in PM2 5 areas, unless the EPA Regional
Administrator or the director of the State air agency has made a
finding that one or both of such precursor emissions from within
the area are not a significant contributor to the PM2 5
nonattainment problem and has so notified the MPO and DOT;
(9) SOX and/or NH3 in PM2 5 areas if the EPA Regional
Administrator or the director of the State air agency has made a
finding that one or both of such precursor emissions from within
the area are a significant contributor to the PM2 5 nonattainment
problem and has so notified the MPO and DOT; and
(10) Re-entrained road dust in PM2 5 areas if the EPA
Regional Administrator or the director of the State air agency
has made a finding that emissions from re-entrained road dust
within the area are a significant contributor to the PM25
nonattainment problem and has so notified the MPO and DOT.
Option 2 for paragraphs (f) (8) and (f) (9) without paragraph
(f) (10) :
(8) NOx, VOC, SOX and/or NH3 in PM2.5 areas if the EPA
Regional Administrator or the director of the State air agency
has made a finding that one or more of such precursor emissions
from within the area are a significant contributor to the PM25
nonattainment problem and has so notified the MPO and DOT; and
(9) Reentrained road dust in PM2 5 areas if the EPA Regional
Administrator or the director of the State air agency has made a
finding that emissions from reentrained road dust within the area
are a significant contributor to the PM25 nonattainment problem
and has so notified the MPO and DOT.
(g) Analysis years.
(1) The regional emissions analysis must be performed for
analysis years that are no more than ten years apart. The first
analysis year must be no more than five years beyond the year in
which the conformity determination is being made. The last year
of the transportation plan's forecast period must also be an
analysis year.
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(2) For areas using paragraphs (b)(2)(i), (c)(2)(i), (d)(1),
and (e)(1) of this section, a regional emissions analysis that
satisfies the requirements of §93.122 and paragraphs (g) through
(j) of this section would not be required for analysis years in
which the transportation projects and planning assumptions in the
"Action" and "Baseline" scenarios are exactly the same. In such
a case, paragraph (a) can be satisfied by documenting that the
transportation projects and planning assumptions in both
scenarios are exactly the same, and consequently, the emissions
predicted in the "Action" scenario are not greater than the
emissions predicted in the "Baseline" scenario for such analysis
years.
(h) "Baseline" scenario. The regional emissions analysis
required by paragraphs (b) and (e) of this section must estimate
the emissions that would result from the "Baseline" scenario in
each analysis year. The "Baseline" scenario must be defined for
each of the analysis years. The "Baseline" scenario is the future
transportation system that will result from current programs,
including the following (except that exempt projects listed in
§93.126 and projects exempt from regional emissions analysis as
listed in §93.127 need not be explicitly considered):
(1) All in-place regionally significant highway and transit
facilities, services and activities;
(2) All ongoing travel demand management or transportation
system management activities; and
(3) Completion of all regionally significant projects,
regardless of funding source, which are currently under
construction or are undergoing right-of-way acquisition (except
for hardship acquisition and protective buying); come from the
first year of the previously conforming transportation plan
and/or TIP; or have completed the NEPA process.
(i) "Action" scenario. The regional emissions analysis
required by paragraphs (b) and (e) of this section must estimate
the emissions that would result from the "Action" scenario in
each analysis year. The "Action" scenario must be defined for
each of the analysis years. The "Action" scenario is the
transportation system that would result from the implementation
of the proposed action (transportation plan, TIP, or project not
from a conforming transportation plan and TIP) and all other
expected regionally significant projects in the nonattainment
area. The "Action" scenario must include the following (except
that exempt projects listed in §93.126 and projects exempt
from regional emissions analysis as listed in §93.127 need not be
explicitly considered):
(1) All facilities, services, and activities in the
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"Baseline" scenario;
(2) Completion of all TCMs and regionally significant
projects (including facilities, services, and activities)
specifically identified in the proposed transportation plan which
will be operational or in effect in the analysis year, except
that regulatory TCMs may not be assumed to begin at a future time
unless the regulation is already adopted by the enforcing
jurisdiction or the TCM is identified in the applicable
implementation plan;
(3) All travel demand management programs and transportation
system management activities known to the MPO, but not included
in the applicable implementation plan or utilizing any Federal
funding or approval, which have been fully adopted and/or funded
by the enforcing jurisdiction or sponsoring agency since the last
conformity determination;
(4) The incremental effects of any travel demand management
programs and transportation system management activities known to
the MPO, but not included in the applicable implementation plan
or utilizing any Federal funding or approval, which were adopted
and/or funded prior to the date of the last conformity
determination, but which have been modified since then to be more
stringent or effective;
(5) Completion of all expected regionally significant
highway and transit projects which are not from a conforming
transportation plan and TIP; and
(6) Completion of all expected regionally significant
non-FHWA/FTA highway and transit projects that have clear funding
sources and commitments leading toward their implementation and
completion by the analysis year.
(j) Projects not from a conforming transportation plan and
TIP. For the regional emissions analysis required by paragraphs
(b) and (e) of this section, if the project which is not from a
conforming transportation plan and TIP is a modification of a
project currently in the plan or TIP, the "Baseline" scenario
must include the project with its original design concept and
scope, and the "Action" scenario must include the project with
its new design concept and scope.
§93.120 Consequences of control strategy implementation plan
failures.
(a) Disapprovals. (1) If EPA disapproves any submitted
control strategy implementation plan revision (with or without a
protective finding), the conformity status of the transportation
plan and TIP shall lapse on the date that highway sanctions as a
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result of the disapproval are imposed on the nonattainment area
under section 179(b)(1) of the CAA. No new transportation plan,
TIP, or project may be found to conform until another control
strategy implementation plan revision fulfilling the same CAA
requirements is submitted and conformity to this submission
is determined.
(2) If EPA disapproves a submitted control strategy
implementation plan revision without making a protective finding,
only projects in the first three years of the currently
conforming transportation plan and TIP may be found to conform.
This means that beginning on the effective date of a disapproval
without a protective finding, no transportation plan, TIP, or
project not in the first three years of the currently conforming
transportation plan and TIP may be found to conform until another
control strategy implementation plan revision fulfilling the same
CAA requirements is submitted, EPA finds its motor vehicle
emissions budget(s) adequate pursuant to §93.118, and conformity
to this submission is determined.
(3) In disapproving a control strategy implementation plan
revision, EPA would give a protective finding where a submitted
plan contains adopted control measures or written commitments to
adopt enforceable control measures that fully satisfy the
emissions reductions requirements relevant to the statutory
provision for which the implementation plan revision was
submitted, such as reasonable further progress or attainment.
(b) Failure to submit and incompleteness. In areas where EPA
notifies the State, MPO, and DOT of the State's failure to submit
a control strategy implementation plan or submission of an
incomplete control strategy implementation plan revision (either
of which initiates the sanction process under CAA sections 179 or
110(m)), the conformity status of the transportation plan and TIP
shall lapse on the date that highway sanctions are imposed on the
nonattainment area for such failure under section 179(b)(1) of
the CAA, unless the failure has been remedied and acknowledged by
a letter from the EPA Regional Administrator.
(c) Federal implementation plans. If EPA promulgates a
Federal implementation plan that contains motor vehicle emissions
budget(s) as a result of a State failure, the conformity lapse
imposed by this section because of that State failure is removed.
§93.121 Requirements for adoption or approval of projects by
other recipients of funds designated under title 23 U.S.C. or the
Federal Transit Laws.
(a) Except as provided in paragraph (b) of this section, no
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recipient of Federal funds designated under title 23 U.S.C. or
the Federal Transit Laws shall adopt or approve a regionally
significant highway or transit project, regardless of funding
source, unless the recipient finds that the requirements of one
of the following are met:
(1) The project comes from the currently conforming
transportation plan and TIP, and the project's design concept and
scope has not changed significantly from those which were
included in the regional emissions analysis for that
transportation plan and TIP;
(2) The project is included in the regional emissions
analysis for the currently conforming transportation plan and TIP
conformity determination (even if the project is not strictly
included in the transportation plan or TIP for the purpose of MPO
project selection or endorsement) and the project's design
concept and scope have not changed significantly from those which
were included in the regional emissions analysis; or
(3) A new regional emissions analysis including the project
and the currently conforming transportation plan and TIP
demonstrates that the transportation plan and TIP would still
conform if the project were implemented (consistent with the
requirements of §§93.118 and/or 93.119 for a project not from a
conforming transportation plan and TIP).
(b) In isolated rural nonattainment and maintenance areas
subject to §93.109(1), no recipient of Federal funds designated
under title 23 U.S.C. or the Federal Transit Laws shall adopt or
approve a regionally significant highway or transit project,
regardless of funding source, unless the recipient finds that the
requirements of one of the following
are met:
(1) The project was included in the regional emissions
analysis supporting the most recent conformity determination that
reflects the portion of the statewide transportation plan and TIP
which are in the nonattainment or maintenance area, and the
project's design concept and scope has not changed significantly;
or
(2) A new regional emissions analysis including the project
and all other regionally significant projects expected in the
nonattainment or maintenance area demonstrates that those
projects in the statewide transportation plan and statewide TIP
which are in the nonattainment or maintenance area would still
conform if the project were implemented (consistent with the
requirements of §§93.118 and/or 93.119 for projects not from a
conforming transportation plan and TIP) .
(c) Notwithstanding paragraphs (a) and (b) of this section,
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in nonattainment and maintenance areas subject to §93.109 (j) or
(k) for a given pollutant/precursor and NAAQS, no recipient of
Federal funds designated under title 23 U.S.C. or the Federal
Transit Laws shall adopt or approve a regionally significant
highway or transit project, regardless of funding source, unless
the recipient finds that the requirements of one of the following
are met for that pollutant/precursor and NAAQS:
(1) The project was included in the most recent conformity
determination for the transportation plan and TIP and the
project's design concept and scope has not changed significantly;
or
(2) The project was included in the most recent conformity
determination that reflects the portion of the statewide
transportation plan and TIP which are in the nonattainment or
maintenance area, and the project's design concept and scope has
not changed significantly.
§93.122 Procedures for determining regional
transportation-related emissions.
(a) General requirements. (1) The regional emissions
analysis required by §§93.118 and 93.119 for the transportation
plan, TIP, or project not from a conforming plan and TIP must
include all regionally significant projects expected in the
nonattainment or maintenance area. The analysis shall include
FHWA/FTA projects proposed in the transportation plan and TIP and
all other regionally significant projects which are disclosed to
the MPO as required by §93.105. Projects which are not regionally
significant are not required to be explicitly modeled, but
vehicle miles traveled (VMT) from such projects must be estimated
in accordance with reasonable professional practice. The effects
of TCMs and similar projects that are not regionally significant
may also be estimated in accordance with reasonable professional
practice.
(2) The emissions analysis may not include for emissions
reduction credit any TCMs or other measures in the applicable
implementation plan which have been delayed beyond the scheduled
date(s) until such time as their implementation has been assured.
If the measure has been partially implemented and it can be
demonstrated that it is providing quantifiable emission reduction
benefits, the emissions analysis may include that emissions
reduction credit.
(3) Emissions reduction credit from projects, programs, or
activities which require a regulatory action in order to be
implemented may not be included in the emissions analysis unless:
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(i) The regulatory action is already adopted by the
enforcing
jurisdiction;
(ii) The project, program, or activity is included in the
applicable implementation plan;
(iii) The control strategy implementation plan submission or
maintenance plan submission that establishes the motor vehicle
emissions budget(s) for the purposes of §93.118 contains a
written commitment to the project, program, or activity by the
agency with authority to implement it; or
(iv) EPA has approved an opt-in to a Federally enforced
program, EPA has promulgated the program (if the control program
is a Federal responsibility, such as vehicle tailpipe standards),
or the Clean Air Act requires the program without need for
individual State action and without any discretionary authority
for EPA to set its stringency, delay its effective date, or not
implement the program.
(4) Emissions reduction credit from control measures that
are not included in the transportation plan and TIP and that do
not require a regulatory action in order to be implemented may
not be included in the emissions analysis unless the conformity
determination includes written commitments to implementation from
the appropriate entities.
(i) Persons or entities voluntarily committing to control
measures must comply with the obligations of such commitments.
(ii) The conformity implementation plan revision required in
§51.390 of this chapter must provide that written commitments to
control measures that are not included in the transportation plan
and TIP must be obtained prior to a conformity determination and
that such commitments must be fulfilled.
(5) A regional emissions analysis for the purpose of
satisfying the requirements of §93.119 must make the same
assumptions in both the "Baseline" and "Action" scenarios
regarding control measures that are external to the
transportation system itself, such as vehicle tailpipe or
evaporative emission standards, limits on gasoline volatility,
vehicle inspection and maintenance programs, and oxygenated
or reformulated gasoline or diesel fuel.
(6) The ambient temperatures used for the regional emissions
analysis shall be consistent with those used to establish the
emissions budget in the applicable implementation plan. All other
factors, for example the fraction of travel in a hot stabilized
engine mode, must be consistent with the applicable
implementation plan, unless modified after interagency
consultation according to §93.105(c)(1)(i) to incorporate
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additional or more geographically specific information or
represent a logically estimated trend in such factors beyond the
period considered in the applicable implementation plan.
(7) Reasonable methods shall be used to estimate
nonattainment or maintenance area VMT on off-network roadways
within the urban transportation planning area, and on roadways
outside the urban transportation planning area.
(b) Regional emissions analysis in serious, severe, and
extreme ozone nonattainment areas and serious CO nonattainment
areas must meet the requirements of paragraphs (b) (1) through
(3) of this section if their metropolitan planning area contains
an urbanized area population over 200,000.
(1) By January 1, 1997, estimates of regional
transportation-related emissions used to support conformity
determinations must be made at a minimum using network-based
travel models according to procedures and methods that are
available and in practice and supported by current and available
documentation. These procedures, methods, and practices are
available from DOT and will be updated periodically. Agencies
must discuss these modeling procedures and practices through the
interagency consultation process, as required by
§93.105(c)(1)(i). Network-based travel models must at a minimum
satisfy the following requirements:
(i) Network-based travel models must be validated against
observed counts (peak and off-peak, if possible) for a base year
that is not more than 10 years prior to the date of the
conformity determination. Model forecasts must be analyzed for
reasonableness and compared to historical trends and other
factors, and the results must be documented;
(ii) Land use, population, employment, and other
network-based travel model assumptions must be documented and
based on the best available information;
(iii) Scenarios of land development and use must be
consistent with the future transportation system alternatives for
which emissions are being estimated. The distribution of
employment and residences for different transportation options
must be reasonable;
(iv) A capacity-sensitive assignment methodology must be
used, and emissions estimates must be based on a methodology
which differentiates between peak and off-peak link volumes and
speeds and uses speeds based on final assigned volumes;
(v) Zone-to-zone travel impedances used to distribute trips
between origin and destination pairs must be in reasonable
agreement with the travel times that are estimated from final
assigned traffic volumes. Where use of transit currently is
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anticipated to be a significant factor in satisfying
transportation demand, these times should also be used for
modeling mode splits; and
(vi) Network-based travel models must be reasonably
sensitive to changes in the time(s), cost(s), and other factors
affecting travel choices.
(2) Reasonable methods in accordance with good practice must
be used to estimate traffic speeds and delays in a manner that is
sensitive to the estimated volume of travel on each roadway
segment represented in the network-based travel model.
(3) Highway Performance Monitoring System (HPMS) estimates
of vehicle miles traveled (VMT) shall be considered the primary
measure of VMT within the portion of the nonattainment or
maintenance area and for the functional classes of roadways
included in HPMS, for urban areas which are sampled on a separate
urban area basis. For areas with network-based travel models, a
factor (or factors) may be developed to reconcile and calibrate
the network-based travel model estimates of VMT in the base year
of its validation to the HPMS estimates for the same period.
These factors may then be applied to model estimates of future
VMT. In this factoring process, consideration will be given to
differences between HPMS and network-based travel models, such as
differences in the facility coverage of the HPMS and the modeled
network description. Locally developed count- based programs and
other departures from these procedures are permitted subject to
the interagency consultation procedures of §93.105 (c) (1) (i) .
(c) Two-year grace period for regional emissions analysis
requirements in certain ozone and CO areas. The requirements of
paragraph (b) of this section shall not apply for two years from
the following:
(i) The effective date of EPA's reclassification of a
moderate ozone or CO area that has an urbanized area population
greater than 200,000 to serious or severe (ozone only); or,
(ii) The official notice by the Census Bureau that
determines the urbanized area population of a serious or above
ozone or CO area to be greater than 200,000.
(d) In all areas not otherwise subject to paragraph (b) of
this section, regional emissions analyses must use those
procedures described in paragraph (b) of this section if the use
of those procedures has been the previous practice of the MPO.
Otherwise, areas not subject to paragraph (b) of this section may
estimate regional emissions using any appropriate methods that
account for VMT growth by, for example, extrapolating historical
VMT or projecting future VMT by considering growth in population
and historical growth trends for VMT per person. These methods
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must also consider future economic activity, transit
alternatives, and transportation system policies.
(e) PM10 from construction-related fugitive dust. (1) For
areas in which the implementation plan does not identify
construction-related fugitive PM10 as a contributor to the
nonattainment problem, the fugitive PM10 emissions associated
with highway and transit project construction are not required to
be considered in the regional emissions analysis.
(2) In PM10 nonattainment and maintenance areas with
implementation plans which identify construction-related fugitive
PM10 as a contributor to the nonattainment problem, the
regional PM10 emissions analysis shall consider construction-
related fugitive PM10 and shall account for the level of
construction activity, the fugitive PM10 control measures in
the applicable implementation plan, and the dust-producing
capacity of the proposed activities.
(f) PMo K from construction-related fugitive dust. (1) For
PM2 5 areas in which the implementation plan does not identify
construction-related fugitive PM25 as a significant contributor
to the nonattainment problem, the fugitive PM25 emissions
associated with highway and transit project construction are not
required to be considered in the regional emissions analysis.
(2) In PM2 5 nonattainment and maintenance areas with
implementation plans which identify construction-related fugitive
PM2 5 as a significant contributor to the nonattainment problem,
the regional PM2 5 emissions analysis shall consider construction-
related fugitive PM25 and shall account for the level of
construction activity, the fugitive PM25 control measures in the
applicable implementation plan, and the dust-producing capacity
of the proposed activities.
(g) Reliance on previous regional emissions analysis. (1)
Conformity determinations for a new transportation plan and/or
TIP may be demonstrated to satisfy the requirements of §§93.118
("Motor vehicle emissions budget") or 93.119 ("Interim emissions
in areas without motor vehicle emissions budgets") without new
regional emissions analysis if the previous regional emissions
analysis also applies to the new plan and/or TIP. This requires
a demonstration that:
(i) The new plan and/or TIP contain all projects which must
be started in the plan and TIP'S timeframes in order to achieve
the highway and transit system envisioned by the transportation
plan;
(ii) All plan and TIP projects which are regionally
significant are included in the transportation plan with design
concept and scope adequate to determine their contribution to the
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transportation plan's and/or TIP'S regional emissions at the time
of the previous conformity determination; and
(iii) The design concept and scope of each regionally
significant project in the new plan and/or TIP is not
significantly different from that described in the previous
transportation plan.
(iv) The previous regional emissions analysis is still
consistent with the requirements of §§93.118 (including that
conformity to all currently applicable budgets is demonstrated)
and/or 93.119, as applicable.
(2) A project which is not from a conforming transportation
plan and a conforming TIP may be demonstrated to satisfy the
requirements of §93.118 or §93.119 without additional regional
emissions analysis if allocating funds to the project will not
delay the implementation of projects in the transportation plan
or TIP which are necessary to achieve the highway and transit
system envisioned by the transportation plan, the previous
regional emissions analysis is still consistent with the
requirements of §93.118 (including that conformity to all
currently applicable budgets is demonstrated) and/or §93.119, as
applicable, and if the project is either:
(i) Not regionally significant; or
(ii) Included in the conforming transportation plan (even if
it is not specifically included in the latest conforming TIP)
with design concept and scope adequate to determine its
contribution to the transportation plan's regional emissions at
the time of the transportation plan's conformity determination,
and the design concept and scope of the project is not
significantly different from that described in the transportation
plan.
(3) A conformity determination that relies on paragraph (e)
of this section does not satisfy the frequency requirements of
§93.104(b) or (c).
§93.123 Procedures for determining localized CO and PM10
concentrations (hot-spot analysis).
(a) CO hot-spot analysis. (1) The demonstrations required by
§93.116 ("Localized CO and PM10 violations") must be based on
quantitative analysis using the applicable air quality models,
data bases, and other requirements specified in 40 CFR part 51,
Appendix W (Guideline on Air Quality Models). These procedures
shall be used in the following cases, unless different procedures
developed through the interagency consultation process required
in §93.105 and approved by the EPA Regional Administrator are
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used:
(i) For projects in or affecting locations, areas, or
categories of sites which are identified in the applicable
implementation plan as sites of violation or possible violation;
(ii) For projects affecting intersections that are at
Level-of-Service D, E, or F, or those that will change to
Level-of-Service D, E, or F because of increased traffic volumes
related to the project;
(iii) For any project affecting one or more of the top three
intersections in the nonattainment or maintenance area with
highest traffic volumes, as identified in the applicable
implementation plan; and
(iv) For any project affecting one or more of the top three
intersections in the nonattainment or maintenance area with the
worst level of service, as identified in the applicable
implementation plan.
(2) In cases other than those described in paragraph (a)(1)
of this section, the demonstrations required by §93.116 may be
based on either:
(i) Quantitative methods that represent reasonable and
common professional practice; or
(ii) A qualitative consideration of local factors, if this
can provide a clear demonstration that the requirements of
§93.116 are met.
(b) PM10 hot-spot analysis. (1) The hot-spot demonstration
required by §93.116 must be based on quantitative analysis
methods for the following types of projects:
(i) Projects which are located at sites at which violations
have been verified by monitoring;
(ii) Projects which are located at sites which have vehicle
and roadway emission and dispersion characteristics that are
essentially identical to those of sites with verified violations
(including sites near one at which a violation has been
monitored); and
(iii) New or expanded bus and rail terminals and transfer
points which increase the number of diesel vehicles congregating
at a single location.
(2) Where quantitative analysis methods are not required,
the demonstration required by §93.116 may be based on a
qualitative consideration of local factors.
(3) The identification of the sites described in paragraph
(b)(1) (i) and (ii) of this section, and other cases where
quantitative methods are appropriate, shall be determined through
the interagency consultation process required in §93.105. DOT may
choose to make a categorical conformity determination on bus and
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rail terminals or transfer points based on appropriate modeling
of various terminal sizes, configurations, and activity levels.
(4) The requirements for quantitative analysis contained in
this paragraph (b) will not take effect until EPA releases
modeling guidance on this subject and announces in the Federal
Register that these requirements are in effect.
(c) General requirements. (1) Estimated pollutant
concentrations must be based on the total emissions burden which
may result from the implementation of the project, summed
together with future background concentrations. The total
concentration must be estimated and analyzed at appropriate
receptor locations in the area substantially affected by
the project.
(2) Hot-spot analyses must include the entire project, and
may be performed only after the major design features which will
significantly impact concentrations have been identified. The
future background concentration should be estimated by
multiplying current background by the ratio of future to current
traffic and the ratio of future to current emission factors.
(3) Hot-spot analysis assumptions must be consistent with
those in the regional emissions analysis for those inputs which
are required for both analyses.
(4) PM10 or CO mitigation or control measures shall be
assumed in the hot-spot analysis only where there are written
commitments from the project sponsor and/or operator to implement
such measures, as required by §93.125(a).
(5) CO and PM10 hot-spot analyses are not required to
consider construction-related activities which cause temporary
increases in emissions. Each site which is affected by
construction-related activities shall be considered separately,
using established "Guideline" methods. Temporary increases are
defined as those which occur only during the construction phase
and last five years or less at any individual site.
§93.124 Using the motor vehicle emissions budget in the
applicable implementation plan (or implementation plan
submission).
(a) In interpreting an applicable implementation plan (or
implementation plan submission) with respect to its motor vehicle
emissions budget(s), the MPO and DOT may not infer additions to
the budget(s) that are not explicitly intended by the
implementation plan (or submission). Unless the implementation
plan explicitly quantifies the amount by which motor vehicle
emissions could be higher while still allowing a demonstration of
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compliance with the milestone, attainment, or maintenance
requirement and explicitly states an intent that some or all of
this additional amount should be available to the MPO and DOT in
the emissions budget for conformity purposes, the MPO may not
interpret the budget to be higher than the implementation plan's
estimate of future emissions. This applies in particular to
applicable implementation plans (or submissions) which
demonstrate that after implementation of control measures in the
implementation plan:
(1) Emissions from all sources will be less than the total
emissions that would be consistent with a required demonstration
of an emissions reduction milestone;
(2) Emissions from all sources will result in achieving
attainment prior to the attainment deadline and/or ambient
concentrations in the attainment deadline year will be lower than
needed to demonstrate attainment; or
(3) Emissions will be lower than needed to provide for
continued maintenance.
(b) A conformity demonstration shall not trade emissions
among budgets which the applicable implementation plan (or
implementation plan submission) allocates for different
pollutants or precursors, or among budgets allocated to motor
vehicles and other sources, unless the implementation plan
establishes appropriate mechanisms for such trades.
(c) If the applicable implementation plan (or implementation
plan submission) estimates future emissions by geographic subarea
of the nonattainment area, the MPO and DOT are not required to
consider this to establish subarea budgets, unless the applicable
implementation plan (or implementation plan submission)
explicitly indicates an intent to create such subarea budgets for
the purposes of conformity.
(d) If a nonattainment area includes more than one MPO, the
implementation plan may establish motor vehicle emissions budgets
for each MPO, or else the MPOs must collectively make a
conformity determination for the entire nonattainment area.
§93.125 Enforceability of design concept and scope and
project-level mitigation and control measures.
(a) Prior to determining that a transportation project is in
conformity, the MPO, other recipient of funds designated under
title 23 U.S.C. or the Federal Transit Laws, FHWA, or FTA must
obtain from the project sponsor and/or operator written
commitments to implement in the construction of the project and
operation of the resulting facility or service any project-level
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mitigation or control measures which are identified as conditions
for NEPA process completion with respect to local PM10 or CO
impacts. Before a conformity determination is made, written
commitments must also be obtained for project-level mitigation or
control measures which are conditions for making conformity
determinations for a transportation plan or TIP and are included
in the project design concept and scope which is used in the
regional emissions analysis required by §§93.118 ("Motor vehicle
emissions budget") and 93.119 ("Interim emissions in areas
without motor vehicle emissions budgets") or used in the
project-level hot-spot analysis required by §93.116.
(b) Project sponsors voluntarily committing to mitigation
measures to facilitate positive conformity determinations must
comply with the obligations of such commitments.
(c) The implementation plan revision required in §51.390 of
this chapter shall provide that written commitments to mitigation
measures must be obtained prior to a positive conformity
determination, and that project sponsors must comply with such
commitments.
(d) If the MPO or project sponsor believes the mitigation or
control measure is no longer necessary for conformity, the
project sponsor or operator may be relieved of its obligation to
implement the mitigation or control measure if it can demonstrate
that the applicable hot-spot requirements of §93.116, emission
budget requirements of §93.118, and interim emissions
requirements of §93.119 are satisfied without the mitigation or
control measure, and so notifies the agencies involved in the
interagency consultation process required under §93.105. The MPO
and DOT must find that the transportation plan and TIP still
satisfy the applicable requirements of §§93.118 and/or 93.119 and
that the project still satisfies the requirements of §93.116, and
therefore that the conformity determinations for the
transportation plan, TIP, and project are still valid. This
finding is subject to the applicable public consultation
requirements in §93.105(e) for conformity determinations for
projects.
§93.126 Exempt projects.
Notwithstanding the other requirements of this subpart,
highway and transit projects of the types listed in Table 2 of
this section are exempt from the requirement to determine
conformity. Such projects may proceed toward implementation even
in the absence of a conforming transportation plan and TIP. A
particular action of the type listed in Table 2 of this section
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is not exempt if the MPO in consultation with other agencies (see
§93.105(c)(1)(ill)), the EPA, and the FHWA (in the case of a
highway project) or the FTA (in the case of a transit project)
concur that it has potentially adverse emissions impacts for any
reason. States and MPOs must ensure that exempt projects do not
interfere with TCM implementation. Table 2 follows:
Table 2--Exempt Projects
Safety
Railroad/highway crossing.
Hazard elimination program.
Safer non-Federal-aid system roads.
Shoulder improvements.
Increasing sight distance.
Safety improvement program.
Traffic control devices and operating assistance other than
signalization projects.
Railroad/highway crossing warning devices.
Guardrails, median barriers, crash cushions.
Pavement resurfacing and/or rehabilitation.
Pavement marking demonstration.
Emergency relief (23 U.S.C. 125).
Fencing.
Skid treatments.
Safety roadside rest areas.
Adding medians.
Truck climbing lanes outside the urbanized area.
Lighting improvements.
Widening narrow pavements or reconstructing bridges (no additional
travel lanes).
Emergency truck pullovers.
Mass Transit
Operating assistance to transit agencies.
Purchase of support vehicles.
Rehabilitation of transit vehicles \1\.
Purchase of office, shop, and operating equipment for existing
facilities.
Purchase of operating equipment for vehicles (e.g., radios, fareboxes,
lifts, etc.).
Construction or renovation of power, signal, and communications systems.
Construction of small passenger shelters and information kiosks.
Reconstruction or renovation of transit buildings and structures (e.g.,
rail or bus buildings, storage and maintenance facilities, stations,
terminals, and ancillary structures).
Rehabilitation or reconstruction of track structures, track, and
trackbed in existing rights-of-way.
Purchase of new buses and rail cars to replace existing vehicles or for
minor expansions of the fleet \1\.
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Construction of new bus or rail storage/maintenance facilities
categorically excluded in 23 CFR part 771.
Air Quality
Continuation of ride-sharing and van-pooling promotion activities at
current levels.
Bicycle and pedestrian facilities.
Other
Specific activities which do not involve or lead directly to
construction, such as:
Planning and technical studies.
Grants for training and research programs.
Planning activities conducted pursuant to titles 23 and 49 U.S.C.
Federal-aid systems revisions.
Engineering to assess social, economic, and environmental effects of the
proposed action or alternatives to that action.
Noise attenuation.
Emergency or hardship advance land acquisitions (23 CFR 710.503).
Acquisition of scenic easements.
Plantings, landscaping, etc.
Sign removal.
Directional and informational signs.
Transportation enhancement activities (except rehabilitation and
operation of historic transportation buildings, structures, or
facilities).
Repair of damage caused by natural disasters, civil unrest, or terrorist
acts, except projects involving substantial functional, locational or
capacity changes.
Note: \l\In PM10 nonattainment or maintenance areas, such
projects are exempt only if they are in compliance with control measures
in the applicable implementation plan.
§93.127 Projects exempt from regional emissions analyses.
Notwithstanding the other requirements of this subpart,
highway and transit projects of the types listed in Table 3 of
this section are exempt from regional emissions analysis
requirements. The local effects of these projects with respect to
CO or PM10 concentrations must be considered to determine if a
hot-spot analysis is required prior to making a project-level
conformity determination. These projects may then proceed to the
project development process even in the absence of a conforming
transportation plan and TIP. A particular action of the type
listed in Table 3 of this section is not exempt from regional
emissions analysis if the MPO in consultation with other agencies
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(see §93.105(c)(1)(ill)), the EPA, and the FHWA (in the case of a
highway project) or the FTA (in the case of a transit project)
concur that it has potential regional impacts for any reason.
Table 3 follows:
Table 3--Projects Exempt From Regional Emissions Analyses
Intersection channelization projects.
Intersection signalization projects at individual intersections.
Interchange reconfiguration projects.
Changes in vertical and horizontal alignment.
Truck size and weight inspection stations.
Bus terminals and transfer points.
§93.128 Traffic signal synchronization projects.
Traffic signal synchronization projects may be approved,
funded, and implemented without satisfying the requirements of
this subpart. However, all subsequent regional emissions analyses
required by §§93.118 and 93.119 for transportation plans, TIPs,
or projects not from a conforming plan and TIP must include such
regionally significant traffic signal synchronization projects.
§93.129 Special exemptions from conformity requirements for
pilot program areas.
EPA and DOT may exempt no more than six areas for no more
than three years from certain requirements of this subpart if
these areas are selected to participate in a conformity pilot
program and have developed alternative requirements that have
been approved by EPA as an implementation plan revision in
accordance with §51.390 of this chapter. For the duration of the
pilot program, areas selected to participate in the pilot program
must comply with the conformity requirements of the pilot area's
implementation plan revision for §51.390 of this chapter and all
other requirements in 40 CFR parts 51 and 93 that are not covered
by the pilot area's implementation plan revision for §51.390 of
this chapter. The alternative conformity requirements in
conjunction with any applicable state and/or federal conformity
requirements must be proposed to fulfill all of the requirements
of and achieve results equivalent to or better than section
176(c) of the Clean Air Act. After the three-year duration of the
pilot program has expired, areas will again be subject to all of
the requirements of this subpart and 40 CFR part 51, subpart T,
and/or to the requirements of any implementation plan revision
that was previously approved by EPA in accordance with §51.390 of
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this chapter.
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