Transportation Conformity Guidance
for the South Coast II Court Decision
MTk United States
Environmental Protection
tl Agency
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Transportation Conformity Guidance
for the South Coast II Court Decision
Transportation and Climate Division
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
United States
Environmental Protection
tl Agency
EPA-420-B-18-050
November 2018
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Transportation Conformity Guidance for the South Coast II Court Decision
! Introduction
1.1 Purpose of Guidance
The U.S. Environmental Protection Agency (EPA) is issuing guidance to assist in
implementation of the February 16, 2018, decision from the United States Court of Appeals for
the District of Columbia Circuit in South Coast Air Quality Mgmt. District v. EPA ("South Coast
II" 882 F.3d 1138). This guidance addresses how transportation conformity determinations can
be made in areas that were either nonattainment or maintenance for the 1997 ozone national
ambient air quality standard (NAAQS) when that NAAQS was revoked, depending on their
designations for subsequent ozone NAAQS.
This guidance is organized as follows:
Section 1, Introduction
Section 2, Orphan Areas
Section 3, 2008 Ozone NAAQS Nonattainment and Maintenance Areas and 2015 Ozone
NAAQS Nonattainment Areas
Section 4, Examples
EPA has coordinated with the Department of Transportation (DOT) during the development of
this guidance.
Clean Air Act (CAA) section 176(c) (42 U.S.C. 7506(c)) requires that federally funded or
approved highway and transit activities are consistent with ("conform to") the purpose of the
State Implementation Plan (SIP). Conformity to the purpose of the SIP means that transportation
activities will not cause or contribute to new air quality violations, worsen existing violations, or
delay timely attainment of the relevant NAAQS or any interim milestones. 42 U.S.C.
7506(c)(1). EPA's transportation conformity rules establish the criteria and procedures for
determining whether metropolitan transportation plans, transportation improvement programs
(TIPs), and federally supported highway and transit projects conform to the SIP. 40 CFR Parts
51.390 and 93.
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1.2 Background on Court Decision
On February 16, 2018, the court issued its decision, South Coast Air Quality Management
District v. EPA. This case involved a challenge to EPA's final rule for implementing the 2008
ozone NAAQS, referred to as the 2008 ozone NAAQS SIP Requirements Rule. The court
vacated portions of EPA's 2008 ozone NAAQS SIP Requirements Rule, but upheld EPA's
revocation of the 1997 ozone NAAQS.1
The court decision referred to the 1997 ozone NAAQS nonattainment or maintenance areas that
were designated attainment for the 2008 ozone NAAQS as "orphan areas." 2'3 The court decision
stated that transportation conformity applies for the revoked 1997 ozone NAAQS in these orphan
areas. For areas that were nonattainment for the 1997 ozone NAAQS at the time it was revoked,
the court stated that transportation conformity applies as an anti-backsliding measure. South
Coast, 882 F.3d at 1149. For areas that were maintenance for the 1997 ozone NAAQS at the
time it was revoked, the court stated that transportation conformity applies based on the court's
interpretation of Clean Air Act section 176(c)(5)(B). Id. at 1155.
On April 23, 2018, the Department of Justice filed a petition with the court on EPA's behalf
seeking rehearing of certain aspects of the decision by the three-judge panel that issued the
decision, including portions of the decision that address transportation conformity requirements
in the orphan areas. On September 14, 2018, the court agreed to stay its vacatur of the portion of
EPA's rule "that exempts orphan areas from transportation conformity" until February 16, 2019,
and denied the other aspects of EPA's rehearing request.4 As a result of the court's September
2018 order, transportation conformity for the 1997 ozone NAAQS will again apply in orphan
areas as of February 16, 2019. See Section 2.3 for more details on timing.
Based on our review of the court decision, EPA has concluded that the decision does not affect
transportation conformity requirements for areas originally designated nonattainment for the
more stringent 2008 ozone NAAQS (77 FR 30160, May 21, 2012), or areas designated
nonattainment for the more stringent 2015 ozone NAAQS (83 FR 25776, June 4, 2018). These
areas are discussed in more detail in Section 3 below.
1.3 Who can I contact for more information?
For questions concerning a particular ozone area, please contact the transportation conformity
staff person responsible for this area at the appropriate EPA Regional Office, Federal Highway
Administration (FHWA) division office or Federal Transit Administration (FTA) regional office:
1 882 F.3d 1138
2 EPA's designations for the 2008 ozone NAAQS were made on May 21, 2012 (77 FR 30160).
3 EPA is using the terms "orphan nonattainment area" and "orphan maintenance area" in this guidance because they
were used in the court decision. These are not terms used in the Clean Air Act.
4USCA Case No. 15-1115, Document #1750759, Filed September 14, 2018.
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A listing of the EPA Regions, the states they cover, and contact information for
conformity staff can be found at the following website: www.epa. gov/state-and-1 ocal-
transportation/epa-regional-contacts-regarding-state-and-local-transportation;
Contact information for FHWA division offices can be found at:
www, flrwa. dot. gov/ab out/ft el d. elm; and
Contact information for FTA regional offices can be found at:
www.traiisit.dot.eov/about/regional-offices/regioiial-offices.
General questions about this guidance can be directed to EPA's Office of Transportation and Air
Quality: Laura Berry, berry.laura@epa.gov: or Astrid Terry, terTv.astrid@epa.gov.
Additional information regarding the transportation conformity rule and associated guidance can
be found on EPA's website at: www, epa. gov/ state-and-1 ocal -transportation.
1.4 Does this guidance create any new requirements?
No, this guidance is based on CAA requirements, existing associated regulations, and aspects of
the court decision and order, and does not create any new requirements. The CAA and EPA's
regulations at 40 CFR Parts 51.390 and 93 contain legally binding requirements. This document
is not a substitute for those provisions or regulations, nor is it a regulation itself. Thus, it does
not impose legally binding requirements on EPA, the DOT, states, or the regulated community,
and may not apply to a particular situation based upon the circumstances. EPA retains the
discretion to consider and adopt approaches on a case-by-case basis that may differ from this
guidance but still comply with the statute and applicable regulations. This guidance may be
revised periodically without public notice.
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2 Cm vision Guidance for Orphan Areas
2.1 Which areas are "orphan" areas?5
The court discussed transportation conformity-related aspects of its decision for "orphan"
nonattainment and maintenance areas for the 1997 ozone NAAQS as follows:
Orphan maintenance areas were defined in the court decision as areas that were
maintenance areas for the 1997 ozone NAAQS at the time of its revocation (80 FR
12264, March 6, 2015) and were designated attainment for the 2008 ozone NAAQS in
EPA's original designations for this NAAQS (77 FR 30160, May 21, 2012). Table 2-1
lists the 63 complete orphan maintenance areas.
Orphan nonattainment areas were defined in the court decision as areas that were
designated as nonattainment for the 1997 ozone NAAQS at the time of its revocation (80
FR 12264, March 6, 2015) and were designated attainment for the 2008 ozone NAAQS
in EPA's original designations rule for this NAAQS (77 FR 30160, May 21, 2012).
Table 2-2 lists the 9 complete orphan nonattainment areas.6
Note, area names that appear in italics in Table 2-1 and Table 2-2 are areas that were designated
nonattainment for the 2015 ozone NAAQS either in part or in entirety; agencies in these areas
should also refer to Section 3.3. Areas that are covered by multiple states are counted as one
area in these tables.
5 For simplicity, in this guidance "2008 ozone NAAQS nonattainment and maintenance areas" and "1997 ozone
NAAQS nonattainment and maintenance areas" are referred to as "2008 ozone NAAQS areas" and "1997 ozone
NAAQS areas," respectively.
6 Table 2-1 and Table 2-2 are based on information that is publicly available on EPA's "Green Book" webpage
(www.epa.gov/green-book').
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Table 2-1: Orphan Maintenance Areas7
ll^7 Ozone Y\.\OS Area Name
Suite
Allegan County
MI
Altoona
PA
Beaumont-Port Arthur
TX
Benton Harbor
MI
Benzie County
MI
Birmingham
AL
Boston-Manchester-Portsmouth (SE)
NH
Canton-Massillon
OH
Cass County
MI
Charleston
WV
Clarksville-Hopkinsville
TN, KY
Clearfield and Indiana Counties
PA
Dayton-Springfield
OH
Detroit-Ann Arbor
MI
Door County
WI
Erie
PA
Evansville
IN
Flint
MI
Fort Wayne
IN
Franklin County
PA
Fredericksburg
VA
Grand Rapids
MI
Greene County
IN
Greene County
PA
Hancock, Knox, Lincoln and Waldo Counties
ME
Harri sburg-Leb anon-C arl i si e
PA
Haywood and Swain Counties (Great Smoky National Park)
NC
Huntington-Ashland
WV, KY
Huron County
MI
Indianapolis
IN
Jackson County
IN
Johnstown
PA
Kalamazoo-Battle Creek
MI
Kent and Queen Anne's Counties
MD
Kewaunee County
WI
La Porte County
IN
7 Area names that appear in italics in Table 2-1 are areas that were designated nonattainment for the 2015 ozone
NAAQS either in part or in entirety; agencies in these areas should also refer to Section 3.2.
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ll^7 Ozone Y\.\OS Area Name
Suite
Lansing-East Lansing
MI
Las Vegas
NV
Lima
OH
Louisville
KY,IN
Macon
GA
Madison and Page Counties (Shenandoah National Park)
VA
Manitowoc County
WI
Mason County
MI
Muncie
IN
Murray County (Chattahoochee National Forest)
GA
Muskegon
MI
Norfolk-Virginia Beach-Newport News (Hampton Roads)
VA
Parkersburg-Marietta
WV, OH
Portland
ME
Raleigh-Durham-Chapel Hill
NC
Richmond-Petersburg
VA
Rocky Mount
NC
Scranton-Wilkes-Barre
PA
South Bend-Elkhart
IN
State College
PA
Steubenville-Weirton
OH, WV
Terre Haute
IN
Tioga County
PA
Toledo
OH
Wheeling
WV, OH
York
PA
Y oungstown-W arren-Sharon
OH, PA
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Table 2-2: Orphan Nonattaininent Areas8
IW7 Ozone NAAQS Area Name
Stale
Alb any- S chenectady-Troy
NY
Buffalo-Niagara Falls
NY
Essex County (Whiteface Mountain)
NY
Jefferson County
NY
Poughkeepsie
NY
Providence (all of Rhode Island)
RI
Rochester
NY
Springfield (Western Massachusetts)
MA
Sutter County (Sutter Buttes)
CA
2.2 Which areas are partial "orphan " areas?
EPA reviewed the geographic boundaries of areas that were designated nonattainment or
maintenance for the 1997 and 2008 ozone NAAQS.9 In addition to identifying orphan
nonattainment and maintenance areas listed in Section 2.1, EPA identified ten areas that were
nonattainment or maintenance areas for the 1997 ozone NAAQS at the time it was revoked that
have a smaller boundary for the 2008 ozone NAAQS. In these cases, the entire 1997 ozone
NAAQS area is not an orphan area because some part of it is nonattainment or maintenance for
the 2008 ozone NAAQS; it is a partial orphan area because a portion of the area was not included
within the boundary of the 2008 ozone NAAQS nonattainment or maintenance area. Figure 2-1
contrasts an orphan area (left side of the figure), with a partial orphan area (right side of the
figure).
8 Area names that appear in italics in Table 2-2 are areas that were designated nonattainment for the 2015 ozone
NAAQS either in part or in entirety; agencies in these areas should also refer to Section 3.2.
9 This information is available on EPA's "Greenbook" web page, at www.epa.gov/green-book.
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Figure 2-1: An Orphan Area and a Partial Orphan Area
Ail Orphan Area:
1997 ozone NAAQS nonattainment or
maintenance area that was designated
attainment for the 2008 ozone NAAQS
A Partial Orphan Area:
1997 nonattaimnent or maintenance area where
the 2008 ozone NAAQS nonattaimnent or
maintenance area is smaller
I
22
= 2008 ozone NAAQS area
= 1997 ozone NAAQS area boundary
= orphan area partial orphan area
The six areas that were maintenance for the 1997 ozone NAAQS at the time of revocation that
are partial orphan areas are shown in Table 2-3. The four areas that were nonattainment for the
1997 ozone NAAQS at the time of revocation that are partial orphan areas are shown in Table
2-4. These tables provide the 1997 ozone NAAQS area names and list the counties in the orphan
portion, i.e., the counties not covered by the 2008 ozone NAAQS nonattainment or maintenance
area boundary. Note, area names that appear in italics in Table 2-3 and Table 2-4 are orphan
areas that were designated nonattainment for the 2015 ozone NAAQS either in part or in
entirety; agencies in these areas should also refer to Section 3.3. Areas that are covered by
multiple states are counted as one area in these tables. Counties listed in the "Orphan Portion of
the Area" column of these tables are whole counties, unless otherwise noted in the table.
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Table 2-3: Partial Orphan Maintenance Areas
l'W7 Ozone \ A AOS Area
\ a UK-
Stale
Orphan Portion of the Area
Atlanta
GA
Barrow, Carroll, Hall, Spalding and Walton
Counties
Charlotte-Gastonia-Rock Hill
NC, SC
Parts of Cabarrus, Gaston, Lincoln, Rowan and
Union Counties in NC and part of York
County, SC
Cincinnati-Hamilton
OH, KY, IN
Parts of Boone, Campbell and Kenton
Counties in KY
Knoxville
TN
Jefferson, Loudon and Sevier Counties, part of
Anderson County and part of Cocke County
Milwaukee-Racine
WI
Milwaukee, Ozaukee, Racine, Washington,
and Waukesha Counties, and part of Kenosha
County (i.e., the entire area, except for the
eastern part of Kenosha County)
St. Louis
MO, IL
Jersey County, IL
Table 2-4: Partial Orphan Nonattainment Areas
IW7 Ozone \ A AOS Area
Name
Suite
Orphan Portion of the Area
Amadur and ( alaveras
Counties (Central Mountain
Counties)
CA
Amador County
Boston-Lawrence-Worcester
(Eastern Mass)
MA
Barnstable, Bristol, Essex, Middlesex,
Nantucket, Norfolk, Plymouth, Suffolk,
Worcester Counties (i.e., the entire area except
for Dukes County)
Mariposa and Tuolumne
Counties (Southern Mountain
Counties)
CA
Tuolumne County
Philadelphia-Wilmington-
Atlantic City
PA, NJ,
MD, DE
Kent County, DE
In the remainder of this guidance, EPA uses the term "orphan areas" to include complete orphan
areas as well as partial orphan areas.
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2.3 When are transportation conformity determinations for the 1997 ozone X < 1 OS
required in orphan areas?
On September 14, 2018, the court agreed to stay its vacatur of the transportation conformity
portion of EPA's rule until February 16, 2019. As a result of the court's September 2018 order,
transportation conformity is not required in orphan areas until February 16, 2019. Metropolitan
transportation plans, TIPs, and projects in these areas can be updated and/or amended or
approved without a conformity determination for the 1997 ozone NAAQS through February 15,
2019.
Transportation conformity for the 1997 ozone NAAQS will again apply in orphan areas as of
February 16, 2019.
Beginning February 16, 2019, a transportation conformity determination for the 1997 ozone
NAAQS will be needed in orphan areas for the following transportation activities:
a new or amended metropolitan transportation plan or TIP (per 40 CFR 93.104(b) and
(c));10
a new non-exempt Federal Highway Administration/Federal Transit Administration
(FHWA/FTA) project (per 40 CFR 93.104(d));11
a non-exempt FHWA/FTA project where conformity needs to be redetermined as
described in 40 CFR 93.104(d), e.g., as a result of a significant change in the project's
design concept and scope.
When the stay of the vacatur has ended (February 16, 2019), orphan areas with an MPO must
meet the transportation conformity regulation's frequency requirements at 40 CFR 93.104, which
describe when transportation conformity must be determined for metropolitan transportation
plans, TIPs, and projects. A new conformity determination is required at least every four years
for a new transportation plan and TIP starting on the date DOT makes a 1997 ozone NAAQS
conformity determination (per 40 CFR 93.104(b)(3) and (c)(3)). For example, if DOT makes its
1997 ozone NAAQS conformity determination for an orphan area's transportation plan and TIP
on December 1, 2018, the four-year requirement begins on that date.
EPA and DOT will provide technical assistance as needed to areas for conformity determinations
for the 1997 ozone NAAQS. Please see Section 1.3 for contact information.
10 Requirements for orphan areas that are not associated with a metropolitan planning organization are found in 40
CFR 93.109(g), "Isolated rural nonattainment and maintenance areas." Isolated rural areas are discussed in this
guidance in Section 2.7.
11 "FHWA/FTA project" is defined in the conformity regulation at 40 CFR 93.101: "FHWA/FTA project, for the
purpose of this subpart, is any highway or transit project which is proposed to received funding assistance and
approval through the Federal Air 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."
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2.4 What is required to demonstrate conformity of the metropolitan transportation
plan and TIP for the 1997 ozone NAAQS in orphan areas?
The transportation conformity regulation at 40 CFR 93.109 sets forth the criteria and procedures
for determining conformity. Table 1 in 40 CFR 93.109 lists the conformity criteria by
transportation action. For the transportation plan and TIP, Table 1 includes the following
criteria:
Table 1 - Conformity Criteria
All Actions at all times:
§93.110
Latest planning assumptions
§93.111
Latest emissions model
§93.112
Consultation
Transportation Plan:
§93.113(b)
TCMs
§93.118 and/or
Emissions budget and/or Interim emissions
§93.119
TIP:
§93.113(c) TCMs
§93.118 and/or Emissions budget and/or Interim emissions
§93.119
In orphan areas that have one or more MPOs,12 transportation conformity for transportation plans
and TIPs for the 1997 ozone NAAQS can be demonstrated without a regional emissions analysis
pursuant to 40 CFR 93.109(c), "Regional conformity test requirements for all nonattainment and
maintenance areas." Paragraph (c) states:
This provision applies one year after the effective date of EPA's nonattainment
designation for a NAAQS in accordance with §93.102(d) and until the effective date of
revocation of such NAAQS for an area.
The South Coast II court decision upheld EPA's revocation of the 1997 ozone NAAQS, which
was effective on April 6, 2015. EPA's current transportation conformity regulation requires a
regional emissions analysis only during the time period beginning one year after a nonattainment
designation for a particular NAAQS until the effective date of revocation of that NAAQS (40
CFR 93.109(c)). Therefore, pursuant to this regulation, a regional emissions analysis is not
required for conformity determinations for the 1997 ozone NAAQS because that NAAQS has
been revoked (80 FR 12264).
12 Areas with an MPO include nonattainment and maintenance areas that contain or are part of a metropolitan
planning area, and donut areas, which are defined in 40 CFR 93.101 as those areas outside a metropolitan planning
area boundary but inside the boundary of the nonattainment or maintenance area. For more information, see EPA's
"Guidance for Transportation Conformity Implementation in Multi-Jurisdictional Nonattainment and Maintenance
Areas," EPA-420-B-12-046, July 2012, available on EPA's web page at: www.epa. gov/state-and-local-
transpo rtatio ii/policv -and-technical-guidance-state-and-Iocal-transpo rtatio ii#reouire me nts
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As no regional emissions analysis is required in orphan areas, there is no requirement to use the
latest emissions model (40 CFR 93.111), or use either the emissions budget test or interim
emissions test (40 CFR 93.118 and 93.119). Therefore, transportation conformity for the 1997
ozone NAAQS can be demonstrated by an MPO and DOT for transportation plans and TIPs by
showing that the remaining criteria from Table 1 in 40 CFR 93.109, and 40 CFR 93.108, have
been met:
Use of the latest planning assumptions, per 40 CFR 93.110. These criteria generally
apply to regional emissions analyses. In orphan areas, ensuring the latest planning
assumptions are used applies to information about TCMs in an approved SIP (40 CFR
93.113);
Consultation requirements, according to 40 CFR 93.112;
Timely implementation of any approved SIP transportation control measures (TCMs),
according to the requirements in 40 CFR 93.113; and
Fiscal constraint, according to 40 CFR 93.108, which states that transportation plans and
TIPs must be fiscally constrained consistent with DOT's metropolitan planning
regulations at 23 CFR part 450.
Conformity determinations that have been made since the court decision for the 1997 ozone
NAAQS in orphan areas that do include a regional emissions analysis are still valid, and do not
have to be redone. Even though no regional emissions analysis is required after the effective
date of the 1997 NAAQS revocation, such determinations met all applicable regulatory
requirements.
EPA Regional Offices, in consultation with EPA's Office of Transportation and Air Quality, are
available to provide additional technical assistance to the orphan areas based on their specific
circumstances. See contact information in Section 1.3 of this guidance.
2.5 What options are there for determining conformity for the 1997 ozone NAAQS in
a partial orphan area?
As described in Section 2.2, there are ten areas that have a smaller boundary for the 2008 ozone
NAAQS than they had for the 1997 ozone NAAQS and thus are partial orphan areas.
In these areas, conformity can be determined either for just the orphan portion, i.e., the county or
counties that make up the orphan portion, or for the entire former 1997 ozone NAAQS area.
Either approach would address the South Coast II court decision that conformity applies for the
1997 ozone NAAQS in orphan areas, as well as the geographic applicability requirement in the
conformity regulation at 40 CFR 93.102(b).
Please refer to Section 3 of this guidance for a discussion of determining conformity for the 2008
ozone NAAQS.
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2.6 In orphan areas with an MPO, what is required to demonstrate conformity for the
1997 ozone NAAQSfor a non-exempt project?
Transportation conformity applies to non-exempt FHWA/FTA projects. Such projects need a
project-level conformity determination before they are adopted, accepted, approved, or funded,
per 40 CFR 93.104(d). Beginning February 16, 2019, a non-exempt FHWA/FTA project
(including a project phase) must be found to conform with the 1997 ozone NAAQS before it can
be adopted, accepted, approved, or funded. For example, if a new phase of a non-exempt
FHWA/FTA project needs FHWA/FTA approval after February 15, 2019, a project-level
conformity determination is required before the new phase is approved, per CAA 176(c)(1) and
40 CFR 93.102(a)( 1 )(iii).
Table 1 in 40 CFR 93.109(b) lists the conformity criteria by transportation action. For a non-
exempt FHWA-FTA project in an area with an MPO or a donut area, Table 1 includes the
following criteria:
Table 1 - Conformity Criteria
All Actions at all times:
§93.110 Latest planning assumptions
§93.111 Latest emissions model
§93.112 Consultation
Project (From a Conforming Plan and TIP):
§93.114
Currently conforming plan and TIP
§93.115
Project from a conforming plan and TIP
§93.116
CO, PM10, and PM2.5 hot-spots
§93.117
PM10, and PM2.5 control measures
The latest planning assumptions in 40 CFR 93.110 and latest emissions model in 40 CFR 93.111
apply to project-level conformity determinations where an analysis is required. As discussed in
Section 2.4 above, a regional emissions analysis is not required for the 1997 ozone NAAQS in
orphan areas. Furthermore, there is no hot-spot analysis requirement (40 CFR 93.116) for ozone
NAAQS. The provision requiring compliance with PMio and PM2.5 control measures in an
applicable SIP (40 CFR 93.117) applies only for PM NAAQS. In sum, for determining
conformity of projects to the 1997 ozone NAAQS in orphan areas, the requirements at §§93.110,
93.111, 93.116, and 93.117 from Table 1 in 40 CFR 93.109 do not apply.
Transportation conformity for the 1997 ozone NAAQS can be demonstrated for a non-exempt
FHWA/FTA project in a metropolitan or donut orphan area by showing that the remaining
criteria from Table 1 in 40 CFR 93.109(b) have been met:
Consultation requirements (40 CFR 93.112);
There is a currently conforming transportation plan and TIP in place (40 CFR 93.114);
and
The project is from that transportation plan and TIP (40 CFR 93.115).
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If a non-exempt FHWA/FTA project in a metropolitan or donut orphan area needs a new federal
approval on or after February 16, 2019, (e.g., a National Environmental Policy Act approval), a
conformity determination for the 1997 ozone NAAQS will be needed. If conformity for the
1997 ozone NAAQS of the metropolitan transportation plan and TIP that includes the project has
not yet been determined, it would need to be determined (as described in Section 2.4) before the
project could be found to conform.
EPA Regional Offices, in consultation with EPA's Office of Transportation and Air Quality, are
available to provide additional technical assistance to the orphan areas based on their specific
circumstances. See contact information in Section 1.3 of this guidance.
2.7 What is required to demonstrate conformity for the 1997 ozone A I I OS in orphan
areas that are isolated rural areas?
Isolated rural areas are those areas that do not have an MPO and whose projects are not part of
the emissions analysis of any MPO's metropolitan transportation plan or TIP.13 There are 14
isolated rural orphan maintenance areas and one isolated rural orphan nonattainment area, listed
in Table 2-5. Note that these areas are a subset of the areas found in Table 2-1 and Table 2-2.
The 1997 ozone NAAQS areas consist of entire counties unless otherwise noted in the table.
Table 2-5: Isolated Rural Orphan Areas
Status
IW7 Ozone N AAQS Area Name
Stale
Benzie County
MI
Door County
WI
Greene County
IN
Hancock, Knox, Lincoln, and Waldo Counties - all are
ME
partial counties
Haywood and Swain Counties (Great Smoky National
Park) - both are partial counties
NC
Huron County
MI
Maintenance
Jackson County
IN
Kent and Queen Anne's Counties
MD
Kewaunee County
WI
Madison and Page Counties (Shenandoah National Park) -
both are partial counties
VA
Manitowoc County
WI
Mason County
MI
Murray County (Chattahoochee National Forest) - partial
GA
county
Tioga County
PA
Nonattainment
Essex County (Whiteface Mountain) - partial county
NY
13 The transportation conformity regulation at 40 CFR 93.101 provides a definition for isolated rural area.
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There are also two areas with orphan portions that are isolated rural areas, listed in Table 2-6.
Note that these areas are a subset of the areas in Table 2-4. All counties listed in Table 2-6 are
made up of entire counties.
Table 2-6: Orphan Portions of Areas that Are Isolated Rural Areas
ll^7 Ozone NAAQS Area Name
Stale
Orphan Portion of llie Area
Amador and Calaveras Counties
(Central Mountain Counties)
CA
Amador County
Mariposa and Tuolumne Counties
(Southern Mountain Counties)
CA
Tuolumne County
The transportation conformity regulation at 40 CFR 93.109(g) governs transportation conformity
in isolated rural areas. Because these areas do not have metropolitan transportation plans and
TIPs, conformity is done in isolated rural areas only when a non-exempt FHWA/FTA project in
such an area needs funding or approval. Table 1 in 40 CFR 93.109(b) lists the conformity
criteria by transportation action. For a non-exempt FHWA-FTA project in an isolated rural area,
Table 1 includes the following criteria:
Table 1 - Conformity Criteria
All Actions at all times:
§93.110 Latest planning assumptions
§93.111 Latest emissions model
§93.112 Consultation
Project (Not From a Conforming Plan and TIP):
§93.113(d) TCMs
§93.114 Currently conforming plan and TIP
§93.116 CO, PMio, and PM2.5 hot-spots
§93.117 PM10, and PM2.5 control measures
§93.118 and/or Emissions budget and/or Interim emissions
§93.119
For the reasons described in Sections 2.4 and 2.6 above, the requirements at §§ 93.111, 93.116,
93.117, 93.118, and 93.119 from Table 1 in 40 CFR 93.109(b) do not apply for determining
conformity of projects to the 1997 ozone NAAQS in isolated rural orphan areas.
If a non-exempt FHWA/FTA project needs approval in an orphan isolated rural area,
transportation conformity for the 1997 ozone NAAQS can be demonstrated by showing that the
remaining criteria have been met:
Use of the latest planning assumptions, per 40 CFR 93.110. These criteria generally
apply to regional emissions analyses. In orphan areas, ensuring the latest planning
assumptions are used applies to information about TCMs in an approved SIP (40 CFR
93.113);
Consultation requirements, according to 40 CFR 93.112; and
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Timely implementation of any approved SIP transportation control measures (TCMs),
according to the requirements in 40 CFR 93.113.
2.8 How is conformity for the 1.997 ozone NAAQS determined in multi-state areas
that include an orphan area?
There are several multi-state 1997 ozone NAAQS nonattainment or maintenance areas where
only one state contains an orphan portion, while the other states in the multi-state area do not
(e.g., the St. Louis 1997 ozone NAAQS area has an orphan portion in Illinois but not in
Missouri). In multi-state areas, when a state has a 1997 ozone NAAQS SIP for its portion of the
nonattainment or maintenance area and EPA has either found the budgets in the SIP adequate, or
has approved the SIP, conformity can be determined in that state independently of the other
states.14 This continues to be the case for multi-state areas with an orphan portion for the 1997
ozone NAAQS, even though the emissions budget test is not necessary for determining
conformity for the 1997 ozone NAAQS (see Section 2.4).
In the 1997 ozone NAAQS multi-state areas in Section 2.2, there are states whose portion of the
area is covered in full by the 2008 ozone NAAQS nonattainment or maintenance area and
therefore do not contain any orphan counties. In these states, ozone conformity requirements can
be satisfied for the state's portion of the area by demonstrating conformity for only the 2008
ozone NAAQS (see Section 3.1), and only the state that contains the orphan portion would need
to demonstrate conformity for the 1997 ozone NAAQS for the orphan portion.
14 States can operate independently for conformity because the CAA refers to conformity to a SIP. This is further
explained in EPA's Guidance for Transportation in Multi-Jurisdictional Nonattainment and Maintenance Areas,
EPA-420-B-12-046, found onEPA's web page at www.epa.gov/stale~aiid~tocat~traiisportatton/pottCY~aiid~tecliiitcal~
guidance -state-and-local-tomspo rtatio n.
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3 2008 Ozone NAA QS and 2015 Ozone NAA QS Areas
3.1 What are the 2008 ozone NAA QS nonattainment or maintenance areas that were
nonattainment or maintenance for the 1997 ozone NAAQS, and how is
conformity demonstrated in these areas?
The court decision does not affect transportation conformity requirements for the 2008 ozone
NAAQS. There are 42 2008 ozone NAAQS nonattainment and maintenance areas that were
former 1997 ozone NAAQS nonattainment or maintenance areas. Of these areas, 32 have
boundaries that are the same as or larger than the corresponding 1997 ozone NAAQS area.
These 32 areas are listed in Table 3-1. Areas that are covered by multiple states are counted as
one area in the table.
The remaining ten 2008 ozone NAAQS areas are smaller than the corresponding 1997 ozone
NAAQS area. These ten areas are discussed in Section 3.2 and are adjacent to the partial orphan
areas discussed in Section 2.2.
Figure 3-1 illustrates the two cases for 2008 ozone NAAQS areas: on the left side of the figure,
the 2008 ozone NAAQS area boundary is identical to the 1997 ozone NAAQS boundary; on the
right side, the boundary is smaller, creating a partial orphan area.
Figure 3-1: 2008 Ozone NAAQS Areas
Area that is Not an Orphan:
2008 ozone NAAQS area
boundary is identical to
1997 ozone NAAQS area boundary
I I
I
Area with a Partial Orphan Area:
2008 ozone NAAQS area
is smaller than the
1997 ozone NAAQS area
r
i
= 2008 ozone NAAQS area
= 1997 ozone NAAQS area boundary
= partial orphan area
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Table 3-1: 2008 O/one NAAQS Nonattainment and Maintenance Areas that Were 1997 Ozone
NAAQS Nonattainment or Maintenance Areas
Ozone Y\.\OS Area Name
Sialc
All entown-B ethl ehem-Easton
PA
Baltimore
MD
Baton Rouge
LA
Chico (Butte County)
CA
Cleveland-Akron-Lorain
OH
Columbus
OH
Dallas-Fort Worth
TX
Denver-Boulder-Greeley-Ft. Collins-Loveland
CO
Greater Connecticut
CT
Houston-Galveston-Brazoria
TX
Imperial County
CA
Jamestown
NY
Kern County (Eastern Kern)
CA
Lancaster
PA
Los Angeles-San Bernardino Counties (West Mojave
Desert)
CA
Los Angeles-South Coast Air Basin
CA
Memphis
TN, MS, AR
Morongo Band of Mission Indians
CA
Nevada County (Western part)
CA
New York-N. New Jersey-Long Island
NY, NJ, CT
Pechanga Band of Luiseno Mission Indians of the
Pechanga Reservation
CA
Phoenix-Mesa
AZ
Pittsburgh-Beaver Valley
PA
Reading
PA
Riverside County (Coachella Valley)
CA
Sacramento Metro
CA
San Diego County
CA
San Francisco Bay Area
CA
San Joaquin Valley
CA
Seaford
DE
Sheboygan County
WI
Ventura County
CA
Washington
DC, MD, VA
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The 2008 ozone NAAQS nonattainment and maintenance areas listed in Table 3-1 must continue
to fulfill transportation conformity requirements for ozone by demonstrating conformity for the
2008 ozone NAAQS for the geographic area covered by that NAAQS. Transportation
conformity for the 1997 ozone NAAQS does not need to be demonstrated in the geographic area
covered by the 2008 ozone NAAQS nonattainment or maintenance area boundary, as these are
not orphan nonattainment or maintenance areas.
Therefore, 2008 ozone NAAQS areas can continue to make conformity determinations for
transportation plans, TIPs, and projects for the 2008 ozone NAAQS as usual, i.e., as they have
been doing, according to the requirements of the transportation conformity regulations at 40 CFR
Part 93.
3.2 Which 2008 ozone NAAQS areas are adjacent to the partial orphan areas, and
how is conformity determined in these areas?
As stated above, ten of the 2008 ozone NAAQS areas are smaller than the 1997 ozone NAAQS
area, and these ten areas are listed in Table 3-2. These areas are adjacent to the partial orphan
areas discussed in Section 2.2 and listed in Table 2-3 and Table 2-4. Areas that are covered by
multiple states are counted as one area in Table 3-2.
As discussed in Section 3.1, the court decision does not affect transportation conformity
requirements for the 2008 ozone NAAQS. The 2008 ozone NAAQS nonattainment and
maintenance areas listed in Table 3-2 must continue to fulfill transportation conformity
requirements for the 2008 ozone NAAQS, for the geographic area covered by that NAAQS.15
The agencies that address transportation conformity for these ten 2008 ozone NAAQS areas will
also need to address transportation conformity for the 1997 ozone NAAQS in the partial orphan
area, as described in Section 2 of this document. Please refer to Section 2 for guidance about
determining conformity in orphan areas, and particularly Section 2.5 for options related to partial
orphan areas.
15 If applicable, these areas already have the option to demonstrate conformity for the 2008 ozone NAAQS using the
1997 ozone NAAQS SIP motor vehicle emissions budgets for the geographic area covered by those budgets, per 40
CFR 93.109(c)(2)(ii)(B). In such a case, the 2008 ozone NAAQS conformity determination would satisfy the area's
ozone conformity requirements.
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Table 3-2: 2008 O/one NA.A.QS Areas Adjacent to a Partial Orphan Area
Ozone Y\AOS Area
\ ill lie Slate
1^7 Ozone \ A AOS
Name Stale
Partial Orphan Area
Atlanta, GA
(same)
Barrow, Carroll, Hall, Spalding
and Walton Counties
Calaveras County, CA
Amador and Calaveras
Counties (Central Mountain
Counties), CA
Amador County
Charlotte-Rock Hill, NC-SC
Charlotte-Gastonia-Rock
Hill, NC-SC
Parts of Cabarrus, Gaston,
Lincoln, Rowan and Union
Counties in NC and part of York
County, SC
Chicago-Naperville, IL-IN-
WI (the portion of Kenosha
County, WI in this area had
been included in the 1997
ozone NAAQS area
"Milwaukee-Racine, WI")
Milwaukee-Racine, WI
Milwaukee, Ozaukee, Racine,
Washington, and Waukesha
Counties, and part of Kenosha
County (i.e., the entire area
except the eastern part of
Kenosha County)
Cincinnati, OH-KY-IN
Cincinnati-Hamilton, OH-
KY-IN
Parts of Boone, Campbell and
Kenton Counties in KY
Dukes County, MA
B oston-Lawrence-W orce ster
(Eastern Mass), MA
Barnstable, Bristol,
Essex, Middlesex, Nantucket,
Norfolk, Plymouth, Suffolk,
Worcester Counties (i.e., the
entire area except Dukes
County)
Knoxville, TN
(same)
Jefferson, Loudon and Sevier
Counties, part of Anderson
County and part of Cocke
County
Mariposa County, CA
Mariposa and Tuolumne
Counties (Southern
Mountain), CA
Tuolumne County
Philadelphia-Wilmington-
Atlantic City, PA-NJ-MD-
DE
(same)
Kent County, DE
St. Louis - St. Charles -
Farmington, MO-IL
St. Louis, MO-IL
Jersey County, IL
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3.3 What is required to demonstrate conformity for the 1.997 ozone NAAQS in the
orphan areas that were designated nonattainment for the 2015 ozone V I ! OS?
EPA made nonattainment designations for the 2015 ozone NAAQS on June 4, 2018, for most
areas (83 FR 25776) and July 25, 2018, for the San Antonio area.16 These designations occurred
after the court decision of February 16, 2018. As such, these areas were not before the court in
the South Coast II case. EPA's nonattainment area designations for the 2015 ozone NAAQS
were effective August 3, 2018 for most areas and September 25, 2018 for the San Antonio area,
and transportation conformity for the 2015 ozone NAAQS applies one year after the effective
date of these designations, on August 3 and September 25, 2019, respectively. Some of the
nonattainment areas for the 2015 ozone NAAQS include areas that were considered orphan areas
in the South Coast II case. These areas are listed below in Table 3-3.
Table 3-3: 2015 Ozone NAAQS Nonattainment Areas that Include an Orphan Area
2015 Ozone NAAQS Area
State
Allegan County
MI
Amador County
CA
Berrien County
MI
Detroit
MI
Door County
WI
Las Vegas
NV
Louisville
KY, IN
Manitowoc County
WI
Muskegon
MI
Northern Milwaukee/Ozaukee Shoreline
WI
Sutter Buttes
CA
Tuolumne County
CA
Once DOT's conformity determination is made for the 2015 ozone NAAQS in these orphan
areas, that determination will also demonstrate conformity for the 1997 ozone NAAQS in the
area designated nonattainment for the 2015 ozone NAAQS, since the 1997 ozone NAAQS is less
stringent than the 2015 ozone NAAQS. EPA believes that this approach is consistent with the
court's analysis supporting its decision that transportation conformity applies for the 1997 ozone
NAAQS in orphan areas. Therefore, once an area is determining conformity for the more
stringent 2015 ozone NAAQS, no demonstration for the less stringent 1997 ozone NAAQS is
necessary.
Transportation conformity for the 2015 ozone NAAQS applies for most areas beginning August
3, 2019. As of that date, 2015 ozone NAAQS nonattainment areas with an MPO must have a
transportation plan and TIP in place that has been demonstrated to conform for the 2015 ozone
16 EPA designated Bexar County, TX as nonattainment and the remaining 7 counties in the San Antonio area as
attainment on July 25, 2018 (83 FR 35136), with an effective date of September 24, 2018.
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NAAQS. Note that both the MPO and DOT would need to act on the conformity determination
to fulfill the requirement, as described further in EPA's transportation conformity guidance for
the 2015 ozone NAAQS.17 However, 2015 ozone NAAQS nonattainment areas that include
1997 ozone NAAQS orphan areas may choose to demonstrate conformity of their transportation
plans and TIP for the 2015 ozone NAAQS before August 3, 2019, in lieu of demonstrating
conformity for the 1997 ozone NAAQS. As always, DOT's conformity determination is the
final action.
In cases where the 2015 ozone NAAQS nonattainment area boundary is smaller than the 1997
ozone NAAQS area boundary, areas should refer to Section 2.8 of this guidance for additional
information on fulfilling transportation conformity requirements in those portions of a multi-state
area not covered by the 2015 ozone NAAQS nonattainment area.
EPA Regional Offices, in consultation with EPA's Office of Transportation and Air Quality, are
available to provide additional technical assistance to the orphan areas based on their specific
circumstances. See contact information in Section 1.3 of this guidance.
17 Transportation Conformity Guidance for 2015 Ozone NAAQS Nonattainment Areas, EPA-420-B-18-023, June
2018, available on EPA's webpage at: www.epti.gov/state-and-local-tomsporbitioii/policv-aiid-technical-giiidaiice-
state-and-local-transpo rtatio ii#reqnire me tits.
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4 Examples
This section provides examples of where and when conformity applies for more than one ozone
NAAQS due to the court decision.
4.1 Example 1: 2008 ozone NAAQS area that has the same boundary as the 1997
ozone NAAQS area
Example 1: 2008 ozone NAAQS area
boundary is identical to
1997 ozone NAAQS area boundary
= 2008 ozone NAAQS area
- = 1997 ozone NAAQS area boundary
Where does conformity apply?
o Conformity applies in the 2008 ozone NAAQS area
When does conformity apply?
o Conformity applies for the 2008 ozone NAAQS now (requirement began on July
20, 2013 - see Section 3.1).
o Conformity does not apply for the 1997 ozone NAAQS in these areas (see Section
3.1).
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Example 2: 2003 ozone NAAQS area that is smaller than the 1.997 ozone NAAQS
area
Example 2: 2008 ozone NAAQS area is smaller
than the 1997 ozone NAAQS area boundary
= 2008 ozone NAAQS .area
mm mm - = 1997 ozone NAAQS area boundary
= orphan area
Where does conformity apply?
o Conformity for the 2008 ozone NAAQS applies in the 2008 ozone NAAQS area
(solid shaded area)
o Conformity for the 1997 ozone NAAQS applies in the orphan area (striped area),
or conformity for the 1997 ozone NAAQS can be demonstrated for the entire
1997 area (area within dashed border)
When does conformity apply?
o Conformity applies for the 2008 ozone NAAQS now (requirement began on July
20, 2013) - see Section 3.1).
o Conformity applies for the 1997 ozone NAAQS on February 16, 2019 (see
Section 2.3).
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4.3 Example 3: A multi-state area
Example 3: A multi-state area with, an orphan area
1 State A =
I
r i
2008 ozone NAAQS area
1997 ozone NAAQS area boundary
orphan area
state boundaries
In this example, States A, B, and C each have their own approved SIP or adequate budgets from
a submitted SIP that addresses either the 1997 or 2008 ozone NAAQS.
Where does conformity apply?
o Conformity for the 2008 ozone NAAQS applies
(solid shaded area), in States A and B.
o Conformity for the 1997 ozone NAAQS applies
in State C.
When does conformity apply?
o Conformity applies for the 2008 ozone NAAQS
20, 2013 - see Section 3.1).
o Conformity applies for the 1997 ozone NAAQS
Section 2.3).
I State B
ŠVn .it
I State C
in the 2008 ozone NAAQS area
in the orphan area (striped area),
now (requirement began on July
on February 16, 2019 (see
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Example 4: An area designated nonattainmentfor the 2015, 2008, and 1997
ozone NAAQS
Example 4: An Area Designated for All Three
Ozone NAAQS
C
= 2015 ozone NAAQS ar ea
= 2008 ozone NAAQS ar ea
= 1997 ozone NAAQS area boundary
= orphan area
Where does conformity apply?
o
o
o
Conformity for the 2015 ozone NAAQS applies in the 2015 ozone NAAQS area
(gridded area)
Conformity for the 2008 ozone NAAQS applies in the 2008 ozone NAAQS area
(gray shaded area, which includes the 2015 ozone NAAQS area)
Conformity for the 1997 ozone NAAQS applies in the orphan area (striped area),
or conformity for the 1997 ozone NAAQS can be demonstrated for the entire
1997 ozone NAAQS area (area within dashed border).
When does conformity apply?
Conformity applies for the 2015 ozone NAAQS beginning on August 3, 2019 (see
Section 3.3).
Conformity applies for the 2008 ozone NAAQS now (the requirement began on
July 20, 2013 - see Section 3.1).
Conformity applies for the 1997 ozone NAAQS on February 16, 2019 (see
Section 2.3).
o
o
o
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