# Presentation: 103839

## Session 7:  Other Conformity Rule Changes

- FHWA Transportation Conformity and CMAQ Workshop
- Summer 2004

## 18-month triggers streamlined

- Within 18 months of the effective date of EPA’s (93.104(e)):
- adequacy finding for the motor vehicle emissions budgets (“budgets”) in the initial submission of a control strategy SIP or maintenance plan
- approval of a SIP that creates or revises a budget unless the same budget was already used pursuant to an adequacy finding or previous approval
- promulgation of a FIP

## Grace Period for Compliance with Network Modeling Criteria

- Final rule provides a two-year grace period (93.122(c))
- Applies to new areas that are serious and above ozone and CO with populations greater than 200,000
- allows time for an area to develop network model that complies with the 6 criteria
- allows time for an area with a network model to expand it if the area’s boundary grows

## Grace Period for Compliance with Network Modeling Criteria

- Areas or portions of areas required to meet 93.122(b) might be new because of:
- _bump-up_:  have 2 years from effective date of reclassification to serious or worse for ozone or CO
- _pop. grows > 200 K_:  have 2 years from official Census Bureau notice that urbanized population of a serious or worse ozone or CO area > 200,000
- _new area_:  have 2 years from effective date of EPA’s action to classify an ozone or CO area with urbanized population > 200,000 as serious or worse
- grace period does not apply to areas that are already required to meet 93.122(b) for existing NAAQS

## Latest Planning Assumptions (93.110)

- Final rule allows MPOs to use the latest planning assumptions _*in force at the time the conformity analysis begins*_
- Prior rule:  assumptions in force when DOT’s final conformity determination _is completed_
- This change makes implementation of latest planning assumptions similar to latest emissions model

## Latest Planning Assumptions (93.110)

- When does the conformity analysis begin?
- When the MPO begins to model the impact of the proposed transportation plan, TIP or project on VMT and speeds and/or emissions
- Determined through interagency consultation
- Should be consistent for future conformity determinations

## Latest Planning Assumptions (93.110)

- Examples:  when does the analysis begin?
- MPOs with travel model:
- point at which travel demand modeling is used to generate VMT and speed data to calculate emissions
- Smaller MPOs and rural areas:
- point at which VMT projections needed for emissions model are calculated using HPMS, population, and employment data

## Latest Planning Assumptions (93.110)

- Examples:  when has the analysis *not yet* begun?
- When initial list of projects for plan and TIP have been developed
- Before projects have been coded into the network model
- If travel or emissions modeling is used to preliminarily examine impacts of project alternatives or combinations of projects
- When an initial schedule for completing the analysis is developed during a consultation meeting

## Latest Planning Assumptions (93.110)

- Interagency consultation used to determine the point when analysis begins
- What if new information becomes available after the analysis begins?
- If analysis is on schedule, MPO is not required to include it
- but could do so voluntarily
- If there has been a significant delay in the analysis before substantial work has been completed, new info must be included
- as determined through interagency consultation

## Latest Planning Assumptions (93.110)

- Under final rule, a valid conformity determination should include the following documentation:
- how the “time the conformity analysis begins” was defined
- calendar date that conformity analysis begun; and
- planning assumptions used in the analysis

## Horizons for Hot-spot Analyses

- Final rule clarifies that hot-spot analyses must consider the full time frame of transportation plan and regional analysis (93.116)
- Areas should examine the year(s)within the plan or regional analysis during which:
- peak emissions from project expected, and
- a new or worsened violation would most likely occur due to impact of project emissions and background emissions in project area
- Final rule not expected to significantly change current practice

## What projects can proceed during a lapse?

- Any FHWA/FTA project step approved prior to the lapse (e.g., construction)
- result of March 1999 court decision
- Any regionally significant non-federal project that had received all approvals prior to the lapse
- result of March 1999 court decision
- Non-regionally significant non-federal projects

## Examples--Can it proceed during a lapse? 

- Right-of-way (ROW) approved before lapse?
- Can subsequent, unapproved project phases proceed during lapse (e.g., final design, construction)?
- Non-exempt TCM in submitted (but not approved) SIP?
- Non-exempt TCM in plan/TIP only (not in SIP)?

## Examples--Can it proceed during a lapse?

- State-funded toll road has not yet received FHWA NEPA approval to connect to an interstate highway?
- Same state-funded toll road has received FHWA NEPA approval and all other non-federal approvals before lapse?

## Relevant Guidance Documents

- Final rule is consistent with and does not supersede existing federal guidance:
- FHWA/FTA January 2, 2002 memo (general guidance on what projects can proceed during a lapse)
- FTA April 9, 2003 memo (guidance for transit projects and lapses)
- FHWA/FTA May 20, 2003 memo (clarification of conformity requirements for projects requiring environmental impact statements)
- EPA May 14, 1999 memo (includes guidance for projects that require only NEPA approval, but no subsequent federal funding approvals)

## Adequacy Review of Budgets

- March 1999 court decision requires that SIP budgets must be deemed adequate before used for conformity
- Final rule incorporates EPA’s May 14, 1999 guidance on adequacy reviews
- No change from current practice
- Current rule describes adequacy criteria
- Not affected by March 1999 court decision or final rule

## Adequacy Process Options

- EPA can complete adequacy in two ways:
- Through EPA’s adequacy website (93.118(f)(1))
- Through rulemaking process (93.118(f)(2))
- Variations between options are possible

## Adequacy Process (93.118(f)(1))

- Approximately 90-day process
- State submits SIP to EPA
- EPA announces receipt of SIP on its website, 30-day public comment period started
- if the complete SIP is not available on the state’s website the comment period will be re-started if a copy is requested within 15 days of EPA’s website announcement
- Continued

## Adequacy Process (93.118(f)(1))

- Under this option, EPA makes a finding of adequacy/inadequacy by:
- 1. Responding to any comments
- 2. Sending a letter to state
- 3. Posting the finding on web
- 4. Issuing a Federal Register notice (FRN), or including finding in an FRN proposing/finalizing a SIP approval/disapproval
-                                                               Continued

## Adequacy Process (93.118(f)(1)(iv))

- Finding effective 15 days after FRN in most cases unless:
- the finding is made in an approval action - then the finding is effective on the _publication_ _date_ of the approval, or
- the finding is made in a direct final approval - then the finding is effective on the _effective_ _date_ of the approval - e.g., 60 days after publication

## Adequacy Process (93.118(f)(1)(vi))

- If EPA reconsiders a previous finding of adequacy, the adequacy process will be repeated
- unless the deficiencies are so significant that there is no need for comment on the decision to reverse the finding
- in these cases, findings of inadequacy become effective on the _date of the finding_ _letter_ to the state

## Adequacy Process (93.118(f)(1)(vii))

- If EPA reconsiders a previous finding of inadequacy, the adequacy process will be repeated

## Adequacy Process (93.118(f)(2))

- Under this option, EPA notifies public of SIP through proposed or direct final rule with a 30-day comment period
- EPA responds to comment in rulemaking docket
- Finding effective:
- on the _publication_ _date_ of an approval, or
- on the _effective_ _date_ of a direct final approval - 60 days after publication

## What provisions apply?

- In areas _without_ an approved conformity SIP:
- All of the provisions in the July 1, 2004, conformity rule apply

## What provisions apply?

- In areas that _have_ an approved conformity SIP:
- all provisions relating to the new standards apply
- all amendments that directly result from the March 2, 1999, court decision apply
- But: amendments not related to new standards or court decision that are addressed an an approved SIP cannot apply
- until state updates its SIP and EPA approves it

## What provisions apply?

- In areas that _have_ an approved conformity SIP
- Examples of amendments that cannot apply are:
- streamlining frequency of conformity determinations
- revision to the latest planning assumptions requirement
- changes in interim emissions tests for existing standards
- EPA will work with states to approve conformity SIPs in these areas quickly

## Upcoming transportation  conformity guidance

- Multi-jurisdictional nonattainment and maintenance areas
- Transportation conformity in Indian Country
- Conformity SIPs
- Adjusting PM-2.5 dust emissions from AP-42

## For More Information

- FHWA website:  _[www.](http://www.fhwa.dot.gov/environment/conform.htm)__[fhwa](http://www.fhwa.dot.gov/environment/conform.htm)__[.dot.](http://www.fhwa.dot.gov/environment/conform.htm)__[gov](http://www.fhwa.dot.gov/environment/conform.htm)__[/environment/conform.](http://www.fhwa.dot.gov/environment/conform.htm)__[htm](http://www.fhwa.dot.gov/environment/conform.htm)_
- EPA website:  _[www.](http://www.epa.gov/otaq/traq)__[epa](http://www.epa.gov/otaq/traq)__[.](http://www.epa.gov/otaq/traq)__[gov](http://www.epa.gov/otaq/traq)__[/](http://www.epa.gov/otaq/traq)__[otaq](http://www.epa.gov/otaq/traq)__[/](http://www.epa.gov/otaq/traq)__[traq](http://www.epa.gov/otaq/traq)_                               (at site, click on “conformity”)
- Gary Jensen, 202-366-2048 or _[gary](mailto:gary.jensen@fhwa.dot.gov)__[.](mailto:gary.jensen@fhwa.dot.gov)__[jensen](mailto:gary.jensen@fhwa.dot.gov)__[@](mailto:gary.jensen@fhwa.dot.gov)__[fhwa](mailto:gary.jensen@fhwa.dot.gov)__[.dot.](mailto:gary.jensen@fhwa.dot.gov)__[gov](mailto:gary.jensen@fhwa.dot.gov)_
- Cecilia Ho, 202-366-9862 or _[cecilia](mailto:cecilia.ho@fhwa.dot.gov)__[.ho@](mailto:cecilia.ho@fhwa.dot.gov)__[fhwa](mailto:cecilia.ho@fhwa.dot.gov)__[.dot.](mailto:cecilia.ho@fhwa.dot.gov)__[gov](mailto:cecilia.ho@fhwa.dot.gov)_