State of Rhode Island 

Department of Environmental Management 

Office of Air Resources 

In re: Proposed Air Pollution Control Regulation No. 49, Transportation Conformity. 

DECISION 

Introduction 

On 15 July 2011 a notice was posted on the websites of the Rhode Island Department of 

Environmental Management (RI DEM) and the Rhode Island Office of Secretary of State and 

was mailed and/or emailed to interested parties announcing a public comment period to accept 

comments on the adoption of proposed Air Pollution Control Regulation No.49, Transportation 

Conformity. The notice stated that a public hearing would be held if requested. No requests for a 

public hearing were received. The public comment period extended until 4:00 PM on 22 August 

2011. 

The purpose of proposed APC Regulation No. 49, entitled "Transportation Conformity" is to 

fulfill the requirement in 40 CFR 51.390(b) to establish a State Implementation Plan (SIP) 

revision that includes the following three sections of the federal transportation conformity rule: 

• 40 CFR 93.105, which addresses consultation procedures; 

• 40 CFR 93.122(a)(4)(ii), which states that conformity SIPs must require that written 

commitments to control measures be obtained prior to a conformity determination if the 

control measures are not included in a MPO's transportation plan and transportation 

improvement program (TIP); and that such a commitment be fulfilled; and 

• 40 CFR 93.125(c), which states that conformity SIPs must require that written 

commitments to mitigation measures be obtained prior to a project-level conformity 

determination, and that project sponsors comply with such commitments. 

Once this state regulation is approved by EPA into the Rhode Island SIP, it has full legal effect. 

Conformity determinations will be governed by these criteria and procedures as well as any 

applicable portions of the federal conformity rules that are not addressed by the state rule. 

Four responses were received during the comment period. Two responses were requests from 

Lenette Boisselle and Harry Hallgring for clarification concerning the applicability of the 

proposed regulations to other Air Pollution Control Programs: boat building facilities and Stage 

II vapor recovery systems. Both respondents were informed of the non-applicability of the 

proposed regulations to the referenced facility types. 
Written comments were received from the United States Environmental Protection Agency, and the 

RI office of Statewide Planning. The following is the Office of Air Resources' responses to the 

written comments received: 

Response to Comments 

The following are the comments of the USEPA contained in a 19 August 2011 letter from Anne 

Arnold to Frank Stevenson followed by DEM's response. 

Comment: Page 8, subsection 49.3.2(c): Although regional offices of federal agencies are 

typically the participants of the interagency consultation process, the interagency 

consultation process should not be limited to just the regional offices. Therefore, 

EPA recommends this subsection be revised to read: 

".. .participate in any interagency consultation process under this rule include the 

RIDOT, RIPTA, the Federal Highway Administration, Rhode Island Division, the 

Federal Transit Administration Region 1 office FHWA, FTA, and EPA." 

Response: Changes made as suggested. 

Comment: Page 15, subsection 49.6: Since the term "SIP" is not defined, for consistency and 

clarity, EPA recommends the second and third bullets in this subsection be 

revised to read: 

"... which states that applicable implementation plans for conformity SIPs must 

require written ..." 

Response: Changes made as suggested. 

The following are the comments of the Rhode Island Office of Statewide Planning contained 

in a 29 July 2011 email from Vincent Flood to Frank Stevenson followed by DEM's response. 

Comment: The draft regulation looks good, but we just have one concern regarding section 

49.5 on project level mitigation and control measures and deleting the sentence 

holding the project sponsor (RIPTA, or RIDOT) responsible for enforcing such 

measures. 

I see you point out in the fact sheet that 40 CFR 93.125 that project "sponsors 

comply with such commitments", can we maybe add that in to the last sentence of 

49.5 

2 
Response: The last sentence in section 49.5 was revised to read: 

"...Written commitments must be obtained before such mitigation or control 

measures are used in a project-level hot-spot conformity analysis for a projectlevel determination and project sponsors must comply with such 

commitments." 

Decision 

It is the decision of the Office of Air Resources to amend the draft Air Pollution Control 

Regulation No. 49 as indicated in the response to comments above. The final amended regulation 

is appended to this Decision. 

imhi • 

Date Douglas McVay, Acting Chief 

Office of Air Resources 

Janet Coit, Director 

Rhode Island Department of Environmental 

Management 

3