# Gui da n c e f o r Im p l e m e n ti n g t h e C l e a n Air Ac t S e c tion 1 7 6 ( c ) ( 8 ) T ra n s p o rtation C on tro l Me a s ur e S u b s tit ution a n d A d dition P rovi s ion

# Gui da n c e f o r Im p l e m e n ti n g t h e C l e a n Air Ac t S e c tion 1 7 6 ( c ) ( 8 ) T ra n s p o rtation C on tro l Me a s ur e S u b s tit ution a n d A d dition P rovi s ion

Transportation and Regional Programs Division Office of Transportation and Air Quality U.S. Environmental Protection Agency

EP A-420-B-09-002 January 2009TABLE OF CONTENTS Page Section 1: Introduction .................................................................................................................1
1.1 W h at is the purpose of this guidance? 1.2 W h at TCMs are addressed by Clean Air Act section 176(c)(8) and this guidance docum e nt? 1.3 W h at are the transportation conf orm ity ru le’s requirem e nts for tim ely imple m entation of TCMs? 1.4 Is a con f or m ity determination or a SIP re vis i on required when a substitu tion is made or when a TCM is added to the SIP ? 1.5 Does this guidance create new requirem e nts? 1.6 W ho can I contact for m o re inform ation? 1.7 W h ere can I find m o re inform ation on the web?
Section 2: Substituting Transportation Control Measures in an Approved SIP ....................5
2.1 W h en can states use the TCM subs titu tion p r ovision inth e Clean Air Act? 2.2 W h at does the Clean Air Act require inorder for a TCM substitution to occur? 2.3 W h at addition a l info rm ation should be prov ided to suppo rt a TCM su bstitu tion ? 2.4 How does a state air agency, MP O or othe r transportation agency demonstrate that a substitute T C M provides equiva lent em issions reductions? 2.5 If the SIP does not include any em issions reduc tions from a TCM, can it be substituted with another TC M without an analysis? 2.6 Can the TCM substitution process be used to rem ove a TCM from the applicable SIP without pro v iding a sub s titu te m easure? 2.7 If a substitu te TCM cannot be implem e nted on the sam e schedule as the original TCM, what is neces sary in order to fulfill the Cle a n Ai r Act requirem e nt that “th e rep l acem e nt TCM must be implem ented as soon as practicable butnot later than the date on which emissions reductions are necessary to achieve the purpose of the imple m entation plan? ” 2.8 Can the substitution process be u s ed if th e su bstitu te TC M could not be implem e n ted until after the date on which em issions reductions ar e n ecessary to achieve the p u rpose of th e imple m entation plan? 2.9 How would the TC M substitution process work in an area that is nonattainm e nt and/or m a intenance for two or more pollutants, where the orig inal TCM is included in the SIP f o r only one pollutant? 2.10 Can the TCM substitution process be used to replace a T C M in an approved SIP for an air quality standard that has been revoked if the area rem a ins nonattainm e nt and/or m a intenance for other pollutants? 2.11 W h en can an MPO m ake a conformity determination based on a sub s titu tion ? 2.12 W h at must a state air agency do if a subs titute TCM provides greater emissions reductions than the o r ig inal TCM an d the agency wants to in corporate the additi onal reductions into its control strategy SIP or m a intenance plan?

iSection 3: Adding Transportation Control Measures to an Approved SIP ..........................13
3.1 W h at is required in order for a new TCM to be added to an area’s approved SIP through the process established in Clean Air Act section 176(c)(8)? 3.2 W h at addition a l info rm ation should be prov id ed to suppo rt th e additio n of a TCM to an approved SIP? 3.3 Can all nonattainm e nt and m a intenance ar eas add TCMs to their approved SIPs? 3.4 W h at must a state air agency do if it wants to in corporate the emissions reductions from an additional T C M into its control st rategy SIP or m a intenance plan?
Section 4: Process Requirements That Apply When Subs tituting or Adding Transportation Control Measures to an Approved SIP .......................................15
4.1 W h at is necessary for an MP O or other implem enting agency to show that it has ad equate personnel and funding to imple m ent th e substitute or additional TCM? 4.2 W h at is necessary for an MP O or other implem enting agency to dem o nstrate th at there is adequate authority under state orlo ca l law to implem ent, m onitor and enf o rce th e substitute or additional TCM? 4.3 W h at agencies would be involved in de veloping substitute and additional TCMs in m e tropolitanareas ? 4.4 W h at transportation agency would concur w h en a TCM substitution or addition is m a de in a donut area or isolated rural area? 4.5 W h at is necessary to dem onstrate that the co llabo rative p r ocess us ed to develop su bstitu te and additional TCMs included reasonable publ ic notice and opportunity for comm ent ? 4.6 How and when do the involved agencies indi cate their concurrence on the substitution or addition? 4.7 W ho must concur f o r EPA on the s ubstitution or addition of TCMs? 4.8 W h at action will EPA take to incorporate the substitute or additional TCM into the codified SIP? Appendix A: Clean Air Act Section 176(c)(8 ) -- Subs titu tion and Additio n of Transportation Control Measures in Approved SIPs.......................................................................19 Appendix B: Clean Air Act Section 108 -- Transportation Co ntrol Measures.............................21 Appendix C: Example of How to Substitu te a T C M Using Clean Air Act Section 176 (c)(8 ).....23 Appendix D: Example of How to Add a TC M to an Approved SIP Using Clean Air Act Section 176(c)(8).....................................................................................................29

iiSection 1: Introduction
1.1 What is the purpose of this gu idance? The purpose of this docum ent is to provide nona ttainm e nt and m a intenance areas with guidance on implem enting th e tr a n sportati on control m e a s ure (TCM) substi tution and addition provision contained in the Safe, Accountable , Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). SAFETEA-LU, which wa s signed into law on August 10, 2005, revised a num ber of aspects of the Clean Air Act’s section 176(c) transportation confor m ity provisions. In addition to am endm e n ts to the transportation confor m ity provision s, SAFETEA-LU also added a provision to section 176(c) to allow states to substitute or add TCMs into approved state imple m entation plan (SIPs) without the standard SIP revision process. 1 2 Under this Clean Air Act provision, states are no longe r required to include a TCM s ubstitution m echanis m in their SIPs in order to expedite the process for m aking TCM substituti ons. The provision also provides a stream lined process for adding TC Ms to an approved SIP. EPA revised the transportation conformity rule (40 CFR parts 51 and 93) on January 24, 2008 (73 FR 4419) to address the transportation conform ity -relatedClean Air Act am endm ents m a de by SAFETEA-LU. EPA determ ined that it was n o t necess ary to promulgate regu lation s in orde r to successfully implem e n t the TC M substitution and additionst atu t ory p r ovision. (73 FR 4432) W e are issu ing this gu id ance to a ssis tare a s in m aking TCM substitu tion s and addition s. This guidance docum e nt supersedes the guidance on TCM substitutions and additions that was included in the guidance docum ent titled, “In t erim Guidance for Implem enting th e Transportation Confor mity Provisions in th e Saf e , Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Us ers” that was issued on February 14, 2006. 3
Areas are lik ely to us e th is stat utory process either to m ake a TCM substitution in an approved SIP or to ad d a TCM to an approvedSIP because the Clean A i r Act pro c e ss will take less tim e to comp lete than a standard SIP revision. A sta ndard SIP revision requires rulem aking by both the state air age n cy and by EPA to complete eith er a TCM substitu tion o r a ddition and theref ore takes m o re tim e to comp lete than th e stream linedClean Air Act process.
For example, a m e tropolitan planning organizatio n (MPO) that is beginning work on its next confor m ity determ ination m a y find that a TCM in the area’s approved SIP has become delayed. In order for the MPO to both comp ly with the tra n sporta tion conf or m ity rule’s requirem e nts for tim ely implem entation of TCMs (40 CFR 93.113) and to comp lete its confor m ity determination as scheduled , the MPO m a y use the Clean Air Act process to replace the delayed SIP TCM with a new TCM.
An area would also b e in teres t edin this guidan c e if it is cons idering adding a new TCM to the SIP through this m o re stream lined process.

1 Th e statu t or y tex t of Clean A i rAct sectio n 17 6( c)(8 ) is in cl u d e d i n App e nd ix A of th is gu id an ce d o c u m en t. 2 The st an dar d SIP re vi si o n pr ocess re qui re s not i ce a n dc o m m e nt rul e m aki ng by b o th t h e st at e ai r age n c y andEP A in ord e r fo r t h e state to rev i se its SI P a n d fo r EPA t o ap pr ov e th e revi si o n
. 3 It sh ou ld b e no ted t h at th e orig in al TCM sub s titu tio n gu idan ce th at was issu ed o n Ap ril 7 , 20 04 was prev iou s ly wi th dr a w n w h en E P A i ssue d th e S A FET E A

- LU i n t e ri m conf ormi ty gui da nce i n Fe bruary 20 0 6

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1There ar e lim ited cases where using eithe rth e T C M substitu tion or addition proces s would not be appropriate. For example, if a state needed to increase th e am ount of em issions reductions attributed to TCMs in a control strategy SIP or maintenance plan, it could not accomplish its goal solely throu gh the CleanAir Act pro cess to sub s titute or add TCMs to an approved SIP because the Clean Air Act process does not provide a stream lined process for revising control strategy SIPs or m a intenance plans. The state could use the Clean Air Act process to substitute or add new TCMs to its SIP; however, as discussed in Q u estions 2.12 and 3.4, the state would also need to comp lete a standard SIP revision to revise the relev a nt con trol s tr a tegy SIP or m a intenance plan and EP A would need to approve that revi sion in order to inco rporate the addition a l em issions reductions from the substitute or addi tional TCM into the SIP in order to ac comp lish the state’s g o al of increasing th e am ount of em iss i ons reductions attributable to TCMs. Other situations w h ere it would not be appropriate to use the TCM substitution process are discussed in Questions 2.6 and 2.8.
TCMs can still b e substituted or add e d to an ar ea’ s SIP throug h the norm a l SIP revis i o n process, if desired o rwhen necess ary. 1.2 What TCMs are addressed by Clean Air Act section 176(c)(8) an d this guidance document?
Clean Air Act sec tion 17 6(c)(8 ) and this guidan c e docum ent perta i n to TC Ms that apply, or will apply once included in the SIP, for confor m ity. TCMs that apply for confor m ity are those in approvedSIPs that affect vehicle us e or travel. S ection 93.101 of the transportation confor m ity rule defines a TCM as:

any m easure that is spec if ically identif ied and co mmitted to in the applicab le implem entation plan, inc l uding a sub s titu te o r ad dition a l TCM that is in c o rporated in to the applicab le SIP throu gh the proc e ss estab lished in CAA section 176(c)(8), that is either one of the types listed in CAA secti on 108(f), or any other m easure for the purpose of reducing em issions or concentrations of air pollutants from tr ansportation sources by reducing v e hicle u s e or changi ng traffic flow or congesti on conditions. Notwithstan ding the first sentence of this definition, ve hicle technology-based, fuel-based, and m a intenance-based m easures which control the em issions from vehicles under fixed traffic conditions are not TCMs fo r the purposes of this subpart.
We have included the list of m easures from CleanAir Act section 108(f) in Appendix B of this guidance docum e nt.
Sim ilar types of m easures that are included only in an area’s transportation plan and transportation improve ment program (TIP) and not in the area’s approved SIP are not considered TCMs for the purposes o f confor m ity. Because th ey are no t inthe SIP, they can be cha nged without either a standard SIP revi sion or without using the proce ss in Clean Air Act 176(c)(8). Furtherm ore, because vehicle techno logy-based m easures (in c luding d i esel retrofit p r ojects, vehicle fuel-related program s , and vehicle insp ection and m a intenance p r ogram s) are specifica lly excluded as TCMs under the transportation confor m ity rule’s TCM definition, these types of

2program s cannot be subs titu ted or ad ded into a S I P using the process in Clean Air Act section 176(c)(8).
1.3 What are the transportation conformity ru le’s requirements for timely imp l ementation of TCMs? Transportation confor m ity is required, under Clea n Air Act section 176(c), to ensure that federally supported highway and tran sit project activities are consis tent with (“conform to”) the purpose of the SIP. Confor m ity to the purpose of the SIP m eans that tran s portation activities will not caus e new air qu ality violatio ns, worsen e x isting v i ola tions, or d e lay tim ely attainm e nt of the relevant national ambient air qual ity standards (NAAQS or “standards”). Clean Air Act section 176(c)(2)(B ) and section 93.113 of the transp ortation confor m ity rule (40 CFR) require that TCMs in an approved SIP th at are eligible for fe deral funding under title 23 U.S.C. or under the Fed e ral Tr ansit Laws (Title 49 U.S.C.) must be implem ented on the schedule established in the SIP. If a TCM falls behind schedule and the ar ea s t ill in tends to implem ent it, the MPO must dem onstrate that past obstacles to imple m entation have been identified and have been overcom e and that state and local agencies with funding authority are giving the delayed TCM m a ximum priority, accord ing to 40 CFR 93.113( c)(1 ). If the area no longer w a nts to implem ent a delayed TC M, the area can either us e the standard SIP revision process to revise the SIP or use the Clean Air Act section 176(c)(8 ) T C M substitu tion pro cess to rem ove the delayed TCM from t h e SIP and to replace it in the SIP wi th a new TCM. It should be noted that the original TCM rem a ins in the approved SIP a nd subject to the confor m ity rule’s tim e ly imple m entation requ irem ents until either the re placem ent TCM is adopted through the Clean Air Act substitution process or EPA approves the SIP revis i on in cases where an area choo ses that approach. 4
1.4 Is a conformity determination or a SIP rev ision required w h en a substitutionis made or w h en a TCM is added to the SIP? No, neither a conform ity determ ination nor a SI P revision is required when an area makes a substitution or adds a new TCM to the approve d SIP using the Clean Ai r Act section 176(c)(8) process. Clean Air Act section 176(c)(8)(D) spec ifically states that the s ubstitu tion o raddition of a TCM does not require a new confor m ity dete rm ination or SIP revision. However, if the transportation plan and/or TIP need to be am e nde d in order to imple m ent the substitute or additional T C M, the app licab le United St ates Departm e nt of Transportation (DOT) transportation planning requirem e nt s (23 CFR 450 and 49 CFR 613) woul d have to be m e t. If an MPO is m aking other changes to its transportation plan and/ o r TIP in add i tion to a TCM substitution or addition, and, if th ese other changes would require a plan and/or TIP am endment, a conform ity determ ination would be required. In such situations the relevant EPA and DOT offices are availab l e to assist the MP O to en sure that a ll trans por tation confor m ity and transportation planning requirem e nts are m e t.
1.5 Does this guidance create newrequirements?

4 The co ur se of act i on t o b e t ak e n i f a TC M i n an ap pr o v edS I P fal l s be hi n d sche dul e mu st be det e rmi n ed th r o u g h in ter a g e n c y con s u ltation , p e r 4 0 CFR 9 3 .105( c)( 1 ) ( i v )

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3No, this guidance is b a s e d on the r e quirem e nts f o r tran sportation con trol m easure substitu tion s and additions contained in Cl ean Air Act section 176(c)(8) and does not create any new requirem e nts. This guidance m e rely explains how to imple m ent those TCM substitution and addition-related provisions and any other related requirem e nts. The statutory provisions and the US E nvironm ental Protection Agency (EPA) regulations described in this docum ent contain legally bindi ng requirem e nts. This docum e nt is not a substitute for those provisions or regulations, nor is it a regu lation itself. Thus, it does not impose legally binding requirem e nts on EPA, DOT, states, or the regulated community, and m a y not apply to a particular situa tion based upon the circum stances. EPA retains the discretion to adopt approaches on a case-by-case basis that m a y differ from this guidance, but still comp ly with the statute and SIP and conf ormity regulations. Any decisi ons regarding a particular TCM substitution or addition will be m a de based on the sta tute an d regula tion s , af ter app r opria te public input and rulem aking procedures where applicable. This gui dance m a y be revised periodically withoutpublic notice.
1.6 Who can I contact for more in formation? For specific questions concerning a particular nonattainm e nt or m a intenance area, please contact the SIP or transportation confor m ity staff pers on responsible for your st ate at the appropriate EPA regional office. A listing of EPA regional o ffices, the states they co ver, and con t act inform ation for EPA regional conformity staff ca n be found at the following website: http://www.epa.gov/otaq/statere sources/transconf/contacts.htm

. General questions about this guidance can be directed to: Rudy Kapichak at EPA’s Office of Transportation and Air Quality, kapichak.rudolph@epa.gov or 734-214-4574.
1.7 Where can I find more info rmation on the w e b?
Additiona l inf o rm ation on the transportation confor m ity rule and associated guidance can be found on EPA’s website at: http://w ww.epa.gov/otaq/state resources/transconf/index.htm

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4Section 2: Substituting Transportation Control Measures in an Approved SIP
2.1 When can states use the TCM substitutionprovision in the Clean Air Act?
Nonattainm e nt and m a intenance areas that do not have TCM substitution m e chanism s in the i r approved SI Ps have bee n able to rely on this s t atutory m echanism to m ake TCM substitu tions since August 10, 2005, when SAFETEA-L U wa s signed into law.
Several nonattainm e nt and m a intenance areas ad opted TCM substitution m echanis m s in their approved SIPs prior to SAFETEA-LU’s enactm e nt. 5 These areas mu st continue to use their SIPapproved T C M substitu tion m echanism s in addition to th e ne w statuto r y provision as applic able to m ake substitu tion s
. However, there m a y be conf licts be tween an alr e ady approve d m echanis m and Clean Air Act sectio n 176(c)(8). In the event of such a conflict, the area would f

o llow the Clean Air Ac t requir e m e nts. EPA will work with ar eas with app r oved m echanism s on a case-by-case basis to answer any questions. T h ese areas may revise their SIPs to remove the approved T C M substitu tion m echanism , and rely solely on the f e deral s t atute f o r f u ture ac tions once EPA approves the SIP revision.
2.2 What does the Clean Air Act require in order for a TCM substitution to occur?
For a TCM in an approved SIP to be rem oved and re pla ced with a subs titu te TCM, the Clean Air Act requires that:

• the substitute TCM(s) must achieve e qual or greater em issions reductions;

• the substitute TCM(s) must be implem ented on a schedule that is consis te nt with th e schedule for the TCM(s) being rem oved from th e SIP; or, if the imple m e n tation date has passed for th e TCM(s) being rep l aced , the re p l acem e nt TCM must be implem ented as soon as practicable but not later than the date on which em issions reductions from the TCM(s) are necessary to achieve the purpose of the SIP;

• the substitute TCM(s) must be accompan ied by evidence of adequate personnel, and funding and authority under state or local law to implem e nt, monitor and enforce the TCM(s);

• the substitute TCM(s) must be developed th roug h a collaborative p r oces s that includ es participationby all af f

ected juri sdic tions (s tate an d local air p o llution control agen cies and state an d local tran s portation ag encies su ch as the MPO, state DOT, and trans it providers); consultation with EPA; and reasonable notice and opportunity for public comment; and

• the equiv a le ncy of the substitu te TC M(s) mu st be concur red on by the stat e air pollution contro l agen cy, the MPO, 6 and EPA. That is, EP A, the state air ag ency, and the MPO must all ag ree that on th e estim a ted em issions reductions from the s ubstitute TCM(s) and agree that th e estim a ted em issions reductions equal or surpass those that w ould have resulted f r o mthe origin al TC M(s) in the approved SIP.

5 Portland , OR; Albu qu erqu e, NM; and Tex a s; h a v e TCM su b s titu tion m ech an ism s in their app r ov ed SIPs. 6 Th e state DOT wou l d con c ur o n TCM su b s titu tio n s in iso l ated ru ral areas b ecau s e t h ese areas d o no t h a v e MPOs. See q u estio n 4. 4 fo r m o re in fo rm ation.

5The rem a inder of this section and Section 4 below contain further details on how to comply with these specific requirem e nts. Appendix C cont ains an example of how to carry out a TCM substitution using the process in Cle a n Air Act s ection 176 (c )(8).
2.3 What additional in formation should be provided to su pport a TCM substitu tion?
The m a terial prepared to support a su bstitu tion sh oul d clearly identify and describ e the origin al TCM in the approved SIP and the su bstitu te TC M. The substitu te TCM should m eet all of the requirem e nts of Clean Air Act section 110 and EPA’s 1989 TCM SIP Guidance (EPA 450/2-89

- 020), which can be found at: http://www.epa.gov/otaq/stateresources/po licy/transp/tcm s/stat e_plan_guidance.pdf. The docum entation f o r e ach TCM substitu tion mu st inc l ude a ll of the inf o rm ation necessary to dem onstrate that the Clean Air Act requirem e nt s are m e t including the de monstration that the substitute T C M provides equiva lent or greater em issions re ductions. The docum entation for each substitution shou ldalso in clude: 1) the nam e of the origin al TCM in the approvedSIP that is p r oposed to b e replaced; 2) the nam e of the proposed substitute TCM; 3) a brief but thorough d e scrip tion of both the o r iginal and su bstitu te TC Ms includ in g their locatio ns and implem enting agencies ; 4) the s t eps and schedule f o r comp leting and ope rating the su bstitu te TC M; and 5) a brief explanation of why the substitu tion is n ecessary. 2.4 Howdoes a state air agency, MPO or othe r transportation agency demonstrate that a substitute TCM provides equi valent emission s reduction s?
In order to dem onstrate that the new TCM provi des equal or greater em issions reductions, the em issions benefits of th e substitute TCM mu st be analyzed in a m a nner consistent w ith the planning assump tions and m odeling used for analysis of the existing TC Ms in the approved SIP, unless m o re recen t plann i ng assump tions and/or a newer em issions m odel are now available. If updated assump tions and/or a newer em issions mode l are available, the relevant state or local agency mu st recalculate the emissions benefits of the original TCM and use that emissions estim ate in d e term ining if the substitute TC M provides equivalent or greater em issions reductions as required by Clean Ai r Act section 176(c)(8)(A )(i). If the S I P relied upon emissions reductions from a TCM to addr ess a localized vio l ation , a new hot-spot analysis mu st be done to ensure th at the SIP continues to f u lf ill its pu rpose and m eet all appl icable SIP requirem e nts. 7 If such a hot-s pot analy s is were necess ary it woul d be comp leted for SIP purposes not to fulfill the transpo r ta tio n conf orm ity rule’ s project- l eve l req u irem ents.
In dete rm ining whether or not a subs titu te TC M provides eq uivalen tor g r eater em issions reductions, the agency pr eparing the analys is sho u ld docum ent thatthe s ubstitu te TC M provides em issions reductions that are:

7 Ap pl i cabl e re qui rem e nt s m a y i n cl ude ap p r ove d m e thod ol ogi es suc h a s t hos e s p eci fi ed i n 4 0 C F Rpart 5 1 , App e n d i x W (Gu i d e lin e o n Air Quality M o d e ls) for C O an alyses or app licab le requ ire m en ts for PM 10 and PM 2.5 analyses.

6$ perm anent for the tim e period reliedupon in the applicable S I P;

$ for the sam e tim e of year (e.g., during the winter carbon m o noxide season) or during a specific time of day (e.g., the m o rning or ev ening rush hour) relied upon in the applicable SIP;

$ for the sam e pollutant or precursor as the original SIP TCM, unless the area has a SIPapproved trading m echanism that would allow trading between precursors or between a pollutant and its precursor(s); and

$ for the sam e geographic location, if such a location is iden tified as critical for the em issions reductions in the applicable SIP. For example, if a TCM was included in an approved SIP to address a specifi c local air quality problem suchas a violation of the CO standard, the substitute T C M would have to be implem ented in a lo cation to address the sam e violation. Alternatively, if a facility such as a park-a nd-ride lot was included in the SIP to serve a particular community or de velopm ent project, the substitute TCM would need to be located so th at it serv es th e sam e community or developm ent project. In order to ensure equivalent or greater reduc tion s in all cas es , the agency doing the an alysis must also co nsider whether or not th e substituti o n will have an ef f

ect on any other SI Ps f o r the area. For example, if a TCM is relied upon in m o re than one SIP (e.g., a TCM provides both VOC and NOx e m issions reductions in an appr oved ozone attainm e nt demonstration and provides carbon m onoxide emissi ons reductions in an approved carbon m onoxide m a intenance plan), the em issions analysis th at is perform e d for the substitu tion would need to demonstrate that the subs titu te TCM provides eq uivalen tor g r eater em issions reductio n s of all of the sam e pollutants and precursors as the original TCM inthe approved SIPs. Another exampl e could occur if an area is nonattainm e nt or m a intenan ce for several pollutants a nd a TCM is included in an approved SIP for one pollutant but not explicit ly included in the approved SIP or maintenance plan for other pollutants. This s ituation is discussed in Question 2.9.
Nonattainm e nt and m a intenance areas mu st m e e t all relevan t Clean Ai r Act requirem e nts. Nonattainm e nt areas mu st continue to m eet the C l ean Air Act’s requ irem ents for implem entation of Reasonably Available C ontrol Measures (RACM); 8 and serious PM 10 n onatta inm e nt are a s must continue to m eet requirem e nts for imple m entation of Best Available Control Measures (BACM). 9 Serious, severe and extrem e ozone areas and m o derate and serious carbon monoxide areas that have adopted TCMs to comply with Clean Air Act sections 182(c)(5), 182(d)(1)(A), 182(e)(4), 187(a)(2)(A ) or 187(b)(2) m a y substitute TCMs through the Clean Air Act substitution process; however, they must c ontin ue to comp ly with the C l ean Air Ac t requirem e nts that apply in ozone an d carbon m o noxide nonattainm e nt areas.

8 R A C M re q u i r em ent s d o not appl y i n m a i n tenance area s. 9 Pro v i d e d th at all ap p licab le RACM and B A CM req u i reme n t s are m e t, EPA b e liev e s that TCMs sub s titu ted thro ugh th e use o f t

h e Clean Air Act TCM sub s titu tio n m ech an ism wou l d fu lfill the req u i rem e n t s of Clean Air Act section 1 9 3 b ecau s e t h e sub s titu te TC Ms p r ov id e equ i v a len t emissi o n redu ctio n s an d th erefo r e wo u l d n o t i n terfere with r eason ab le fu r t h e r pr ogr ess o r attain m e n t

. Th e requ irem en ts in Clean Ai r Act section 1 1 0 ( l) wou l d no t ap p l y to substitutions made through thi s m echanis m because secti o n 110(l) only ap plies to c o ntrol m easures approve d i n to th e SIP b y EPA an d th ese sub s titu tio n s do n o t req u i re EPA SIP app r ov al.

72.5 If the S I P does not include any emissions reductions from a TCM, can it be su bstituted w i th anothe r TCM w i thout an analysis?
No. Som e a pproved SIP s include TCMs for whic h no em issions reduction credit was claim e d. If such a TCM is to be repl aced throu gh a TCM substitu tion, an em issions analys is must be perform e d for both th e existing S I P-approved T C M and the proposed su bstitu te TC M in order to dem onstrate that there w ill b e an equ i valen tor g r eate rreduc tion in em issions as a result of the substitution, as required by Clean Air Act section 176(c)(8)(A )(i).
2.6 Can the TCM substitution process be used to remove a TCM from the applicable SIP w i thout providing a substitute me asure?
No. The Clean Air Act section 176(c)(8) TCM s ubstitu tion p r ocess on ly provides leg a l autho r ity for an area to rem ove a TCM from t h e applicable SIP if it is replaced with a TCM that provides equivalent or greater em i ssions reductions, even if these reductions are not claim e d in the SIP’s dem onstration. TCMs can be rem oved from an applicab le SIP without su bstitu tion th rough a standard S I P revision. Such a SIP revision woul d have to be shown to m e et Clean Air Act section 110(l) requirem e n ts (e.g., the area would have to show that rem oval of the T C M would not interfere with any ap plicab le req u irem en t concerning attainm e nt and reasonable further progress, or any other applicable Clean Air Act requirem e nt).
2.7 If a substitu te TCM cannot be implemen ted on the same schedu le as the original TCM, what is necessary in order to fulfill the Cl ean Air Act req uirement th at “the replacement TCM must be implemented as soon as practi cable but not later than the date on which emiss i ons reductions a re necessa ry to achiev e the purpose of the imp l ementationplan?”
If

it is no t p o ssible f o r the substitute TCM to be imple m ented by the sam e deadline as the origin al TCM, the subs titute TC M would have to be implem ented as expeditiously as practicable so that em issions reductions can be achieved by the year required by the S I P. For example, 8

- hour ozone nonattainm e nt areas classified as m odera te have an attainm e nt date of June 2010. In such an area, if the TCM being replaced was to be imple m ented in 2008 and was included in the area’s 8-hour ozone attainm e nt dem o nstration, the substitute TC M should be fully implem ented no later than the beginning of the 2009 ozone season (i.e., the final comp lete ozone season before the June 2010 attainm e nt date). In th is example, the substitu te TCM would be imple m ented by the tim e reductions are needed to support the SIP, in this case by the beginning of the 2009 ozone season. 2.8 Can the substitution process be used if the substitute TCM could not be implemented until after the date on which emissions reducti ons are necessary to a c hieve the p u rpose of the implementation pla n ? No, reliance on the TCM substitution provision w ould not be appropriate in the case where both the implem entation date f o r the orig inal TCM and SIP m ilestone date have passed. T h e TCM substitution process c a n not be used f o r a gi ven s ubstitu tion if it would in terf ere with any applicable requirem e nt for reason able further progress, tim e ly attainm e nt, or m a intenance of any NAAQS. For example, if a TCM that was incl uded in an attainm e nt demonstration for a

8moderate 8-hour ozone nonattainm e nt area was to be in place at the beginning of 2009 and becam e delayed, it would not be app r opriate to u s e the TCM substitution m echanism to replace it with a TCM that could not be implem ented until 2011. In this case, a standard SIP revision would be required to addr ess the attainm e nt demonstration as well as th e substitute TCM, to ensure th at s u fficient con trol m easures are in p l ac e to dem onstrate tim ely a tta inm e nt.
2.9 Howwould the TCM substitu tion process w o rk in an area that is nonattainment and/or maintenance fo r tw o or more pollutants, w h ere the original T C M is inclu d ed in the SIP for only one pollutant?
An area could use the TC M substitution process to replace a TCM that is included in an approved SIP for one pollutant but not explicitly included in the approve d SIP or m a intenance plan f o r othe r pollu tants if certain con d itions ar e m e t. The substitu tion mu st m eet all of the requirem e nts of Clean Air Act se ction 176(c)(8). The documenta tion for the substitution mu st include an e m issions analysis tha td e m onstrates that the subs titu te TCM provides eq uivalen tor greater emissions reductions for the sam e pollu tants and precursors that original TCM provided in the app lic able SIP. T h e m a terial must also do cum e nt that the substitu tion will no t result in increased em issions of the other pollutants a nd precursors for which the area is designated nonattainm e nt or m a intenance. This additiona l infor m ation for the other pollutants and/or precurso r s is necessary to dem onstrate thatthe su bstitu tion will not inte rf ere with any applic able requirem e nt concerning attainm e nt, reasonable further progress, m a intenance or any other applicable C l ean Air Act requirem e nt that applie s to the o ther pollutants f o r which the area is designa ted n onatta inm e nt or m a inten a nce. If the s ubstitu tion d o es not in clu d e inf o rm ation to docum ent that it provides equivale nt or greater em issions reducti ons f o r a ll pollutan t s f o r which the area is designated nonattainm e nt or m a intenance, the net effect of the substitution could be an increase in emissions for the pol lutants and/or precursors not a ddressed in the dem onstration, and call into question the ai r quality demonstrations supporting the SIPs for those pollutants.
2.10 Can the TCM substitution process be used to replace a TCM in an approved SIP for an air quality standard that has been revoked if the area remains non a ttainment and/or maintenance for other pollutants? Yes, a nonattainm ent or m a intenance area could use the TC M substitution process to replace a TCM in an approved SIPfor an air q u ality stand a rd that has b een revoked if certain co nditions are m e t. First, the substitution would have to m eet any applicab le anti-ba c k sliding req u irem ents associated w ith the revoked air quality standar d. Second, the substitution must m eet all of the requirem e nts of Clean Air Act se ction 176(c)(8). The documenta tion for the substitution mu st include an e m issions analysis tha td e m onstrates that the subs titu te TCM provides eq uivalen tor greater emissions reductions for the sam e pollu tants and precursors that original TCM provided in the app lic able SIP. T h e m a terial must also do cum e nt that the substitu tion will no t result in increased em issions of the other pollutants a nd p r ecurso r s for which the area is d e sign ated nonattainm e nt or m a intenance. This additiona l infor m ation for the other pollutants and/or precurso r s is necessary to dem onstrate thatthe su bstitu tion w ould not in te rf ere with an y applicable requirem e nt concerning attainm e nt and reasonable further pr ogress, or any other applicable C l ean Air Act requirem e nt that applie s to the o ther pollutant( s ) f o r which the area is designated nonattainm e nt or m a intenance. If the substitution does not in clude inf o rm ation to

9docum ent that it provides equivale nt or greater em issions reducti ons f o r a ll pollutan t s f o r which the area is designated nonattainm e nt or m a intenance, the net effect of the substitution could be an increase in emissions for the pol lutants and/or precursors not addressed in the dem onstration, and call into question any air qua lity dem onstrations supporting th e SIPs for those pollutants.
EPA addressed this situ ation a s it p e rta i ns to req u irem ents f o r the tim ely implem entation of TCMs contained in 1-hour ozone SIPs in area s that are now designated as nonattainm ent or m a intenance for the 8-hour ozone standard inthe July 1, 2004 new standards rulem aking. Specifically, EPA stated that: Section 93.113 of the existing conformity rule requires that transportation plans, TIPs, and projects which are not from a confor m i ng plan and TIP must provide for the timely implem e n tation of TCMs from a n approved SIP. EPA notes th at tod a y' s f i nal ru le does not change the implem e ntation of these requirem ents for any existing or new nonattainm e nt or m a intenance area, including 8-hour nonattainm e nt areas that have approved 1-hour SIPs that contain T C Ms. Clean Air Act section 176(c) require s that TCMs in approved SIPs be imple m ented in a tim e ly m a nner accordi ng to the schedules in the SIP. This requirem ent is not contingent on what type of SIP, pollutant, or standard for which the approved TC M was established. Confor mity determ inations for any pollutant and standard mu st provide for the tim ely imple m entation of TCM s in approved SIPs, including TCMs in approved SIPs for the 1-hour ozone standard afte r that standard is revoked. (69 FR 40013) Any area considering such changes should consu lt with the E P A regional office in order to determ ine how best to m eet the requirem ents described above.
2.11 When can an MPO make a conformity determination based on a substitution?
An MPO can m ake a confor m ity determ ination as soon as the state air pollution control agency, the MPO and EPA have concurred on the substitution. 10 The MPO does not have to w a it un til af

ter the sta t e air agency has subm itte d the subs titute TCM to EPA f o r incorporation into the codified applicable SIP before it m akes a conf orm ity determination. At this point the MPO would rely on the substitute TCM to m eet the transportation confor m ity rule’s requirem e nts for tim ely implem entation and m a y include the em issions reductions benefits of the substitute TCM in the region al em issions analys is for the area. If the substitu te TCM provides greater em issions reductions than the original SIP-approved TCM, the MPO would be able to use those extra em issions reductions in its regi onal em issions analysis. Once all of thes e agencie s have concurred, the substitute TCM is considered to be adopted. Once adopted under this process, the substitute T C M becom e s part of the federally en forceab le SIPfor the area. The adoption of the substitute T C M also serves to rem ove the orig inal TCM from the federally enforceable SIP.

10 Ho wev e r, it sho u l d b e n o t ed t h at su b s titu ting a TCM in a SIP do es no t requ ire a n e w conformi ty d e termin atio n – see Q u estio n 1. 4 fo r m o re in fo rm ation.

10Therefore, once the adoption occu rs, the original TCM is no longe r subject to Clean A i r Act SIP and transportation conformity rule requirem e nt s for tim ely implem entation of TCMs in approved SIPs. Subsequent to ado p tion, EPA will in corpo r ate the subs titu te or n e w TCM(s) into the federal cod i fication of th e SIP to clarify for the public which TCMs are part of the federally enforceable SIP.
If

the tr ansp orta tion planand/or TIP need to be a m ended in order to implem ent the substitu te TCM, DOT’ s transportation planning require m e nts (23 CFR 450 and 49 CFR 613) would have to be m e t. Additionally, if the MPO is m aking other changes to its tran sportation plan and/or TIP in addition to a TCM substitution or additio n, and, if these other changes would require a plan and/or TIP am endm ent, a conformity determin ation would be required. In such situations the relevan tEPA and DOT offices are availab l e to assist the MPO to ensure that all transportation confor m ity and transportation planning requirem ents are met.
2.12 What must a state air agency do if a substitute TCM provides greater emissions reductions than the original TCM and the agency w a nts to incorporate the additional reductions into its con t rol stra tegy SIP or maintenance plan? A state air agency is not require d to revise a SIP to incorporat e any additional reductions beyond those accounted for in the existing SIP. However, if such a situation occurs, the s t ate air ag ency would need to revise its control strategy SIP or m a intenance plan and associated m o tor vehicle em issions budgets, and EPA would need to approve such a S I P revision in order for the state to incorporate these additio nal em ission s reducti ons in the area’s c ontrol strategy SIP or m a intenance plan. This would also apply if the S I P did not include any em issions reductions from the original TCM, but the state now want s to include the em issions reductions from the substitute T C M in the r e levant contr o l str a tegy S I P or m a intenance plan. These actions would be separate from and in addition to the TCM substitution process.

11[Page Inten t ionally Left Blank]

12Section 3: Adding Transportation Control Measures to an Approved SIP
3.1 What is required inorder for a newTC M to be added to an area’s approved SIP through the process established in Clean Air Act section 176(c)(8)?
In order for an area to add a new TCM to an approved SIP through the process established in Clean Air Act section 176(c)(8):

• the new TCM mu st be accomp anied by eviden ce of adequate personnel, and funding and authority under state or local law to implem e nt, monitor and enforce the TCM;

• the new TCM mu st be developed through a collaborative pro cess that includes participation by all affected jurisdictions and agencies (e .g., state and loca l air pollution contro l agen cies and s t ate and local transportatio n agencies); consul tationwith EPA; and reasonable notice and opportunity for public com m e nt; and

• the MPO, th e state air po llution control agen cy, and EPA mu s tconc ur on the addition of the new TCM to the SIP

. Section 4 of this guidance docum ent below contains further details on how to comp ly with these specific requirem ents. Appendix D contains an example of how to carry out a TCM addition using the statutory process.
It should be noted that T C Ms can still be adde d to an area’s SIP th rough the standard SIP process, if desired.
3.2 What additional in formation should be pr ovided to su pport the addition of a TCM to an approved SIP?
The m a terial prepared to support a T C M additio nshould clearly iden tify and describ e the new TCM to be added to the approved SIP. The addi tional TCM should m eet all of the requirem ents of Clean Air Act section 110 and EPA’s 1989 TCM SIP Guidance (EPA 450/2-89-020). The docum entation for each TCM addition mu st incl ude all of th e inform ation necessary to dem onstrate that the Clean Air Act requirem e nts for TCM additions are m e t. The docum e ntation for each TCM to be add e d to the ap proved SIP should also include: 1) the nam e of the proposed additional TCM; 2) a brief but thorough description of th e additional TCM including its location and implem enting agency; 3) the s t eps and schedule f o r comp leting and ope rating the ad dition a l TCM; and 4) a brief explanation of w hy the addition is being m a de.
3.3 Can all nonattainment and maintenance areas add TCMs to their approved SIPs? Yes, any nonattainm e nt or m a intenance areacan add new TCMs to its approved SIPby following th e criteria co ntained in Clean Air Ac t section 176 (c)(8 )(A)(iii)-(v ) and des c ribed in Question 3.1 above. It is not necessary for a given area to already ha ve T C Ms in its approved SIP in order to add new TCMs through this statut ory process. However, if the transportation plan and/or TIP need to be am ended in order to implem e nt the additional TCM, DOT’ s

13transportation planning requirem e nt s (23 CFR 450 and 49 CFR 613) w ould have to be m e t. Additiona lly , if the MPO is m aki ng other changes to its transp ortation plan and/or TIP in addition to a TCM substitution or addition, and, if these other changes would require a plan and/or TIP am endment, a conform ity determ inati on would be required. In such situations the relev a nt EP A and DOT offices are availab l e to a ssist the MP O to ensure that a ll trans porta tion confor m ity and transportation planning requirements are m e t.
3.4 What must a state air agency do if it w a nts to incorporate th e emissions reductions from an ad ditional TCM into its control strategy SIP or maintenance plan? If the state air agen cy wants to in corp orate th e em issions reductions from the additional TCM into th e applicable SIP, the agency w ould need to revise its control strategy SIP or m a i n tenance plan and associated m o t o r vehicle em issions budgets, and E P A would need to approve such a SIP revis i onin order f o r the state to incorpor a t e the em issions reductions f r om the addition a l TCM into th e area ’s con trol strategy SIP or m a in tenance plan. These actions would be separate from and in addition to the TCM addition process.

14Section 4: Process Requirements That Apply When Subs tituting or Adding Transportation Control Measures to an Approved SIP
4.1 What is necessary for an MPO or other implementing agency to showthat it has adequate personnel and funding to implem ent the substitute or additional TCM?
TCMs that ar e inc l uded in a m e tropolitan ar ea ’s tr ansportationplan and TI P need to meet a ll applicable requirem e nts in DOT’s trans portation planning regul ations, including the transportation plan and T I P fiscal constrai nt requirem e nt (23 CF R 450 and 49 CFR 613). Therefore, inclusion of the substitute or additi ona l TCM in a f i sca lly c onstrained transportation plan and TIP generally would serv e as sufficient evidence that ad equate resources are available to implem ent the TCM. In the case o f an isolatedrural area 11 or donut area 12 , inclusion of the substitute o r additional T C M in the S t atewid e Transportation Improve m e ntProgram (STIP) would indicate that the implem e nting agency had res ources to carry out the project. It is possible that s itua tio ns will ar is e where an M P O would need to m ake a TCM substitu tion and revise its TIP to rem ove the origin al TCM and add the subs titu te TCM s i mu ltaneously. In such s itua tions, the MPO should use th e interagency consultation process to reach agreem ent on the d e tails of these simu ltaneous actions. However, if the substitute or additional TCM is not federally funded or is not part of the transportation plan and T I P or STIP, the im ple m e n ting agency mu st provide additional inf o rm ation on the ava ilability and co mmitm ent of adequate resources as necessary to implem ent the new TCM in order to m eet the requirem e nts of Clean Air Act sectio n 176(c)(8)(A )(iii). For example, the imple m enting agency could pr ovide docum entation that funding has been authorized to imple m ent the substitute or addi tional TCM, and/or inform ation describing the agency’s plan for providing staff to implem e nt the TCM as planned.
4.2 What is necessary for an MPO or other im plementing agency to demonstra t e that there is adequate authority u nder state or local lawto implemen t, monito r a nd enforce the substitute or additional TCM? Generally, inclusion of the substitute or addi tiona l TCM in a m e tropolitanarea ’s trans porta tion plan and TIP, or in the case of an iso l ated ru ral area or donut area, inclus ion of the substitu te o r additional T C M in the S T IP, would indicate that the implem e n ting agency had legal authority to carry out the project. However, if the TCM is not federally funded or is not part of the transportation plan and T I P or STIP, the im ple m e n ting agency mu st provide additional inform ation on its legal authority to implem e nt the substitute or additional TCM in order to m e et the requ irem ents of Clean Air Act section 176(c)(8)(A)(iii). For example, the implementing

11 Is ol ated r u ral no n a t t a i n ment an d m a i n te n a n ce are a s ar e ar eas that do not contain or ar e not part of a n y metro p o litan p l an n i n g area as d e sign ated under th e transpo rt a tio n p l ann i ng regu latio n s . Iso l ated rural areas do no t h a v e Fed e rally req u i red m e tro p o litan tran spo r tation p l an s o r TIPs an d do no t h a v e proj ects th at are p art of th e e missio n s an alysis o f an y MPO's m e tro p o litan tran sp ortatio n p l an o r TIP. Proj ects in such areas are in stead in cl u d e d in statewid e tran sportatio n im p r ov em en t p r og ram s
. These ar eas ar e not donut ar eas. (40 CFR 93.101) 12 D onu t a rea s are g e og raph ic areas o u t si d e a metro p o litan p l an n i n g area bou nd ary, b u t i n sid e th e bo und ary of a
n o n a ttain m e n t o r m a in ten a n ce area t h at con t ain s an y p art of a m e tro p o litan area(s). Th ese areas are n o t iso l ated rural non attainmen t an d m a in ten a n ce areas. (40 CFR 93 .101 )

15agency could provide a citation to th e applicable state or lo cal law that authorizes it to implem ent such projects, or discuss how i mplementing such a TCM would fa ll withinits gen e ra l au thority.
Because the substitute o r additional T C M becom e s part of the approved SIP for the area, Clean Air Act sections 113 and 179(a) grant EPA the authority to enforce the implem entation of such a TCM. Implem entation of substitu te and additio n al TCMs may also be e n f o rced by c itizen suits under Clean Air Act section 304.
4.3 What agencies w o uld be involved in develo ping substitute and additional TC Ms in metropolitan areas? The agencies involved in the collab orative proc ess used to d e velop subs titute and ad dition a l TCMs would be similar to the group that participates in th e area’s conform ity interag e ncy consultation process. The involved agencies mu stinclude the state air agency, the MP O, and the EPA regional office because Clean Air Act section 176(c)(8)(B)(i) re quires their concurrence. Other agencies that m a y be invol ved include the state and local tr ansportation agencies and local air qua lity a g encies. Ad dition a lly, all of the ju ri s d ictions af f

ected by th e s ubstitu tion o r addition that is being considered should be involved. The process shouldalso include relevant FHWA and FTA fie l d offices. Early consultation with federal agencies is es sential to facilitate subsequent concurrence on each sub s titu tion by EPA, and confor m ity determinations based in part on tim ely implem entation of subs titu ted TCM s by FHW A and FTA. Please ref e r to Question 4.4 f o r addition a l inf o rm ation on which transpo r ta tion agencie s must concur on TCM substitutions and additions in donut ar eas and in isolated rural areas.
4.4 What transportation agency w o uld concur when a TCM substitution or ad dition is made in a donut area or isolated rural area? For donut areas (i.e., those areas within a nonatta inm e nt or m a intenance area but outside the m e tropolitanplanning area), th e TCM substitution process s hould be implem ented as above and the MPO associated with the donut area should conc ur in any substitution or addition of a TCM to an approved SIP. 13 For isolated rural areas (i.e., those nonattainm e nt or m a intenan ce areas that do not contain any m e tropolitanarea), this p r ovision sho u ld be implem ented as above, except the state D O T should concur on th e substitutio n or additionbecause th ere is no MP O associatedwith such an area.
In either cas e the s t ate air agency and EPA regional office would concur on any TCM substitution or addition as described in Qu estion 4.3 and elsew h ere in this docum ent.

13 It would also be acce ptable for the state DOT to c o ncur on a TCM substitution or a d d ition in a donut ar ea instea d o f

th e MPO, if th at is con s isten t with lo cal p r o cess fo r det e rm i n i ng c o n f orm i ty i n th e rel e vant n onatt a i n m e nt or maintenance ar ea.

164.5 What is necessary to demonstrate that the collabora tiv e process used to develo p substitute and additional TCMs included rea sonable public notice and opportunity for comment? Reasonable public notice and a public comm en t period mu st be provided when a TCM substitution or addition is m a de. Bec a use EP A’s concurrence on a specific substitution or addition would be based on EPA’s conclusion that the substitution or addition comp lie s with the requirem e nts set forth in Clean Air Act secti on 176(c)(8), comm enters should be m a de aware through the announcem e n t that they m a y subm it co mments not only on whether the state should concur on the substitution or addition but al so on whether EPA should concur with that substitution or addition. The public must be provided access to all m a terial relevant to the substitution or addition. The public comm ent process could be carri ed out either by the state or local air qu a lity agency or by the M P O using th eir ex isting process f o r s o lic iting pub lic comm ent on other docum ents. The state and/o rlocal air ag ency should ensure th at the TCM substitu tion or addition p r ocess comp lies with all applic able laws and regulations fo r pu blic particip ation including state or loca l sunshine laws. Copies of any prepared supporting docum entation should be provided to the state and lo cal air quality agen cies, the MP O, the EPA regional office, the FHWA division office, the FTA regional office, a nd any other relevant st ate and local agencies. All public comm ents received would be cons idered and resp onses docu m ented before proceed ing with the sub s titu tion o raddition. Co pies of the p ublic comments and res ponses should be provided to the state a nd local air quality agencies, the MPO, the EPA regional office, the FHW A division office, the FTA regional offi ce, and any other rele vant state and local agencies.
4.6 Howand w h en do t h e involved agencies indi cate their concurrence on the substitu tion or addition ?
A substitu tion or additio n cannot go into effect u n less EPA, the state air agency and th e MPO have all con c urred on th e substitutio n. If th e sub s titu tion o ra ddition f u lf ills all of the requirem e nts specified in Clean Air Act section 176(c)(8 ), the state air agency and EPA would each ind i cate its concurrence by se n d ing a letter to the MPO and ea ch oth e r (i. e ., the s t ate air agency would send its letter to the EP A a nd vice versa). The MPO would indicate its concurrence by resolution of the MPO’s policy boar d thatis m a de available to the stat e air agency and EPA through the MPO’s routine process. W ithin 90 days of its concurrence, the state air age n cy mu st subm it the sub s titu te o r ad dition a l con trol m easure and all supp orting inform ation to the EPA regional office so that the TCM can be incorporated in the cod i fied applic able S I P. The consultation process should be used to es tablish the exact point in the process that concurr e nce will be g i ve n so that it m eets Cl ean Air Act req u irem ents. The Clean Air Act requir e s th at concurr e nc e by the a i r agency and EPA occur af ter equiva le ncy of the substitu te m easure(s) is dem onstrated and the S A FETEA-LU conference report clarifies that "ad option occurs whenthe MPO, state air agen cy and EPA c oncur that all four of the genera l requ irem ents in subparag r aph (A) of the provis i onhave been fulfilled. 14 " T h erefore, concurrence would have

14 Joi n t Explanatory Statem ent of th e C o mmittee of Confere n ce, “Section 601 1 , T r an sp ort a ti on C o nf ormi ty ,” p. 1 065

.
17to occur suf f i cien tly late in the p r oces s so that the agencies are su re that all four criteria have been m e t.
4.7 Who must concur for EPA on t h e substitution or addition of TCMs? Clean Air Act section 176(c)(8) requires concu rrence by the A d m i nistrator of EPA. However, concurrence has been delegated to the EPA Regional Admi nistrator. 15 The concurrence m a y be further delegated to the re gional air division director.
4.8 What action w ill EPA take to incorporate the substitute or additional TCM into the codified SIP?
Once a sta t e has subm itted the subs titute o ra dditional TCM to EPA f o r incorpora tion in the codified app licab le SIP, EPA will update th e Code of Federal Regulation s (CFR) to reflect the changes to the SIP. This would be done through the publication of a notice in the Federal Register

. When a state that has been converted to the “SIP notebook system ” 16 substitutes or adds a non-regulato r y T C M, EPA will pub lish an info rm ational notice inthe ru les section of the Federal Register to update the CFR. In states that ha ve not yet been converted to the notebook system , or for TCMs that require regulations to be imple m ented, EPA would need to take a final action in the Federal Register to in c o rporate the substitute o r additional T C M into the CFR.
W h en EPA takes a f i nal action to inc o rporate th e specif i c sub s titu te o rad dition a l TCM into th e CFR, it will do so witho u t additional notice-a nd-comment rulem aking. EPA believes that it would have good cause under the A d m i nistrative Pr ocedure Act to take these actions without additional o pportunity for public co mment becau se the subs titution or ad dition was m a de through the process included in Clean Air Act section 176(c)(8) , and because the public would have had the opportunity to comm enton the spec ific substitution or a ddition during the public comment period on the specific substitution or addition.

15 On Sep t em b e r 29 , 20 06 t h e EPA Ad mi n i stra to r d e leg a te d t h e au tho r ity for co n c u r ring on TCM sub s titu tio ns an d ad d ition s t o the Reg i on al Admin i strato rs (Deleg atio n of Au tho r ity 7-158 : Tran sp ortatio n Con tro l Measu r e Sub s titu tio n s an d Add itio n s ). 16 The n o t e b o o k sy st em for c o m p il i ng S I Ps i s a p r ocess t h r o ug h w h i c h EP A r e vi ses 4 0 C F RPart 5 2 by : 1) re vi si n g ch arts listed in th e Id en tificatio n of Pl a n secti on; 2) su bmi tt i ng St at e re gul at ory re vi si o n s f o r i n co r p o r at i o n by refe rence into the SIP by m eans of a revise d annual c o m p ila tio n (g en erally in a loo s eleaf no tebo ok) o f all State regulations listed in these Ide n tification of Plan char ts rathe rtha n by piecem eal regulation updates; a n d 3) updating the list of non-regulatory m easures in th e State’s SIP t h ro ugh th e use o f an in fo rm atio n a l n o tice in th e rules sectio n of th e Fede ral R e gi st er. N o n- reg u l a t o ry m easures are not incorporated by r e fere nce i n to t h e C ode o f Fe d e ral Reg u l ation s ; therefo r e, th ese materials are main tain ed in th e note b ook for the State at th e EPA re gional office a n d in a no tebo ok m a in tain ed i n t h e Office of t h e Federal Re gister.

18APPE NDI X A Clean Air Act Section 176(c)(8) Substitution and Addition of Transporta tion Control Measures in Approved SIPs This appendix includes Clean Air Act section 17 6(c)(8) which was added to the Clean Air Act by SAFETEA-LU. EPA is providing this te xt for infor m ational purposes only. SECTION 176(c) (8) S U BSTITUTION OF TRANSPORTATION CONT ROL MEASURES.— (A) IN GENERAL.—Tr a nsportation control m e asures th at are specified in an imple m entation plan m a y be replaced or added to the implem entation plan with altern ate or additional transportation control m e a s ures (i) if the sub s titu te m easures ach ieve equivale nt or grea ter e m issions reductions than the control m e a s ure to be replaced, as dem onstrated with an emissions impact analysis that is consistent w ith th e current m e thodology used for evaluating the replaced contro l m e a s ure in the implem entation plan ; (ii) if the su bstitu te con trol m easures are implemented— (I) in acco rd ance with a schedule tha tis c ons is te nt with th e s c hedule p r o v ided for control m e a s ures in the implem e ntation plan; or (II ) if the implem entatio n plan date f o r imple m entation of the control m e a s ure to be replaced has passed, as soon as p r acticab le af ter the implem entation plan date bu t not later than the date on which emission reductions ar e n ecessary to achieve the p u rpose of th e implem entation plan ; (iii) if the su bstitu te and additional c ontrol m easures ar e acc o mp anied with ev idence of adequate personnel and funding and authority under State or local law to imple m ent, monitor, and enforce the control m easures; (iv) if the su bstitu te and additional c ontrol m easures were developed th ro ugh a collaborative process that included— (I) participation by representatives of all a ffected jurisdictions (including local air pollution co ntrol agencies, the State ai r pollution control agency, and State and loca l tr a n sporta tion agencie s ); (II) consultation with the Adm i nistrator; and (III) reasonable public notice and opportunity for comment; and (v) if the m e tropolitan planning organization, State air pollution control agency, and the Adm i nistrator concur with the equivalency of the substitute or addi tional control m e a s ures. (B) ADOPT I ON.— (i) Concurrence by the m e tropolitanplanning o r ganization, State air po llution con tro l agency and the Adm i nistrator as r e qu ired by s ubp aragr aph (A)(v) sh all co nstitu te ado p tion of the substitute or additional control m easures so l ong as the requirem e nts of subparagraphs (A)(i), (A)(ii), (A)(iii) a nd (A)(iv) are m e t. (ii) Once ad opted, the su bstitu te o ra ddition a l co ntrol m easur es becom e , by operationof law, part of the State implem entation plan and becom e federally enforceable. (iii) W ithin 90 days of its concurrence unde r subparagraph (A)(v), the State air pollution contro l agen cy shall sub m it the substitute or ad d i tional con tro l m e asure to the Adm i nistra tor f o r incorporation in the codification of the appli cable imple m entation plan. Notwithstanding any

19other prov ision of this Act, no additional Stat e process shall b e necessary to support su ch revision to the applicable plan. (C) NO RE QUIREME NT FOR EXPRESS PERMISSI ON.—The substitution or addition of a transportation control m e asure inaccordance with this paragraph and the funding or approval of such a control m easure shall not be contingent onthe existence of any provision in the applicable imple m entation plan that expressly permits such a substitution or addition. (D) NO RE QUIREME NT FOR NE W C ONF ORMITY DE TERMINATION.— Th e substitution or addition o f a transportation con tro l m easure in accordan ce with this paragraph shall no t req u ire— (i) a new confor m ity determinati on for the transportation plan; or (ii) a revision of the implem entation plan. (E) CONTINUATION OF CONTR O L MEAS URE BEING REPLACE D .—A control m easure that is being rep l aced by a s ubstitu te co ntrol m easure under th is paragraph s h all rem a in in ef f

ect until the subs titu te control m easure is adopted by the State pursuant to subparagraph (B). (F) EFFECT OF ADOPTION.—Adoption of a su bstitu te con trol m easure shall constitute rescission of the previously applicable control m e asure.

20APPE NDI X B
Clean Air Act Section 108 Transportation Contro l Measures This appendix includes a list of the types of m easures included in Clean A i r Act section 108(f)(1) that m eet the transportation conformity rule’s defi nition of a TCM. This is not an exhaustive list of all of the types of m e a s ures th at m e et th e tr ans porta tion co nfor m ity rule’s definition of a TCM. EPA is providing this list of m easur es for informational purposes only. The following types of m easures listed in Clean Air Act section 108(f) m eet the transportation confor m ity rule’s definition of a TCM:

 program s for improved public transit;

 restriction of certain roads or lanes to, or construction of such roads or lanes for use by, passenger buses or high occupancy vehicles;

 employer-based transportation m a na gem e nt plans, including incentives;

 trip -redu ctio n ordinances;

 traffic flow improvem e ntprogram s that achieve emission reductions;

 f r inge and tr ansportationcorrido r parking f acilitie s serving mu ltip le occup a ncy vehic l e program s or transit service;

 program s to lim it or restrict vehicle use indowntown areas or ot her areas of e m ission concentration particularly during periods of peak use;

 program s for the provision of all form s of high-occupancy, shared-ride services;

 program s to lim it portio ns of road surfaces or certain sectio ns of the m e tropolitan area to the use of non-m o torized vehicles or pe destrian use, both as to tim e and place;

 program s for secure bicy cle s t orage f acilities a nd other facilities, incl uding bicycle lanes, for the convenience and prot ection of bicyclists, in both public and private areas;

 program s to control exte nded idling of vehicles;

 program s to reduce m o tor vehicle emissions, cons isten twith title II, which are cau sed b y extrem e cold start conditions;

 employer-sponsored program s to perm it flexible work schedules;

 program s and ordinances to faci litate non-autom obile travel, provision and utilization of m a ss transit, and to generally reduce the need for single-occup a nt vehicle travel, as part of transportation planning and developm ent e fforts of a locality, including program s and ordinances applicable to new shopping cente rs, special events, and other centers of vehicle activ ity;

 program s for new construction and m a jor reconstructions of paths, tracks or areas solely for the use by pedestrian or other no n-m o torizedm eans of transporta tionwhen econom ically feasible and in the public in terest; and

 program s to encourage the voluntary rem oval from use and the m ark etplace of pre-1980 model year light duty vehicles a nd pre-1980 m o del light duty trucks.

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22APPE NDI X C Example of Howto Substitu t e a TCM Using Clean Air Act Section 176 (c)(8 ) This appendix provides an example of how a no nattainm e nt or m a intenance area could use the Clean Air Act process to substi tute a new TCM for an exis tin g SIP-approved TCM that has becom e delayed.
C.1 Why would a nonattainment or mainte na nce area need to quickly remove a TCM from the ap proved SIP and replace it w i th a newone?
For example, an MPO in a m oderate 8-hour ozone nonattainm ent area begins work on a confor m ity determination that ne eds to be comp leted in six m onths. The 8-hour area is not currently nonattainm e nt or m a intenance for a ny other pollutant, since EPA revoked the 1-hour ozone standard. To comply with the confor m ity regulation at 40 CFR 93.113, the MP O reviews the status of the four TCMs thatwere included in the area’s approved 8-hour ozone attainm e nt dem onstration. During the review, the MPO determines that one of the TCMs is significantly behind schedule. The delayed TC M involves the imple m entation of a high occupancy toll lane (“HOT lane”). According to the schedule in th e 8-hour attainm e nt dem o nstration, the HOT lane was to open in 2008. However, the MPO determin es that the opening will be delayed until 20 11, which is after the area’s 8-hour ozone attainm e nt date of 2010. As required by the transportati on confor m ity rule (40 CFR 93.105( c)(1)(iv)), the MP O and the rest of the area’s inte ragency consultation group discuss the issue at their next m eeting. The interagency consultation group concl udes that it would be impossible to overcom e the issues that are delaying the implementation of the HOT lane and therefore the best course of action is to rem ove it from the SIP and replace it with a subs titu te TCM(s). They als o decide that because the MPO needs to comp lete the conform ity dete rm ination in six m onths, there is not enough tim e to use the standard SIP revision process. Ther ef ore, they will use th e Clean Air Act s ection 176(c)(8 ) T C M substitu tion pro cess, which can b e comp leted in tim e to allow the MPO to m ake the conformity determination as planned, while ensuring that the SIP continues to achieve its intended purpose.
C.2 Howwould the area proceed to make the TCM substitution?
In order to c o mp lete the TCM s ubstitution in a tim e ly m a nner, th e MPO and state air agency tak e the f o llowin g steps.
Review of the TCM to be rem oved from the approved SIP Because the area had p r eviously beena 1-hour ozone m a intenance area, th e state air ag ency verifies that the HOT lane had not also been included in the 1-hour ozone m a intenance plan. Therefore, there are no backsliding issu es that w ould need to be addressed. 17

17 If t h e HO T l a ne hadbee n i n cl ude d i n th e ar ea’s 1

- h o u r oz one m a i n t e nan ce pl an , th e st at e ai r age n cy w oul d have t o en su re th at 8

- h o u r oz one an t i

- backsl i d i n g r e qui rem e nt s are m e t , (6 9 FR 40 0 1 3 ) a n d th at equi val e nt e m i ssi ons red u ct i o ns ar e obt ai ne d f o r al l p o l l u t a nt s. R e fer t o Que s t i o n 2. 1 0 fo r a ddi t i onal i n f o rm at ion

.

23The state air agency also confirm s that th e 8-hour attainm e nt dem onstration’s em issions inventory for a typical su mm er day indicates that the HOT lane was to provide 0.35 tons per day of nitrogen oxide (NOx) em issions reductions an d 0.2 tons per day of volatile organic compound (VOC) e m issions reductions in 2009, which is the y ear m odeled in the attainm e nt demonstration. Therefore, b a sed upon th e requirem e nt of Clean Air Act section 176(c)(8 )(A)(i), the s ubstitu te TCM(s) will need to reduce NOx e m issions by at least 0.35 tons per day and VOC e m i ssions by 0.2 tons per day in 2009.
Collabora tiv e process to develop th e substitute T C M(s) Based on the requirem e nts of Clean Air Act secti on 176(c)(8)(A)(iv)(I), st aff from the state air agency, MP O, state departm e nt of transportation, and the lo cal transit pro v ider m eet to review projec ts th at could be us ed as the su bstitu te TC M(s).
Based on th eir review, the agencies conclude that there are th ree pro j ects in the MPO’ s curren t long range transportation plan and transportati on improvem e ntprogram (TIP) that they would consider as viable substitute TCMs. The three p r ojects are: implem e ntation of express bus servic e to th e city ’s downtown area, implem entation of express bus serv ice from the city’s downtown area to the airport, and construction of a 1,000-space park-and-ride lot. These projects m eet the transp ortation confor m ity rule’s definition of a T C M (40 CFR 93.101), are scheduled to be completed by 2008, and have the potential to provid e em issions reductions equivalent or greater to the TCM to be rem oved from the SIP.
Determ ination of equivalent emissions reductions The state air agency and MPO agree to work t ogether to calculate the em issions reductions attributable to each of th e three projects th at ar e b e ing cons idered as subs titutes for the delayed HOT lane. The state air agency and MPO use the MPO’s transportation modeling tools, the latest em ission factor m o del (in this exampl e MOBILE6.2), and the late st available planning assump tions to calculate the emissions reductions from the projects that are being considered as substitutes. They determ ine that eachof the projects would provide the following em issions reductions:

Project NOx Reductions (tons per day) VOC Reductions (tons per day) Express bus service to city’s downtown area 0.2 0.1 Express bus service betw een the city’s downtown area and the airport 0.15 0.1 1,000-space park-and -rid e lot 0.15 0.1 The state air agency and the MPO agree to p r esen t the m odeling results to th e state departm e nt of transpo r ta tio n and the lo cal trans it pr ovider a nd r ecomm end substitu ting the express b u s service to the city ’s downtown area a nd the 1,000-space park-and -rid e lot for th e HOT lane. No single TCM would provide sufficient em issions reduction s to serve as a substitute, but these two substitute T C Ms together provide NOx and VOC re duction s that ar e equ i valen tto th e orig inal

24HOT lane. The state air agency and the MPO shar e th e resu lts with th e E P A regional of f i ce, the FHWA division office and the FTA regional office.
Collaborativ e process f o r

TCM substitution The state air agency, MP O, state dep artm e nt of transporta tion , local tran sit provid e r, E P A regional office, 18 the FHWA division office, and the FT A regional office meet by conference call. They d i scuss the modeling resu lts, ve rif y th at the two pr ojects that will s e rve as s ubstitu tes are in the area’s transpo r tation plan and TIP, veri fy that th e two projects are to b e co mpleted in 2008, and discuss next steps. During the c a ll, a ll of the agencie s ag ree th at:
• the two pro j ects taken to gether m eet the criteria that the substitute TCM(s) provide equivalent emissions reductions , as required by Clean Air Ac t sec tion 17 6(c)(8 )(A) ( i) ;
• the two projects will be comp leted in 2008, whic h allows them to comp l y with Clean Air Act section 176(c)(8)(A )(ii)(I);

• because the two projects are in cluded in the area’s transportation plan an d TIP, there is evidence of adequate personnel and funding a nd legal authority to imple m ent the two projects as required by Clean Air Ac t section 176(c)(8 )(A) ( iii); and

• for the purposes of this substitution the MPO should start a public comm e nt period to fulfill the requirem e nt of Clean Ai r Act section 176(c)(8 )(A )(iv )(III). 19 Public notice and opportunity to comm ent In this example, the MPO uses its established processes to provi de notice to the public that a 30

- day comm e n t period on the TCM substitu tion is be ginning. The MPO makes all of the relevant supporting infor m ation for the substitution availa ble on its website. Th e supporting infor m ation includes:

• a description of the HOT lane being rem oved fr om the SIP;

• descrip tion s of the TCMs that will su bstitu te f o r the HOT lane;

• the m odeling done to demonstrate e quivalent emissions reductions;

• a brief expla n ation a s to why the substitu tion is n ecessary; an d

• a schedule f o r implem enting th e subs titu te TCMs. The public n o tice also in f o rm s the public that be c a use the Cle a n Air Act T C M substitu tion process is being used, EPA will not b e conductin g a separate public com m e nt period prior to the substitute T C Ms being incorporated into the SIP; therefore, the public sh ould m ake all relevant comments during the MPO’s comment period.
The MPO receives several comm ents during th e comm ent period, one supporting the planned substitution, and two oth e rs sugges t ing alternate TCMs to be used as subs titu tes. The state air agency and MPO consider the suggestions and deci de that neither of the suggested alternatives could be implem ented prior to the area’s attainment date and theref ore these could not be used as

18 In clu s ion of the EPA reg i on al office in th is co llab o rativ e pro cess fu lfills the req u i rem e n t s of Clean Air Act section 1 76(c)(8)(A)(i v ) (II), wh ic h req u i res co nsu ltatio n with EPA d u ring t h e d e velo p m en t o f sub s titu te TCMs. 19 The age n cies coul d have als o a g ree d t h at the state air age n cy w o ul d carry out t

h e pu bl i c com m ent peri od usi n g th e estab lish e d process fo r so licitin g pub lic co mm en ts on SIP rev i sion s.

25substitute T C Ms. The MPO shares the comm e n ts and the responses with the other agencies involved in the substitution. State air agency, MPO, and EPA regional office concurrence Following the close of the public comment period, staff from all of the in volved agen cies m eet by conferen ce call. In this example, all ag enci es agree that the Clean Air Act requirem e nts had been m e t. The state air agency, MPO, and EP A regional of f i ce staf f all ind i cate that their agencies intend to concur. Following this conference call, the MPO polic y board adopts a resolution indicating its concurrence on the substitution. The MPO distri butes the adopted reso lution to all of the agencie s inv o lved in the substitution. The st ate air agency andEPA Regional Admi nistrator send concurrence letters to each o ther and the M P O with copies to all of the other agencies involved in the substitution. These actions by the state air agency, MPO, and EPA regional of

f i ce f u lf ill the requ irem ent thatthe s e agencies c oncur on the substitution , per Clean Air Act section 176(c)(8)(A)(v). Adoption of the substitute TCMs Imm e diately following the concurrence of the st ate air agency, MPO, and EPA regional office, the substitute TCMs are considered to be adopt ed and therefore are in corporated into the federally enforceab le SIPas indicatedin Cl ean Air Act section176(c)(8 )(B )(i) and (ii). Additionally, imm e diately following the adoption of the substitute TCMs, the delayed HOT lane is no longer in effect for SIP and transportation confor m ity purposes and is rem oved from the approved SIP as indicated in Clean A i r Act section 176(c)(8)(E) and (F). Re m oving the delayed TCM from t h e approved SIP and adding the two substitute T C Ms that provide equivalent em issions reductions allow the MPO’s upcom i ng confor m ity determ ination to m eet the transpo r ta tio n conf orm ity rule’ s requ irem ents for tim ely implem entation of approved SIP TCMs. (40 CFR 93.113) The MPO would include the em issions reductions be nefits of the two substitute T C Ms in the regional em issions analys is for the area, and the MPO would include these TCMs in its discussion of tim ely impl e m entation of TCMs in this and subsequent conf orm ity determ inatio ns. The substitu tion als o preserv e s the em issions reductions that wer e relied on in the SIP attainm e nt de m o nstration. Final steps Because the substitution is comp lete in less th an s i x m onths, the MPO is able to m ake its confor m ity determ ination as planned. As required by Clean Air Act sec tion 176(c)(8)(B )(iii), within 90 da ys after the a doption of the substitute T C Ms the state air agency subm its the substitute T C Ms and the supporting docum entation to the EP A regional office so that EPA can keep the list of SIP-approved TCMs up to date. The state where this example occu rs is not yet on th e “SIP notebook system ;” therefore, the EPA regional office publishes a final action notice in the Federal Register to rem ove the HOT lane from the list of SIP-approved TCMs for the nonattainm ent area and to add the two subs titu te TCMs to the list of SIP-approved TCMs. The Federal Register notice ind i cates that th ere is

26“good cause” under th e Adm i nistrative Procedure Ac t to take a final actio n without ad dition a l notice and comm ent rulem aking. The good cause is based on the two elem ents. First, the substitution was m a de according to th e Clean Ai r Act section 176(c)(8 ) procedures. S econd, the public was m a de aware during the MPO’s comm ent period that if EPA concurred on the substitution, it would not be conducting a public comment period prior to incorporating the substitute T C Ms into th e SIP.

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28APPE NDI X D Example of Howto Add a TCM to an Approv ed SIP Using Clean Air Act Section176(c)(8) This appendix provides an example of how a no nattainm e nt or m a intenance area could use the Clean Air Act section 176(c)(8) TCM substitution process to add a new TCM(s) to the area’s approved SIP.
D.1 Why would a nonattainment or maintenan ce area w a nt to quickly add a ne w TCM to a SIP?
For example, a state air q u ality agency, MPO, and state departm e nt of tran sportation for an area that is currently designated as nonattainm ent for the 1997 8-hour ozone standard decide to expeditiously add a particular TCM to the area’s SIP as a way to ensure that the p r oject will move forwa r d as currently scheduled and planne d. The area is expecting to be designated nonattainm e nt for the 2008 8-hour ozone standard and they would like to ensure that this project will be comp leted in time to prov ide emissions re ductions tha twill h e lp th e area attain or m a intain the 2008 ozone standard. T h e TCM that they are considering adding to the approved SIP is a light rail project connecti ng two cities and their suburbs.
D.2 Howwould the area proceed to add a TCM(s) to the approved SIP?
Collabora tiv e process to de velop the TCM(s) to be added to the approved SIP Based on the requirem e nts of Clean Air Act secti on 176(c)(8)(A)(iv)(I), st aff from the state air agency, MP O, state departm e nt of transportation, and the local transit provider m eet to discuss the light rail project that they are con s id ering adding to the approved SIP as a TCM. During their m eeting they verify th at the light rail project is incl uded in the area’s transportation plan and that prelim inary design of the project is being funded in the area’s current T I P. They conclude tha tit is in the best in ter e st of the ar ea to add the T C M to the S I P now to ensure that it is comp letedas currently planned in 2015 and w ill be in operation in tim e to provid e em issions reductions toward attainm e nt or m a inte nance of the 2008 8-hour ozone standard. 20 The agencies agree to discuss their d ecis i on w ith the EPA regional of f i ce, the FHW A division office and the FTA regional office.
Collabora tiv e process f o r

the TCM ad dition The state air agency, MP O, state dep artm e nt of transporta tion , local tran sit provid e r, E P A regional office, 21 the FHWA division office, and the FT A regional office meet by conference

20 EPA rev i sed t h e 8

- ho ur o z one air q u a lity stan d ard in Ma rch 2 008

. EPA i n tend s t o d e sign ate non attainmen t areas in 201 0. SIPs for th ese areas will b e d u e in 2 013 an d it is lik ely th at m a n y o f th ese areas will h a v e attain m e n t d a tes in th e r a n g e of 20 13 t o 2 019

. Th er efo r e, a li g h t r a il pr oj ect th at is to b e g i n op er ation i n 20 15 wo u l d p r ov id e emi ssi ons re d u c t i ons t h at w o u l d hel p th e area ei th er attain or m a in tain th e 20 08 8-hou r o z on e stan d ard. 21 In clu s ion of the EPA reg i on al office in th is co llab o rativ e pro cess fu lfills the req u i rem e n t s of Clean Air Act section 17 6 ( c) (8 )( A) (i v) (I I) , w h i c h re qui res c o n s ul t at i on wi th E P A du ri n g t h e dev e l opm ent of ad di t i onal TC M s
.
29call. They discuss the decision to add the light ra il project to the approve d SIP, verify that the projec t is in the ar ea’s tr ansporta tionpl an and TIP, and discuss next steps. During the c a ll, a ll of the agencie s ag ree th at:
• because the project is in cluded in th e area’s tran sportation p l an and TIP, there is ev id ence of adequate personnel and funding and legal authority to implem ent the project as required by Clean Air Act sec tion 176(c)(8)(A)(iii); and

• the state air agency shou ld start a pu blic comm e n t period, to fulfill the requirem e nt of Clean Air Act sec tion 17 6(c)(8 )(A)(iv)(III). 22 Public notice and opportunity to comm ent The state air agency uses its es tab lish e d proce ss to provide notice to th e public that a 30-day comment period on the TCM additi on is beginning. The state ai r agency m akes all of the relevant supporting inform ation for the addi tion available on its we bsite. The supporting inform ation includes:

• a description of the light rail project that is to be added to the approved SIP;

• a brief explanation as to w hy the addition is being m a de;

• an estim a te of the emissions reductions exp ected when the project opens in 2015; and

• a schedule for imple m enting the additional TCM. The public n o tice also in f o rm s the public that because the Clean Air Act section 176(c)(8) TCM addition pro cess is b e ing used, EPA will not b e conducting a separate pub lic comm ent period prior to the additional T C M being in corpora t ed into the SIP ; theref ore, th e public sho u ld m ake all relevant comments duri ng this comment period. The state air agency receives several comments during the co mment period, one supporting the planned addition, and tw o others suggesting other TCMs that could be added to the S I P. The state air agency and MPO consider the suggestions and decide that none of the other suggested TCMs are good candidates to be added to the S I P at this tim e. The state air agency shares the comments and the responses with the other agencies involved in the TC M addition. State air agency, MPO, and EPA regional office concurrence Following the close of the public comment period, staff from all of the in volved agen cies m eet by conferen ce call. In this example, all ag enci es agree that the Clean Air Act requirem e nts had been m e t. The state air agency, MPO, and EP A regional of f i ce staf f all ind i cate that their agencies intend to concur. Following this conference call, the MPO polic y board adopts a resolution indicating its concurrence on the addition. They distribute th e adopted resolution to all of the agencies involved in the addition. The state air ag ency and EPA Regional Admi nistrator send concurrence letters to each othe r and the MPO with copies to a ll of the other agencies involved in the add i tion. These actions by the MPO, stat e air ag ency and EPA regional office fulfill the

22 The age n cies coul d have als o a g ree d t h at the MPO wo ul dcarry o u t th e p ubl i c c o m m ent pe ri o d usi n g t h e estab lish e d process fo r so licitin g pub lic co mm en ts on co nfo r mity d e ter mi n atio ns.

30requirem e nt that these agencies concur on the addition, per C l ean Air Act section 176(c)(8)(A )(v). Adoption of the additional TCMs Imm e diately following the concurrence of the st ate air agency, MPO, and EPA regional office, the additional TCM is considered to be adopted and therefore are incorporated into the federally enforceable SIP as indicated in Clean Air Act sec tion 176 (c)(8)(B)(i) an d (ii). At th is point th e MPO would include the em issions reductions benefits of the light rail line in the regional em issions analysis for the area a nd the MPO would include this TC M in its discussion of tim ely imple m entation of TCM s in subsequent conformity determinations. Final steps As required by Clean Air Act sec tion 176(c)(8)(B )(iii), within 90 da ys after the a doption of the additional T C Ms the state air agency submits the additional T C M and the supporting docum entation to the EP A regional office so that EPA can keep the list of SIP-approved TCMs up to date. The state where this example occu rs is not yet on th e “SIP notebook system ;” therefore, the EPA regional office publishes a final action notice in the Federal Register to add the light rail project to the list of SIP-approved TCMs. The Federal Register notice indicates that there is “good cause” under the Adm i nistrative P r ocedure Act to take a final action without additional notice and comm e n t rulem aking. The good cause is b a s e d on the tw o elem ents. First, the ad dition was m a de according to th e Clean Air Act section 176(c )(8) p r oced ures. Secon d, the public was m a de aware durin g the state air agency andMPO comm ent period on the addition that if EPA concurred on the addition, it would not be conducting a public comme nt period prior to incorpor atin g the additio nal TCMs in to the SIP.

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