# Guidance for Developing T ransportation Conformity State Implementation Plans (SIPs)

# Guidance for Developing T ransportation Conformity State Implementation Plans (SIPs)

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

EP A-420-B-09-001 January 2009TABLE OF CONTENTS Section 1 : Introduction

................................................................................................................. 1 1.1 W hat is the purpose of this guidance docum ent?

............................................................................. ........ 1 1.2 W hat is transportation confor mity?

......................................................................................... ................ 1 1.3 In what part of the regulations is th e requirem ent for confor m ity SIPs found?

...................................... 2 1.4 W hat is a conform ity SIP and how does it differ from other types of SIPs?

........................................... 2 1.5 W h at agencies are typically involved in the developm ent of a conform ity SIP?

.................................... 2 1.6 How is this guidance docum ent organized?

................................................................................... .......... 2 1.7 W ho can I contact and where can I find m ore infor m ation about conform ity SIPs?

............................... 3 1.8 Does this guidance create new requirem e nts?

................................................................................ ......... 3 Section 2 : General Requirements fo r Develop i ng a Conformity SIP

....................................... 4 2.1 W hat must a conformity SIP contain?

........................................................................................ ............. 4 2.2 Can states include other conformity provisions in their confor m ity SIP on a voluntary basis?

.............. 4 2.3 W hen are conform ity SIPs due?

.............................................................................................. ................ 5 2.4 Does the Clean Air Act, as am ended by SA FETEA-LU, create any new confor mity SIP deadlines to subm it a confor m ity SIP?

.......................................................................................... ................ 5 2.5 How should states p r oceed if a co nfor m ity SIP was never subm itted to EPA in the past?

..................... 5 2.6 How should states p r oceed if a co nfor m ity SIP was subm itted in the p ast th at was never approved?

...................................................................................................................... ................................. 5 2.7 How should states update previously approved confor mity SIPs?

.......................................................... 6 2.8 W hat are the form at options for adopting a conf or m ity SIP and what are the requirem ents of each ?

.......................................................................................................................... .................................... 6 Section 3 : Applicability of Federal Regula tion s and Conformity SIPs in Conformity Determ inat ions

.............................................................................................................................. 8 3.1 W hat criteria and procedures apply for conf orm ity determinations in the absence of an approved state conformity SIP?

................................................................................................. .................... 8 3.2 W hat criteria and procedures apply for conf orm ity determinations when a state has an approved confor mity SIP?

....................................................................................................... ...................... 8 3.3 W hat criteria and procedures apply for conform ity determinati ons when there are changes in statutes and court decisions?

.................................................................................................. ........................ 9 3.4 How can I find out what conformity criter ia and procedures apply in my area?

..................................... 9 Section 4 : Specific Requirements for Develop i ng a Conformity SIP

.................................... 11 4.1 How should a state include the three required provisi ons in a conformi ty SIP ?

................................... 11 4.2 Can a confor mity SIP be prepared by repeating section 93.105 of the fede ral rule verbatim or by incorporating this se ction of the confor mity rule by reference?

............................................................. 11 4.3 How should a state include m ore provisions in their conform ity SIP fr om 40 CFR part 93 if desired?

....................................................................................................................... ................................. 12 4.4 If a state has prepared its conformity SIP by incorporating the conf orm ity rule into the confor m ity SIP by reference rather than repeatin g the rule verbatim , do t h e changes m ade to the federal rule autom a tically apply in that state, or does the state s till have to update the confor mity SIP to take advantage of ch anges to the federal rule?

.......................................................................... ....... 12

i4.5 Can a confor m ity SIP include provisions that are m ore st ringent than the federal confor mity rule?

.......................................................................................................................... .................................... 12 4.6 How should conformity SIPs address any agenc y, such as an MPO, that covers portions of more than one state?

........................................................................................................... .......................... 12 4.7 If a state has a conform ity SIP that refers to general types of agencies (e.g., MPOs) rather than specific agencies (e.g., an MPO for a specifi c area), do the provisions of the conform ity SIP apply for new or expanded nonattainm ent areas?

................................................................................. ....... 13 4.8 W hen in the process does EPA, FHWA, or FTA sign an MOU or MOA?

........................................... 13 4.9 If a state wants to revise its MO U/MOA, mu st it be done through the SI P process, or can the state and other agencies revise the MOU/MOA through the intera gency consultation process?

................ 13 4.10 How does a state develop a new confor m ity SIP or revise an existing confor mity SIP, whether done via an MO U/MOA or state rule?

..................................................................................... ...... 13
APPE NDI CES

............................................................................................................................. 15 Appendix A: Checklist for Developing a Conform ity SIP

.......................................................................... 15 Appendix B: Confor mity Model Rule

............................................................................................. ........... 20

iiSection 1: Introduction
1.1 W hat is the purpose of this guidance docum ent? This document provides guidance on the statutory and regulatory requ ir e m ents f o r states to develop confor m ity state imple m entation plans (c onfor m ity SIPs). A conform ity SIP includes a state’s specific criteria and procedures for certain aspects of the transportation conform ity process. W h ere EPA has approved a state’s c onformity SIP, the approved confor mity SIP governs confor m ity determ inations instead of th e federal transportation confor mity regulations (or conform ity rule), for those aspects of the ru le that it addresses a nd that are app licab le. Clean Air Act section 176(c) is the statutory au th ority f o r tran sporta tion confor m ity (42 U.S.C. 7506(c)). T his section of the Clean Air Act wa s am ended by provisions c ontained in the Safe, Accountable, Flexible, Efficient Transportati on E quity Act: A Legacy for Users (SAFETEA

LU), which was signed into law on August 10, 2005 (Public Law 109-59). Am ong the changes Congress made to this section of the Clean Air Act was to stream line the requirem e nts for state confor m ity SIPs. Subsequently, EP A published a final rule on January 24, 2008 to update the requirem e nts for conform ity SIPs as well as the other Clean Air Act provisions am ended by Congress (73 FR 4420). This guidance docum ent describes the new requirem e nts for confor m ity SIPs, so that state and local agencies can prepare an app r ov able conform ity SIP. This guidance docum ent also covers what requirem e nts apply for confor m ity determ ina tions that occur before and after conform ity SIPs are approved. This guidance supersedes EPA’s Nove m ber 2004 confor m ity SIP guidance 1 and the portion of the February 2006 interim SAFETEA-LU guidance 2 related to confor m ity SIPs.
1.2 W hat is transportation confor m ity? Transportation confor mity ensures that federally supported transportation ac tivities are consistent with (“conform to”) the purpose of the SIP. Tra n sportation activ ities in c l ude transpo r tation plans, transportation improvem e nt program s (TIP s), and federally funded or approved highway or transit projects. C onform ity to the purpose of the SIP m ean s that tran s portation ac tivities will not cause new air quality violations , worsen existing violations, or delay tim ely attain m ent of the relevant national am bient air quality standards (N AAQS or “standards”). Transportation confor m ity applies under EPA’s confor mity regulations 3 in nonattainm e nt and m aintenance areas for th e following transportatio n -re lated criteria polluta nt s: ozone, particulate m atter (PM 2. 5 and PM 10 ), carbon m onoxide (CO), and nitrogen dioxide (NO 2 ).

1 Con f o r mity SI P Gu id an ce, EPA4 20

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- 04- 01 7, N o v e m b er 2 004

. 2 In terim Gu id an ce for Im p l e m en tin g the Tran sp ortatio n C o nf ormi ty Provisions i n the Sa fe, Acc o untabl e, Flexi b le, Ef

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. 3 40 CFR Par t 51 , Subp ar t T an d Par t 93 , Sub p ar t A

1EPA develops the conform ity regulations in coordination with the Federal Highway Admi nistration (FHW A) and Federal Transit Administration (FTA).
1.3 In what part of the regulations is the requirem ent for confor m ity SIPs found? The regulations that explain the requirem e nts for a conform ity SIP are found at 40 CFR 51.390. This portion of the conform ity regulation was updated in a final rule published on January 24, 2008 (73 FR 4420).
1.4 W hat is a conform ity SIP and how doe s it differ from other types of SIPs?
A confor m ity SIP is required to contain only the state’s criteria and procedures for interagency consultation (40 CFR 93.105) and tw o additional confor m ity provisions (40 CFR 93.122(a)(4)(ii) and 93.125(c)). Unlike a reasonab le further progress SIP, an attainm e nt dem onstration, or m aintenance plan, a conf ormity SIP does not co ntain m o tor vehicle em issions budgets, em issions inventories, air quality dem onstr ations, or control m easures. A confor m ity SIP can be developed as a state rule, a m e m o ra ndum of understan ding (MOU), or a m e morandum of agree m ent (MOA). Addition al inf o rm ation is pr ovided in Se ction 4 f o r d eveloping o r revis i ng a MOU/MOA or a state rule. In general, once approved, the confor m ity SIP governs the confor m ity process instead of th e federal conformity rule for any provisions included in the confor m ity SIP.
1.5 W hat agencies are typically involved in the developm ent of a conform ity SIP?
A for m al interagency consultation process is used to prepare a conform ity SIP. The consultation process includes repr ese n tatives f r o m state a nd local transpo r tation and a i r qua lity ag encies, EPA, FHWA, and FTA. Typically, the state air agency is the lead on conf orm ity SIP developm ent; although in lim ited cases MPOs or local air agencies play this role.
1.6 How is this guidance docum ent organized?
The rem a ining parts of this guidance cover:

• Section 2: General Requirem e nts for Developing a Confor m ity SIP: This section provides general information regarding what is required to be included in a conform i ty SIP and when confor m ity SIPs are due.
• Section 3: Applicability of Federal Regulations and Conform ity SIPs in Confor m ity Determinations: This se ction ou tlin e s what requirem ents apply f o r conf ormity determ inations that occur before and af ter a conform ity SIP is approved.
• Section 4 : Specific Requ irem ents For Developing a Confor m ity SIP Subm ission: This section prov ides spec if ic details f o r d eveloping a nd submitting a new or r evised confor m ity SIP.
• Appendices: This section provides a checklist to assist in prepar ing and reviewing a confor m ity SIP and m o del conformity SIP language. The Checklist (Appendix A) and Model Rule (Appendix B) are available for downloading at http://www.epa.gov/otaq/stateres ources/transconf/policy.htm #sips

21.7 W ho can I contact and where can I find m ore infor m ation about conform ity SIPs? For specific questions co ncerni ng a particular confor mity SI P, please contact th e SIP o r transportation confor mity staff person responsible for your state at the appropriate EP A Regional Office. A listing of EPA Regional Offices, the s t ates th ey cov e r, and con t act inform ation for EPA regional conform ity staff can be found on EPA’s website at the following address: www.epa.go v/otaq/stateresources /trans conf /contacts.htm

. General questions about this gui dance can be directed to:
Astrid Larsen at EPA’s Office of Transportation and Air Quality, larsen.astrid@epa.gov or 734-214-4812.
Additiona l inf o rm ation r egarding the transpo r tation confor m ity rule and associated guidance can be found on EPA’s website at: www.epa.gov/ otaq/stateresources/transconf/index.htm

. 1.8 Does this guidance create new requirem e nts? No, this guidance is based on Clean Air Act tran sportation confor m ity requirem e nts, as am ended by SAFETEA-LU, and existing associ ated regulations and does notcreate any new requirem e nts. This guidance m e rely explains how to imple m en t the new Clean Air Act confor m ity SIP-related provisions. The statutory provisions and the resulting EPA re gulations described in this docum ent contain legally binding requirements. This docum e nt is not a substitute for those provisions or regulations, nor is it a regulation itself. Thus, it does not impose legally binding requirem e nts on EPA, DOT, states, or the regulat ed community, and m a y not apply to a particular situation based upon the circum stances. EPA retains the discretion to adopt approaches on a case-by-case basis that m ay differ from this guidance, but still com p ly with the statute and confor m ity regulations. Any decisio n s regard ing a particular conf ormity SIP will be m a de based on the statute and regulations, after appropriate publ ic input and rulem aking proce dures, where applicable. This guidance m a y be revised periodi cally without public notice.

3Section 2: General Requirements fo r Develop i ng a Conformity SIP
2.1 W hat must a conform ity SIP contain? Clean Air Act section 176(c)(4)(E), as am ende d by SAFETEA-LU (August 2005), significantly stream lined the requ irem ents for state confor mity SIPs. Prior to SAFETE A-LU’s am e nd m ents to the Cle an Air Act, stat es were requ ired to a ddress all of the federal transportation confor mity regulations provisions in their conf orm ity SIPs. Most of the sect ions of the federal rule were previously required to be copied verbatim from t h e f ederal ru le in to a stat e’s conform ity SIP. Clean Air Act section 176(c)(4)(E ) and section 51.390(b) of the conform i ty rule now require states to subm it confor mity SIPs that addre ss only the following provisions of the federal confor m ity rule:

• 40 CFR 93.105, which addresses consultation procedures;
• 40 CFR 93.122(a)(4)(ii), which st ates that conform ity SIPs must require that written comm it m e nt s to control m easures be obtained p r ior to a conf o r mity determination if the control m e a sures are not included in a m e tropolitan planning organization’s (MPO’s) transpo r tatio n plan and T I P, and thatsuch commitm ents be f u lf illed ; and
• 40 CFR 93.125(c), which states that confor m ity SIPs must require that written commitm ents to mitigation m eas ures be obtain edprior to a pr oject-lev el c onf ormity determ ination, and that project spons ors comply with such commit m ents. These provisions mu st be tailoredto a state’s indivi dual circum stances, rather than including the federal conf orm ity rule section verbatim

. Section 4 and Appendix B contain additional inform ation and examples of language that can be used to develop a state’s conform ity SIP.
2.2 Can states include other conformity provis ions in their confor m ity SIP on a voluntary basis? Yes, the current Clean Air Act and the conformity rule a llow states to include additional provisions beyond the three m e ntioned in Ques tion 2.1. Section 51.390(b) provides that, “A state m a y elect to include any othe r provisions of part 93, subpart A. ” However, as discussed in the January 24, 2008 final rule, EPA strongly encourages states to only include the three required provisions in a conform i ty SIP to take advantage of the stre a m lining f l exibilities prov ided by the Clean Air Act, as am ended by SAFETEA-LU. The new requirem ents will reduce the adm i nistrative burden for state and local agen cies significantly, becaus e the new requ irem ents will mi nimi ze the poss i bility of having to r evise th e conf ormity SIP ea ch tim e the f ederal rule is revised (73 FR 4430-4432). Any interested state and local agencies should co nsult with their EPA Re gional Office to discuss the process and potential impacts of developing a conform ity SIP that includes m o re than the requir e d pro v isions. Ad dition a l de ta ils f o r deve loping such a SIP are inc l uded in Section 4 of this guidance docum ent.

42.3 W hen are conform ity SIPs due? Section 51.390(c) of the confor m ity rule explains when states are required to subm it a new or revised conf orm ity SIP. A conf or mity SIP mu st be submitted:

• by Nove m b er 25, 1994 or within 12 m onths of an area’s nonattainm e nt designation if the state has not previous ly s u bmitted on e;
• within 12 months of the pub lication date of any final am endm ents to 40 CFR 93.105, 93.122(a)(4)(ii), and 93.125(c);
• within 12 months of the publica tion date of any other final confor m ity am endments if a state’s conform ity SIP includes the provi sions of such final amendm ents. EPA discussed conform i ty SIP deadlines in the pream ble to its January 2008 final rule (73 FR 4432). Once a state has an approved conform ity SIP that addresses only the three required sections, the state would need to revise its conform ity SIP only if EPA subs tantively changes one of these three sections of the conform ity rule, or the state chooses to revi se one of these three provisions. Any future changes to the fede ral confor m ity rules that do not affect these three provisions would apply imm e diately in any state that ha s only the three provisi ons in its approved confor mity SIP, and such changes would not need to be adopted into the state’s SIP to be applic able.
2.4 Does the Clean Air Act, as am ended by SAFETEA-LU, create any new confor mity SIP deadlines to subm it a confor m ity SIP? No, these am endments to the Clean Air Act did not create any new deadlines for conform ity SIPs. See Question 2.3 f or further infor m ation regarding when confor m ity SIPs must be subm itted to EPA.
2.5 How should states p r oceed if a co nfor m ity SIP was never subm itted to EPA in the past?
States that h ave never su bm itted a co nf orm ity SIP are requ ire dto addres s only the thre e provisions noted above in Question 2.1.
2.6 How should states p r oceed if a co nfor m ity SIP was subm itted in the p a st th at was never approved?
In som e cases, stat es ha ve submitted conf ormity SIPs to EPA f or approval, but EP A has not ye t acted on them. Such a situation can occur when a state submits a conform ity SIP that becom e s outdated prior to EPA approval. For example, a state’s conf orm ity SIP can becom e outdated when a new rulem aking is promulgated or a court decision is issued and the conform ity SIP does not reflect the latest revised requirements. EPA can only approve a conform ity SIP provision that addr ess e s the requirem e nts of the Clean Air Act and EPA’s transportation conform ity regulations that are in place at the tim e of EPA’s approval.

5In cases whe r e a state h a s subm itted a conf orm ity SIP to EPA that EPA has not appr oved, sta t es can send a letter to their EPA Regional Office and request that EPA approve only the three provisions that are required to be included in their SIPs, and that EPA take no action on the rem ainder of the submitted conf ormi ty SIP. Alte rnatively, th e stat e couldsend a le tte r to its EPA Regional Office requesting to withdraw the en tire subm ission (73 FR 4431, January 24, 2008). The state would then subm it a new confor m ity SIP consis ten twith th e cu rrent C l ean Air Act and transportation confor m ity regulations. States should work closely with their EPA Regional Office when requesting action on or withdrawing a previous conf or m ity SIP subm ission.
2.7 How should states update previously approved confor m ity SIPs? States with EPA-approved conformi ty SIPs tha tdecide to elim inate the provision s th at are no longer m a ndatory would need to revise the SIP to elim inate those provisions (73 FR 4431, January 24, 2008). EPA will consider using eith er parallel process i ng (when reques t ed by the state) or d i rect final app r oval to exp e dite the approval of such confor m ity SIP revisions. Such a confor m ity SIP revisionshould not be contro v ersial b ecause the prov isio ns are no lo nger required by the current C l ean Air Act. In additio n , their elimi n ation from a state’s con f or mity SIP should n o t change co nfor m ity’s implem e ntati on in practice, because the federal confor m ity rule applies for any provisi on not addressed in a stat e’s conform ity SIP.
States m a y also need to revise an approved conform ity SIP thatincludes provisions that are now outdated (e.g., if EPA pr omulgated a final rule th at substantively revised the federal confor m ity rule provisions on which a conform ity SIP is based).
States are en couraged to work with th eir EPA Re gional Office as early in the process as possible to ensure the confor m ity SIP subm iss i on m eet s all requirem e nts and is fully approvable.
2.8 W hat are the form at options for a dopting a confor m ity SIP and what are the requirem e nts of each ?
A confor m ity SIP can be adopted as a state ru le, as a m e m o ra ndum of understanding (MOU), or m e morandum of agree m ent (MOA). See Section 4 for additional information for developing or revising confor mity SIPs, either as an MOA/MOU or state ru le. The appropriate form of the state conform ity procedures depends upon the require m e nts of local or state law, as long as the selected form complies with all Clean Air Ac t requirem e nts for adoption, subm ission to EPA, and implementation of SIPs. EPA will accep t sta t e conform ity SIPs in an y for m provided the state can demonstrate to EPA’s sa tis f action tha t , as a m atter o f st ate law, the state has adequate authority to comp el complianc e with the requirem ents of the confor m ity SIP (58 FR 62209

- 62209, Novem ber 24, 1993).
A state can use an MOU or MOA for its conf orm ity SIP if such a m e morandum m eets the following requirem e nts:

61. it is fully en forceable un der state law agains t all p arties invo lv ed in in terag ency consultation and in approving, adopting and im plem enting transportation plans, TIPs, or transpo r ta tio n projec ts; 2. the state subm its it to EPA for inclusion into the SIP; and, 3. it has b een s i gned by all agencies that are covered by the confor mity rule, including federal agencies and the recipients of f unds designated under title 23 U.S.C. or the Federal T r ansit Laws (see the definition in 40 C F R 93.101). For example, MOU/MOA signers would include MPOs, local and state air agencies, s t ate DOTs, transit ag encies, FHW A , FTA, and EPA, and all curr ent re cipien ts of title 23 U.S.C. or the Federa l Tr ansit Laws funds (as defined under 40 CFR 93.101).
If

the conf or m ity SIP is in the f o rm of a state rule, then any new agencies not previously covered by the conform ity rule are autom a tically covered by the rule. This could h appen if an area that has never been subject to confor m ity before we re to becom e a newly designated nonattainm ent area. In such a case, there would be agencies in that area that are new to the interagen c y consultation process.
For a conform ity SIP in the for m of a n MOU/M OA, the MOU must provide that the s i g n atories will require new federal funding reci pients to sig n the MOU/MOA.

7Section 3: Applicability of Federal Regula tion s and Conformity SIPs in Conformity Determ inat ions
This sec tion outlin es the genera l applicability of conf ormity crite ria and p r ocedures in areas with and without approved confor m ity SIPs. Questio ns 3.1 and 3.2 cover the general requirem ents, while Question 3.3 covers the exception to these general requirem ents. 3.1 W hat criteria and procedures apply for c onform ity determinations in the absence of an approved state conformity SIP? States without an approved conform i ty SIP must m eet Clean Air Act section 176(c) requirem ents when perform i ng transportation plan, TIP and project-level confor m ity determ inations. Transportation confor m ity determ inations must m eet the confor m ity rule provisions found in 40 CFR 51.390(a), which states:
The federal confor m ity rules under part 93, subpart A, of this chapter, in addition to any existing app licab le s t ate requirem ents, estab lish the conform i ty criteria and procedures necessary to m eet the requirem ents of the CleanAir Act section 176(c) u ntil su ch time as EPA approves the confor m ity imple m entation plan re vision required by this subpart....The f e deral confor m ity regulations contained in part 93, subpart A, of this chapter w ould continue to apply f

o r the portion of the req u irem ents th at th e state did not include in its conform ity imple m entation plan and the portion, if any, of th e state’s conf orm ity provisions that is not approved by EPA.
For example, areas witho u t any appro v ed conformity SIP provisions are required to follow all of the relevant provisions of the c onform ity rule. Sim ilarly, in states with approved conform ity SIPs that address only the three provisions now require d, (i.e., §§93.105, 93.122(a)(4)(ii), and 93.125(c)), confor m ity must be determ ined accordi ng to all of the relev a nt provision s of the confor m ity rule, and the requirem e nts for cons ultation and written comm itm ents governed by the state’s conform ity SIP. Please see Question 3.2 f o r m o re inform ation regard ing areas with approved conform i ty SIPs. There can also be excep tions to th is general case where neither the federal conform ity rule nor an approved confor m ity SIP provisions apply; see Question 3.3 below for further inform ation.
3.2 W hat criteria and procedures apply for c onform ity determinations when a state has an approved confor mity SIP?
Confor mity determinations mu st m e e tany provisions in an EPA-approved confor m ity SIP that are consistent with section 176(c) of the Clean A i r Act, even if the conform ity SIP provisions are different than those in the conform ity ru le. Section 40 CFR 51.390( a) states that, “any previously applicable implem en tation plan conform ity requirem e nts rem a in enf o rceab l e until th e state subm its a revision to its applicable implem e ntation plan to specifically rem ove them and that revision is approved by EPA. ” Therefore, states whose conf or m ity SIPs address provisions that ar e s till consistent w ith th e statute but that have subsequently been up dated in the confor m ity

8rule cannot take advantage of EPA’s updated regu lations unless and until the state revises its confor mity SIP and EPA approves it.
For example, som e areas m a y have approved confor m ity SIPs that include outdated versions of the PM 10 hot-spot requirem e nts. If an approved confor mity SIP includes the PM 10 hot-spot provisions prior to those promulgated in the March 10, 2006 final rule, then all project-level confor m ity determ inations mu st include a PM 10 hot-spot analysis (71 FR 12468). In contrast, the federal conf orm ity rule now requires only som e project-level confor m ity determ inations in PM 10 areas to include hot-spot an alyses (40 CFR 93.123(b)).
This example illustrates the adva ntages to updating any previously approved conform i ty SIPs, to ensure that confor m ity ru le changes apply upon EPA’s promulgation. The interagency consultation process should be used to dete rm ine what requirem e nts apply for confor m ity determ inatio ns in sta t es withapproved conform i ty SIPs.
Please no te there are cas es where neither the conform ity rule nor approved confor m ity SIP provisions apply. See Question 3.3 f or further infor m ation.
3.3 W hat criteria and procedures apply for conform ity determinations when there are changes in statutes and court decisions?
Confor m ity determ inations must be consistent wi th section 176(c) of the C l ean Air Act. There have been cases where certain provisions of the federal conform ity rule and approved confor m ity SIP provisions have becom e outdated, either be cause Congress am ended the Clean Air Act or a federal court issued a decision that vacated a fede ral conform ity rule provision. In such cases, the affected federal conf orm ity rule provision(s ) or the affected approved state conform ity SIP provision(s) no longer apply. W h en t hese cases occur, conform ity determinations mu s tm eet any new or revised requirements, which are usually described by interim federal guidance issued prior to a confor m ity rule revision. Once EPA updates the confor m ity rule to reflect such changes, the revised confor mity rule applies imme diately upon its effective date.
For example, when the Clean Air Act was am ended by SAFETEA-LU in August 2005, the required frequency for transportation plan and T I P conform ity determ inations was changed from every th ree years to every four year s. Therefore, the pr ov isio ns in the con f or m ity rule and in any approved confor m ity SIPs that required conformity of transportation plan s and TIPs every three years no longer applied. EPA a nd DOT issued interim guidance 4 to ensure that conform ity determ inations would be consistent w ith the st atutory changes prior to EPA’s January 2008 final rule (73 FR 4420). The revised four-year fr equency of conform ity determ inations for transportation plans and TIPs applied in all nonattainm e nt and m a intenance areas upon SAFETEA-LU’s enactm e nt in August 2005, even in areas with approved conformi ty SIPs that included outdated provisions. In this case, a conf orm ity SIP revisi on is no t requ ired p rior to the application of the new frequency requirem e nt. 3.4 How can I find out what conformity crit eria and procedures apply in my area?

4 In terim Gu id an ce for Im p l e m en tin g the Tran sp ortatio n C o nf ormi ty Provisions i n the Sa fe, Acc o untabl e, Flexi b le, Ef

f icien t Tr an sp or tatio n Eq u ity A c t: A Leg a cy f o r U s er s (SA F ETEA- L U ) , EPA42 0

- B-06- 901 , Febru ar y 20 06

.
9To find out if an approved confor mity SIP al ready applies in your ar ea, please contact the transportation confor m ity staff person at the appropriate EPA Regional O ffice. A list of these regional transportation confor mity staff and their contact inform ation can be found at the following website: Regional Contacts | State & L o cal Tran sp orta tion Resources | US EPA

.

10Section 4: Specific Requirements fo r Develop i ng a Conformity SIP As described in Question 2.1, section 51.390(b) of the conform ity rule requires states to subm it confor m ity SIPs that address the following provisions of the confor m ity rule:

• 40 CFR 93.105, which addresses consultation procedures;
• 40 CFR 93.122(a)(4)(ii), which st ates that conform ity SIPs must require that written comm it m e nt s to control m easures be obtained p r ior to a conf o r mity determination if the control m e a sures are not included in an MPO’s transportation plan and TIP, and that such comm itm ents be f u lf illed ; and
• 40 CFR 93.125(c), which states that confor m ity SIPs must require that written commitm ents to mitigation m eas ures be obtain edprior to a pr oject-lev el c onf ormity determ ination, and that project spons ors comply with such commit m ents. This section covers how to address these sp ec if ic requir em ents within a co nf ormity SIP subm ission. Appendix A includes a checklist for developing a conformity SIP and Appendix B contains a model conform ity rule.
4.1 How should a state include the three required provisi ons in a conformi ty SIP ?
To assist states with d e v e lopi ng a confor mity SIP, EPA has provi ded suggested language, in the for m of a M odel Rule, to m eet the re quirem e nts of 40 CFR 93.105, 93.122(a)(4)(ii), and 93.125(c) in Appendix B. W hile the Appendix is pr esented in the order of the conformity rule, states are not bound by this order and are free to rearra nge the requirem e nts to best suit their needs.
Consultationprocedures that fulfill 4 0 CF R 93.105 will m ake up the m a jority of a s t ate’s confor m ity SIP. Once approved by EPA, the confor m ity SIP will guide a nonattain m ent or m a intenance area’s future consultation for conform ity determinations. Because of the importance of the consultation process and the nu m ber of confor m ity rule provisions required by 40 CFR 93.105, the state should carefully prepare th is portion of the conform ity SIP to ensure that all the requirem e nts are covered and organized in a logical fashion.
4.2 Can a confor m ity SIP be prepared by re peating section 93.105 of the federal rule verbatim or by incorporating this section of th e confor mity rule by reference? No, a conform ity SIP that repeats 40 CFR 93.105 verbatim or incorporates this provision by reference w ould not m eet statutory and regulat ory requirem e nts. Section 93.105 only describes what must be included in the conform ity SIP and does not contain specific criteria and procedures that states w ould need to adopt to m eet the consultation requirem ents, as required by the Clean Air Act. In addition, su ch a confor m ity SIP would not be practical, since creating a specific interagency consultation process is on e of the prim ary purposes of developing a confor m ity SIP.

114.3 How should a state include m ore provisions in their conform ity SIP fr om 40 CFR part 93 if desired?
States m ay include additional tran sportation confor mity provisions in their conform ity SIP on a voluntary basis, as described in Question 2.2. If they do so, the provisions must be adopted verbatim

. This requirem ent is found in the conform ity rule at 40 CFR 51.390(b), “A state m a y elect to include any other provisi ons of part 93, subpart A....such provisions mu st be included in verbatim for m , except in sofar as needed to cl arif y or give effect to a sta t e dinten t ...”
4.4 If a state has prepared its conformity SIP by incorporating the conf orm ity rule into the confor m ity SIP by reference rather than repeatin g the rule verbatim , do t h e changes m ade to the federal rule autom a tically apply in that state, or does the state s till have to update the confor mity SIP to take advantage of ch anges to the f ederal ru le ? The answer depends on what the confor mity SIP indicates:

• If a state in corporates the conform i ty rule into its conform ity SIP by reference, it m a y have incorporated the c onfor mity rule that existed as of the date of the incorporation. If so, subsequent updates to the c onformity rule do not autom a tically apply and a revision to the conf ormity SIP mu st be subm itted within 12 months of the ef f

ective d a te of a chan ge to the conform ity rule.

• However, a conform ity SIP that in corporates the confor m i ty rule by reference could also ind i cate that it also incorporates by reference any future changes m a de to the confor m ity, although this is rare. In this cas e, the confor m ity SIP does not need to be revised when the conform ity rule is updated. If your state has an approved conf ormity SIP that incorporates th e conformity rule by reference, and you are unsure about whether the conform ity SIP includes the latest confor m ity rule provisions, please consult with your EPA Regional Office (s ee Question 1.7 for contact inform ation).
4.5 Can a confor m ity SIP include provisions that are m o re stringent than the federal confor mity rule? Yes, states can include criteria and procedures intheir conform ity SIPs that are m o re string ent than the confor m ity rule as long as they a pply equally to federal and non-f e deral entities, pursuant to 40 CFR 51.390(b) (see also 58 FR 62209).
4.6 How should conformity SIPs address any agency, such as an MPO, that covers portions of more than one state? Special consultation provisions ne ed to be included in a conf orm ity SIP when it covers an MPO whose jurisdiction covers parts of more than one st ate. In th ese cas es, it is im portant that MPOs can follow sim ilar conform ity procedures in th e different states, sinc e each confor m ity SIP applies only within eachown state. F o r exam ple, in mu lti-state nonattain m ent and mainten ance

12areas where the states w o rk toge ther to m ake confor m ity determ inations, it is necessary for consultation procedures to be substantially sim ilar in each state’s po rtion of the area. In these cases, EPA recomm ends that the in teragency cons ultation process be used to develop sim ilar consultation procedures that each state would th en include in its own conform ity SIP. Such states m a y also want to consider additional provi sions for dealing with in te rstate conf licts (40 CFR 93.105(d)), to ensu re that an ap propr iate p r ocess is in p l ace if necessary.
4.7 If a state has a conform ity SIP that refe rs to general types of agencies (e.g., MPOs) rather than specific agencies (e.g., an MPO fo r a specific area), do the provisions of the confor m ity SIP apply for new or expanded nonattainm ent areas? The answer depends on the wording of the conform ity SIP itself. If the SIP’s wording could be interpreted to include expanded or new nonattainm e nt areas in th e state, the provisions of the confor mity SIP would apply to these areas. Howe ver, if the confor m ity SIP includes wording that limits its applicability to pa rticular areas, then it m a y not appl y to new or expanded areas. If your state has an approved confor m ity SIP a nd you are unsure whether it applies to your particular area, please cons ult with your EPA Re gional O ffice (see Question 1.7 for contact inf o rm ation).
4.8 W hen in the process does EPA, FHWA, or FTA sign an MOU or MOA?
The EPA Re gional Admi nistrator, FHWA, and FTA would sign an MOU/MOA befor e it is endorsed by the governo r and subm itted to EPA as part of the SIP. EPA, FHWA, and FTA cannot sign the MOU after it is subm itted to EPA because these agencies cannot am end a subm itted SIP.
4.9 If a state wants to revise its MO U/MOA, mu st it be done through the SIP process, or can the s t ate and other agencies revise the MOU/MOA through the in teragency consultation process?
An MOU/MOA revision would have to be approved through the SIP process because the MOU/MOA is part of the SIP.
4.10 How does a state develop a new confor m ity SIP or revise an existing confor m ity SIP, whether done via an MOU/MOA or state rule? To develop a new conform ity SIP orrevise an existing conform ity SI P, either as a s t ate rule o r MOU/MOA, the process is generally the sam e fo r either format (s tate rule or MOU/MOA): Step 1: The confor m ity SIP is developed or revised through consultation of the interagency workgroup at the state and/or local level. Step 2: The state holds a public com m e nt period on the docum ent. Step 3: The docum ent is subm itted to EPA as a SIP revision.

13Step 4: Once at the EPA, the subm ission w ould then continue through the usual SIP process for approval/disapproval.
The difference between a state ru le v ersus an MO U/MOA is that after the revis i on is p r epared, a confor m ity SIP developed as a state rule has to go through a state’s re gulatory process and be adopted. In contrast, a confor m ity SIP revision prepared as an MOU/MOA requires signatures f r om all the relev ant parties be f o re it is submitted to EPA.
Before a state decides to use the MO U/MOA for m at , the state mu st determine if the state h as the legal authority to use this m ethod, as described in Question 2.8.

14APPE NDI CES The Checklist for Developing a Confor m ity SI P (Appendix A) and Conform ity Model Rule (Appendix B) are available for downloading at http://www.epa.gov/otaq/stateres ources/transconf/policy.htm #sips Appendix A: Checklist for Developing a Conform ity SIP
This checklist is intend e dto gui de s t ate and local agencies as th ey develop their conform ity SIPs; this ch ecklis tdoes not replace ex istin g statu t ory o rregulato r y requirem e nts. W ithin each section of the checklist, the requ irem ents are shown in the left-hand colum n. The right-hand colum n can be used to record the locations in the consulta tion and conform ity SIP that address the required elem ents.

I NTERAG EN CY C ONS ULTA T IO N G ENER AL : [93.105(a)]. A confor m ity SIP shall include pr ocedures for interagenc y consultation, conflict resolution, and public consultation. E P A encourages developm ent of A extensive, effective con sultation procedures that will resolve problems as early in the process as possib l e. @ 58 FR 62188 at 62201, Nove m ber 24, 1993. The procedures must be written in a m a nner that gives them full legal effect. 40 CFR 51.390. Consultation is required on th e developm ent of the regional transpo r tatio n plan (RTP), th e transportation im provem ent program (TIP), on conform ity determ inations, and on the developm ent of state implem enta tion plan (SIP) revisions that affect transp ortation. [93.105(a)(1)]. MPOs and State departments of transportation must provide reasonable opportunity for consul tation with State air agencies, local air qu a lity and tr an sportation a g encies, DOT, and EPA, including consultation on specific processes for interagency consultation. [93.105(a)(2)] I NTERAG EN CY C ONS ULTA T IO N P RO C E DU RE S : G ENER AL F ACTO RS [93.105(b)]. Sta t es sha ll p r o v ide well defined consultation procedures in the implem entation plan. Organizations with responsibilities for developing, submitting or im ple m enting provis i o n s of an im plem entation plan (includ i ng MPOs, State and local air quality planning agenci es, and State and local transportation agencies) must consult with each other with and local or region al offices of EPA, the Federal Highway Adm i nistration (FHWA), and the Feder a l Transit Administra tion ( F TA). The interagency consultati on procedures must include, at a m i ni mu m, the following general factors: procedures that require th at agencies consult on the developm ent of the im plem entation plan, the transportation plan, the T I P, and associated conform ity determinations [93.105(b)(1)];

15the ro les andresponsib ilities of eachagency at each stage in the SIP developm ent process and the transportation planning process, including technical m eetings [93.105(b)(2)(i)]; the organ i za tiona l leve l of regular consultation 5 [93.105(b)(2)(ii)]; a process for circu l ating (or pr oviding ready access to) draft docum ents and supporting m a terial s for comm ent before formal adoption or publication [ 93.105(b)(2)(iii)]; the frequency of, or proce ss for convening, consultation m eetings and responsib ility for estab lishing m eeting agendas [93.105(b)(2)(iv)]; a process for responding to significant comm ents of involved agencies [93.105(b)(2)(v)]; and a process f o r

the deve lop m ent of a list of the tr ans portation contro l m easures (TCM s) that are inthe applicab le imple m entation plan [93.105(b)(2)(vi)]. S PECIF I C P ROCES S ES I nteragency consultation procedures shall include the spec if ic processe s lis t ed below [93.105(c)]: A process involving at least the MPO( s), State an d local air q u ality pl anning and transportation agencies, EPA, and the Departm e nt of Transportation (D OT) for the following [93.105(c)(1)]: Evaluating and choosing models and associated m e thods and assump tions for hot-spot and re gional em issions analyses [93.105(c)(1)(i)]; Determining which mi nor arteri als and other projects are “region ally significan t” 6 for the reg i o n al emission s analys is (in addition to those functionally classi fied as prin cip a l arterials o r higher or fixed guide way system s or extensions that offer an alternative to regional highw ay travel) [93.105(c)(1)(ii)]; Determ ining which projects should be considered to have a significant change in design con cept and scope from the RTP or TIP [93.105(c)(1)(ii)]; Evaluating whether otherwise exempt projects (see 93.126 and 93.127) should be treated as non-exempt where adverse im pacts are possible for any reason [ 93.105(c)(1)(iii)]; Determ ining whether past obstacles to imple m entation of transpo r ta tio n contro l m e asures (TCMs) in approved SIPs have been identified and are being overcom e ( f or TCMs behind S I P schedules) [93.105(c)(1 )(iv); 93.113(c)(1)];

5 Gene ral l y , i n t e rage ncy c ons ul t a t i on p r oced u r es sh o u l di n clude inform ation suc h as the organizational l e vel an d pr oce d u r es f o r t h e p e opl e w h o sc h e dul e, l ead , a n d att e n d m eet ings

.
6 Th is is in additio n to t h e p r oj ects requ ired t o b e in cl u d e d by ap p lication of th e d e fin ition of A reg ion ally si gni fi ca nt pr oj ect @ in 40 C F R 93 .1 01

.
16Determining whether Stat e a nd lo cal agencies are giving m a xi mu m priority to approval and f unding for TCMs in approved SIPs [93.105(c)(1)(iv)]; Determ ining whether delays in the implem e ntation of approved SIP TCMs necessitate revisions to the SIP to rem ove or substitute such TCMs or othe r emission reduction m easures [93.105(c)(1)(iv)]; Notification of transportation pl an an d TIP am endm ents which only add or delete exempt pr ojects listed in 93.126 and 93.127 [93.105(c)(1)(v)]; and Choosing confor m ity tests and m e thodologies for isolated rural nonattainm e nt and m a intenance areas, as required by 93.109(l)(2)(iii) [ 93.105(c)(1)(vi)]. A process involving at least the MPO and State and local air and transpo rtation agencies for [93.105(c)(2)]: Evaluating events that will trigger new confor mity determinations in additio n to those required by 93.104 [93.105(c)(2)(i)]; and Consulting on em issions analysis for transportation activities which cross borders of MPOs, nona ttainm e nt areas or air basins [93.105(c)(2)(ii)]. W h ere the m etropolitanplanning ar ea does not include th e e n tir e nonattainm e nt or m a intenance area, procedures must specify a process involving the MPO and the State DOT for cooperative planning and analysis for determ ini ng confor m ity of projects outside the m e tropolitan area and within th e nonattainm e nt or m a intenance area [93.105(c)(3)]. Specifies a p r ocess to ens u re disc losure of plans for regionally significant non-FHW A/FTA projects (including projects for which alte rnatives are still bein g consider ed) to the MPO on a regular basis, and imm e di ate disclosure of any changes to those plans [93.105(c)(4)]. Provides a process involving the MP O and other federal funds recipients for assum i ng project lo cation and design concept/scope where thes e features no t adequate ly defined for regional em issions analysis [93.105(c)(5)]. Specifies a process for consulti ng on design, schedule, and funding of research and data collection efforts and re gional transportation model developm ent by the MPO [93.105(c)(6)]. Specifies a process for providing final docum ents and supporting inform ation to each ag en cy (includin g federal ag encies ) after approval or adoption [93.105(c)(7)]. R ESO L V I NG C ONFLICTS [93.105(d)]. The process f o r resolvin g conf licts must specif y that: Unresolvable conflicts among state agencies or between state

17agencies an d an MPO shall be escalated to the Governor or Governor = s designee (designee can not be the S t ate or local air agency, State departm e nt of tr ansportation, State transportation comm ission or board, oran MPO) [93.105(d)]; The State air agency has 14 cale ndar days (the implem entation plan should define the procedures for starting the 14-day clock) to appeal to the Governor af ter the State DOT or MPO has notified th e State air ag ency head of the resolution of his or her comments [93.105(d)]; and If the State air agen cy ap peal s to the Governor, the final confor m ity determ ination must have Governor = s concurrence. If there is no appeal, the MPO or state DOT m a y proceed with the final confor m ity determ ination [93.105(d)]. P UBLIC C ON S U LT AT ION P ROC E DU RES

. Affected agencies 7 m aking conform ity determ inations on transportation plans, TIP s, and proj ects shall establish a proactive public involvem e nt process [93.105(e)]. This general requirem e nt can be satisfi ed by referencing the MPO’s procedures, 8 in addition to specifying or referencing the additional item s listed below. Consultation procedures must set out a public process that, at a mi ni mu m : Provides for reasonab l e public a cces s to technical and policy inform ation considered b y the agency at the b egin n ing of the public comm ent period and prior to taking formal action on a transportation plan or TIP confor m ity determ ination, consistent with 93.105 and 23 CFR 450.316(a) [93.105(e)]; Ensures that any charges imposed forpublic inspection or copying are reasonable [ 49 CFR 7.43, 93.105(e)]; Provides that agencies must spec if ica lly addr ess in writing all public com m e nts that plans for regionally signif i cant non-FHW A/F TA projects are not properly reflected in the em issions analysis [93.105(e)]; and Provides opportunity for public involvem e nt in project confor m ity determ inations as otherwise required by law [93.105(e)].

7 In ter a g e n c y co n s u ltatio n po rtio n s o f tr an spo r tation co nfo rmit y SI Ps should d e f in e th e “af f ected agen cies” th at are resp onsib le fo r fu lfillin g 40 C F R 93 .1 05(e) req u i remen t s. 8 Th e sp ecif ic req u i r e m e n ts and cr iter ia fo r MPO pu b lic involv e m e n t ar e set fo r th at 23 C F R 45 0.316 ( a )

. Un de r th ese re qui rem e nt s, M P Os ar e di rect e d t o pe ri o d i cal l y revi e w th ei r pu bl i c i n vol ve m e nt pr ocess t o ass u r e th at f u ll an d op en access is p r o v i ded to MPO d e cisio n - m ak in g pr o cesses ( s ee 23 CFR 45 0.316( a)( 1 ) ( x ) )

. Pu b l ic i n v o l v em ent pr ovi si ons are re vi ewe d i n th e c ont e x t o f ce rt i f i cat i on o r pl an ni n g revi e w s, whi c h ar e c o n d u ct ed by FHW A and FTA u n d e r 2 3 CFR 45 0.334 (b ) no less of ten t h an o n c e ev er y fo uryears forcer tain MPO s
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18OTH E R C ON FORMITY P ROCEDUR ES : Under Clean Air Act, as am e nded by SAFETEA-LU, confor m ity SIPs must also include confor m ity procedures that address 40 CFR 93.122(a )(4)(ii) and 93.125(c). All other federal confor m ity regulations apply autom a tically and states are no t requ ir ed to address the m in confor m ity SIPs. E N F O R CE ABL E W R IT TE N C O M M I TM EN T S RE Q U I R E D FO RE M ISSI O N S RE DU C TI O N CR ED IT : Emissions reduction credit from any control m e as ures that are not included in th e transportation plan and TIP and that do not require a regulatory act ion in order to be imple m e n ted m a y not be included in the emissions analysis unless the conf orm ity determ ination include s writte n comm itm e nts to imple m entation f r om the appropriate entities [ 93.122(a)(4)(ii)]. Language addressing 93.122(a)(4 )(ii) should include, at a m i nimu m, the following: In acco rdan ce with 40 C F R 93.122(a)(4)(ii), prio r to m aking a confor m ity determ ination on the Transportation Plan or TIP, [ insert MPO name ] will not include em issions reductioncredits f r om any control m e a s ures that are not includ ed in the T r ansportation Plan or TIP and that do not require a re gulatory action in the regional em issions analysis used in the conform ity analysis unless [ ins ert MPO name ] or FHW A/FTA obtains written comm it m e nts, as defined in 40 CFR 93.101, from the appropri ate entities to im ple m ent those control m ea sures. The written commit m ents to im ple m ent those contro l m easures mu st be f u lf illed b y the approp ria t e entities [93.122(a)(4)(ii)]. E NFORC E A B ILITY OF DESIGN CO NC E P T AND SCO P E AND P RO J EC T - LE VEL MI TI GATI ON AND CONTROL MEAS UR ES : Bef o re a conf ormity determination is m ade , written commitm ents mu st be obtain ed f o r any project-level m itigation o rcontro l m easures. [93. 125(c)] Language addressing 93.125(c) should in clude, at a mi ni mu m, the following: In acco rdan ce with 40 C F R 93.125(c), prio r to m aking a pro j ect-level conf orm ity determ inatio n f o r a transportation project, FHWA/FTA must obtain from the project s ponsor and/or operator written commit m e nt s, as defined in 40 CFR 93.101, to implem e nt a ny projec t- level mitigation o r contro l m easures in the construc tio n or operation of the project identified as conditions for NEPA process completion. The written comm it m e nts to implement those projectlevel m itigat ion or con tr o l m easures must be f u lf illed by the appropriate entities. P r ior to m aking a conform ity determ ination on the Transportation Plan or TIP, [ insert MPO name ] will ensure any projec t- level mitigation o r contro l m easures ar e in cluded in th e project design concept and scope an d are app r op riately identified in the regional em issions analysis used in the conform ity analysis. Prior to m aking a project-level conf orm ity determ inatio n, written commitm ents will be ob tained bef o re such m itigation or contr o l m easures are used in a p r oject-le vel hot-spot confor m ity analysis.

19Appendix B: Confor mity Model Rule 9
CONFORM I TY TO STATE IMPLEM ENTATI ON PL ANS (SIPs) OF TRANSPORTATION PLANS, PR OGR AMS, AND PROJ ECTS DEVELOPE D, F UNDE D OR APPROVED UNDER TITLE 23 U.S.C. OR THE FEDERAL TRANSIT LAW S I. Introduction The purpose of this state rule is to fulfill the requirem e nt in 40 CFR 51.390(b) to estab lish a SIP revision that includes the following three sections of the f ederal transpo r tation conf ormity rule:

• 40 CFR 93.105, which addresses consultation procedures;

• 40 CFR 93.122(a)(4)(ii), which st ates that conform ity SIPs must require that written comm it m e nt s to control m easures be obtained p r ior to a conf o r mity determination if the control m e a sures are not included in a m e tropolitan planning organization’s (MPO’s) transpo r tatio n plan and tr ansportationim pr ove m e nt program (TIP); and that such a commitm ent be f u lf illed; and

• 40 CFR 93.125(c), which states that confor m ity SIPs must require that written commitm ents to mitigation m eas ures be obtain edprior to a pr oject-lev el c onf ormity determ ination, and that project spons ors comply with such commit m ents. Once this state rule is approved by EPA into the [ name of state ] imple m e ntation plan, it has full legal effect. Confor m ity determinations will be governed by these criteria and proced ures as well as any applicable portions of the federal co nfor mity rules that are n o t addres sedby the state rule. II. Consultation (a) General

. This rule provides procedures for federal, st ate, and local interage ncy consultation, public consultation and resolution of conflicts. Such consultation procedures shall be undertaken by MPOs, the State department of transportation, other local transportation agencies, and DOT with State and lo cal air quality agencies and EPA be fore m aking confor m ity determ inations, and by State and lo cal air agen cies and EPA with MPOs , the State departm e nt of transportation, and DOT in developing applicable implem entation plans. (b) Interagency consultation pro cedu r es: General factors

. (1)(A) Representa tive s of the MPOs, State and local air quality planning agencies, State and local tran sp ortation agencies, and [ specify any other organizations within the State with responsibilities for developing, submitting, or im plementing provisions of an implem entation

9 Th is m o d e l ru l e was ad ap ted fro m Trans p o rt at i on a n d Ge n e ral Co nf o r

mi t y U nde r t h e C l ean Ai r, Mo del Rul e s f o r St

ate an d Loc a l Age n ci es, STA P PA -A LA PCO , Jun e 1 994. EPA w a s consu lted i n th e d e v e lop m en t o f t

h is doc um ent

.
20plan required by the CAA ] shall undertake an interagency co nsultation p r ocess in accordance with this sec tion with ea ch ot her and with local or regional of fices of EPA, FHWA, and FTA on the deve lop m ent of the SIP, the tr an sportation plan, and the TIP, and associated conform ity determ inatio ns. (B) The State air quality agency [ specify name, unless another en tity has responsibility for submittin g S I

Ps ] shall be the lead agency responsible for preparing the final docum ent or decision and for assuring the adequacy of the inte ragency con sultation p r o cess with res p ect to the developm ent of SIPs and the list of TCMs in the approved SIP. The MPO [ specify name or names, where possible ] shall be the lead agency responsible for preparing the final docum e nt or decision and for assuring the adequacy of the inte ragency con sultation p r o cess with res p ect to the transportation plan, the T I P, any am e n dm ents or revisions thereto, and any confor m ity determ inations. In the case of non-metropolitan areas, the State departm e nt of transportation [ specify nam e ] shall be the lead agency responsible for preparing th e final docum ent or decision and for assuring the adequacy of the interagency consultation process with respe ct to the developm ent of any conform ity determ inations in these areas. (C) In addition to the lead agencies identified in subparagraph (B), othe r agencies entitled to participate in any interagency c onsultation process under this rule include th e State departm e nt of transportation [ specify name ], each affected MPO [ specify name or names for each affected area ], the Federal Highway Ad mi nistration field office [specify name ] , th e Federa l Tr ansit Adm i nistration regional office [ specify name ], any county congestion m a nagem e nt agencies [ specify nam e ], the State air quality agency [ specify name ], any air quality m a nage m e ntdistrict, air pollution control district or other local air quality agency [ specify name or names for each affected area ], any other organization within the State respon sible und er State law for developing, subm itting or imple m enting transporta tion -relatedprovision s of an im ple m entation plan [ specify name, if any ], and any local transportation agency or local governm e nt as appropriate [ specify nam e or names for each affected area ]. (D) It sh all be the ro le and responsib ility of each lead agen cy in an in terag e ncy consultation process, as specified in subparagraph (B), to c onfer with all other agen cies identified under subparagraph (C) with an intere st in the docum ent to be deve loped, provide all appropriate inform ation to those agencies needed for m ean ingful input, solicit earl y and continuing input from those agencies, con duct the con sultation p r o cess describ ed in the ap p licable paragraphs of 40 CFR 93.105, where required, assure policy-level contact with those agencies and prior to taking any action, con sid er the v i ews of each su chagency and respond to those views in a tim ely, substantive written m a nner prior to any fina l decision on such docum ent, and assure that such views and written response are m a de part of the record of any decision or action. It shall be the ro le and responsib ility of each agency sp ecified in subp aragraph (C), when not fulfilling the role and responsibil ities of a lead agency, to conferwith the lead agency and other participan ts in the con sultati on process, review and commentas appropriate (including comments in writing ) o n all p r opos ed and final docum ents and decis i ons in a tim e ly m a nner, attend consultation and decision m eetings, assure policy-level cont ac t withother participants, provide input on any area of substantive expe rtise or responsibility (including planning assump tions, m odeling, infor m ation on status of TCM i mplem entation, a nd interpretation of regulatory or other requirem ents ), and provide technical assist ance to the lead agen cy or consultation process in accordance w ith this paragraph when requested.

21[To address the requirements of 93.105(b)(2)(i ) and (ii) ] (E) Specific roles, respo n sibili ties, and organizational level of various participants in the interagency consultation pro cess sh all be as follo ws [Note: T h is is a par tial, illustra tive list only. Current responsibilities and needed a ssig n ments sho u ld be taken into accoun t.] : (i) The S t ate air qu ality agency [ or local air quality agency, if appropriate under State law; specify name; these functions may ha ve to be a llo ca ted between State and local agencies to reflect S tate law ] shall be responsib le for developing (I) emissions invento ries, (II) emissions budgets, (III) air quality modeling, (IV) SIP demonstrations , including em issions budgets as necessary, (V) any SIP TCMs, and (VI) ...; (ii) The MP O [ specify n ame ] shall be respons ible for (I) dev e loping tran sportation p l ans and TIPs, (II) evaluating TCM transportation im pacts, (III) developi ng transportation and socioeconom i c data and planning assumptions fo r use in em issions analysis to determ ine confor m ity of transportation plans, T I Ps, and projects, (IV) monitoring regionally significant projects, (V) developing system - or facility-based or other pr ogramm atic TCMs, (VI) providing technical an d policy inp u t on emissions budge ts, (VII) perform i ng transportation m o deling, regional em issions analyses and docum entation of tim ely impl em entation of TCMs ne eded for confor m ity assessm ents, and (VIII) ...; (iii) The State departm e nt of transportation [ specify name ] shall be responsible for (I) providing technical input on proposed revisi ons to m o tor vehicle em issions factors, (II) distributing draft and final project environm ental docum ents to ot her agencies, (III) convening air quality technical review m eetings on specific projects when request ed by other agencies or as needed, and (IV) ...; (iv) FHWA and FTA shall be responsible for (I) assuring tim ely action on final findings of confor m ity, after consultation with other agenci es as provided in this section, (II) providing guidance on the transportation pl anning process to agencies in interagency consultation, and (III) ...; and (v) EPA shall be responsible for (I) review ing, finding adequate, and approving updated m otor vehicle em issions budgets, (II) providing guidanc e on conform ity criteria and procedures to agencies in interagency consultation, and (III).... [NOTE: The model rule in paragr aph (2) below expresses general principles of consultation. It is not intended to be adopted in th is form, but should be adapted to the circu m stances of the State, the usual relation ships of parties to the negotiation, and other factors. A State may wish to adopt more than one consultation procedure, w ith differing complexity, to apply to different documents or decisions, as appropriate for the subject matter. An approvable conformity implementation plan revision will need to in corporate more detail on co nsultation than provided by this model rule. Among the terms that may req u ire furthe r definition b y the State are "early in the process,” “ timely,” “period for revi ew,” “policy level,” “ the reco rd of any decision or action,” “ all relevant documents ,” “ all appropriate information,” “consider” and “respond." Where "fin al document" is referred to, this shall also include any decisions or actions not requiring a specific document.]

22[ T o address the requ irements of 40 C FR 93.105(b)(2)(iii) , (iv) , (v) , and (vi) ] (2)(A) It shall be the affirm ative responsibility of the agen cy with the re sponsibility f or preparing the final docum ent or decision subjec t to the inte ra gency consu lta tion pro ce ss to initiate the process by notifying other participan ts, convene consultation m e etings early in the process of decision on the final docum ent, appoi nt the convenors of t echnical m eetings, and assure that all relevant docum e nts and inform ation are supplied to all participants in the consultation process in a tim ely m a nner. (B) Regular consultation on m a jor a ctiv ities suc h as the dev elopm ent of a SIP, the developm ent of a transportation plan, the developm ent of a TI P, or any determ ination of confor m ity on transportation plans or T I Ps, shall include m eetings at regular, sche duled intervals no less frequently than [insert frequency - monthl y/quarterly/ semiannually to d etermine ap propriate interval for the agencies and subject matter involved] and shall be attended by representatives of each agency

. In addition , technical m eetings shall be convened as necessary. (C) Each lead agency inthe consu ltation pro ce ss required under this sec tio n (tha t is, th e agency with the responsibility f or preparing the final do cum e nt subject to the interagency consultation process) shall confer with all other agencies iden tified under paragraph (1) w ith an interest in the docum ent to be developed, provide all appropriateinform ation to those agencies needed for m eaningful input, and, prior to taking any action, consider the views of each such agency and respond to those views in a tim ely, substantive w r itten m a nner prior to any final decision on such docum ent. Such views and written response shall bem a de part of the record of any decision or action. (D) The lead agency for developing the SIP will prepare a lis tof the TCMs in the ap proved SIP and provide this lis tto th e interagency consul tation process in accordan ce with parag r aph (b). [To address the requirements of 93.105(c ) ] (c) Interagency consultation pro cedu r es: Specific processes
. (1) An interagency consultation process in ac cordance with paragraph (b) involving the MPO, State and local air quality pla nning agencies, S t ate and local transportatio n agencie s , EPA, FHWA, and FTA shall be undertaken for the following: (i) Evaluating and choosing a m odel (or m odels) and associated m e thods and assump tions to be used in hot-spot analyses and regional em issions analyses to be initiated by [ identify lead agency ] and conducted in accordan ce with parag r aph (b). (ii) Determ i ning which m i nor arterials and othe r transportation projects should be considered "regionally significant" for the purposes of regi onal em issions analysis (in addition to those functionally classified as principal arterial or high er or fixed guideway system s or extensions that of

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er an alte rnative to re gional h i ghway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP, to be initiated by [ identify lead agency ] and conducted in accordan ce with parag r aph (b); (iii) Evaluating whether projec ts oth erwise ex empted from m eeting the requirem e nts of 40 CFR Part 93 (i.e. projects describe d in 40 CFR 93.126 and 93.127) should be treated as non-exempt in

23cases where potential ad verse emissions im pacts m ay exist for any reason , to be initiated by [ identify lea d agency ] and conducted in acco rdance with parag r aph (b); (iv) Making a determ ination, as required by 40 C F R 93.113(c)(1), whether past obstacles to imple m entation of TCM s which are behind th e schedule established in the applicable imple m entation plan have been identified and are being overcom e, and whether S t ate and local agencies with influence over approvals or f unding for TCMs are giving maximu m pri ority to approval or funding for TCMs, to be initiated by [ identify lea d agency ] and conducted in accordan ce with parag r aph (b). This consultatio n process sh all also cons ider wheth e r delays in TCM i mplem entation necessitate revisions to th e applicable imple m entation plan to rem ove TCMs or substitu te TC Ms or othe r emission red u ction m easures; (v) Notif ic a tion of tran s porta ti on plan or TIP revisions or amendm ents which m e rely add or delete exempt projects listed in40 C F R 93.126, to be initiated by [ identify lead agency ] and conducted in accordan ce with parag r aph (b); (vi) Choosing confor m ity tests and m e thodologi es for isolated rural nonattainm e nt and m a intenance areas, as required by 40 CF R 93.109(1)(2)(iii) to be initiated by [identify lead agency ] andconducted in accordan ce with parag r aph (b). (2) An interagency consultation process in ac cordance with paragraph (b) involving the MPO, State and local air quality planni ng agencies, andState and lo cal tr anspo r tation ag encies, shall be undertaken for the following: (i) Evaluating events w hich will trigger new co nfor m ity determ inations in addition to those triggering events established in40 CFR 93.104, to be initiated by [ identify lead agency ] and conducted in accordan ce with parag r aph (b); an d (ii) Consulting on em issions analysis for tran sportation activities which cross the borders of MPOs or nonattainm e nt areas or ai r basins, to be initiated by [ identify lea d agency ] and conducted in accordan ce with parag r aph (b). (3) W h ere the m e tropolitan planning area doe s not include the entire nonattainm e nt or m aintenance area, an inte ragency con sulta ti on process involving the MPO and the State departm e nt of transportation sh all be undertaken for cooperative planning and analysis for purposes of determ ining confor m ity of all proj ects outside the m e tropolit an area and w ithin the nonattainm e nt or m a intenance area, to be initiated by [ identify lead agency ] and conducted in accordan ce with parag r aph (b). (4)(i) An interagency consultation process in accordance with paragraph (b) involving the MPO, State and local air quality pla nning agencies, S t ate and local transportatio n agencie s, and recipients of funds designated under title 23 U. S.C. or the Federal T r ansit Act shall be undertaken to assure that plan s for construction of regionally significant projects which are not FHWA/FTA projects (including p r ojects for which alternativ e locations, design concept and scope, or the no-build option are st ill being considered), including all those by recipients of funds designated under title 23 U.S.C. or the Federa l Tr ansit Ac t are disclos ed to the MPO on a regular basis, and to assure thatany changes to those plan s are imm e diately disclosed.

24(ii) During prepar ation of the transp ortation planand TIP, th e MPO will request thatparticipan ts of the interagency cons ultation process identify all non-FH WA/FTA transportation projects and their design concept and scope, including those w h er e detailed design features have not yet been decided, and determ ine which ones m eet the defi nition of regionally significant for regional em issions modeling. Any recipient of federa l funding, as defined in 40 CFR 93.101, is required to disclose to the MPO infor m ation regarding all non-FHW A/F TA regionally significant projects and any changes to these plans shall be imm e dia t ely disclosed. (5) An interagency consultation process in accordance with paragraph (b) involving the MPO and other recipients of funds de signated under title 23 U.S.C. or the Federal Transit Act shall be undertaken for assum i ng the location and design con cept and scope of projects that are disclosed to the MPO as required by paragr aph (c)(4) of this section bu t whose sponsors have not yet decided thes e features, in sufficient detail to pe rform the regional em ission s analys is according to the requirem ents of 40 CF R 93.122, to be initiated by [ identify lead agency ] and conducted in accordan ce with parag r aph (b). (6) An interagency consultation process involving the MPO, State and local air quality planning agencies, and State and local transportation agencies, shall be undertaken for the design, schedule, and funding of research and data collection efforts a nd regional transportation m odel developm ent by the MP O (e.g., household/ travel transportation surveys) , to be initiated by [ identify lea d agency ] and conducted in acco rdance with parag r aph (b). (7) A process for providing final docum ents (incl uding SIPs, transportation plans, TIP s, plan/T IP am endm ents and conformity determinations) an d supporting inform ation to each ag ency after approval or adoption. T his process is appli cable to all agencies including MPOs, State departm e nt of transportation, State and local air quality agencies, FHWA, FTA and EPA. (d) Resolving conflicts

. (1) Any conflict am ong State agencies or between State agencies and an MPO shall be escalated to the Governor if the conflict cannot be resolved by the heads of the involved agencies. In the first ins t ance, such agen cies shall m ake every effort to resolve any differences, including personal m eetings between the heads of such agenci es or their policy-level repr esen tatives, to the extent possible. (2)(A) The State a i r qua lity agency has 14 calen dar days to appeal a p r op osed dete rmination of confor m ity (or other policy d ecision under this rule) to the Go vernor after the State DOT or MPO has notified the State air qual ity agency of the resolution of all comm ents on such proposed determ ination of confor m ity or policy decision. Such 14-day period shall comm enc e when the MPO or the State DOT has confirm e d receipt by th e directo r of the State air ag ency o f the resolution of the comm e nts of the State air quality agency. If the State air quality agency appeals to the Governor, the final conform ity determ inati on must have the concurrence of the Governor. The State air quality agency must provide notice of any appeal under this subsection to the MPO and the State DOT. If t he State air quality agency does not app eal to the Governor within 14 days, the MPO or State DOT m a y pr oceed w ith the final conform ity determ ination.

25(B) In the case of any comm ents with regard to any proposed determ ination of conform ity, the State DOT has 14 calend ar days to ap peal a p r oposed determ ination of confor m ity (or other policy decision under this rule) to the Governor after the MPO ha s notified the State air quality agency or the State DOT of the resolution of all comm ents on such proposed determ ination of confor mity or policy decision. Such 14-day period shall commence when [ insert de fining a ction , e.g., the MP O has confirmed receip t by the director of the S ta t e air ag ency or the S tate DOT of the resolution of the com m ents of the State DOT ]

. If the State DOT appeals to the Governor, the final conform ity determination mu st have the co ncurrence of the Governor

. The State DOT must provide no tice of any appeal under this subsecti on to the M P O and the State air quality agency. If the State DOT does not appeal to the Governo r within 14 days , the M P O m ay proceed with th e final conform ity determination. (3) The Governor m a y delegate the role of hearing any such appeal under this subsection and of deciding whether to concur in the confor m ity determ ination to another of ficial or agency within the State, but not to the head or staff of the State air quality agency or an y local air q u ality agency, the State departm e nt of transportati on, a State transportation com m i ssion or board, any agency that has responsibility for onl y one of these functions, or an MPO. (e) Public cons ultation procedures

. The [ list affe cted agenc ie s ] m aking confor m ity determ inations on transportation plans, program s, and projects shall establish a nd m ake available a proactive pu blic involvem e nt process which provides opportunity for public review and comm ent. At a m i ni mu m, this process should include p r ov iding reason able public access to t ech nical and po licy inform a tion considered by the agency at the beginning of th e public comment period and prior to taking for m al action on a conf orm ity determ inatio n f o r all tran sportation plans and TIP s , consistent with those requirem e nts and thos e of 23 CFR 450.316(a). Charges imposed for public inspection and copyi ng are consistent withthe fee schedule contained in 49 CFR 7.43. In addition, [ list th e age ncies ] will s p ecif i ca lly a ddress in writing all pub lic comm ents that known plans for a regionally signi ficant project which is not r eceiving F H WA or FTA funding or approval have not been properly reflected in the emissions an alysis supporting a proposed confor m ity finding for a transp ortation plan or TIP. [ List the agencies ] will also provide opportunity for public involvem e nt in confor m ity determ inations for projects where otherwise required by law. III. Commit m ents for Regio n al Emissions Analysis In acco rdan ce with 40 C F R 93.122(a)(4)(ii), th e [ identify MPO ] will not include emissions reduction credits from control m easures that ar e not included in the transportation plan or transportation improve ment program and that do not require a regulatory action in the regional emissions analysis u sed in the conform ity determination unless [ identify n a me of MPO ] or FHWA/FTA obtain written comm it ments, as defined in 40 CFR 93.101, from the appropriate entities to implem e nt those control m easures. The written c o mm itm ents to implem ent those contro l m easures mu st be f u lf illed b y the approp ria t e entities

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26IV. Comm it m e nts for Project-Leve l Mitigation and C ontrol Measures In acco rdan ce with 40 C F R 93.125(c), prio r to m aking a pro j ect-level co nfor m ity determ ination f

o r a transpo r ta tion pro j e ct, FHW A/FTA mu st obt ain from the project sponsor and/or operator a written comm it m e nt, as defined in 4 0 CFR 93.101, to implem ent any project-lev el m itigation o r control m e a sure in the constructi on or operation of the project id entified as a condition for NEPA process comp letion. The written comm it m e nt to implem ent such a project-level m itig ation o r contro l m easure mu st be f u lf illed by the approp riate en tity. P r ior to m aking a conf ormity determ inatio n f o r the tr a n s portation plan or TIP, [ identify name of MPO ] will ensu re any proje ctlevel m itiga t ion or con tr o l m easures f o r which a written comm itm ent has been m ade are in cluded in the p r oject design con cept and s co p e and are appropriately identified in the regional em issions analys is use din the conf ormity analy sis. Wr itten comm itm ents mu st be obtained b ef o re such m itigation o rcontro l m easures ar e us ed in a pro j e ct- level ho t- spot conf or m ity analysis f o r a project-level determ ination.

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