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. 312 Rosa L. Parks Avenue, 8th FloorTennessee Tower ' Nashville, TN37243

Phone: 615·741-2650

.. Fax: 615-741-5133 !. Email: reglsler.inlormalion@tn.gov 

### For Department ofState UseOnly ' Sequence Number: 

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### aresullofarulemakinghearing. TCA Section 4-5-205



### ·**A!fE>~cy/Board/Commls_sion:** 

## !Environrrienl&.conservation Division: : Air Pollution Control -contact Person:

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### Zip:,.L:F?4.3-1531

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### 615.532.0616 Email: 

### ! marc.corrigan@tn.gov RevisionType (checkallthatapply): x Amendment New

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sse 7039 

### (July2009)(Placesubstance of rules and other info here. Statutoryauthoritymust be given foreach rule change. For information on formattingrulesgo to http://state.tn.us/sos/rules/1360/1360.htm) Chapter 1200-03-34 Conformity Amendments The Table of Contents to Rule Chapter 1200-03-34 Conformity is amended by deletingthe title of 1200-03-34-.01 "Conformity of Transportation Plans, Programs, and Projects" and replacing it with the new title "Transportation Conformity Interagency Consultation and General Provisions" so that, as amended, the title of 1200-03-34-.01 in theTable of Contents shall read: 1200-03-34-.01 Transportation Conformity InteragencyConsultation and General Provisions.

Rule 1200-03-34-.01 Conformityof Transportation Plans, Programs, and Projects is amended by deleting it in its entiretyand replacing with the following sothat, as amended Rule 1200-03-34-.01 shall read asfollows: 1200-03-34-.01 Transportation Conformity InteragencyConsultationand General Provisions (1) InteragencyConsultation Procedures (a) General.
1. Pursuant to 40 CFR §51.3go, this document provides for interagency consultation (federal, state, and local), resolution of conflicts, public consultation procedures (per 40 CFR §g3.105) and written commitments to control measures (40 CFR §93.122(a)(4)(ii)) and mitigation measures (40 CFR §93.125(c)). Such consultation procedures shall be undertaken by Metropolitan Planning Organizations (MPOs}, the State department of transportation, and the Federal HighwayAdministration (FHWA} and the Federal Transit Administration (FTA) with State and local air quality agencies and the Environmental Protection Agency (EPA) prior to making conformity determinations, and by State and local air agencies and EPA with MPOs, the State department of transportation, and FHWA and FTA in developing applicable implementation plans. 2. The provisions of this rule shall apply in all nonattainment and maintenance areas for transportation related criteria pollutants or precursor pollutants for which the area is designated nonattainment or has a maintenance plan, and with respect to all actions outside any nonallainment area that in the judgment of the Tennessee Air Pollution Control Division (TAPCD) may cause or contribute to a new violation or increase the frequencyorseverity of anyexisting violation of anystandard in any nonattainment area, or delay the timely a1tainment of any standard or any required interim emissions reduction orother milestone in any nonattainmentarea. ExhibitA illustrates stakeholders currently subject to this rule. Exhibit A is for illustrative purposes only; stakeholders need not be listed to be subjecttothis rule. 3. Definitions:

SS-7039(July 2009) Terms used but not defined in this rule shall have the meaning given them by the Clean Air Act, titles 23 and 49 U.S.C., other Environmental Protection Agency (EPA} regulations, or other United States Department of Transportation (DOT) regulations, in that orderofpriority. (i} Local air agencies are those agencies which are charged under law with the control of air pollution existing within the geographic boundaries of the political subdivisions, as defined 

### bythe Tennessee Air QualityAct, T.C.A. §§68-201-101, 

### etseq., organized and existing under the laws ofthe State of Tennessee.

2(ii) Local transportation agencies are puhlicly owned transportation agencies which provide mass transportation hy hus or rail which provides general service to the puhlic on a fixed route on a regular and continuing oasis. 

### It does not include school buses orcharter orsightseeing services, van pools, or small trolleyfleets. (iii) Project means a highwayprojectortransit project. (iv) TAPCD means theTennesseeAir Pollution Control Division. (v) TOOT.means the Tennessee Departmentof Transportation. (h) Interagencyconsultation procedures: Generalfactors. 

### 1.



### 2.

3.



### 4.

5.

SS-7039 (July 2009) Representatives of the MPOs, State and local air quality planning agencies, State department of transportation, and local publicly-owned transportation agencies not represented by an MPO, shall undertake an interagency consultation process in accordance with this rule with each other and with the EPA, FHWA, and FTA.on the development of the implementation plan, the transportation plan (Plan), the Transportation Improvement Program (TIP}, any revisions to the preceding documents, and all conformitydeterminations required by this rule. The TAPCD, also referred to as the State air agency, shall be the lead agency responsible for preparing the final documentordecision andfor assuring the adequacyof the interagency consultation process with respect to the development of applicable transportation related implementation plans and control strategy implementation plan revisions. MPOs subject to conformity shall be the lead agencies responsible for preparing the linal document or decision and for assuring the adequacy of the interagency consultation process with respect to the development of the long range transportation plan, the Transportation Improvement Program (TIP), and any amendments or revisions thereto, andfor providing assistance for technical analyses byemploying travel-demand modeling techniques and acquiring all necessary data in the metropolitan area{s) under their jurisdiction. In the case of non-metropolitan areas, the TOOT shall be the lead agency responsible for preparingthe final documentor decision and for assuringtheadequacyof the interagency consultation process with respect to the development of the Statewide long range transportation plan, the Statewide Transportation Improvement Program (STIP), and any amendments or revisions thereto and for providing assistance for technical analyses ·by employing travel-demand modeling techniques and acquiring all necessarydata in non-metropolitan areas. In addition to the lead agencies identified in parts 

### 2 and 

### 3 of this subparagraph, other agencies entitled to actively participate in the interagencyconsultation process under this rule include: the FHWA, the FTA, EPA, and local airagencies. It shall be the role and responsibility of each lead agency in an interagency consultation process, as specified in parts 2 and 3 of this subparagraph, to confer with all other agencies identified in parts 

### 1 through 

### 4 of this subparagraph, provide all appropriate information to those agencies needed for meaningful input, solicit early and continuing input from those agencies, conduct the consultation process described in 40 CFR §93.105, assure policy-level contact with those agencies, consider the views of each agency and respond to those views in a period not to exceed thirty (30) d(lys from the date received, prior to any final decision on such document, and assure that such views and written response are made part of the record of any decision or action. Each lead agency shall provide all necessary documentation for review at the initiation, or prior to, the review and comment period. Informationfor scheduled meetings will bedistributed to participants at least seven (7) days before the scheduled meeting. Itshall be the role and responsibility of each agency specified in parts 

### 1 through 

### 4 of this subparagraph, when not fulfilling the role and responsibilities of a lead agency, to confer with the lead agency and other participants in the consultation process, review and comment as appropriate 3

### (including comments in writing) on all proposed documents and decisions in a period not to exceedthirty (30) days, altend consultation and decision meetings, assure policy·level contact wilh other participants, provide input on any area of substantive expertise or responsibility, and provide technical assistance to the lead agency or consultation process in accordance wilh 40 CFR §93.105 when requested. 6. It shall be the responsibility of the MPOs, the State and local air agencies, and the State and local transportation agencies identified in parts 1 through 4 of this subparagraph·to schedule and convene meetings for their own agencies, and to notify all other agencies involved in the conformity process of these scheduled meetings at least fourteen (14) days in advance, unless such meetings are of an internal nature and not immediately related to the conlormity process. However, the participants maywaivethe fourteen (14) dayadvance notice requirement if all participants agree that an earlierscheduled meeting is in the best interest of the parties. Scheduling changes shall be coordinated in atimely manner. The lead agency will develop draft documents, record notes and distribute agendas prior to meetings (in person or byconference calls orother practical electronic means). The lead agency shall provide all appropriate information to those agencies needed for meaningful input and provide all draft and supportive documentation (hard copy or electronicformat) in atimely mannerto participating agencies. The lead agency responsible lor preparing the final document subject to interagency consultation shall assure that all relevant documents and information are supplied to all participants in the consultation process priortothe release forpublic review.
7. Consultation on specific issues; other than the continual process of keeping· all the agencies informed on all conformityand State Implementation Plan (SIP) actions, maybe initiated at any time during the document development process by any of the agencies specified in parts 1 through 4 of this subparagraph. It 

### shall be the responsibility of the initiator to ensure that all other agencies identified in parts 1 through 4 of this subparagraph are notified of any such action. All agencies so notified must respond tb the issue(s) raised within fourteen (14) days, unless an alternate schedule is agreed upon by all participants. 8. It 

### shall be the responsibility of the MPOs subject to this rule, and TOOT, to provide the State and local air agencies specified in this rule with the latestversion ofthe TIPor STIP and the transportation plan. 9. It 

### shall be the responsibility of the State and local air agencies to provide the MPOs, TOOT, FHWA, FTA and EPA with the latest version of the SIP as it applies to transportation conformity, in particular, attainment and maintenance plans. 10. It 

### shall also be the responsibility ofeach of the agencies specified in parts 1 through 4of this subparagraph to keep their own superiors and constituents properly informed of conformity determinations, as well as making this information available for the general public. 11. The agencies specified in parts 1 through 4 of this subparagraph may employ consultation services attheir own discretion. (c) Specific roles and responsibilities of various participants in tM interagency consultation process shall be as follows: 1. TAPCD and the local air agencies shall be responsible for, in relation to SIP development, the following:

SS·7039(July2009) (i) (ii) 

### (iii) Developing emissions inventories; Developing emissions budgets; Conducting air qualitymodeling;

4--


### (iv) (v) (vi)
(vii) (viii) (ix) Developing attainment and maintenancedemonstrations; Revising control strategyimplementation plans; Regulatory Transportation Control Measures (TCMs) intended 10 provide enforceable emission reductions; Compiling motorvehicle emissionsfactors; Meeting all EPA reporting requirements relatedto airquality; and Respondingto all comments concerning the SIP. The local air agencies shall be responsible fortheir areas ofjurisdiction,with the State air agency being responsible for all remaining counties, as well as being responsible for ensuring that the local air agencies fulfill these tasks. Local air agencies may request assistance from the State airagency in anyofthe responsibilities listed here. 2. The MPOs subject to the conformity rule shall be responsible for, in their area(s) of jurisdiction, thefollowing:



### 3.

88-7039 (July2009) 

### (i) Developing and monitoring transportation plans andTIPs; (ii) Evaluatingthetransportation impacts and feasibilityofTCMs; (iii) Developing transportation and socioeconomic data and latest planning assumptions and providing such data and planning assumptions to TAPCD for use in airqualityanalysis; (iv) Developing system- or facility-based or other programmatic (non-regulatory) TCMs; (v) Providing technical and policyinput on emissions budgets; (vi) Performing transportation modeling, including: (I) Selecting and evaluatingsuch models; (II) Documenting their use in conformitydeterminations; and (Ill) Alerting, for comment, the agencies identified in parts (b)1 through 4 of this paragraph when any new model is being tested or employed, and; (vii) Developing draft and final conformity determination documents for all transportation plans, TIPs and projects; (viii) Monitoring and coding regionally significant projects into the transportation networks; (ix) Developing statistical information such as vehicle miles travelled (VMT), vehicle mixand vehicle speeds for use in on-road mobile emissions analysis; (x) Making elections regarding the timeframe of the conformity determination under 40 CFR §93.106(d); and (xi) Identifying planning assumptions and evaluating those assumptions for consistencywith SIP assumptions. TheTennessee Department ofTransportation shall be responsible for:

5

## '

(i) Developingthe Statewidetransportation plan and STIP; (ii) Providing technical input on new and proposed revisions to motor vehicle emission budgets; (iii) Distributing draftandfinal environmental documentsto other agencies; (iv) Providing the transportation related information needed for mobile emissions analysis; 

### (v) Developing the statistical information, such as VMT, vehicle mix, and vehicle speeds, for use in on-road mobile emission analysis for areas outside the MPO boundary; (vi) Developing the draft document(s) related to the NEPA process, providing it for review, respondingtocomments and preparing the final document(s); (vii) Performingtransportation modeling, including: (I) Selecting and evaluating such models; (II) 

### Documentingtheir use in conformity determinations; and (Ill) Alerting, for comment, the agencies identified in parts (1>)1 through 4 of this paragraph when any new model is l>eing tested oremployed, and; (viii) Making conformitydeterminations for areas oulside ofthe MPO l>oundary; (ix) Convening consultation to cooperatively choose the appropriate conformity test(s) and methodologies for use in isolated rural nonattainment and maintenance areas, as required l>y40 

### CFR §93.109(1)(2)(iii); and (x) 

### Convening air quality technical review meetings on specific projects when requested byotheragencies oras needed. 

### 4. FHWAand FTAshall l>e responsible for: (i) Ensuringtimelyaction on final determinations of conformitywithin thirty (30) 

### days of receiving a formal conformity determination, after consultation with other agencies as provided in this rule and 40

### CFR §93.105; 

### (ii) Providing guidance on conformity and the transportation planning process to participating agencies in interagency consultation; and (iii) Reviewing and commenting on conformitydeterminations.
5. 

### EPAshall be responsiblefor:

SS-7039

### (July 2009) 

### (i) Reviewing motor vehicle emissions budgets in submitted SIPs and finding them adequate or inadequate based on adequacy criteria and procedures; (ii) 

### Providing guidance on conformity criteria and procedures 

### to agencies in interagencyconsultation;· (iii) Approving or disapproving submitted SIP revisions (includingTCMs); (iv) Providing modeling and emissions inventory development assistance to TAPCD, TOOT and MPOs; and

6

### (v) Providing comments on the regional emrssrons analyses and conformity determination of transportation plans, TIPs and projects. (d) Conformitydeterminations: 1. All conformity determinations shall be initialed bythe sponsor of the transportation plan, program or project subjecttothe conformityrule: (i) MPOs shall be responsible for initiating conformity determinations for plans, programs or projectswithin the specificMPO boundary; (ii) TDOT shall be responsible for initiating conformity determination for plans, programs or projects external to an MPO boundary, including isolated rural nonattainmentand maintenance areas as required by 

### §93.109(1)(2)(iii); and (iii) MPOs and TDOT shall employ interagency consultation procedures to ensure compatibility of conformity determinations for the same or overlapping nonattainment or maintenance area(s). 

### 2. It shall be the responsibility of the MPOs subject to conformity and TDOT to submit any conformity determinations to the FHWA, FTA, EPA, TACPD, local air agencies, TOOT, if not the sponsor, and local publicly-owned transportation agencies not represented by an MPO for review and approval before the plan, program or project subject to the conformity rule maybe found to conform, orfound to be exempt. 3. All conformity determinations with all supporting documentation and data shall be made available for review and comment to the TAPCD, local airagencies, FHWA, FTA and the EPA no less than thirty

### (30) days priorto presentation to a policymaking body (electronic copy acceptable). Shorter review periods may be allowed occasionally in emergency situationswith participantconcurrence. 

### 4. All conformity determinations shall also be made available to the general public, as defined in subparagraph (h) ofthis paragraph. 

### 5. Conformity determinations, at a minimum, should include written· documentation of the following: (i) All the input run streams for the latest mobile emrsstons model and latest planning assumptions on the date that the conformity analysis began (with the beginning date and the criteria used to identify this date specified), and attestation that the latest mobile emissions model is being used; (ii) Transportation related inlormationand assumpti9ns used for input intothe mobile model, such as, vehicle miles traveled, vehicle speeds, and vehicle mix, along with a brief description of ihe source of this information, including documentation of anytransportation related models used; (iii) A description of the project, plan or program that is the subject of the conlormity or exemption status determination(s); and (iv) TAPCD may request further documentation; however, the agency making the conformity demonstration may appeal to the Technical Secretary if the request seems unreasonable.


### 6. TAPCD (and/or local air agencies, where applicable) shall review and provide written comment on final conformity determinations within fourteen (14) 

### days of the date received. This process shall consist of: (i) Review ofmobile emissions model inputs and outputs;

SS-7039

### (July2009) 

### 7(ii) Verificationthat the latest mobile emissions model and planning assumptions are being used; (iii) Review ofthe reasonableness of transportation related data; and (iv) Ensuring consistency with the emissions budget and/or the interim emission tests, as applicable.
7. It shall be the responsibility of the MPO (or the TDOT, where applicable) making a conformity determination, to provide TAPCD and the applicable local air agencies, FTA, FHWAand the EPAwith documentation ofthe conformitydetermination. 

### 8. It shall be the responsibility of TAPCD to provide affected MPOs, FHWA, FTA, EPA, local air agencies and TDOT with appropriate information regarding any SIP changes that could impacttheconformityprocess. 

### 9. It shall be the responsibility of the EPA to provide TAPCD and local air agencies and FTA, FHWA, TDOT, and the affected MPOs information regarding changes to the ConformityRulethat could impactconformity determinations.
10. Emissions reduction credit from control measures that are not included in the transportation plan and TIP and that do not require a regulatory action in order to be implemented may not be included in the emissions analysis unless written commitments to implementation are obtained by the MPO (or TDOT, where applicable) prior to the conformity determination and such commitments must be fulfilled by the implementing entities. This rule satisfiesthe requirement

### of 40CFR §93.122(a)(4)(ii).
11. Written commitments to mitigation measures for project-level mitigation and control measures must be obtained by FHWA (or FTA for transit related projects), from project sponsors, prior to a positive project-level conformity determination, and that project sponsors must comply with such commitments. This rule satisfies the requirement of 40 CFR §93.125(c).
12. In order to assure the most recent planning assumptions are in place at the time the conformityanalysis begins, the "lime the conformity analysis begins" is to be determined by interagency consultation. This point in time should occur at the point at which the MPO (orTDOT,when applicable) orother designatedagencybeginsto modelthe impact of the transportation plan or TIP on travel and/or emissions. New data that becomes available after an analysis begins is required to be used in the conformity determination only ifa significantdelay in the analysis hasoccurred, as determined through interagency consultation. 13. Consultation shall be undertaken, and conducted in accordancewith this rule, to evaluate events which will trigger new conformity determinations in addition to those triggering events established in 40 CFR §93.104, including any changes in planning assumptions, that may trigger a new conformity determination. The consultation process pursuant to this rule shall be initiated by FHWA, EPA. TAPCD, TDOT, orthe MPO where one exists. (e) Implementation Plans: 

### 1.



### 2.

SS-7039(July2009) Any proposed revisions to the SIP, which may have a direct or indirect effect upon the motorvehicleemissions budgetloran areasubjectto conformity, shall be madeavailable to the MPOs specified in this rule, as well as TDOT, FHWA, FTA, and EPA in written or electronic form for their review and comment at least thirty (30) days before presentation to the Tennessee Air Pollution Control Board. Shorter review periods may be allowed occasionally in emergencysituationswith participant concurrence. TAPCDshall also providethe public a period from the dateofannouncementto comment on any proposed SIP revisions which may have a direct or indirect effect upon the motor·

8vehicle emissions budget for an area subject to conformity, as defined in subparagraph (h) of this paragraph.
3. Any proposed revisions to the SIP shall include documentation on methods of analysis, models employed and purpose ofthe revision. 

### (f) Otherprocesses: 1. TAPCD shall be responsible for the process whereby MPOs, local air agencies, TDOT, FHWA, FTA and EPA shall studyand develop supplementaryconsultation procedures to identify, evaluate and address, as needed, the following issues. In the absence of supplementary consultation procedures, TAPCD will include the following items lor discussion during interagency consultation meetings in advance of a conformity determination: (i) Hotspotanalysis methods, modelsand assumptions; (ii) Determination of regionally significant projects and projects considered to have a significant change in designconceptand scope; (iii) Evaluatingwhen exemptprojectsshould betreated as non-exempt; (iv) Timelyimplementationof TCMs andprocessingofTCMsubstitutions; (v) Identifying conformity determination triggers other than those established in 

### 40 CFR 

### §93.104; and (vi) Methods, modelsand assumptionsfor regional emissions analysis. 

### 2. These supplementary procedures (in part 

### 1 of this subparagraph) may be specific for each metropolitan area or each nonattainment or maintenance area subject to the conformityrule. 

### 3. TAPCD shall conduct meetingsto discuss anysupplementaryconsultation procedures as needed. 

### 4. Final document distribution for conformitydeterminationsassociatedwith Plans, TIPs and STIPs (occasionally, alternate schedules may be used with concurrence byparticipants): (i)

(ii)
(iii)

(iv)

SS·7039 (July2009) The final air quality conformity determination, necessary supporting documentation and the Plan and TIP will be submitted to the FHWA Division Office, the FTA Regional Office, the EPA Regional Office, TDOT, TAPCD and any applicable local air agencies. EPA will respond in writing, to the FTA Regional Officeand FHWA Division Office, as soon as possible but not laterthan thirty(30) days from the date received; Comments will be resolved by FHWA and FTA, in concert with EPA, with the MP·o orTDOT, in their respective areas, as necessary; FHWA and FTA will jointly prepare correspondence to make the conformity finding. Joint conformity findings will be addressed to the MPO (or TDOT where no MPO exists), with a copyto TDOT, EPA, TAPCD and any applicable local air agencies. Thefindings of FTAand FHWAtogetherconstitute the DOTconformity findings; In the event that the MPO orTDOT in their respective areas, wishes to amend the TIPto add projects thatare exempt from the conformityanalysis requirement, FHWA or FTA or both, if necessary, will concur in the amendment and re-affirm the original DOT conformity finding by letter. This re-affirmation letter will reference the date(s) of the original FHWA and FTAfindings. In cases where the 

### 9

### amendment involves projects that are not exempt, a new conformity analysis and determination will be required, and will, in turn, require a new DOT conformity finding. Within fifteen (15) days subsequent to approval and adoption of final documents, including transportation plans, TIPs, conformity determinations, applicable implementation plans and implementation plan revisions, the lead agency shall provide copies (electroniccopies acceptable) of such documents and supporting information to all affected agencies. 

### 5. Generalized hot-spot determination process: Interagency consultation shall be undertaken to evaluate and choose a model(s), associated methods and planning assumptionsto be used in hot-spotanalyses. Generalized hot-spot determination process (occasionally, alternate schedules may be used with concurrence by participants): (i) The project sponsor (orTDOT or the MPO), will seek consensus if the project is believed to be exemptfrom hot-spot analysis. This can be accomplishedthrough electronictransmittal, providingfor aminimum of fourteen (14) 

### days for review. 

### If requested, an additional fourteen (14) 

### days will be provided for review, as well as anyadditional information needed to makethe determination; (ii) 

### Ifthe project is not exempt, the project sponsor (orTDOTorthe MPO)will collect and organize and distribute specific data needed to determine whether nonexempt projects are or are not of air quality concern. This can be accomplished through electronic transmittal, providing for a minimum of fourteen (14) 

### days for review. If 

### requested, an additional fourteen (14) 

### days will be provided for review, as well as any additional information needed to make the determination; (iii) 

### If it is determined the project is a project of air quality concern, the project sponsor (or TDOT or the MPO) will then engage and begin a consultation process to evaluate and choose a model (or models) and associated methods and assumptions to be used in hot-spot analysis. The project sponsor (or TDOT or the MPO) will make a PM2.5 hot-spot determination (i.e., project-level conformity determination) and request that other stakeholder agencies comment on the conclusions through formal interagency consultation as provided in this rule. 

### 6. Regionally significant projects: For purposes of regional emissions analysis, the MPO (TDOT where no MPO exists) shall actively consult with the alfected agencies to determine which minor arterials and other transportation projects should be considered "regionally significant" projects (in addition to those functionally classified as principal arterial or higher or fixed guideway systems or extensions that offer an alternative to regional highway travel) and which projects should be considered to have a significant change in design concept and scope from the transportation plan orTIP. Priorto initiating anyfinal action on these issues, the MPO (or TOOT, if applicable) shall consider the views of each agency that comments and respond in writing. 

### 7. Transportation Control Measures (TCMs): 

### (i)

SS·7039

### (July 2009) 

### For each Plan or TIP update, the agencies specified in this rule to participate in consultation shall review whether past obstacles to implementation of Transportation Control Measures (TCMs) which are behind the schedule established in the applicable implementation plan are being overcome, and whether State and local agencies with influence over approval or funding for
10

### on the completion of the regionally significant project. To help assure timely disclosure, the sponsor of any potential regionally significant project shall disclose to TOOT or the. MPO (whichever is appropriate) on a schedule prescribed by TOOT or the MPO (whichever is appropriate), but no less than annually, each project for which alternatives have been identified through the NEPA process, and any preferred alternative that may be a regionally significant project. The consultation process shall include assuming the location, design· concept and scope of the project, where the sponsor has not yet decided these features, in sufficient detail to allow the MPO (or TOOT) to perform a regional emissions analysis. This consultation process pursuant to this rule shall be initiated byTOOT, orthe MPO, where one exists; 

### (ii) In the case of any such regionally significant project that has not been disclosed to the MPO and other interested agencies participating in the consultation process in a timely manner, such regionally significant project shall not be considered to b.e included in the regional emissions analysis supporting the current conformity determination and not to be consistent with the motor vehicle emissions budget in the applicable implementation plan orinterim budget. 

### 11. Transportation model development: An interagency consultation process in accordance with the interagency consultation procedures outlined in this rule shall be undertaken forthe design, schedule, and funding of research and data collection efforts related to regional transportation model development (such as household/travel transportation surveys), to be initiated by MPOs (orTOOT, if applicable). 

### 12. Responding to significant comments: If the written response to a significant comment does not adequately address the commenting agency's concerns, further consultation is to be conducted. If a regularly scheduled meeting is to be held within a reasonable time frame of the receipt of the significant comment, it should be made a part of that meeting's agenda and information on the issue will be forwarded to all involved agencies. If necessary, discussion and resolution of the significant comment will be considered a reason to convene a special meeting with the commenting agency as the requester and the agenda consisting of the significant comment. (g) Resolving conflicts: Any conflict arnong State agencies or between State agencies and the MPO shall beescalated to the Governor if the conflict cannot be resolved by the heads of the involved agencies. All agencies involved shall make every effortto resolveanydifferences, including personal meetings between the heads of such agencies or their policy-level representatives, to the extent possible. The appeal process described herein shall apply only io MPO (or TOOT) approved conformity determinationson thetransportation plan, TIP, orprojects (including project-level determinations), including any documents directly related to determinations of conformity and conflicts between state agencies or between one or more state agency(ies) and the MPO. Conflicts regarding SIPs should be appealed to the State or Local Air Pollution Control Board as appropriate. 

### 1. In the event that the MPO or TOOT determines that every 

### effort has been made to address TAPCD concerns and no further progress is possible, the MPO or TOOT shall notify the Director of TAPCD in writing to this effect. The memorandum shall delineate each unresolved issuetobe appealed, and shall include, at a minimum: (i) 

### (ii)

SS-7039 (July2009) 

### The legal basis ofthe issue/conflict and steps taken to resolvethe conflict; Relevant reference material needed to facilitate review and mediation of the conflict, including all relevant portions of state and federal law and regulations, conformity requirements, and any ?lher relevantdocuments; 12(iii) A description of all reasonable alternatives and supporting data and justification for each alternative. This includes quantifying and documenting the need for the recommended alternative consistent with the Clean Air Act of 1990 and the applicable state and federal lawsand regulations; and (iv) An explanation oftheconsequences ofnot reaching a resolution. 2. 

### If conflicts concerning conformity determinations cannot be resolved by the interagency consultation procedures, then the State air agency shall notify the agency or agencies involved in the conflict of its intent to escalate the conflict resolution to the Office of the Governor. 

### 3. The fourteen (14) calendar daywindow shall commence: (i) On the date that the Technical Secretary of TAPCD and head of the agency or agencies involved in the conflict officially agree that the conflict cannot be resolved; or (ii) When one or more agencies otherthan TAPCD request the start of the fourteen · (14) day clock on a specified date, after notifying all other agencies involved of their intent, and TAPCD agrees. 4. If TAPCD does not contact the Office of the Governor within the fourteen (14) calendar daywindow, then the issue in conflict is considered to be resolved in favor ofthe agency in conflictwithTAPCD. 5. The Governor maydelegate his or her role, but not to the head or staffof TAPCD, TOOT, astatetransportation commission or board, or an MPO. 6. TAPCD shall notifyinvolved partiesofthe final decision bythe Officeofthe Governor.
7. In the case of interstate nonattainment areas, if the conflict involves agencies outside of Tennessee, and the conflict cannot be resolved by the affected agency heads, the conflicts maybe resolved in a mannermutuallyagreedto bythe parties involved. (h) Public participation: 1. Each agency subject to conformity shall provide the general public a window of opportunity no less than thirty (30) days to review and comment on new conformity determinations beforeformal action (approval or endorsement byan executive committee of the MPO, orwhere no MPO exists, TOOT management, for submission to FTAIFHWA for their finding) is taken on all transportation plans, TIPs and STIPs, consistent with these requirements and those of 23 CFR §450.316(a). A comment period of no less than fourteen (14) days will be made available to the public on amendments to conformity determinations and associated documents. TAP.CD and local air agencies shall offerthe public the same opportunity to comment before final action on SIPs which may have a direct or indirect effect upon the motor vehicle emissions budget for an area subject to conformity. The notification process shall include, at a minimum, public notices and submittals to public depositories. In addition, all public comments that specifically address known plans for a regionally significant project, which is not receiving FHWA or FTA funding or approval, and have not been properly reflected in the emissions analysis supporting a proposed conformity determination for atransportation plan orTIP, must be responded to, in writing, within thirty(30) days ofthe end ofthe comment period. 

### 2. The public participation procedure defined in part 1 of this subparagraph shall not be construed as superseding putilic involvement procedures already in effect for agencies subject to the conformity consultation process, such as the MPOs' citizen involvement process, the Uniform Administrative Procedures Act (T.C.A. §§ 4-5·101 et seq.), the Tennessee Sunshine Law (T.C.A. §§8-44-101 etseq.), or anyother established process SS-7039 (July2009) 13which already meets or exceeds these standards. In addition, this subparagraph does not apply to project·level conformity determinations subject to NEPA where a NEPA public participation process exists.
3. The public or any interested party may also inspect any of the documents related to the conformity process upon request; any charges imposed on the public for inspection or copying documents related to the conformity process shall be consistent with (or no greaterthan) the fee schedule contained in49 CFR §7.43.

ExhibitA: Illustrative list of stakeholderssubjecttoconsultation as perthis rule: FederalAgencies: United State Environmental Protection Agency (EPA) Federal TransitAdministration (FTA) Federal HighwayAdministration (FHWA) State Agencies: TennesseeAir Pollution Control Division (TAPCD) Tennessee Departmentof Transportation (TOOT) Local AirAgencies: Air Pollution Control Program, Memphis/ShelbyCounty Health Department Division of Pollution Control, Metropolitan Health Departmentfor Davidson County Department of AirQuality Management, Knox County Health Department Air Pollution Control Bureau, Chattanooga/Hamilton County Metropolitan Planning Organizations: Chattanooga-Hamilton County Regional PlanningAgency Clarksville-MontgomeryCounty Regional Planning Commission Knoxville Regional Transportation Planning Organization Memphis·ShelbyCounty Departmentof Regional Services Nashville Metropolitan Planning Organization Authority: T.C.A. 

### § 68·201·105.

SS-7039 (July2009) 14• If a roll-call votewas necessary, the vole bythe Agencyon these rulemaking hearing rules was as follows: 

### Board Member Aye No Abstain Absent Signature(if

### required)
MichaelAtchison 

### X

Dr. 

## J. Ronald Bailey 

### X

. 

### Tracy R. Carter 

### X

Dr. Brian Christman 

### X

Dr. WayneT. Davis 

### X

Dr. Mary English 

### X
Stephen 

### R Gossett 

### X
MayorTommy Green 

### X

Dr. Shawn A. Hawkins 

### X

Helen Hennon 

### X

Richard M. Holland 

### X

Dale Swafford 

### X

GreerTidwell, Jr. 

### X
Mayor LarryWaters 

### X

I certifythat this is an accurate and complete copyof rulemaking hearing rules, lawfully promulgated and adopted bythe Tennessee Air Pollution Control Board on 

### 12/09/2009, and is in compliancewith the provisions of TCA

### 4-5- 222.

SS·7039(July2009) 15I further certifythefollowing: Notice of Rulemaklng Hearingfiled with the Departmentof State on; 08/27(09 Rulemaking Hearing(s) Conducted on: (add moredates). 10{2()/09



### Daw:

# ------"-'~=--_.**~- ~-** **._~~- r-'='~~·** **C!o=-()** 9J____ Signature:

# -~~fl!'Ifl)!jL..J.>l·~~~-¢.1!'-~~!2!.4e::::::..._ _______ _ NameofOfficer:

### _B~a,r"'ry"'R,_,_.'-'S"'t""ep"!h-"e"'n"'s,"'P_,.E=.'-------------

Title 

### of Officer: Technical Secretary

Subscribed andsworn to before-me on: 

# Jj**~k** 2,3, eCJ(J

# 9

# NotaryPublicSignature:~ 7ft"

# !f!J,~ Mycommission expireson: 

# "2J&zj0- 

# 4· 2.0

## /3

All rulemaking hearing rules provided forherein have been examined bythe AttorneyGeneraland Reporter ofthe Stale

### ofTennesseeandare approved as toleg;:dilypursuanttothe provisions of the Administrative Procedures Act, Tennessee Code Annotate(j, Tille4, Chapter5,

DepartmentofStatecUse Only

34c2.dPc SS-7039(July2009)

# !-(;:~E. Cooper, Jr. 

### t· AttorneyGeneraland Reporter



## -17-lz.;.. Date

File<l With the Departmentof State on:**~..,-'o..LL,f-l__i!_¥~:c...!=:::o._---­** -Effective on:

### ~~+-t++i-F-7'iP-'~i?-----

16 Tre Hargett SecretaryofState

### Public Hearing Comments One copyof adocumentcontaining responses to comments made at the public hearing must accompany the filing pursuant to T.C.A. §4-5-222. Agencies shall include onlytheir responses to public hearing comments, which can be summarized. No letters of inquiryfrom parties questioningthe rule will be accepted.When no comments are received atthe public hearing, the agency need onlydraft a memorandum stating such and include it with the Rulemaking Hearing Rule filing. Minutes ofthe meetingwill not be accepted. Transcripts are not acceptable. Comment:

Response:

Comment:

Response:

Comment:

Response:

Comment:

Response: Please provide details in the state implementation plan (SIP) indicating who the interagency partners are. We suggest including an exhibit identifying the Agency partners at the Federal, state and local level. The following was added to the end of Rule 1200-03·34-.01(1)(a)2: "Exhibit A illustrates stakeholders currently subject to this rule. Exhibit A is for illustrative purposes only; stakeholders need not be listed tobe subjectto this rule." ExhibitAis included atthe end of the rule. Part (1)(1)2 of Rule 1200..()3-34-.01 states: "These supplementary procedures (in part I of this subparagraph) may be specific for each metropolitan area or each nonattainment, or maintenance area subject to the conformity rule." Please be advised that any supplemental document must be consistentwith the conformity SIP. The Board agrees. These supplemental procedures are in addition to, and would need to be consistent with, the ConformitySIP. Page 10 and 11 of the Conformity SIP includes the text "qualitative or interim hot spot determination process." Please delete the terms "Qualitative" and "interim" when referring to hot spotdeterminations. The Board agrees. These terms have be deleted from the regulations dealing with hot spot determinations. Rule 1200-03-34·.01(1)(g) Resolving Conflicts discusses the appeals process related to conformity determinations on transportation plan, transportation improvement program and projects. For completeness, please include language regarding existing mechanisms and/or procedures forappeals process at the state level lormotorvehicle emissions budgets inthe SIP. The following sentence is added to the Rule 1200-03-34-.01(I)(g): "Conflicts regarding SIPs should be appealedtothe State or Local Air Pollution Control Board as appropriate."

SS-7039 (July2009) t7Regulatory FlexibilityAddendum Pursuant toT.C.A. 

### § 4-5-401 through 4-5-404, priorto initiating the rule making process as described in T.C.A. 

### § 4-5-202(a)(3) andT.C.A. 

### § 4-5-202(a), all agencies shall conduct a review ofwhether a proposed rule or rule affects small businesses. (If applicable, insert Regulatory FlexibilityAddendum here) The foregoing amendments to Rule 1200-03-34-.01 are being madeto complywith§ 176(c) of the federal Clean AirAct and 40 CFR 51.390. These amendments are a mandatoryelement of the required State Implementation Plan underthe Clean Air Act, and they implement changes in federal rules; therefore, this rulemaking is exempt from the requirements of T.C.A. 

### § 4-5-401 

### etseq.

SS-7039 (July2009) 18Additional Information Required byJointGovernmentOperations Committee All agencies, upon filing a rule, mustalsosubmit fhe following pursuanttoTCA4-5-226(i)(1). 

### (A) A brief summaryof the rule and a descriptionof all relevant changes in previous regulations effectuated by such rule;
In this rulemaking the requirements for the transportation conformity provisions in the Tennessee State Implementation Plan (SIP) are being reduced and simplified. The prior version of the state rule incorporated much of the federal regulations at 40 CFR part 93 and this is no longer necessaryas an EPA requirement fora State's transportation conformity provisions. Eliminating these provisions rather than re-stating these in state rules accounts for mostof the changes in this rulemaking. The other majorchange is to re-write and clarify and explain how the consultation process works for applying transportation conformityto planning and construction oftransportation projects. 

### (B) A citation to and brief description of anyfederal law or regulation oranystate law or regulation mandating promulgation ofsuch rule or establishing guidelines relevantthereto;
40 CFR 

### § 51.390 was revised in 2008to require the state to address by its administrative rules onlythree major things: consultation procedures at40 CFR 

### § 93.105, written commitments forconformity measures not included in a Metropolitan Planning Organization's transportation plan and TIP at 40 CFR 93.122(a)(ii); and written commitmentsformitiQation measuresfora project-level conformitydetermination. (C) Identification of persons, organizations, corporations orgovernmental entities mostdirectlyaffected bythis rule, andwhetherthose persons, organizations, corporations or governmentalentities urge adoption or rejection ofthis rule; Those principally affected by this rule include: United State Environmental Protection Agency (EPA), Federal TransitAdministration (FTA), Federal HighwayAdministration (FHWA), Tennessee Air Pollution Control Division (TAPCD), Tennessee Department of Transportation (TOOT), Local Air Pollution Control Agencies, Metropolitan Planning Organizations, local transportation agencies and Project sponsors. These agencies are obliged by Federal lawtofollow these procedures. TheClean AirAct mandates that States have aConformity SIP. (D) Identification of anyopinions of the attorneygeneral and reporter oranyjudicial ruling thatdirectly relates to the rule; 

# ITheTennessee Air Pollution Control Board is notawareof any.

(E) An estimate of the probable increase or decrease in state and local government revenues and expenditures, if any, resulting from the promulgation ofthis rule, and assumptions and reasoning upon which the estimate isbased. An agencyshall not state that the fiscal impact is minimal if the fiscal impact is more than two percent {2%) of the agency's annual budget orlivehundredthousand dollars ($500,000), whichever is less; Since· there is already an existing transportation conformity process and local governments are already participating in Metropolitan Planning Organizations as part of long-standing federal transportation law, this rulemaking should not represent an increase in local spending. Since this rule is intended to streamline the existing process which is necessaryfor securing federal funding for transportation projects, this rulemaking rule could reduce the timespent in workina on conformitybythe makinothe process moreclearly defined. (F) Identification 

### of theappropriateagencyrepresentative or representatives, possessing substantial knowledge and understandingof the rule;
Marc M. Corrigan Division ofAir Pollution Control g'h Floor L&CAnnex Nashville, Tennessee37243-1531 

### (G) Identification of the appropriate agency representative or representatives whowill explain the rule ata scheduled meetingof the committees;
SS-7039 (July 2009) 

### 20Alan M. Leiserson Alan.Leiserson@tn.gov Legal Services Director De artmentof Environmentand Conservation (H) Office address and telephone numberofthe agency representative or representatives whowill explain the rule at ascheduled meetingofthe committees; and OfliceofGeneral Counsel Derartmentof Environmentand Conservation 

### 20' Floor

### L& C Tower Nashville, Tennessee

### 37243-1548 (615) 532-0131 (I) Anyadditionalinformation relevantto the rule proposedforcontinuation that the committee requests. 

# ITheTennesseeAir Pollution Control Board is not awareof any.

SS·7039 (July2009) 2l