Guidance for Developing Transportation 


Conformity State Implementation Plans 


(SIPs) 


Appendix A


Transportation and Regional Programs Division 

Office of Transportation and Air Quality 

U.S. Environmental Protection Agency 

EPA-420-B-09-001 

January 2009 
The Checklist for Developing a Conformity SIP (Appendix A) and Conformity Model Rule 

(Appendix B) are available for downloading at 

http://www.epa.gov/otaq/stateresources/transconf/policy.htm#sips 

Appendix A: Checklist for Developing a Conformity SIP 

This checklist is intended to guide state and local agencies as they develop their conformity SIPs; 

this checklist does not replace existing statutory or regulatory requirements. Within each section 

of the checklist, the requirements are shown in the left-hand column. The right-hand column can 

be used to record the locations in the consultation and conformity SIP that address the required 

elements. 

INTERAGENCY CONSULTATION 

GENERAL: [93.105(a)]. A conformity SIP shall include procedures for interagency consultation, conflict 

resolution, and public consultation. EPA encourages development of Aextensive, effective consultation 

procedures that will resolve problems as early in the process as possible.@ 58 FR 62188 at 62201, 

November 24, 1993. The procedures must be written in a manner that gives them full legal effect. 40 

CFR 51.390. 

Consultation is required on the development of the regional 

transportation plan (RTP), the transportation improvement 

program (TIP), on conformity determinations, and on the 

development of state implementation plan (SIP) revisions that 

affect transportation. [93.105(a)(1)]. 

MPOs and State departments of transportation must provide 

reasonable opportunity for consultation with State air agencies, 

local air quality and transportation agencies, DOT, and EPA, 

including consultation on specific processes for interagency 

consultation. [93.105(a)(2)] 

INTERAGENCY CONSULTATION PROCEDURES: GENERAL FACTORS [93.105(b)]. States shall provide 

well defined consultation procedures in the implementation plan. Organizations with responsibilities for 

developing, submitting or implementing provisions of an implementation plan (including MPOs, State 

and local air quality planning agencies, and State and local transportation agencies) must consult with 

each other with and local or regional offices of EPA, the Federal Highway Administration (FHWA), and 

the Federal Transit Administration (FTA). 

The interagency consultation procedures must include, at a minimum, the following general factors: 

procedures that require that agencies consult on the 

development of the implementation plan, the transportation 

plan, the TIP, and associated conformity determinations 

[93.105(b)(1)]; 

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the roles and responsibilities of each agency at each stage in the 

SIP development process and the transportation planning 

process, including technical meetings [93.105(b)(2)(i)]; 

the organizational level of regular consultation5 

[93.105(b)(2)(ii)]; 

a process for circulating (or providing ready access to) draft 

documents and supporting materials for comment before formal 

adoption or publication [93.105(b)(2)(iii)]; 

the frequency of, or process for convening, consultation 

meetings and responsibility for establishing meeting agendas 

[93.105(b)(2)(iv)]; 

a process for responding to significant comments of involved 

agencies [93.105(b)(2)(v)]; and 

a process for the development of a list of the transportation 

control measures (TCMs) that are in the applicable 

implementation plan [93.105(b)(2)(vi)]. 

SPECIFIC PROCESSES Interagency consultation procedures shall include the specific processes listed 

below [93.105(c)]: 

A process involving at least the MPO(s), State and local air quality planning and transportation agencies, 

EPA, and the Department of Transportation (DOT) for the following [93.105(c)(1)]: 

Evaluating and choosing models and associated methods and 

assumptions for hot-spot and regional emissions analyses 

[93.105(c)(1)(i)]; 

Determining which minor arterials and other projects are 

“regionally significant”6 for the regional emissions analysis (in 

addition to those functionally classified as principal arterials or 

higher or fixed guide way systems or extensions that offer an 

alternative to regional highway travel) [93.105(c)(1)(ii)]; 

Determining which projects should be considered to have a 

significant change in design concept 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 

impacts are possible for any reason [93.105(c)(1)(iii)]; 

Determining whether past obstacles to implementation of 

transportation control measures (TCMs) in approved SIPs have 

been identified and are being overcome (for TCMs behind SIP 

schedules) [93.105(c)(1)(iv); 93.113(c)(1)]; 

5 Generally, interagency consultation procedures should include information such as the organizational 

level and procedures for the people who schedule, lead, and attend meetings. 

6

 This is in addition to the projects required to be included by application of the definition of Aregionally 

significant project@ in 40 CFR 93.101. 

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Determining whether State and local agencies are giving 

maximum priority to approval and funding for TCMs in 

approved SIPs [93.105(c)(1)(iv)]; 

Determining whether delays in the implementation of approved 

SIP TCMs necessitate revisions to the SIP to remove or 

substitute such TCMs or other emission reduction measures 

[93.105(c)(1)(iv)]; 

Notification of transportation plan and TIP amendments which 

only add or delete exempt projects listed in 93.126 and 93.127 

[93.105(c)(1)(v)]; and 

Choosing conformity tests and methodologies for isolated rural 

nonattainment and maintenance 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 transportation agencies for 

[93.105(c)(2)]: 

Evaluating events that will trigger new conformity 

determinations in addition to those required by 93.104 

[93.105(c)(2)(i)]; and 

Consulting on emissions analysis for transportation activities 

which cross borders of MPOs, nonattainment areas or air basins 

[93.105(c)(2)(ii)]. 

Where the metropolitan planning area does not include the entire 

nonattainment or maintenance area, procedures must specify a 

process involving the MPO and the State DOT for cooperative 

planning and analysis for determining conformity of projects outside 

the metropolitan area and within the nonattainment or maintenance 

area [93.105(c)(3)]. 

Specifies a process to ensure disclosure of plans for regionally 

significant non-FHWA/FTA projects (including projects for which 

alternatives are still being considered) to the MPO on a regular basis, 

and immediate disclosure of any changes to those plans 

[93.105(c)(4)]. 

Provides a process involving the MPO and other federal funds 

recipients for assuming project location and design concept/scope 

where these features not adequately defined for regional emissions 

analysis [93.105(c)(5)]. 

Specifies a process for consulting on design, schedule, and funding 

of research and data collection efforts and regional transportation 

model development by the MPO [93.105(c)(6)]. 

Specifies a process for providing final documents and supporting 

information to each agency (including federal agencies) after 

approval or adoption [93.105(c)(7)]. 

RESOLVING CONFLICTS [93.105(d)]. 

The process for resolving conflicts must specify that: 

Unresolvable conflicts among state agencies or between state 

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agencies and an MPO shall be escalated to the Governor or 

Governor=s designee (designee can not be the State or local air 

agency, State department of transportation, State transportation 

commission or board, or an MPO) [93.105(d)]; 

The State air agency has 14 calendar days (the implementation 

plan should define the procedures for starting the 14-day clock) 

to appeal to the Governor after the State DOT or MPO has 

notified the State air agency head of the resolution of his or her 

comments [93.105(d)]; and 

If the State air agency appeals to the Governor, the final 

conformity determination must have Governor=s concurrence. 

If there is no appeal, the MPO or state DOT may proceed with 

the final conformity determination [93.105(d)]. 

PUBLIC CONSULTATION PROCEDURES. Affected agencies7 making conformity determinations on 

transportation plans, TIPs, and projects shall establish a proactive public involvement process [93.105(e)]. 

This general requirement can be satisfied by referencing the MPO’s procedures,8 in addition to specifying 

or referencing the additional items listed below. 

Consultation procedures must set out a public process that, at a minimum: 

Provides for reasonable public access to technical and policy 

information considered by the agency at the beginning of the 

public comment period and prior to taking formal action on a 

transportation plan or TIP conformity determination, consistent 

with 93.105 and 23 CFR 450.316(a) [93.105(e)]; 

Ensures that any charges imposed for public inspection or 

copying are reasonable [49 CFR 7.43, 93.105(e)]; 

Provides that agencies must specifically address in writing all 

public comments that plans for regionally significant 

non-FHWA/FTA projects are not properly reflected in the 

emissions analysis [93.105(e)]; and 

Provides opportunity for public involvement in project 

conformity determinations as otherwise required by law 

[93.105(e)]. 

7

 Interagency consultation portions of transportation conformity SIPs should define the “affected agencies” 

that are responsible for fulfilling 40 CFR 93.105(e) requirements. 8

 The specific requirements and criteria for MPO public involvement are set forth at 23 CFR 450.316(a). 

Under these requirements, MPOs are directed to periodically review their public involvement process to assure that 

full and open access is provided to MPO decision-making processes (see 23 CFR 450.316(a)(1)(x)). Public 

involvement provisions are reviewed in the context of certification or planning reviews, which are conducted by 

FHWA and FTA under 23 CFR 450.334(b) no less often than once every four years for certain MPOs. 

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OTHER CONFORMITY PROCEDURES: Under Clean Air Act, as amended by SAFETEA-LU, conformity 

SIPs must also include conformity procedures that address 40 CFR 93.122(a)(4)(ii) and 93.125(c). All 

other federal conformity regulations apply automatically and states are not required to address them in 

conformity SIPs. 

ENFORCEABLE WRITTEN COMMITMENTS REQUIRED FOR EMISSIONS REDUCTION CREDIT: Emissions 

reduction credit from any 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 the conformity determination includes written commitments to implementation from the 

appropriate entities [93.122(a)(4)(ii)]. 

Language addressing 93.122(a)(4)(ii) should include, at a minimum, the following: 

In accordance with 40 CFR 93.122(a)(4)(ii), prior to making a 

conformity determination on the Transportation Plan or TIP, [insert 

MPO name] will not include emissions reduction credits from any 

control measures that are not included in the Transportation Plan or 

TIP and that do not require a regulatory action in the regional 

emissions analysis used in the conformity analysis unless [insert 

MPO name] or FHWA/FTA obtains written commitments, as defined 

in 40 CFR 93.101, from the appropriate entities to implement those 

control measures. The written commitments to implement those 

control measures must be fulfilled by the appropriate entities 

[93.122(a)(4)(ii)]. 

ENFORCEABILITY OF DESIGN CONCEPT AND SCOPE AND PROJECT-LEVEL MITIGATION AND CONTROL 

MEASURES: Before a conformity determination is made, written commitments must be obtained for any 

project-level mitigation or control measures. [93.125(c)] 

Language addressing 93.125(c) should include, at a minimum, the following: 

In accordance with 40 CFR 93.125(c), prior to making a project-level 

conformity determination for a transportation project, FHWA/FTA 

must obtain from the project sponsor and/or operator written 

commitments, as defined in 40 CFR 93.101, to implement any 

project-level mitigation or control measures in the construction or 

operation of the project identified as conditions for NEPA process 

completion. The written commitments to implement those projectlevel mitigation or control measures must be fulfilled by the 

appropriate entities. Prior to making a conformity determination on 

the Transportation Plan or TIP, [insert MPO name] will ensure any 

project-level mitigation or control measures are included in the 

project design concept and scope and are appropriately identified in 

the regional emissions analysis used in the conformity analysis. Prior 

to making a project-level conformity determination, written 

commitments will be obtained before such mitigation or control 

measures are used in a project-level hot-spot conformity analysis. 

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