State of Tennessee



# Revisions to Tennessee’s Conformity SIP

Rule 1200

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Transportation Conformity Interagency Consultation and General Provisions

December 9, 20092



### Contents

Revisio ns to Tennessee’s Conformity SIP, Rule 1200

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Comments Received

................................ ................................ ................................ ....... 5 Notes from 7/30/09 Interagency Consultation Discussi on

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### Revisions to Tennessee’s Conformity SIP

, Rule 1200

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Transportation Conformity Interagency Consultation and General Provisions

Summary of the r evisions to 1200

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- .01 ; Conformity of Transportation Plans, Programs and Projects :

Rule 1200

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- .01 is replaced with a new rule (also 1200

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- .01 , renamed to: Transportation Conformity Interagency Consultation and General Provisions ) since this rule has undergone extensive revisions to meet new Federal requ irements. These revisions are required by S ection 6011 of the Safe Accountable Flexible Efficient Transportation Equity Act: A Legacy for Users (SAFETEA

- LU), Section 6011, amend ed Section 176(c)(4) of the Clean Air Act requiring States to amend Conformity State Implementation Plans (SIPs). Tennessee’s Conformity SIP is contained in rule 1200

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- .01 in the Air Pollution Control Division’s regulations. This rule provides Federal, State and Local air pollution control, transportation, and transportation planning agencies with criteria and procedures on the consultation process for the development of Transportation Plans, Transportation Improvement Programs, Project level analyses and State Implementation Plans.

The Clean Air Act Amendments of 1990 repres ent an unprecedented commitment to protecting public health and the environment. A key commitment is the concept of conformity

– a mechanism intended to ensure that departments, agencies or instrumentalities of the federal government do not take, approve or support actions that are in any way inconsistent with a state’s plan to attain and maintain the National Ambient Air Quality Standards, or NAAQS.

SAFETEA

- LU was signed into law on August 10, 2005; revisiting a number of the aspects of the Clean Air Ac t’s section 176(c) transportation conformity provisions. Specifically, S ection 6011 amends Section 176(c)(4) of the Clean Air Act requiring States to amend Conformity SIPs to only include criteria and procedures for

consultation and enforcement and enforc eability of projects not included in a Metropolitan Planning Organization’s Transportation Plan and Transportation Improvement Program.

In addition, several other minor changes were made to the consultation procedures as advised by EPA. Considerable port ions of the existing Conformity SIP have been removed as per the SAFETEA

- LU requirements, which were previously required by EPA. This leaves Tennessee’s Conformity SIP to principally address consultation procedures.

The consultation requirements specifie d in EPA’s Conformity regulations in 40 CFR 93.105, which must be addressed in Tennessee’s Conformity SIP

, include provisions for consultation on the development of specific documents developed by MPOs, TDOT,4

State and Local Air Pollution Control Agencies. The roles and responsibilities of the stakeholders in the consultation process, document distribution, T ransportation C ontrol

M easure (TCM) development, responding to significant comments as well as a number of other interagency consultation procedures a re contained in the Conformity S I P (1200

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Those agencies affected by Interagency Consultation are : EPA, FHWA, FTA, State and

L ocal Ai r P ollution C ontrol A gencies, TDOT, Metropolitan Planning Organizations and any local transportation agencies n ot represented by an MPO. The purpose of these consultation procedures are to guide agencies through the consultation process when

develo p ing conformity determinations and associated documents as well as State Implementation Plans (SIPs) which contain mot or vehicle emission s budgets.

A public hearing was held on October 20 th , 2009

, after the 30 day public review period

.

Comments received during the IAC review period, as well as public comments during he Public Comment period are attached. In addition, n otes from the 7/30/09 I nteragency call are included, as a part of the official SIP submittal to be provided to EPA.

### Comments Received6 Tennessee’s Transportation Conformity SIP

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Public Comments

EPA 10/19/09 Comments by letter to Barry R. Stephens

Number Section Comment Response

1. 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 l ocal level. The following is added to the end of (1)(a)2: “Exhibit A illustrates stakeholders currently subject to this rule. Exhibit A is for illustrative purposes only; stakeholders need not be listed to be subject to this rule.” Exhibit A is included at the

end of the rule.

2. (1)(f)2. Page 10, #2,

- This section states, "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 conformity rule. " Please be advised that any supplemental document must be consistent with the conformity SIP. Agreed. These supplemental procedures are in addition to, and would need to be consistent with, the Conformity SIP.

3. (1)(f)5. Page 10 and 11 of the Conformi ty SIP includes the text "qualitative or interim hot spot determination process.”
Please delete the terms "Qualitative" and "interim" when referring to hot spot determinations. Suggested changes incorporated.

4. (1)(g) Page 13, (g) Resolving Conflicts di scusses 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 for appeals process at the state level for motor vehicle emissions budgets in the SIP. The following sentence is added to the last part of the first paragraph in (g). “Conflicts regarding SIPs should be appealed to the State or Local Air Pollution Control Board as appropriate.”7 Tennessee’s Transportation Conformity SIP

1200

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TDOT 07/08/09 Comments provided by Mark McAdoo

Number Section Comment Response

1. (1)(b)6. Where the SIP refers to days, as it does in several places (e.g., 1200

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. 01 (1) (b) 6. and 7., etc.), does it mean calendar days or business days? I think we must assume calendar days as it is written, but I think business days would be more appropriate. However, I don't want us to be locked into specific time constraints

bec ause there may be some case where things need to move faster and there may be some cases where things

need to move slower. So, I recommend some statement that allows flexibility on time lines, if the IAC partners all agree. Unless specified, “days” refers to calendar days. Note, there are instances where the type of days is specified, as in (1)(f)5.(i). Most provisions with a specified timeframe have a clause allowing for flexibility in certain circumstances from

the allotted time in the rule.

2. (1)(c )4.(iii) I think it would be helpful to clarify the exact meaning of "making conformity finding determinations" as discussed on page 5, part (1)(c) 4. (iii). And related to this, TDOT wants to make certain that the public participation requirements relate d to project

- level determinations can be addressed through the NEPA process and not require other public participation procedures. See responses to comments 1 through 3 provided by TDOT

on 7/22/09.

3. I think it would be helpful to be more specific about EPA's obligation to assist with air quality modeling with MOVES, as discussed on page 5, part (1)(c) 5. (iv). This model is going to be very challenging. EPA is obligated by the Clean Air Act to develop and furnish an emissions modeling method/program fo r use in developing inventories for SIPs and Conformity. Per this rule, any further assistance or guidance needed for SIPs and Conformity must be provided by EPA.8 TDOT 07/22/09 Comments provided by Mark McAdoo

Number Section Comment Response

1. ...my objective is to make certain that the SIP clearly allows for public participation for project

- level conformity through the NEPA process and that no one will be able to successfully argue that the project sponsor must do a separate public particip ation for project

- level conformity in addition to the NEPA public participation. The Conformity SIP in (1)(h) describes public participation for transportation plans, TIPs and the STIP, as well as the SIP. Project

- level conformity determinations which are evaluated through the NEPA process have a public process as required in 23 CFR 771.111(h)(1) pursuant to 23U.S.C. 128 and 139 and CEQ regulations.

2. (1)(c)4.(iii) I would like TDEC to reconsider the draft language in

1200

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. I think thi s section should explicitly describe what constitutes a final determination and at what point in the process this occurs. I also suggest that the terms "finding" and "determination" be

defined in the definition section of the SIP. Assuming this comment ap plies to subparagraph (c), as did an earlier comment: (1)(c)4.(iii) has been revised since part

of this sub

- part is redundant with (1)(c)4.(i). The use of the terms “finding” and “determination” has been revised to be

more consistent. A final determinati on is generally one which has been approved by the executive committee of an MPO for submission to FTA/FHWA for these agencies to make a finding.

3. (1)(h) Also, the draft language in 1200

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- .01 (h) describes public participation requirements before "f inal action" on transportation plans, TIPs and STIPs. I suggest that TDEC define "final action" and also include language about project

- level conformity that explicitly allows public participation through the NEPA process for project

- level conformity. Fin al action is meant to mean the formal approval or adoption by an executive committee, or as otherwise defined or revised by FHWA and EPA. The Conformity SIP in (1)(h) describes public participation for transportation plans, TIPs and the STIP, as well as t he SIP. Project

- level conformity determinations which are evaluated through the NEPA process have a public process as required in 23 CFR 771.111(h)(1) pursuant to 23U.S.C. 128 and 139 and CEQ regulations. (1)(h)2. is amended by adding “In addition, this subparagraph does not apply to project

- level conformity determinations subject to NEPA where a NEPA public participation process exists.”9 TDOT 07/28/09 Comments provided by Angela Midgett

Number Section Comment Response

1. (1)(f)4. and

(1)(c)4. We do not agree with the 30

- day time frame for the final

conformity finding

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EPA, FHWA, and FTA are members of the IAC and your time line shows that they will be given a 30

- day review of the draft conformity report, at the beginning of the conformity c onsultation period. Immediately following this in your time line is another 30

- day period where the lead agency responds to IAC comments on the draft report, where additional review and comment for EPA, FHWA and FTA could take place.

All issues associated with the conformity determination

should be resolved thru this initial 60

- day review and comment process before the final conformity determination report is sent to EPA, FHWA and FTA to make their conformity finding, so we are requesting a final review pe riod less than 30 days. This comment will be addressed by the IAC on 7/30/09. After discussion on 7/30/09 with all agencies participating on the call, the review period for the Federal agencies is left at 30 days.10 IAC 07/30/09 Comments provided during IAC Call to discuss the proposed Conformity SIP revisions

Number Section Comment Response

1. (1)(f)5. The phrase “and regional emissions analyses” should be removed from (f)5. Since the intent is for this to apply

to hot

- spot and interim project level analyses. Commenter: Matt Meservy. Suggested changes incorporated.

2. (1)(f)10. In (f)10., is it possible to lengthen the timeframe for required disclosure from once a year to, for example, once every four years for disclosure of potentially region ally significant projects? Would it be possible to have language included to allow for those projects to be included in the next Plan/TIP update cycle, and not potentially become conformity triggers? Commenter: Melissa Taylor. EPA’s response: “ 93.105(c) (4) also requires that if any changes are made to those projects (which by the way have already been disclosed to the MPO), the changes are to be "immediately disclosed." An ordinary reading of the word "immediately" is "as soon as those changes are known ," or "as soon as those changes are final" or something similar. But, it's not reasonable to say that "immediately" is "every 4 years." Without knowing all the details, 4 years is too long between disclosures of regionally significant projects to the

MPO , or to update the MPO about changes to those projects. This type of detailed information is necessary to run a regional emissions analysis.”

3. (1)(f)11. What is the level of consultation expected for travel studies, etc. in EPA’s regulations contained in 93.105(c)(6)? Would the IAC need consultation on who might be selected as a consultant for an MPO’s studies? Commenter: Matt Meservy. Historically EPA has not required consultation on consultant selection in TN. EPA’s response: “ There is no hard and fast rule about how much detail/time is enough for an approvable conformity SIP. It's going to depend on the interagency consultation process/team and what the consensus is for how much time and process detail needs to be spelled out

for the consultation process to be meaningful .”

4. The type of days, calendar or work days, used throughout the SIP should be consistent, if possible.

Commenter: Britta Stein. Suggested changes incorporated. Note: ten business days has been changed to 14 calendar days as d iscussed on the

7/30/09 IAC call.

5. (1)(f)4. and

(1)(c)4. TDOT believes that a period less than 30 days should

be adequate for Federal agency review on the final conformity determination. Commenter: Angie Midgett. As discussed on the call, EPA and FHW A believe that they will generally need the 30 day period. However, there is the opportunity for the Federal agencies to complete their review in a shorter period of time.

### Notes from 7/30/09 Interagency Consultation Discussion

Interagency Consul tation Discussion Amendments to Tennessee’s Transportation Conformity SIP July 30 th , 2009

Attending:

Introduction:

This cal l was intended to discuss any remaining concerns the IAC might have regarding the proposed Transportation Conformity SIP contained in the rules of the Air Pollution Control Division’s Chapter 1200

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the IAC c omment period, these are still being addressed.

A number of documents were sent to the IAC on June 29 th for review. The documents

sent were:

1. 1200

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- the Transportation Conformity SIP

itself,

2. 1200

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- the same document as above with changes tracked from the existing rule,

3. SAFETEA LU Changes to 1200 03 34 063009 ver.pdf

- a 'companion' document, for informational purposes only, not an official part of the SIP,

4. Complete Federal Conformity R egs 010908.pdf

- the Federal Transportation Conformity Regulations for your reference.

It was important to note in today’s discussion that we will be going back and forth between the Federal Regulation and the State rule. When referring to 93.105 or any Section of 93, this refers to the EPA’s Transportation Conformity Regulations. When referring to Chapter 34, this is in reference to Tennessee’s Conformity SIP.

A presentation was sent on 7/21/09, titled SAFETEA

- LU Revisions to Chapter 34 Presentation, which was used to guide discussion.12

SAFETEA

- LU amended parts of the Clean Air Act requiring states to amend their Conformity SIPs to streamline and update their SIPs. This revision mostly requires states to only have consultation requirements in their Co nformity SIPs. In order to satisfy the requirements in SAFETEA

- LU amending the Clean Air Act (CAA) section 176(c)(4)(E), the implementation plan revision required by this section must include the following three requirements of 40 CFR part 93, subpart A: §§93.105, §93.122(a)(4)(ii), and §93.125(c). Specifically:

40 CFR §93.105, addresses consultation procedures; 40 CFR §93.122(a)(4)(ii), states that conformity SIPs must require written commitments to control measures to be obtained prior to a conformity determination if the control measures are not included in a Metropolitan Planning Organization’s transportation plan and transportation improvement program (TIP), and that such commitments be fulfilled; and 40 CFR §93.125(c), states that conformity SIPs mu st require written commitments to mitigation measures be obtained prior to a project

- level conformity determination, and that project sponsors comply with such

commitments.

As the SIP was revised, a number of provisions were added to address specific sect ions of 40 CFR §93.105, including provisions to address:

Methods and models for emissions analysis Regionally significant projects

Multi

- jurisdictional consultation Project disclosure

Final document distribution

These provisions are not adequately addres sed in our existing Conformity SIP as suggested by comments from EPA. Each of these provisions was briefly discussed.

EPA’s provisions require consultation on methods and models for emissions analysis. These provisions address the requirement to consult on the models and other planning assumptions for regional and project

- level analyses. The question was raised relative to §93.105(c)6): what is EPA’s expectation with regards to consultation as specified by this provision in EPA’s regulations? Would tha t

, for instance

, require consultation on the selection of the consultant for MPO studies? EPA will get back to the IAC on this. EPA’s response (from email received 8/13/09):

“ There is no hard and fast rule about how much detail/time is enough for an

app rovable conformity SIP. It's going to depend on the interagency consultation process/team and what the consensus is for how much time and process detail needs to be spelled out for the consultation process to be meaningful.”13

Matt Meservy and Mike Conger pointed out that the phrase “and regional emissions analyses” should be removed from (f)5. Since the intent is for this to apply to hot

- spot and interim project level analyses. It was agreed that this language should be removed.

The provision for region ally significant projects contained in (f)6. was discussed. MPOs and TDOT are to consult on which facilities are to be considered regionally significant.

In (f)9. there is a provision to address multi

- jurisdictional consultation as required by 40 CFR §93 .105(c)(2)(ii).

EPA’s regulations in 93.105(c)(4) requires disclosure for regionally significant projects which are not FHWA/FTA projects. This is addressed in (f)10. of our Conformity SIP. Those projects which are regionally significant but not inclu ded in the Plan and TIP would be deemed to not be from a conforming Plan and TIP. Melissa Taylor asked if it is possible to lengthen the timeframe for required disclosure from once a year to, for example, once every four years for disclosure of potentiall y regionally significant projects? Also, Melissa Taylor asked if language could be included to allow for those projects to be included in the next Plan/TIP update cycle, and not potentially become conformity triggers. EPA’s response (from email received 8/13/09):

“ 93.105(c)(4) also requires that if any changes are made to those projects (which by the way have already been disclosed to the MPO), the changes are to be "immediately disclosed." An ordinary reading of the word "immediately" is "as

soon as th ose changes are known," or "as soon as those changes are final" or something similar. But, it's not reasonable to say that "immediately" is "every 4 years." Without knowing all the details, 4 years is too long between disclosures of regionally significan t projects to the MPO, or to update the MPO about changes to those projects. This type of detailed information is necessary to run a regional emissions analysis.”

A process for final document distribution is contained in (f)4. This provision is in

respo nse to §93.105(c)(7). Angie Midgett submitted that TDOT believes that a period less than 30 days should be adequate for Federal agency review on the final conformity determination. As discussed on the call, EPA and FHWA believe that they will generally

n eed the 30 day period. However, there is the opportunity for the Federal agencies to complete their review in a shorter period of time. Britta Stein also added that the type of days, calendar or work days, used throughout the SIP, should be consistent, i f possible.

There was some additional discussion regarding the timeframes in the consultation process for conformity and SIPs. There were no additional comments provided.

Marc Corrigan reminded call participants that the items just discussed are not th e only changes made to the Conformity SIP, and asked if there were questions, comments or further discussion on any other portion of the Conformity SIP.14

Marc Corrigan stated APC intends to start the public process for this rule revision in September, with Air Board approval in November.

Comments:

The type of days, calendar or work days, used throughout the SIP should be consistent, if possible. Commenter: Britta Stein

The phrase “and regional emissions analyses” should be removed from (f)5. Since the intent is for this to apply to hot

- spot and interim project level analyses. Commenter: Matt Meservy.

In (f)10., is it possible to lengthen the timeframe for required disclosure from once a year to, for example, once every four years for disclosure of po tentially regionally significant projects? Would it be possible to have language included to allow for those projects to be included in the next Plan/TIP update cycle, and not potentially become conformity triggers? Commenter: Melissa Taylor.

What is th e level of consultation expected for travel studies, etc. in EPA’s regulations contained in 93.105(c)(6)? Would the IAC need consultation on who might be selected as a consultant for an MPO’s studies? Commenter: Matt Meservy.

TDOT believes that a period less than 30 days should be adequate for Federal agency review on the final conformity determination. Commenter: Angie Midgett. As discussed on the call, EPA and FHWA believe that they will generally need the 30 day period. However, there is the opport unity for the Federal agencies to complete their review in a shorter period of time.