State of Tennessee

Revisions to Tennessee’s Conformity SIP

Rule 1200-03-34-.01

Transportation Conformity Interagency Consultation and General Provisions

December 9, 2009
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Contents

Revisions to Tennessee’s Conformity SIP, Rule 1200-03-34-.01.................................... 3

Comments Received....................................................................................................... 5

Notes from 7/30/09 Interagency Consultation Discussion............................................. 11
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Revisions to Tennessee’s Conformity SIP, Rule 1200-03-34-.01

Transportation Conformity Interagency Consultation and General Provisions

Summary of the revisions to 1200-03-34-.01; Conformity of Transportation Plans,

Programs and Projects:

Rule 1200-03-34-.01 is replaced with a new rule (also 1200-03-34-.01, renamed to: 

Transportation Conformity Interagency Consultation and General Provisions) since this 

rule has undergone extensive revisions to meet new Federal requirements. These 

revisions are required by Section 6011 of the Safe Accountable Flexible Efficient 

Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Section 6011, amended

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-

03-34-.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 represent 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 Act’s section 176(c) transportation conformity provisions. 

Specifically, Section 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 enforceability 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 portions 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 specified 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, 
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State and Local Air Pollution Control Agencies. The roles and responsibilities of the 

stakeholders in the consultation process, document distribution, Transportation Control 

Measure (TCM) development, responding to significant comments as well as a number 

of other interagency consultation procedures are contained in the Conformity SIP (1200-

03-34-.01).

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

Local Air Pollution Control Agencies, TDOT, Metropolitan Planning Organizations and 

any local transportation agencies not represented by an MPO. The purpose of these

consultation procedures are to guide agencies through the consultation process when 

developing conformity determinations and associated documents as well as State 

Implementation Plans (SIPs) which contain motor vehicle emissions budgets.

A public hearing was held on October 20th, 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, notes from the 7/30/09 Interagency 

call are included, as a part of the official SIP submittal to be provided to EPA.
Comments Received
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Tennessee’s Transportation Conformity SIP

1200-3-34-.01

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 local 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 Conformity 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 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 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.” 
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Tennessee’s Transportation Conformity SIP

1200-3-34-.01

Interagency Comments

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., 1200-3-34-.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 

because 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 related 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 for 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. 
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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 participation 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 

1200-3-34-.01, 4. (iii). I think this 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 applies 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 determination 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 1200-3-34-.01 (h) describes 

public participation requirements before "final 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.

Final 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 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. (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.”
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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 - 

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 consultation 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 period 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.
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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 

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.

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 discussed 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 FHWA 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 Consultation Discussion

Amendments to Tennessee’s Transportation Conformity SIP

July 30th, 2009

Attending:

Glenn Berry Johnson City MPO Eric McCann Davidson County Local Air Program

Mike Conger Knoxville TPO Carlos McCloud Memphis MPO

Marc Corrigan TDEC-APC Matt Meservy Nashville MPO

Deborah Fleming TDOT Angie Midgett TDOT

Denis Frichie Shelby County Local Air Program Rob Raney Davidson County Local Air Program

Sajid Hossain Memphis MPO Diana Smith EPA

Fred Huggins Davidson County Local Air Program Britta Stein FHWA-TN

Alan Jones TDOT Hubie Stephens TDEC-APC

Martha Lott Memphis MPO Melissa Taylor Chattanooga MPO

Mark McAdoo TDOT Stan Williams Clarksville MPO

Introduction:

This call 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 1200-03-34-.01. Several comments were received during 

the IAC comment period, these are still being addressed.

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

sent were:

1. 1200-3-34 Revised 063009 v8.pdf - the Transportation Conformity SIP 

itself,

2. 1200-3-34 Revised 063009 v8 TRACKED CHANGES.pdf - 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 Regs 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.
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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 Conformity 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 must 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 sections 

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 addressed 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 that, 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 

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.” 
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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 regionally 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 included 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 potentially 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 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.”

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

response 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 

need 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, if 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 the 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.
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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 potentially 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 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.

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 opportunity for the Federal agencies to complete their review in a 

shorter period of time.