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· Division: i Air Pollution Control -- -- -- --co-ritact-Pe-rso-ni T Marc carriga•i - -- ··--· -- -· ·- ----------- ----

--. ---- --- -- ·- -.. Address: r-·9111 'FtOor L & C AnneX .. -. . ........ .... ·-. -· .. i 401 Church St. 

j Nashville, TN 

___ ZiR: ~??4~~1531_ __ __ ·--- --·-- ... .... __________ ___ ___ __ .... 

Phone: : 615.532.0616 . . 1--· - .. ... .. ... . . . . .. . . .. 

Email: ! marc.corrigan@tn.gov 

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SS-7039 (July 2009) 
(Place substance of rules and other info here. Statutory authority must be given for each rule change. For 

information on formatting rules go 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 deleting the 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 

the Table of Contents shall read: 

1200-03-34-.01 Transportation Conformity Interagency Consultation and General Provisions. 

Rule 1200-03-34-.01 Conformity of Transportation Plans, Programs, and Projects is amended by deleting it in its 

entirety and replacing with the following so that, as amended Rule 1200-03-34-.01 shall read as follows; 

1200-03-34-.01 Transportation Conformity Interagency Consultation and General Provisions 

( 1) Interagency Consultation Procedures 

(a) General. 

1. Pursuant to 40 CFR §51.390, this document provides for interagency consultation 

(federal, state, and local), resolution of conflicts, public consultation procedures (per 40 

CFR §93.105) 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 Highway Administration (FHWA) and the Federal Transit 

Administration (FT A) 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 nonattainment area that in the judgment of the Tennessee Air Pollution 

Control Division (T APCD) may cause or contribute to a new violation or increase the 

frequency or severity of any existing violation of any standard in any nonattainment area, 

or delay the timely attainment of any standard or any required interim emissions 

reduction or other milestone in any nonattainment area. 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. 

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 order of priority. 

(i) Local air agencies are those agenQies which are charged under law with the 

control of air pollution existing within the geographic boundaries of the political 

subdivisions, as defined by the Tennessee Air Quality Act, T.C.A. §§ 68-201-101, 

et seq., organized and existing under the laws of the State of Tennessee. 

2 
(ii) Local transportation agencies are publicly owned transportation agencies which 

provide mass transportation by bus or rail which provides general service to the 

public on a fixed route on a regular and continuing basis. It does not include 

school buses or charter or sightseeing services, van pools, or small trolley fleets. 

(iii) Project means a highway project or transit project. 

(iv) TAPCD means the Tennessee Air Pollution Control Division. 

(v) TDOT.means the Tennessee Department of Transportation. 

(b) Interagency consultation procedures: General factors. 

1 . 

2. 

3. 

4. 

5. 

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 precedfng documents, 

and all conformity determinations required by this rule. 

The TAPCD, also referred to as the State air agency, shall be the lead agency 

responsible for preparing the final document or decision and for assuring the adequacy of 

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 final 

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, 

and for providing assistance for technical analyses by employing 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 preparing the final document or decision and for assuring the adequacy of 

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 

necessary data 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 interagency consultation process under this 

rule include: the FHWA, the FTA, EPA, and local air agencies. 

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 

§93.1 05, 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) days 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. Information for scheduled meetings will be distributed to 

participants at least seven (7} days before the scheduled meeting. It shall 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 

SS-7039 (July 2009) 3 
(including comments in writing) on all proposed documents and decisions in a period not 

to exceed thirty (30) days, attend consultation and decision meetings, assure policy-level 

contact with 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 with 40 CFR §93.1 05 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 conformity process. However, the participants may waive the fourteen {14) 

day advance notice requirement if all participants agree that an earlier scheduled meeting 

is in the best interest of the parties. Scheduling changes shall be coordinated in a timely 

manner. The lead agency will develop draft documents, record notes and distribute 

agendas prior to meetings (in person or by conference calls or other practical electronic 

means). The lead agency shall provid.e an appropriate information to those agencies 

needed for meaningful input and provide all draft and supportive documentation (hard 

copy or electronic format) in a timely manner to participating agencies. The lead agency 

responsible for 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 prior to the release for public review. 

7. Consultation on specific issues·, other than the continual process of keeping all the 

agencies informed on all conformity and State Implementation Plan (SIP) actions, may be 

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 to 

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 latest version of the TIP or 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 of each of the agencies specified in parts 1 through 4 of 

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 at their own discretion. 

(c) Specific roles and responsibilities of various participants in the interagency consultation process 

shall be as follows: 

1. TAPCO and the local air agencies shall be responsible for, in relation to SIP 

development, the following: 

SS-7039 (July 2009) 

(i) Developing emissions inventories; 

(ii) 

(iii) 

Developing emissions budgets; 

Conducting air quality modeling; 

4 
(iv) Developing attainment and maintenance demonstrations; 

(v) Revising control strategy implementation plans; 

(vi) Regulatory Transportation Control Measures (TCMs) intended to provide 

enforceable emission reductions; 

(vii) Compiling motor vehicle emissions factors; 

(viii) Meeting all EPA reporting requirements related to air quality; and 

(ix) Responding to all comments concerning the SIP. 

The local air agencies shall be responsible for their areas of jurisdiction, 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 air agency in any of the responsibilities listed here. 

2. The MPOs subject to the conformity rule shall be responsible for, in their area(s) of . 

jurisdiction, the following: 

(i} Developing and monitoring transportation plans and TIPs; 

(ii) Evaluating the transportation impacts and feasibility of TCMs; 

(iii} Developing transportation and socioeconomic data and latest planning 

assumptions and providing such data and planning assumptions to TAPCD for 

use in air quality analysis; 

(iv) Developing system- ()r facility-based or other programmatic (non-regulatory) 

TCMs; 

(v) Providing technical arid policy input on emissions budgets; 

(vi) Performing transportation modeling, including: 

(I) Selecting and evaluating such models; 

(II) Documenting their use in conformity determinations; 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 

mix and vehicle speeds for use in on-road mobile emissions analysis; 

(x) Making elections regarding the timeframe of the conformity determination under 

-------- 40 CFR §93.1 06(d); and 

3. 

SS-7039 (July 2009) 

(xi) Identifying planning assumptions and evaluating those assumptions for 

consistency with SIP assumptions. 

The Tennessee Department of Transportation shall be responsible for: 

5 
(i) Developing the Statewide transportation plan and STIP; 

(ii) Providing technical input on new and proposed revisions to motor vehicle 

emission budgets; 

(iii) Distributing draft and final environmental documents to 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, responding to comments and preparing the final document(s); 

(vii) Performing transportation modeling, including: 

(I) Selecting and evaluating such models; 

(II) Documenting their use in conformity determinations; 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; 

(viii) Making conformity determinations for areas outside of the MPO boundary; 

(ix) Convening consultation to cooperatively choose the appropriate conformity 

test(s) and methodologies for use in isolated rural nonattainment and 

maintenance areas, as required by 40 CFR §93.1 09(1)(2)(iii); and 

(x) Convening air quality technical review meetings on specific projects when 

requested by other agencies or as needed. 

4. FHWA and FTA shall be responsible for: 

(i) Ensuring timely action on final determinations of conformity within 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 conformity determinations. 

5. EPA shall be responsible for: 

SS-7039 (July 2009) 

(i) 

(ii) 

(iii) 

(iv) 

Reviewing motor vehicle emissions budgets in submitted SIPs and finding them 

adequate or inadequate based on adequacy criteria and procedures; 

Providing guidance on conformity criteria and procedures to agencies in 

interagency consultation; · 

Approving or disapproving submitted SIP revisions (including TCMs); 

Providing modeling and emissions inventory development assistance to TAPCD, 

TOOT and MPOs; and 

6 
(v) Providing comments on the regional em1ss1ons analyses and conformity 

determination of transportation plans, TIPs and projects. 

(d) Conformity determinations: 

1. All conformity determinations shall be initiated by the sponsor of the transportation plan, 

program or project subject to the conformity rule: 

(i) MPOs shall be responsible for initiating conformity determinations for plans, 

programs or projects within the specific MPO boundary; 

(ii) TOOT shall be responsible for initiating conformity determination for plans, 

programs or projects external to an MPO boundary, including isolated rural 

nonattainment and maintenance areas as required by §93.1 09(1)(2)(iii); and 

(iii) MPOs and TOOT 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 TOOT to submit any 

conformity determinations to the FHWA, FTA, EPA, TACPO, 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 may be found to conform, or found to be exempt. 

3. All conformity determinations with all supporting documentation and data shall be made 

available for review and comment to the TAPCO, local air agencies, FHWA, FTA and the 

EPA no less than thirty (30) days prior to presentation to a policy making body (electronic 

copy acceptable). Shorter review periods may be allowed occasionally in emergency 

situations with participant concurrence. 

4. All conformity determinations shall also be made available to the general public, as 

defined in subparagraph (h) of this paragraph. 

5. Conformity determinations, at a minimum, should include written documentation of the 

following: 

(i) All the input run streams for the latest mobile emissions 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 information and assumpti9ns used for input into the mobile 

model, such as, vehicle miles traveled, vehicle speeds, and vehicle mix, along 

with a brief description of the source of this information, including documentation 

of any transportation related models used; 

(iii) A description of the project, plan or program that is the subject of the conformity 

or exemption status deterrnination(s); and 

(iv) TAPCO may request further documentation; however, the agency making the 

conformity demonstration may appeal to the Technical Secretary if the request 

seems unreasonable. 

6. TAPCO (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 of mobile emissions model inputs and outputs; 

SS-7039 (July 2009) 7 
(ii) Verification that the latest mobile emissions model and planning assumptions are 

being used; 

(iii) Review of the 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 TOOT, where applicable) making a 

conformity determination, to provide TAPCO and the applicable local air agencies, FTA, 

FHWA and the EPA with documentation of the conformity determination. 

8. It shall be the responsibility of TAPCO to provide affected MPOs, FHWA, FTA, EPA, local 

air agencies and TOOT with appropriate information regarding any SIP changes that 

could impact the conformity process. 

9. It shall be the responsibility of the EPA to provide TAPCO and local air agencies and 

FTA, FHWA, TOOT, and the affected MPOs information regarding changes to the 

Conformity Rule that could impact conformity 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 TOOT, where applicable) prior to the 

conformity determination and such commitments must be fulfilled by the implementing 

entities. This rule satisfies the requirement of 40 CFR §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 

conformity analysis begins, the "time the conformity analysis begins" is to be determined 

by interagency consultation. This point in time should occur at the point at which the 

MPO (or TOOT, when applicable) or other designated agency begins to model the 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 if a significant delay in the analysis has occurred, as determined through interagency 

consultation. 

13. Consultation shall be undertaken, and conducted in accordance with 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, TAPCO, TOOT, or the MPO where one exists. 

(e) lmplemen~ation Plans: 

1. 

2. 

SS-7039 (July 2009) 

Any proposed revisions to the SIP, which may have a direct or indirect effect upon the 

motor vehicle emissions budget for an area subject to conformity, shall be made available 

to the MPOs specified in this rule, as well as TOOT, 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 emergency situations with participant concurrence. 

T APCO shall also provide the public a period from the date of announcement to comment 

on any proposed SIP revisions which may have a direct or indirect effect upon the motor 

8 
vehicle 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 of the revision. 

(f) Other processes: 

1. TAPCD shall be responsible for the process whereby MPOs, local air agencies, TOOT, 

FHWA, FTA and EPA shall study and develop supplementary consultation procedures to 

identify, evaluate and address, as needed, the following issues. In the absence of 

supplementary consultation procedures, TAPCD will include the following items for 

discussion during interagency consultation meetings in advance of a conformity 

determ in at ion: 

(i) Hot spot analysis methods, models and assumptions; 

(ii) Determination of regionally significant projects and projects considered to have a 

significant change in design concept and scope; 

(iii) Evaluating when exempt projects should be treated as non-exempt; 

(iv) Timely implementation of TCMs and processing of TCM substitutions; 

(v) Identifying conformity determination triggers other than those established in 40 

CFR §93. 1 04; and 

(vi) Methods, models and assumptions for 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 

conformity rule. 

3. T APCD shall conduct meetings to discuss any supplementary consultation procedures as 

needed. 

4. Final document distribution for conformity determinations associated with Plans, TIPs and 

STIPs (occasionally, alternate schedules may be used with concurrence by participants): 

(i) 

(ii) 

(iii) 

(iv) 

SS-7039 (July 2009) 

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, TOOT, TAPCD and 

any applicable local air agencies. EPA will respond in writing, to the FTA 

Regional Office and FHWA Division Office, as soon as possible but not later than 

thirty (30) days from the date received; 

Comments will be resolved by FHWA and FTA, in concert with EPA, with the 

MP·o or TOOT, 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 TOOT where 

no MPO exists), with a copy to TOOT, EPA, TAPCD and any applicable local air 

agencies. The findings of FTA and FHWA together constitute the DOT conformity 

findings; 

In the event that the MPO or TOOT in their respective areas, wishes to amend 

the TIP to add projects that are exempt from the conformity analysis 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 FTA findings. 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 (electronic copies 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 assumptions to be used in hot-spot analyses. 

Generalized hot-spot determination process (occasionally, alternate schedules may be 

used with concurrence by participants): 

(i) The project sponsor (or TOOT or the MPO),· will seek consensus if the project is 

believed to be exempt from hot-spot analysis. 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; 

(ii) If the project is not exempt, the project sponsor (or TOOT or the 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 TOOT 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 TOOT 

or the MPO) will make a PM2.5 hot-spot determination (i.e., project-level 

conformity det~rmination) 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 (TOOT where no MPO exists) 

shall actively consult with the affected 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 or TIP. Prior to initiating any final 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 
TCMs are g1v1ng maximum priority to approval or funding for TCMs. If 

necessary, consideration will be given as to whether delays in TCM 

implementation necessitate revisions to the applicable implementation plan to 

remove TCMs or substitute TCMs or oth~r emission reduction measures. 

(ii) Where TCMs are to be ·included in an applicable implementation plan, a list of 

TCMs shall be developed by TOEC (and local air agencies, if applicable) in 

cooperation with the MPO, TOOT, or both. 

8. Exempt projects which may be non-exempt: 

The MPO (or TOOT where applicable) shall commence consultation regarding potentially 

exempt projects to (occasionally, alternate schedules may be used witl1 concurrence by 

participants): 

(i) Identify exempt project as defined by 40 CFR §93.126 Table 2, and 40 CFR 

§93.127 Table 3; 

(ii) Identify exempt projects and categories of exempt projects which should be 

treated as non-exempt because they may have adverse air quality impacts and 

determine appropriate air quality analysis methodologies for analyzing such 

projects; and 

(iii) Identify transportation Plan and TIP/STIP revisions which add or delete exempt 

projects, as defined in 40 CFR §93.126 Table 2 and 40 CFR §93.127 Table 3. 

The MPO (or TOOT where applicable), will seek consensus from the consultation 

participants if the project is believed to be exempt. 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. 

9. Multi-jurisdictional consultation: 

Agencies specified in this rule will consult on em1sstons analysis for transportation 

activities which cross the borders of MPOs or nonattainment areas or air basins. Where 

the nonattainment area crosses the boundaries of multiple MPOs, the MPOs shall share 

cooperatively the responsibilities of conducting conformity determinations on 

transportation activities. The MPOs will enter into a memorandum of agreement which 

will define the effective boundaries and the respective responsibilities for each MPO for 

regional emissions analysis. Adjacent MPOs of nonattainment or maintenance areas 

shall share information concerning air quality modelfng assumptions and emissions rates 

that affect both areas. This provision also applies to MPOs and TOOT where the 

nonattainment area extends beyond the MPO's · boundary. T APCO and/or local air 

agencies (where applicable) will initiate consultation with other states when 

nonaltainment areas extend beyond Tennessee's borders. 

1 0. Project disclosure: 

(i) 

SS-7039 (July 2009) 

The sponsor of any potentially regionally significant project, and any agency that 

is responsible for taking action(s} on any such project, shall disclose such project 

to TOOT or the MPO (whichever is appropriate) in a timely manner. Such 

disclosure shall be made not later than the first occasion on which any of the 

following actions is sought: any policy board action necessary for the project to 

proceed, the issuance of administrative permits for the facility or for construction 

of the facility, the execution of a contract to design or construct the facility, the 

execution of any indebtedness for the facility, any final action of a board, 

commission or administrator authorizing or directing employees to proceed with 

design, permitting or construction of the project, or the execution of any contract 

to design or construct or any approval needed for any facility that is dependent 

II 
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 by TOOT, or the 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 be 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 or interim budget. 

11. Transportation model development: 

An interagency consultation process in accordance with the interagency consultation 

procedures outlined in this rule shall be undertaken for the 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 

(or TOOT, 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 among State agencies or between State agencies and the MPO shall be escalated to 

the Governor if the conflict cannot be resolved by the heads of the involved agencies. All 

agencies involved shall make every effort to resolve any differences, 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 to MPO (or TOOT} approved conformity 

determinations on the transportation plan, TIP, or projects (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 TAPCO in writing to this effect. The memorandum shall delineate 

each unresolved issue to be appealed, and shall include, at a minimum: 

(i) 

(ii) 

SS-7039 (July 2009) 

The legal basis of the issue/conflict and steps taken to resolve the 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 other relevant documents; 

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 laws and regulations; and 

(iv) An explanation of the consequences of not 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 day window shall commence: 

(i) On the date that the Technical Secretary of T APCO 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 other than TAPCD request the start of the fourteen · 

(14) day clock on a specified date, after notifying all other agencies involved of 

their intent, and T APCD agrees. 

4. If TAPCO does not contact the Office of the Governor within the fourteen (14) calendar 

day window, then the issue in conflict is considered to be resolved in favor of the agency 

in conflict with TAPCO. 

5. The Governor may delegate his or her role, but not to the head or staff of TAPCO, TOOT, 

a state transportation commission or board, or an MPO. 

6. TAPCD shall notify involved parties of the final decision by the Office of the 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 may be resolved in a manner mutually agreed to by the parties involved. 

(h) Public participation: 

1. 

2. 

SS-7039 (July 2009) 

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 before formal action (approval or endorsement by an executive committee 

of the MPO, or where no MPO exists, TOOT management, for submission to FTA/FHWA 

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. T APCD and local air agencies shall offer the 

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 a transportation plan or TIP, musl be 

responded to, in writing, within thirty (30) days of the end of the comment period. 

The public participation procedure defined in part 1 of this subparagraph shall not be 

construed as superseding public 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 et seq.), or any other established process 

13 
which 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 

greater than) the fee schedule contained in 49 CFR §7.43. 

Exhibit A: Illustrative list of stakeholders subject to consultation as per this rule: 

Federal Agencies: 

United State Environmental Protection Agency (EPA) 

Federal Transit Administration (FTA) 

Federal Highway Administration (FHWA) 

State Agencies: 

Tennessee Air Pollution Control Division (T APCD) 

Tennessee Department of Transportation (TOOT) 

Local Air Agencies: 

Air Pollution Control Program, Memphis/Shelby County Health Department 

Division of Pollution Control, Metropolitan Health Department for Davidson County 

Department of Air Quality Management, Knox County Health Department 

Air Pollution Control Bureau, Chattanooga/Hamilton County 

Metropolitan Planning Organizations: 

Chattanooga-Hamilton County Regional Planning Agency 

Clarksville-Mon-tgomery County Regional Planning Commission 

Knoxville Regional Transportation Planning Organization 

Memphis-Shelby County Department of Regional Services 

Nashville Metropolitan Planning Organization 

Authority: T.C.A. § 68-201-105. 

SS-7039 (July 2009) 14 
• If a roll-call vote was necessary, the vote by the Agency on these rulemaking hearing rules was as follows: 

Board Member Aye No Abstain Absent Signature (if required) 

Michael Atchison X 

Dr. J. Ronald Bailey X 

Tracy R. Carter X 

Dr. Brian Christman X 

Dr. Wayne T. Davis X 

Dr. Mary English X 

Stephen R. Gossett X 

Mayor Tommy Green X 

Dr. Shawn A. Hawl<ins X 

Helen Hennon X 

Richard M. Holland X 

Dale Swafford X 

Greer Tidwell, Jr. X 

Mayor Larry Waters X 

1 certify that this is an accurate and complete copy of rulemaking hearing rules, lawfully promulgated and adopted 

by the Tennessee Air Pollution Control Board on 12/09/2009, and is in compliance with the provisions of TCA 4-5-

222. 

SS-7039 (July 2009) 15 
I further certify the following: 

Notice of Rulemaking Hearing filed with the Department of State on: 08/27/09 

Rulemaking Hearing(s) Conducted on: (add more dates). 10/20/09 

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Title of Officer: Technical Secretary 

Subscribed and sworn to before me ~n: JJ ~ 2,3 _, 2.DtJ 1 

NotaryPublicSignature:~ 7/t 7 ~ 

My commission expires on: m~ ~/ 2 0 /3 

All rulemaking hearing rules provided for herein have been examined by the Attorney General and Reporter of the 

State of Tennessee and are approved as to legality pursuant to the provisions of the Administrative Procedures 

Act, Tennessee Code Annotated, Tl!le 4, Chapter 5. 

Department of State Use Only 

Lq N 1-- <{ 

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34c2.doc . 

SS-7039 (July 2009) 

~~ ck;J;E. Cooper, Jr. 

/ Attorney General and Reporter -17-lz_;_ 

Date 

Filed with the Department of State on: -~>.....l.!~..,~-~~=-----.:-l..-.~::_ ___ _ 

Effective on: ---=--+-f--4-+--H~l"\F~~:::-----

- Tre Hargett 

Secretary of State 

16 
Public Hearing Comments 

One copy of a document containing responses to comments made at the public hearing must accompany the 

filing pursuant to T.C.A. §4-5-222. Agencies shall include only their responses to public hearing comments, which 

can be summarized. No letters of inquiry from parties questioning the rule will be accepted. When no comments 

are received at the public hearing, the agency need only draft a memorandum stating such and include it with the 

Rulemaking Hearing Rule filing. Minutes of the meeting will 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 to be subject to this rule." Exhibit A is included at the end or the rule. 

Part (1)(f)2 of Rule 1200-03·34-.01 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. 

The Board agrees. These supplemental procedures are in addition to, and would need to be 

consistent with, the Conformity SIP. 

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. 

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 for appeals process at the state level for motor vehicle emissions budgets in the S.IP. 

The following sentence is added to the Rule 1200·03·34-.01 (1 )(g): "Conflicts regarding SIPs 

should be appealed to the State or Local Air Pollution Control Board as appropriate." 

SS-7039 (July 2009) l7 
Regulatory Flexibility Addendum 

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

§ 4-5-202(a)(3) and T.C.A. § 4-5-202(a), all agencies shall conduct a review of whether a proposed rule or rule 

affects small businesses. 

(If applicable, insert Regulatory Flexibility Addendum here) 

The foregoing amendments to Rule 1200-03-34-.01 are being made to comply with§ 176(c) of the federal Clean 

Air Act and 40 CFR 51.390. These amendments are a mandatory element of the required State Implementation 

Plan under the 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 et seq. 

SS-7039 (July 2009) 18 
Impact on Local Governments 

Pursuant to T.C.A. 4-5-220 and 4-5-228 "any rule proposed to be promulgated shall state in a simple declarative 

sentence, without additional comments on the merits or the policy of the rules or regulation, whether the rule or 

regulation may have a projected impact on local governments." (See Public Chapter Number 1070 

(hllp://state.tn.us/sos/acts/1 06/pub/pc1 070.pdf) or the 2010 Session of the General Assembly) 

The Department does not anticipate that these amended rules will have a financial impact on local governments. 

SS-7039 (July 2009) 19 
Additional information Required by Joint Government Operations Committee 

All agencies, upon filing a rule, must also submit the following pursuant to TCA 4·5·226(i)(1 ). 

(A) A brief summary of the rule and a description of 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 necessary as an EPA requirement for a 

State's transportation conformity provisions. Eliminating these provisions rather than re-stating these in state 

rules accounts for most of the changes in this rulemaking. The other major change is to re-write and clarify and 

explain how the consultation process works for applying transportation conformity to planning and construction 

of transportation projects. 

(B) A citation to and brief description of any federal law or regulation or any state law or regulation mandating 

promulgation of such rule or establishing guidelines relevant thereto; 

40 CFR § 51.390 was revised in 2008 to require the state to address by its administrative rules only three major 

things: consultation procedures at 40 CFR § 93.105, written commitments for conformity measures not included 

in a Metropolitan Planning Organization's transportation plan and TIP at 40 CFR 93.122(a)(ii); and written 

commitments for mitigation measures for a project-level conformity determination. 

(C) Identification of persons, organizations, corporations or governmental entities most directly affected by this 

rule, and whether those persons, organizations, corporations or governmental entities urge adoption or 

rejection of this rule; 

Those principally affected by this rule include: United State Environmental Protection Agency (EPA), Federal 

Transit Administration (FTA}, Federal Highway Administration (FHWA), Tennessee Air Pollution Control Division 

(T APCD), 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 law to follow these procedures. The Clean Air Act mandates that States have a Conformity SIP. 

{D) Identification of any opinions of the attorney general and reporter or any judicial ruling that directly relates to 

the rule; 

I The Tennessee Air Pollution Control Board is not aware of any. 

{E) An estimate of the probable increase or decrease in state and local government revenues and expenditures, 

if any, resulting from the promulgation of this rule, and assumptions and reasoning upon which the estimate 

is based. An agency shall not state that the fiscal impact is minimal if the fiscal impact is more than two 

percent (2%) of the agency's annual budget or five hundred thousand 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 necessary for securing federal funding for transportation projects, this rulemaking rule 

could reduce the time spent in working on conformity by the making the process more clearly defined. 

{F) Identification of the appropriate agency representative or representatives, possessing substantial knowledge 

and understanding of the rule; 

Marc M. Corrigan 

Division of Air Pollution Control 

91

h Floor L&C Annex 

Nashville, Tennessee 37243-1531 

(G) Identification of the appropriate agency representative or representatives who will explain the rule at a 

scheduled meeting of the committees; 

SS· 7039 (July 2009) 20 
Alan M. Leiserson 

Alan.Leiserson@ In .qov 

Legal Services Director 

De artment of Environment and Conservation 

(H) Office address and telephone number of the agency representative or representatives who will explain the 

rule at a scheduled meeting of the committees; and 

Otrice of General Counsel 

De~artment of Environment and Conservation 

201 Floor L & C Tower 

Nashville, Tennessee 37243-1548 

(615) 532-0131 

(I) Any additional information relevant to the rule proposed for continuation that the committee requests. 

I The Tennessee Air Pollution Control Board is not aware of any. 

SS-7039 (July 2009) 21