101.05 and 8-101.06(b)), section 107(4) of the District Department of the Environment

Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official

Code § 8-151.07(4)), Mayor’s Order 98-44, dated April 10, 1998, and Mayor’s Order

2006-61, dated June 14, 2006, hereby gives notice ofthe intent to amend Chapter 4,reserve Chapters 11-14, and adopt a new Chapter 15 to Title 20 (Environment) of theDistrict of Columbia Municipal Regulations (DCMR) in not less than forty-five (45) daysfrom the date of publication ofthis notice in the D.C. Register. Further, these rules shallnot become effective until approved by the Council ofthe District of Columbia, or fortyfive (45) days after submission to the Council, not including Saturdays, Sundays, legalholidays, and days of Council recess, ifthe Council has not disapproved these rules.

The proposed rules are necessary to amend general conformity requirements and adopt

new transportation conformity regulations that will help develop and implement the air

quality State Implementation Plan (SIP). The air quality SIP includes conformity offederal actions based on the federal Clean Air Act, § § 110 and 171-193 (Part D), 42U.S.C. § 7410 and 7501 et seq., as amended. The federal conformity regulations in 40

CFR § § 93.100 - .160 establish standards and procedures to follow when evaluating the

conformity offederal projects to all applicable implementation plans.

Transportation conformity is a way to ensure that federal funding goes to transportationactivities that are consistent with national, regional, and local air quality goals. A

transportation conformity determination demonstrates that the total emissions projected

for a plan or program are within the emissions limits established by the SIP, and that

transportation control measures are implemented in a timely fashion. Transportation

conformity applies to transportation plans, transportation improvement programs, and

projects funded or approved by the Federal Highway Administration or the Federal

Transit Administration in areas that do not meet or previously have not met air quality

standards for ozone, carbon monoxide, particulate matter, or nitrogen dioxide. These

areas are known as “nonattainment” and “maintenance” areas. The District of Columbia

is currently in nonattainment for ozone and the annual fine particulate matter (PM25)

standard. The District is also a maintenance area for the daily PM2.5standard and carbon

monoxide.

Since conformity commitments in the SIP must be enforceable, the District’s

responsibilities must be codified in the District of Columbia Municipal Regulations.

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CHAPTERS 11-14 are reserved.CHAPTER 15, GENERAL AND TRANSPORTATION CONFORMITY, is addedas follows:

1500 GENERAL CONFORMITY -PURPOSE

1500.1 In accordance with § 110 and 171-193 (Part D) of the Clean Air Act, 42

U.S.C. § 7410 and 7501 et seq., the District of Columbia (District) mustdevelop an air quality State Implementation Plan (SIP) that includesconformity of federal actions. The federal conformity regulations in 40CFR § § 93.100 - .160 establish standards and procedures to follow whenevaluating the conformity of federal projects to all applicableimplementation plans.

1501 GENERAL CONFORMITY -REQUIREMENTS

1501.1 The requirements of 40 CFR § 93.150 - .160 (Subpart B), as amended,

are hereby adopted by reference for purposes of determining conformity offederal actions to state or federal implementation plans.

1501.2 This rule only applies when the District of Columbia is designated as a

nonattainment or maintenance area under the federal Clean Air Act, 42

U.S.C. § 7407d and 7407d3E.

1502 TRANSPORTATION CONFORMITY -PURPOSE

1502.1 In accordance with § 110 and 171-193 (Part D) ofthe Clean Air Act, 42

U.S.C. § 7410 and 7501 etseq., the District must develop an air quality

SIP that includes conformity of transportation plans, programs, and

projects funded or approved by the United States Department of

Transportation; the metropolitan planning organization; the Federal AidHighway Act of 1962, as amended, 23 U.S.C. § 134 etseq.; or the federal

transit laws, 49 U.S.C. § 5303 et seq.

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included in United States Environmental Protection Agency

approved

SIPs are implemented in a timely fashion.

1503 TRANSPORTATION CONFORMITY -CONSULTATION

PROCESS

1503.1 The Metropolitan Planning Organization (MPO), Regional Planning

Organization (RPO), the District Department ofthe Environment (DDOEor the Department), and the District Department of Transportation(DDOT) shall comply with the procedures in this chapter governing

interagency consultation, conflict resolution, and public consultation witheach other and with divisional or regional offices ofthe United StatesEnvironmental Protection Agency (EPA), Federal Highway

Administration (FHWA), and Federal Transit Administration (FTA) onthe development of:

(a) Control strategy implementation and maintenance plan revisions;(b) The list oftransportation control measures (TCM5) in applicable

implementation plans;

(c) The Unified Planning Work Program (UPWP), in accordance with

23 CFR § 450.3 14;

(d) Transportation plans;(e) Transportation improvement programs (TIPs); and

(f) Associated conformity determinations required by this chapter.

1503.2 An agency may not participate in the consultation process unless it is

identified in this chapter.

1504 TRANSPORTATION CONFORMITY - INTERAGENCY

CONSULTATION REQUIREMENTS

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the TIP, and for making conformity determinations;

(b) DDOE is the lead agency responsible for preparing revisions to the

SIP, and incorporating TCMs recommended by the MPO and

DDOT; and

(c) In the case of metropolitan nonattainment and maintenance areas

that have a certified RPO, the RPO is the agency responsible forpreparing an air quality plan, and for assuring the adequacy of the

interagency consultation process with respect to the developmentofthe proposed air quality plan, and any amendments or revisions

to the plan.

1504.2 When serving as lead agency, the MPO, RPO, DDOT, and DDOE have

the following responsibilities:

(a) Initiating the applicable consultation process by notifying other

participants, convening meetings, preparing summaries, assuringthat all relevant documents and information are supplied to all

participants in the consultation process in a timely manner,

maintaining a written record ofthe consultation process, and

providing final documents and supporting information to eachparticipating agency after approval or adoption;

(b) Enabling regular consultation on major activities (such as the

development of a transportation plan, the development of a TIP,any determination of conformity on transportation plans or TIPs, or

the development of a SIP), including meetings beginning on a date

determined by the lead agency to be adequate to meet the date afinal decision is required and continuing at a frequency mutuallyagreed upon by the affected agencies;

(c) Convening meetings of technical staff as necessary;(d) Conferring with all other agencies identified in § 1503.1 with an

interest in the planning process, providing all information to thoseagencies needed for meaningful input, soliciting early andcontinuing input from those agencies; and

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responsible for:

(a) Developing or approving transportation and related socioeconomic

data and local planning assumptions, and providing data andassumptions for use in air quality analysis for SIP tracking andconformity oftransportation plans, TIPs, and projects;

(b) Providing transportation demand forecasting for development of

on-road mobile source emissions inventories by DDOE and

DDOT;

(c) In cooperation with DDOT, evaluating potential TCM projects and

impacts;

(d) In cooperation with DDOT, monitoring regionally significant

projects to determine a need for emissions modeling;

(e) In cooperation with DDOT, providing technical and policy input

into the development of emissions budgets;

(f) In cooperation with DDOT, consulting with the RPO on emissions

analysis for transportation activities which cross the borders oftheMPO or nonattainment areas;

(g) In cooperation with DDOT, determining which transportation

projects should be considered “regionally significant” for thepurpose ofregional emission analysis (in addition to those

functionally classified as principal arterial roadway or higherclassifications, fixed guideway systems, or extensions that offer analternative 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;

(h) In cooperation with DDOT, assuring that plans for construction of

regionally significant projects which are not FHWA or FTAfunded or approved projects (including projects for whichalternative locations, design concept and scope, or the no-buildoptions are still being considered), including all plans by recipientsof funds designated under the Federal Aid Highway Act of 1962,

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research and data collection efforts and model developments inregional transportation, such as household or travel transportation

surveys;

(j) In cooperation with DDOT and DDOE, evaluating and choosing

each model or models and associated methods and assumptions tobe used in regional transportation demand analysis, includingvehicle miles traveled (VMT) forecasting;

(k) In cooperation with DDOT and DDOE, evaluating whether

projects otherwise exempted from meeting the requirements of 40

CFR § 93.127 should be treated as nonexempt in cases where

potential adverse emissions impacts may exist for any reason;

(1) In cooperation with DDOT and DDOE, making a determination as

required by 40 CFR § 93.113, whether past obstacles toimplementation of TCMs that are behind the schedule establishedin the applicable implementation plan have been identified and are

being overcome, and whether State and local agencies with

influence over approvals or funding for TCMs are giving

maximum priority to approvals or funding for TCMs, and as part

ofthis consultation, considering whether delays in TCMimplementation necessitate revisions to the applicableimplementation plan to remove TCM or substitute TCMs or other

emission reduction measures;

(m) In cooperation with DDOT and DDOE, determining what forecast

of vehicle miles traveled (VMT) to use in establishing or trackingemissions budgets, developing transportation plans, TIPs, orcontrol strategy implementation plan revisions, or makingconformity determinations;

(n) In cooperation with DDOT and DDOE, evaluating events which

may trigger new conformity determinations in addition to those

triggering events established by 40 CFR § 93.104;

(o) In cooperation with DDOT and DDOE, developing assumptions

regarding the location and design concept and scope of projects

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(q) In cooperation with DDOT and DDOE, obtaining guidance on

conformity and the transportation planning process for agenciesinvolved in the interagency consultation process.

1504.4 In addition to serving as lead agency pursuant to § 1504.2, DDOT is

responsible for:

(a) Circulating draft and final environmental impact or assessment

documents to appropriate agencies;

(b) Convening air quality technical review meetings on specific

projects as needed or when requested by other agencies; and

(c) Identifying, as required by 40 CFR § 93.123, projects located at

sites in PM25 nonattainment areas which will have vehicle and

roadway emission and dispersion characteristics which areessentially identical to those sites which have violations verified by

monitoring and, therefore, require qualitative or quantitative PM2.5hot-spot analysis as required by 40 CFR § 93.100 - .129 (Part 93,

Subpart A), as amended.

1504.5 In addition to serving as lead agency pursuant to § 1504.1(b), DDOE is

responsible for:

(a) Developing emissions inventories and budgets;(b) Tracking attainment of air quality standards and emission factor

model updates;

(c) Gaining final approval at the District level for control strategy

implementation plan revisions and maintenance plans;

(d) In cooperation with DDOT, evaluating and choosing each model or

models and associated methods and assumptions to be used in hotspot analysis;

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(g) In nonattainment areas where an RPO has been certified,

cooperating with the RPO in the development of emissionsinventories and budgets, and in the development of regional air

quality plans.

1504.6 When not fulfilling the responsibilities of a lead agency, reviewing and

commenting as appropriate (including comments in writing) on all

proposed decisions and actions in a timely manner, attending consultation

and decision meetings, providing input on any area ofsubstantiveexpertise or responsibility, and providing technical assistance to the leadagency or to the consultation process when requested.

1505 TRANSPORTATION CONFORMITY -CONFLICT RESOLUTION

ASSOCIATED WITH CONFORMITY DETERMINATIONS

1505.1 Unresolved conflicts among District agencies, or between District

agencies and the MPO, or among the MPO memberjurisdictions, shall beidentified by the MPO or agency in writing to the other MPO, DDOE, or

DDOT, with copies to the FHWA, FTA, and EPA. The MPO’s or theagency’s written notice shall:

(a) Explain the nature of the conflict;(b) Review options for resolving the conflict;

(c) Describe the MPO’s or agency’s proposal to resolve the conflict;(d) Explain the consequences of not reaching a resolution; and(e) Request that comments on the matter be received within two (2)

weeks.

1505.2 Ifthe action in § 1505.1 does not result in a resolution ofthe conflict, one

of the following applies:(a) Ifthe conflict is between the MPO and DDOT, then the parties

shall follow the coordination procedures of 40 CFR § 93.105(d);

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(2) Ifthe Director of DDOE does not appeal to the Mayor

within 14 days as provided in § 1505.3(a), the MPO may

proceed with its final conformity determination; and

(c) In the case of interstate nonattainment areas, ifthe conflict

involves agencies outside ofthe District, Maryland, or Virginia,and the conflict cannot be resolved by the affected agency heads,

the conflict may be resolved in a manner mutually agreed to by the

parties involved.

1505.3 Appeals to the Mayor by the Director of DDOE under the provisions of §

1505.2(b)(1) shall be in accordance with the following procedures:

(a) The Director of DDOE has 14 calendar days to appeal to the

Mayor after the MPO or DDOT has notified the Director of DDOEofthe MPO’s or DDOT’s resolution of the Department’s comments;

(b) The notification to the Director of DDOE shall be in writing and

shall be hand-delivered;

(c) The 14-day appeal commences when DDOT or MPO has

confirmed receipt by the Director of DDOE ofthe agency’s orMPO’s resolution ofthe Department’s comments;

(d) The appeal to the Mayor shall contain:

(1) The conformity determination and any supporting

documentation;

(2) DDOE’s comments on the determination; and(3) Any response by the MPO or DDOT;

(e) DDOE shall provide a complete appeal package to the MPO and

DDOT within 24 hours following the date on which the appeal is

filed with the Mayor’s Office;

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(h) The Mayor may delegate the Mayor’s role in this process, but not

to the agency head or staff ofthe DDOE or DDOT.

1505.4 This regulation does not prevent the District agencies and MPO from

making efforts on their own initiative to obtain mutual conflict resolutionthrough conferences or other appropriate means.

1506 TRANSPORTATION CONFORMITY -PUBLIC CONSULTATION

PROCEDURES

1506.1 In accordance with 40 CFR § 93.105(e), the MPO shall:

(a) Establish a proactive public involvement process which provides

reasonable opportunity for review and comment before taking

formal action on a conformity determination for all transportation

plans and TIPs, consistent with the requirements of 23 CFR §

450.3 16(a) and (b);

(b) Release information supporting conformity determinations at the

beginning ofthe public comment period; and

(c) Assess and impose reasonable charges for public inspection and

copying of such information, consistent with the fee schedule

contained in 1 DCMR §408.

1506.2 Ifthe public disagrees with the MPO’s decision about whether a project is

regionally significant and whether it was modeled properly in the emissionanalysis supporting a proposed conformity finding for a transportation

plan or TIP, a written explanation shall be provided by the MPO uponrequest by the public.

1506.3 The MPO shall also provide an opportunity for public involvement in

conformity determinations for projects when otherwise required by law.

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1508 TRANSPORTATION CONFORMITY -PROCEDURES FOR

DETERMINING REGIONAL TRANSPORTATION-RELATEDEMISSIONS

1508.1 Written commitments to control measures that are not included in the

transportation plan and TIP must be obtained prior to a conformity

determination and such commitments must be fulfilled.

1509 TRANSPORTATION CONFORMITY -ENFORCEABILITY OF

DESIGN CONCEPT AND SCOPE AND PROJECT-LEVEL

MITIGATION AND CONTROL MEASURES

1509.1 Written commitments to mitigation measures must be obtained prior to a

positive conformity determination and project sponsors must comply with

such commitments.

1599 DEFINITIONS

1599.1 The meanings ascribed to the definitions and abbreviations appearing in

20 DCMR § 199 shall apply to the terms and abbreviations in this chapter.In addition the following terms and phrases used in this chapter shall have

the meanings set forth in this section unless the text or context of aparticular section, subsection or paragraph provides otherwise.

Ambient Air — that portion of the atmosphere, external to buildings, to which the generalpublic has access.Applicable implementation plan — as defined in § 3 02(q) ofthe Clean Air Act, theportion(s) ofthe implementation plan, or most recent revision thereof, which has been

approved under § 110, or promulgated under § 110(c), and which implements the

relevant requirements ofthe Clean Air Act.

Control strategy implementation plan revision — the implementation plan which

contains specific strategies for controlling the emissions of and reducing ambient levelsof pollutants in order to satisfy the Clean Air Act requirements for demonstrations ofreasonable further progress and attainment, including implementation plan revisions

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EPA — the United States Environmental Protection Agency.

FHWA — the Federal Highway Administration within the United States Department ofTransportation.FHWAJFTA project — any highway or transit project which is proposed to receivefunding assistance and approval through the Federal Aid Highway program or the federal

mass transit program, or requires FHWA or FTA approval for some aspect of the project,

such as connection to an interstate highway or deviation from applicable design standards

on the interstate system.

FTA — the Federal Transit Administration within the United States Department ofTransportation.Highway project — an undertaking to implement or modify a highway facility or

highway related program. Such an undertaking consists of all required phases necessary

for implementation. For analytical purposes, it must be defined sufficiently to:(a) Connect logical termini and be of sufficient length to address environmental

matters on a broad scope;

(b) Have independent utility or significance, i.e., be usable and be a reasonable

expenditure even if no additional transportation improvements in the area are

made; and

(c) Not restrict consideration of alternatives for other reasonably foreseeable

transportation improvements.

Maintenance area any geographic region ofthe United States previously designated

nonattainment under ofthe § 107 ofthe Clean Air Act, 42 U.S.C. § 7407, and

subsequently redesignated to attainment subject to the requirement to develop a

maintenance plan.Maintenance plan — a revision to the applicable implementation plan, meeting therequirements ofthe § 175A ofthe Clean Air Act, 42 U.S.C. § 7505a.Mayor — the Mayor ofthe District of Columbia.

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Arlington, Fairfax, Frederick, Loudoun, and Prince William Counties, and the cities ofAlexandria, Fairfax, Falls Church and Manassas in Virginia; and the District of

Columbia.

Nonattainment area — any geographic region ofthe United States which has beendesignated as nonattainment under § 107 ofthe Clean Air Act, 42 U.S.C. § 7407, for any

pollutant for which a national ambient air quality standard exists.

PM2.5 — particulate matter with an aerodynamic diameter less than or equal to a nominal

2.5 micrometers as measured by the applicable reference method or an equivalentmethod.Project — a highway project or transit project.

Regionally significant project — a transportation project (other than an exempt project)

that is on a facility which serves regional transportation needs (such as access to and fromthe area outside of the region, major activity centers in the region, major planned

developments such as new retail malls, sports complexes, etc., or transportation

terminals) and would normally be included in the modeling of a metropolitan area’stransportation network, including at a minimum, all principal arterial highways and all

fixed guideway transit facilities that offer an alternative to regional highway travel.

RPO or Regional Planning Organization — the organization certified by the state as

being responsible for the preparation of control strategy implementation plan revisions

for nonattainment areas under § 174 ofthe Clean Air Act, 42 U.S.C. § 7504. Theorganization may include elected officials of local governments in the affected

nonattainment area, and representatives of DDOE, DDOT, the MPO for the affected area,and other agencies and organizations that have responsibilities for developing, submittingor implementing any of the plan revisions. It is the forum for cooperative air quality

planning decision-making. The RPO for the Washington region is the Metropolitan

Washington Air Quality Committee (MWAQC).

State — the District of Columbia.

Statewide transportation improvement program — a staged, multiyear, intermodal

program oftransportation projects covering the State, which is consistent with the

Statewide transportation plan and metropolitan transportation plans, and developed under

23 CFR § 450.300 - .338.

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vehicle use or changing traffic flow or congestion conditions. Vehicle technology-based,

fuel-based, and maintenance-based measures which control the emissions from vehicles

under fixed traffic conditions are not TCMs for the purposes ofthis chapter.

TIP or transportation improvement program — a staged, multiyear, intermodal

program oftransportation projects covering a metropolitan planning area which is

consistent with the metropolitan transportation plan, and developed pursuant to 23 CFR

§ 450.300 - .338.

Transit — mass transportation by bus, rail, or other conveyance which provides general orspecial service to the public on a regular and continuing basis. It does not include school

buses or charter or sightseeing services.Transit project — an undertaking to implement or modify a transit facility or transitrelated program; purchase transit vehicles or equipment; or provide financial assistancefor transit operations. It does not include actions that are solely within the jurisdiction oflocal transit agencies, such as changes in routes, schedules, or fares. It may consist of

several phases. For analytical purposes, it must be defined inclusively enough to:

(a) Connect logical termini and be ofsufficient length to address environmental

matters on a broad scope;

(b) Have independent utility or independent significance, i.e., be a reasonable

expenditure even if no additional transportation improvements in the area aremade; and

(c) Not restrict consideration of alternatives for other reasonably foreseeable

transportation improvements.

Transportation plan — the official intermodal metropolitan transportation plan that isdeveloped through the metropolitan planning process for the metropolitan planning area,developed pursuant to 23 CFR § 450.300 - .338.Transportation project — a highway project or a transit project.USDOT — the United States Department of Transportation.

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