MEMORANDUM OF AGREEMENT 

THIS MEMORANDUM OF AGREEMENT, made as of the last day written below, by and 

between the NORTH CAROLINA DEPARTMENT OF TRANSPORTATION (hereinafter, 

"NCDOT"), the NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL 

RESOURCES (hereinafter, "NCDENR"), the UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY (hereinafter, "USEPA"), the FEDERAL HIGHWAY 

ADMINISTRATION (hereinafter, "FHWA"), the FEDERAL TRANSIT ADMINISTRATION 

(hereinafter, "FTA") and collectively referred to hereinafter as the Parties. 

RECITALS 

WHEREAS, the Parties enter into this Memorandum of Agreement (hereinafter, "Agreement") 

for the purpose of implementing interagency consultation procedures for developing a State 

Implementation Plan (hereinafter, "SIP") and/or revisions, State Transportation Improvement 

Programs (hereinafter, "STIP"), and conformity determinations ofMPO TIPs, and FHWA/FTA 

projects; 

WHEREAS, the Parties enter into this Agreement in accordance with Section 176(c)(4)(E) of the 

Clean Air Act (hereinafter, "CAA''), as amended (42 U.S.C. 7401 et seq.) with respect to the 

conformity ofMPO TIPs and FHWA/FTA projects, which are developed, funded or approved by 

the United States Department of Transportation (hereinafter, "USDOT") and by the NCDOT or 

other recipients of funds under Title 23 U.S.C., or the Federal Transit Act ( 49 U.S.C. Chapter 

53.), and Title 15A North Carolina Administrative Code (hereinafter, "N.C.A.C."), Subchapter 

2D, Section .2000 relating to nonattainment and maintenance areas; 

WHEREAS, the NCDOT desires to comply with the aforementioned federal laws and 

regulations and parallel state and local laws and regulations by preparing, modifying and 

evaluating the applicable projects from the STIP and an MPOs TIP (which include Regionally 

Significant Projects) in accordance with the SIP and making it's a conformity determination in 

accordance with the state transportation plan and STIP and in order to preserve the integrity of 

the SIP; 

WHEREAS, NCDENR desires to assist the NCDOT in its compliance with the aforementioned 

federal requirements and must enforce applicable environmental state laws and regulations; 

WHEREAS, USEP A desires to effectively enforce the relevant federal laws and regulations 

regarding air quality and compliance with SIP requirements; 

WHEREAS, FHW A desires to effectively enforce and administer the relevant aforementioned 

federal laws and regulations regarding metropolitan and statewide transportation planning and 

transportation conformity; 

WHEREAS, FT A desires to effectively enforce and administer the relevant aforementioned 

federal laws and regulations regarding metropolitan and statewide transportation planning and 

transportation conformity; and 

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WHEREAS, the Parties wish to work together to perform the duties imposed upon them by law 

and to coordinate among themselves for efficient and thorough planning for air quality in the 

geographic area outside the MPOs. 

THEREFORE, in consideration of these conditions and for good and valuable consideration and 

the benefits flowing to the Parties from each other, the receipt of which is hereby acknowledged, 

and in further consideration of the mutual covenants, terms, conditions and restrictions 

hereinafter set forth, the Parties hereby agree as follows: 

PURPOSE 

The purpose of this MOA is to satisfy the requirement in Clean Air Act section 176(c)(4)(E) to 

create a state conformity SIP containing the following three requirements of the Federal 

Transportation Conformity Rule, 40 CFR part 93 subpart A: (1) 40 CFR 93.105, which addresses 

consultation procedures; (2) 40 CFR 93.122(a)(4)(ii), which 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 an Metropolitan Planning 

Organization's transportation plan and transportation improvement program, and that such 

commitments be fulfilled; and (3) 40 CFR 93.125(c), which states that conformity SIPs must 

require written commitments to mitigation measures to be obtained prior to a project-level 

conformity determination, and that project sponsors comply with such commitments. 

1.0 DEFINITIONS 

1.1 "Conformity"-- refers to the status of transportation plans, programs and projects 

within a region designated as nonattainment or maintenance for transportation 

related pollutants, as to whether they comply with air emission levels and standards 

required by existing state and/or federal implementation plans for that region. 

1.2 "Consultation"-- means when one Party confers with another identified Party, prior 

to any final decision, provides all information necessary to that Party needed for 

meaningful input, and considers and responds to the views of that Party in a timely 

written manner. 

1.3 "Interagency Consultation Conformity Determination Meeting" -- refers to a 

meeting called by NCDOT, the MPO or its designee and open to all Parties, 

designed to establish agreed upon procedures, protocols, and schedules for 

conducting a conformity analysis and determination. 

1.4 "State Implementation Plan" (SIP) -- means documents, including, but not limited 

to, State adopted regulations, attainment demonstrations, and maintenance plans, 

submitted by North Carolina to, and approved by, the USEPA, or the most recent 

revision thereof, in accordance with Sections 110, 301(d) and 175(A) ofthe CAA 

(42 U.S.C. 7410, 7601, and 7505(a)) and regulations promulgated by USEPA 

pursuant to the provisions of those sections. 

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1.5 "Statewide Interagency Consultation Meetings" (SICM) -- refers to regularly 

scheduled informational meetings, sponsored by NCDENR to which all Parties that 

are required to have air quality conformity determinations under Title 15A 

N.C.A.C. Subchapter 2D, Section .2000 are invited, including all MPOs and 

Regional Planning Organizations throughout the State. 

1.6 "Statewide Transportation Improvement Program" (STIP) -- means a staged, multiyear, statewide, intermodal program of transportation projects, which is consistent 

with the statewide transportation plan and planning processes, MPO TIPs and 

processes. 

1. 7 "Timely" - means within the time frame agreed to in the schedule set at the 

Interagency Consultation Conformity Determination Meeting(s). 

1.8 "TIP" -A transportation improvement program developed by a metropolitan 

planning organization. 

1.9 "Transportation Providers" - means public agencies that provide transportation 

services to the public, these agencies are publicly owned and operated. 

1.10 "Parties"- means representatives from all signatory agencies to this Agreement. 

1.11 All other terms used herein but not defined in this Agreement shall have the 

meaning given to them by the CAA, Title 23 and 49 U.S.C. 40 CFR 93.101, other 

USEPA regulations, other USDOT regulations, or 15A NCAC 2D. 

2.0 DUTIES OF THE PARTIES 

The roles and responsibilities of each Party are defined below. 

2.0.1 Each Party member shall determine which staff members will represent the Party 

in the conformity process and shall take responsibility to see that the appropriate 

representatives are available to ensure a cooperative process and adequate 

communication among the Parties. Each Party shall choose its representative(s) 

and at least one alternate staff person for interagency consultation and provide 

their names and contact information to NCDENR. It is the responsibility of each 

Party to notify NCDENR of changes in their appointed designee(s) or contacts(s). 

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2.0.2 All Parties shall review and provide comments to the NCDOT on draft TIPs and 

conformity analyses. All Parties shall review and provide comments to NCDENR 

on draft SIP submissions. All Parties shall review and provide comments to 

NCDOT and/or local project sponsors on project-level conformity determination 

prepared during the National Environmental Policy Act (NEPA) process for 

FHW A/PTA projects located in the NCDOT jurisdiction. Parties shall provide 

their timely review comments to these agencies within twenty-one (21) days of 

receipt of draft documents unless an alternate deadline has been agreed upon at a 

consultation meeting. The NCDENR or NCDOT, as appropriate, shall respond in 

writing to all Parties to explain how comments were addressed or why they were 

not addressed in the subsequent version of the document that is distributed to all 

Parties. 

2.1 NCDOT DUTIES 

2.1.1 In regions where there is no Metropolitan Planning Organization 

(hereinafter "MPO") or another entity assigned such duties through 

consultation with the Parties, the NCDOT shall sponsor the Interagency 

Consultation Conformity Determination Meetings and prepare meeting 

agendas and meeting materials required for fulfillment of consultation 

procedures outlined in this Agreement. NCDOT shall also participate in 

other appropriate committees/meetings established to discuss with the 

Parties on the development of a revised statewide transportation plan, 

including programs and projects. 

2.1.2 The NCDOT shall prepare meeting summaries and conclusions of said 

Interagency Consultation Conformity Determination Meetings and other 

appropriate meetings it sponsors. The NCDOT shall provide meeting 

summaries and conclusions to all Parties within a time manner not to 

exceed 14 days after the meeting. The other Parties may provide 

comments on meeting summaries/conclusions to the NCDOT within a 

time manner not to exceed 14 days, copying other Parties. The NCDOT 

shall respond to comments from Parties in writing within a time manner 

not to exceed 14 days of receiving comments. The NCDOT's response to 

comments shall be distributed to all Parties. 

2.1.3 The NCDOT shall consult with the Parties on the development process for 

TIPs and amendments thereto. This process will begin no later than one 

year prior to when the conformity determination is needed. 

2.1.4 NCDOT shall consult with the Parties to develop TIPs and amendments 

thereto by the dates agreed to in the Interagency Consultation Conformity 

Determination Meeting, as well as, provide notification of the TIP 

revisions and amendments that add or delete exempt projects as listed in 

93.126 or 93.127. 

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2.1.5 NCDOT shall consult with the Parties to develop the STIP and 

amendments thereto. Furthermore, NCDOT shall keep the Parties 

apprised of the status and content of statewide transportation plans and the 

STIP. 

2.1.6 Before the NCDOT conducts conformity analyses and determinations, as 

initiated under the terms and conditions of this Agreement, the NCDOT 

shall initiate and facilitate an Interagency Consultation Conformity 

Determination Meeting with all Parties on proposed procedures and 

protocol for conducting and performing conformity analysis prior to 

making a conformity determination. This meeting will take place not later 

than one year prior to when the conformity determination is needed. 

2.1. 7 The NCDOT shall provide information requested by other Parties to track 

the implementation of transportation control measures funded by the 

NCDOT, or local municipalities, and included in the SIP by the dates 

agreed to in the Interagency Consultation Conformity Determination 

Meeting. 

2.1.8 The NCDOT shall be responsible for development and maintenance ofthe 

travel demand model for the non MPO areas, or the development of other 

tools appropriate for the conformity analyses. The NCDOT may delegate 

such responsibility to a third party or enter into agreements with NCDOT 

and/or neighboring MPOs to develop a regional travel demand model or 

other tools. Any Party delegating responsibility to a third party shall 

notify the third party, in writing, that all documentation is subject to the 

applicable public records law. Responsibility for development and 

maintenance of a regional travel demand model should be established 

through a separate memorandum of agreement between the affected MPOs 

andNCDOT. 

2.1.9 NCDOT shall participate in the development and review of transportation 

system emissions modeling activities and projection procedures to ensure 

consistency of air quality and transportation system evaluation. 

2.1.1 0 Upon written request by the Parties, the NCDOT shall provide all Parties 

with available travel data needed to determine various transportation 

emissions budgets, if they are responsible for this data. 

2.1.11 The NCDOT shall assist NCDENR as needed for modifications or 

revisions to the SIP, which will include the assessment of effectiveness of 

existing Transportation Control Measures (TCMs) and implementation of 

potential TCMs for inclusion in the SIP, and providing critical input to the 

SIP development process, such as vehicle miles traveled (VMT) and speed 

assumptions for various road classifications. 

2.1.12 NCDOT shall also provide information requested by other Parties to track 

the implementation ofTCMs included in the SIP by the dates agreed to in 

the Interagency Consultation Conformity Determination Meeting. 

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2.1.13 NCDOT shall conduct project level conformity analysis for NCDOT 

sponsored projects as part of the NEPA process for FHW A/FTA projects 

located outside the MPO in the RPO Boundaries. 

2.1.14 The NCDOT shall submit concurrently, upon completion, a draft and/or 

final TIP document and related conformity determination to the NCDOT, 

NCDENR, and three copies to FHW A (FHW A will coordinate the federal 

review effort and will forward the documents to FT A and USEP A unless 

an alternate coordination process is specified through interagency 

consultation). The NCDOT shall respond in writing to comments made 

by the other Parties on draft documents. 

2.1.15 The NCDOT shall maintain procedures for public involvement in the 

conformity determination process consistent with its adopted Public 

Involvement Procedures including receiving and responding to public 

input on conformity findings, consistent with 23 CFR 450.316(a) and 40 

CFR 93.105(e). 

2.1.16 The NCDOT shall submit a written request for emission factors required 

for conformity determination :from NCDENR or its designee. 

2.1.17 Enforceability of Design Concept and Scope and Project-Level Mitigation 

and Control Measures 

2.1.17 .1 Prior to making a conformity determination on the applicable 

projects :from the STIP, the NCDOT will ensure any project level 

mitigation or control measures are included in the project design 

concept and scope and are appropriately identified in the 

regional emissions analysis used in the conformity analysis. 

2.1.17 .2 The NCDOT shall fulfill commitments made for mitigation 

measures that were required for facilitating positive conformity 

determinations. 

2.1.17 .3 Written commitments to mitigation measures must be obtained 

prior to a positive conformity determination, and project 

sponsors and/or operators must comply with the agreed upon 

commitment obligations (in accordance with 40 CFR 

93 .122( a)( 4 )(ii). 

2.1.17.4 The NCDOT shall obtain written commitments :from the project 

sponsor and/or operator to fulfill and complete all of the projects 

and operations identified by the project-level National 

Environmental Policy Act (NEPA) mitigation or control 

measures with respect to local hot spot analysis. 

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2.2 NCDENR DUTIES 

2.2.1 NCDENR shall maintain a list of current interagency consultation 

members and distribute it to all members whenever a change in 

membership occurs. 

2.2.2 NCDENR shall participate in the Interagency Consultation Conformity 

Determination Meetings, sponsor the SICM Meetings, and other 

appropriate committees/meetings established to advise the Parties on SIP 

and emissions control strategies and programs particularly as these relate 

to transportation issues. 

2.2.3 NCDENR shall participate in consultations with the Parties regarding the 

development process for TIPs and amendments thereto. 

2.2.4 NCDENR shall participate in the development and review of 

transportation system and emissions modeling activities and projection 

procedures to ensure consistency of air quality and transportation system 

evaluation. 

2.2.5 NCDENR shall ensure the SIP is developed using appropriate emissions 

and control measures. NCDENR is to develop the applicable motor 

vehicle emission budgets in consultation with the Parties to ensure that 

accurate and up-to-date data assumptions are being used at the initial 

phases of the development of the SIP by the deadline established by 

NCDENR during the consultation process. NCDENR shall update the SIP 

consistent with Federal CAA requirements. 

2.2.6 NCDENR shall provide applicable transportation-related emission budgets 

and revisions to the NCDOT and USDOT (FHW A and FTA). 

2.2.7 NCDENR shall keep the Parties apprised of its SIP revision submittals and 

US EPA's approval thereof and provide for and respond in writing to 

comments made by the NCDOT and the other Parties in transportationrelated SIP development processes. 

2.2.8 NCDENR shall obtain NCDOT approval for the inclusion of 

transportation related TCMs (for any TCM funded by the federal and state 

transportation budgets or local funds and where the implementing agency 

is the NCDOT) in the SIP. 

2.2.9 NCDENR shall provide a list ofTCMs included in the SIP as well as their 

SIP implementation schedules at the Interagency Consultation Conformity 

Determination Meeting. 

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2.2.10 Upon initiating a modification or revision to the SIP, NCDENR shall 

consult with NCDOT, which will include the assessment of effectiveness 

of existing TCMs and implementation of potential TCMs for inclusion in 

the SIP. A draft version of the SIP will be shared with the Parties, at a 

minimum, 30 days prior to the public comment period ending. 

2.2.11 NCDENR shall consult and review project narratives provided by 

NCDOT or appropriate project sponsor to determine if a roadway project 

is an air quality concern based on 40 CFR 93. 

2.2.12 NCDENR, at the written request ofNCDOT, shall provide appropriate 

emission factors to NCDOT for completion of the conformity analysis. 

NCDENR shall provide a schedule for completion of work within two (2) 

business days of the written request. NCDENR shall consult with 

NCDOT for the availability and appropriate use oflocal data in the latest 

EPA -approved emissions model. 

2.2.13 NCDENR shall review and provide comments to the NCDOT on draft 

conformity analyses. NCDENR shall provide timely review comments to 

the NCDOT within twenty-one (21) days of receipt for inclusion in the 

final report in accordance with the terms and conditions of this 

Agreement. 

2.3 FHWA and FTA (USDOT) DUTIES 

2.3.1 FHWA and FTA shall consult with the Parties regarding the SICM 

Meetings, the Interagency Consultation Conformity Determination 

Meetings and other appropriate committees/meetings established to advise 

the Parties on the development of transportation plans, programs and 

projects, particularly as these relate to air quality-related issues. 

2.3.2 FHWA and FTA shall advise the Parties of changes to USDOT technical, 

regulatory, and policy guidance as it relates to the planning process and 

conformity. 

2.3.3 FHWA and FTA shall assist NCDENR, NCDOT as needed for 

modifications or revisions to the SIP, which will include the assessment of 

effectiveness of existing TCMs and implementation of potential TCMs for 

inclusion in the SIP. 

2.3.4 FHWA and FTA shall assess the NCDOT's compliance with public 

participation policy and procedures that meet the requirements of 23 CFR 

450.316(a) and 40 CFR 93.105(e). 

2.3.5 FHWA and FTA shall provide written comments to the other Parties 

concerning both draft and final conformity findings in accordance with the 

terms of this Agreement. The final conformity finding made by FHW A 

shall be consistent with the requirements of the national conformity 

memorandum ofunderstanding. 

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2.3.6 FHW A shall review and provide timely approval or rejection, in writing, 

of the final conformity determination report by the NCDOT of an 

amended and/or adopted transportation plan, program or project subject to 

conformity analysis and determination according to this Agreement by the 

dates agreed to in the Interagency Consultation Conformity Determination 

Meetings. 

2.3.7 The FHWA will coordinate the federal review effort and will forward 

copies of the draft or final TIP document and related conformity 

determination to the FT A and USEP A unless an alternate coordination 

process is specified through interagency consultation. 

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

conformity determination for a transportation project, FHW A must obtain 

from the project sponsor and/or operator written commitments, as defined 

in 40 CFR 93.101, to implement any project-level mitigation or control 

measures in the construction or operation of the project identified as 

conditions for NEP A process completion. The written commitments to 

implement those project-level mitigation or control measures must be 

fulfilled by the appropriate entities. 

2.3 .9 FHW A shall be responsible for final approval or rejection of project level 

conformity determinations on FHW A projects. 

2.4 USEPA DUTIES 

2.4.1 USEP A shall participate in the SICM Meetings, the Interagency 

Consultation Conformity Determination Meetings and other appropriate 

committees/meetings established to advise the Parties on the development 

of transportation plans, programs and projects, particularly as these relate 

to air quality-related issues. 

2.4.2 USEP A shall advise the Parties of changes to USEPA policy, regulation, 

and guidance related to air quality and conformity. 

2.4.3 USEPA shall review and comment, in writing to FHWA and the NCDOT, 

on draft and final conformity analyses in accordance with the terms of this 

Agreement and consistent with the requirements of the national 

conformity memorandum ofunderstanding within twenty-one (21) days of 

receipt. 

2.4.4 USEPA shall assist NCDENR, NCDOT as needed for modifications or 

revisions to the SIP, which will include the assessment of effectiveness of 

existing TCMs and implementation of potential TCMs for inclusion in the 

SIP. 

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2.4.5 USEPA shall review the adequacy of the Motor Vehicle Emissions 

Budgets, and determine the approvability of submitted SIPs, including the 

Conformity SIP (the subject of this MOA) and any subsequent revisions, 

and of control strategy SIPs and any revisions. USEPA's determination of 

approvability shall be in writing and provided to all Parties. 

2.4.6 USEPA shall be consulted with and will review compliance for hotspot 

requirements related to individual PHW A/PTA projects and provide 

comment in writing. 

3.0 CONTENT AND SUBMISSION OF TRANSPORTATION PLANS, PROGRAMS 

AND PROJECTS 

3.1 CONTENT AND DESIGN 

The STIP, programs and/or projects to be analyzed for conformity shall meet the 

requirements of the current federal transportation authorizing legislation, and the most 

current US DOT and USEP A regulations. At the time that a new or revised transportation 

plan is proposed, NCDOT and local transportation planning agencies, shall prepare a list 

of new or modified transportation projects and services included in the transportation 

plan and identify the time frame each new project or service is expected to become 

operational. 

3.2 PUBLIC PARTICIPATION 

Conformity determinations for STIPs shall follow the specific public involvement 

process established by the MPO, consistent with the requirements of 23 CPR Part 450, 

which provides opportunity for public review and comment prior to formal action on a 

conformity determination. The public review must provide reasonable public access to 

technical and policy information considered by the affected parties in making the 

conformity determination. 

Conformity determinations in isolated rural nonattainment and maintenance areas and 

rural portions of nonattainment and maintenance areas outside the MPO boundaries shall 

follow the specific public involvement process established by NCDOT, consistent with 

the requirements of 23 CPR Part 450, which provides opportunity for public review and 

comment prior to formal action to update the STIP. 

Any charges imposed for public review and copying should be consistent with applicable 

fee schedules including but not limited to 49 CPR 7.43 and N.C.G.S. § 132-6.2. 

4.0 STATEWIDE INTERAGENCY CONSULTATION MEETINGS 

NCDENR shall sponsor a SICM Meeting on a regular basis for the purpose of keeping all 

Parties and all RPOs/MPOs abreast of new information concerning transportation 

planning generally and as it relates to conformity analysis and determination. 

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4.1 MEETING FREQUENCY 

Statewide Interagency Consulting Meetings shall be held monthly unless otherwise 

agreed upon by all Parties. Meeting dates shall be determined by NCDENR after 

consultation with the Parties. The meeting shall consist of updates and other pertinent 

information provided by each Party. 

4.2 SPECIAL MEETINGS 

IfNCDENR determines, in consultation with other Parties, a need for an unscheduled 

Statewide Interagency Consulting Meeting and there is a consensus among the Parties to 

have an unscheduled meeting, NCDENR must provide prior notice to all Parties, at least 

fourteen (14) days in advance of the meeting. However, the Parties may waive the 

fourteen (14) day advance notice requirement if all Parties agree that an earlier scheduled 

meeting is in the best interest of the Parties. 

4.3 MEETING LOCATION AND AGENDA 

The SICM Meeting location shall be determined based upon convenience and agreement 

by the Parties. NCDENR shall provide all Parties, including all RPOs/MPOs, advance 

notice of the meeting time, location and agenda. If necessary and convenient, the SICM 

Meeting need not be a face-to-face meeting but may occur by telephone, video or some 

other practical electronic means. 

4.4 DISCUSSION OF SIP RELATED ISSUES 

NCDENR shall use the SICM Meeting as an opportunity to update the Parties on SIPs 

under development and SIP revisions submitted to USEP A. NCDENR shall allow the 

Parties to review and comment on transportation-related SIP issues and respond to said 

comments. See Section 2.0.2 for the general process for commenting and responding to 

comments. 

5.0 INITIATING CONFORMITY DETERMINATIONS OR ANALYSIS 

The Parties shall make conformity determinations and consultations consistent with this 

Agreement and in accordance with the conditions described in 40 CFR Part 93 for TIPs 

and FHWA/FTA projects. 

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5.1 EXEMPTIONS TO CONFORMITY DETERMINATIONS 

5.1.1 Notification ofExempt Status Required-- The NCDOT shall notify the 

Parties of adoption or approval of projects determined to be exempt by the 

NCDOT and provide a basis for such exempt status. Notification by the 

NCDOT shall also be made when the TIP is revised to add or delete 

exempt projects as defmed in 40 CFR 93.126, 93.127, and 93.128. 

Notification of deleted projects does not have to be made prior to an 

NCDOT action. 

5.1.2 Objection to Exempt Determination-- Ifthe Parties disagree with the 

NCDOT's finding that the amendment to the TIP contains only exempt 

projects, the objecting Party shall notify all Parties in writing. See section 

9.0 for conflict resolution procedures. 

6.0 INTERAGENCY CONSULTATION CONFORMITY DETERMINATION 

MEETING 

When the need for conformity analysis and determination is initiated in accordance with 

this Agreement and aforementioned regulations, the NCDOT shall call an Interagency 

Consultation Conformity Determination Meeting to which all Parties of this Agreement 

shall be invited by the NCDOT. The Interagency Consultation Conformity 

Determination Meeting shall be held prior to performing any conformity analysis or 

determination and shall address the specific processes outlined in 40 CFR 93.105(c). The 

purpose is to coordinate early with the Parties on information regarding the choice of 

some major parameters of the conformity analysis and to determine the schedule of 

preparation and review of the analysis. All of the information agreed upon by the Parties 

will be documented in the pre-analysis plan. If during the meeting a conflict arises, the 

Parties shall follow the conflict resolution procedures as outlined in Section 9.0 of this 

document. 

6.1 NOTICE OF MEETING 

The NCDOT shall provide at least fourteen (14) days prior written notice to the Parties 

that an Interagency Consultation Conformity Determination Meeting has been scheduled. 

Said prior notice shall also be given to local transportation providers represented by the 

NCDOT. However, the Parties may waive the fourteen (14) day advance notice 

requirement if all Parties agree that an earlier scheduled meeting is in the best interest of 

the Parties. 

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6.2 MEETING PLACE, TIME AND AGENDA 

The meeting shall be scheduled at a time and location that allows representatives from 

the Parties to participate. The NCDOT shall distribute to the Parties draft agenda and 

meeting materials at least five ( 5) business days prior to the meeting. The Parties shall 

have the opportunity to add agenda items and will be responsible for presenting them. If 

it is agreed among the Parties that additional meetings are required the NCDOT may 

schedule such additional meetings. 

Attendance at the Interagency Consultation Conformity Determination Meeting may be 

by telephone or teleconference so long as all the Parties agree. If some Parties are unable 

to attend the Interagency Consultation Conformity Determination Meeting(s), the 

NCDOT or its designee shall consider whether meaningful consensus can be reached 

with the available Parties. If the NCDOT or its designee determines the overall Party 

representation to be adequate, it shall document the meeting and provide all Parties with 

a summary of the important discussions and conclusions. 

6.3 CONSULTATION ON CONFORMITY ANALYSIS APPROACH 

The NCDOT shall outline, in the pre-analysis plan, the proposed methodologies to be 

used in the conformity analysis and share the pre-analysis plan with the Parties for 

comment at least 7 days prior to the meeting. 

6.3.1 Interagency Consultation Procedures-- The issues listed in 40 CFR 

93.105 (c) shall be reviewed and discussed at this meeting, including but 

not limited to, the following activities: 

6.3 .1.1 Evaluating and choosing an appropriate tool (e.g. travel demand 

model) and associated methods and assumptions to be used in 

hot-spot analyses and regional emissions analyses; 

6.3 .1.2 Determining which minor arterial and other transportation 

projects should be considered Regionally Significant Projects 

(RSPs); 

6.3 .1.3 Evaluating whether projects otherwise exempted from meeting 

the requirements of 40 CFR 93.126 and 93.127 should be treated 

as non-exempt in cases where potential adverse emissions 

impacts may exist; 

6.3.1.4 Discussing whether or not adopted TCMs are on schedule and 

performing as anticipated, as required by 40 CFR 93.113. If 

TCMs are not on schedule, Parties shall discuss whether 40 CFR 

93 .113( c )(I) can be met and what will occur if 40 CFR 

93 .113( c )(1) cannot be met; 

6.3 .1.5 Choosing conformity tests and methodologies for areas outside 

the MPO boundary but within the nonattainment or maintenance 

area as required by 93.1 09(1)(2)(iii); 

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6.3 .1.6 Consulting on emissions analysis for transportation activities 

which cross MPO, nonattainment area or air basin boundaries; 

6.3.1.7 For the metropolitan planning area that does not include the 

entire nonattainment or maintenance area, establish a process 

involving the NCDOT for cooperative planning and analysis for 

the purposes of determining conformity of all projects outside 

the metropolitan area and within the nonattainment or 

maintenance area; 

6.3.1.8 Ensuring that plans for construction ofRSPs, that are not 

FHW A/FTA projects, are disclosed to the NCDOT on a regular 

basis and any changes to those plans disclosed in writing to the 

NCDOT; 

6.3.1.9 Process for consulting on the design, schedule and funding of 

research and data collection efforts and regional transportation 

model development by the NCDOT; 

6.3 .1.1 0 Process for providing final documents and supporting 

information to each applicable Party after adoption or approval 

as defined in Section 2.1.1 0; 

6.3.1.11 Latest planning assumptions for developing emission factors for 

the conformity analysis; 

6.3.1.12 Projects without a determined design concept and scope shall be 

discussed at the Interagency Consultation; and 

6.3 .1.13 Parties must agree on sufficient details of the design concept and 

scope for the project to be included in the conformity analysis 

and determination. 

6.3.2 TCM Analysis and Implementation-- The Interagency Consultation 

Conformity Determination Meeting shall be used for assuring 

implementation ofTCMs, which shall be a joint responsibility of 

NCDENR, the NCDOT. NCDENR shall submit (at the Interagency 

Consultation Conformity Determination Meeting) a list of the TCMs, 

which are in the applicable implementation plan and their SIP schedules, 

to be included in the TIP. 

6.3.3 Scheduling Implementation-- NCDENR or its designee (at the request of 

the NCDOT) shall provide the emission factors to the NCDOT within a 

time agreed upon during the interagency consultations and to allow the 

NCDOT sufficient time to complete the conformity analysis on schedule. 

Additional meetings to address schedule changes or modifications shall be 

scheduled as needed. Due to the difficulty in assembling all Parties at one 

time, subsequent meetings may involve various subsets of the larger 

group. However, pertinent information discussed in these sub-meetings 

shall be shared with the other Parties as defined in Section 2.1.2. 

14 
6.3.4 STIP Conformity Analysis and Determination-- The NCDOT shall also 

discuss the STIP as it relates to conformity-related issues. The discussion 

of the STIP conformity analysis and determination may be made viaemail or postal mail unless a Party member identifies sufficient reasons for 

including such discussions in a scheduled face-to-face meeting. If e-mail 

or postal mail is used, the NCDOT shall outline the manner in which the 

upcoming STIP conformity determination is to be carried out. The 

NCDOT shall inform the Parties of any proposed changes in procedure 

from the last STIP Conformity Analysis and Determination. The review 

and commenting procedures are outlined in Section 2.0.2. 

7.0 CONFORMITY ANALYSIS RESULTS AND REPORTING 

The draft conformity analysis report shall be circulated to the Parties defined during the 

Interagency Consultation Conformity Determination Meeting for their review prior to 

releasing said draft report for public review as required by Title 15A N.C.A.C. 2D. 2003. 

After the Parties' twenty-one (21) day review period, or review period agreed upon by 

all Parties, the NCDOT shall provide public review and comments of the draft report in 

accordance with the NCDOT's public participation policies and procedures. The 

NCDOT shall not make conformity determination or plan adoption or approval until after 

the agency review is completed or the required review period has ended and after public 

participation. 

7.1 DOCUMENTATION OF CONFORMITY ANALYSIS 

The conformity analysis shall document all assumptions and relevant information used to 

determine the impact of the TIP or FHW A/FT A project on travel and emissions in the 

regwn. 

Contents of the Regional Conformity Analysis Report -- The conformity analysis report 

shall include, but not be limited to, following documentation: 

7.1.1 Forecasts of population, household and employment in the analysis; 

7 .1.2 Inputs used to develop emissions factors and emission factors used; and 

7 .1.3 VMT and average speed for each federal functional classification. 

7.2 COMMENTS BY THE PARTIES AND THE PUBLIC 

The Parties may comment upon the analysis results after receiving the results of the draft 

conformity analysis and report. The results shall also be made available to the public for 

review and comment in accordance with the NCDOT's public participation policy and 

procedures and 23 CFR 450.316(a) and 40 CFR 93.105(e). 

15 
7 .2.1 Evaluation of Comments from the Public -- After the completion of the 

public comment period, the comments received from the public on the 

conformity analysis, shall be addressed in the final report and may be 

raised in an additional meeting between the Parties. Comments may be 

addressed individually or in summary form at the discretion of the 

NCDOT. 

7.2.2 Evaluation of Comments from the Parties-- Ifthe Parties disagree with 

the conclusions of the analysis, the NCDOT shall convene a meeting or 

consult with the Parties via an electronic communication means 

(telephone, teleconference, e-mail, etc.) if agreed to by the Parties, to 

consider and discuss the comments and determine whether further 

conformity-related analysis is needed. 

8.0 CONFORMITY DETERMINATION ADOPTED BY NCDOT RESOLUTION 

The NCDOT may make a conformity determination and approval/adoption of the TIP, 

RSP or applicable transit project after addressing conformity related objections and 

concerns raised by both the public and the Parties. 

8.1 NOTIFICATION OF NCDOT RESOLUTION 

The NCDOT shall provide FHW A with written notification of a conformity 

determination by NCDOT resolution within 7 days unless a different schedule is agreed 

upon during interagency consultation meetings. The NCDOT shall include, along with 

the notification, a copy of the final conformity analysis and report. FHW A will be 

responsible for distribution of the final conformity analysis and report to the USEP A and 

FTA for formal review. 

8.2 NCDENR OBJECTION TO CONFORMITY DETERMINATION 

IfNCDENR objects to the NCDOT's conformity determination, NCDENR may appeal 

the NCDOT determination within fourteen (14) days of receiving notification of the 

NCDOT's determination. The appeal process and procedure to be followed shall be in 

accordance with the Conflict Resolution section of this Agreement. Notwithstanding 

NCDENR's right of appeal, NCDENR may waive its right to object, in writing, at any 

time during the fourteen (14) day appeal period. 

16 
9.0 CONFLICT RESOLUTION 

The purpose of this Agreement is to ensure that necessary conformity analyses and 

determinations are made efficiently and with limited conflict. The Parties believe this 

Agreement establishes a means and protocol for consultation and document review that 

will avoid conflicts and disagreements among the Parties regarding final conformity 

determinations. Nevertheless, a means must be established to address the possibility that 

certain conflicts may arise that cannot be resolved among the designated representatives 

of the Parties. It is the purpose of this section to address such situations. 

9.1 RESOLUTION OF CONFLICTS AT THE STATE LEVEL 

9 .1.1 Conflicts Arising Prior to Conformity Determination -- Any conflict or 

disagreement between NCDOT and NCDENR causing a lack of consensus 

among the state Parties as to acceptance ofNCDOT conformity analysis 

may be resolved in the manner described below. IfNCDENR objects to 

the proposed conformity analysis prior to the NCDOT making a 

conformity determination by resolution, the issue may be resolved by the 

following procedure: 

9 .1.1.1 Level I Resolution -- After the objecting Party gives five ( 5) 

days written notice to the other Party members explaining the 

reasons for objection, each staff level Party member shall 

forward written objections to the Level I Resolution Negotiators 

who are defined as follows: 

NCDOT --the Transportation Planning Branch Manager 

NCDENR -- the Division of Air Quality Director 

The Level I Resolution negotiators shall have five (5) business 

days, from notice, to resolve the matter by mutually agreed upon 

meeting forum, including, but not limited to, face-to-face 

meetings, telephone and e-mail. 

9 .1.1.2 Level II Resolution - If the Level I Resolution Negotiators are 

unable to resolve the dispute, it may be raised to Level II 

Resolution negotiators who are defined as follows: 

NCDOT --The Secretary of the NCDOT 

NCDENR -- The Secretary ofNCDENR 

The Level II Resolution Negotiators shall have ten (10) business 

days to resolve the matter by mutually agreed upon meeting 

forum, including, but not limited to face-to-face meetings, 

telephone and e-mail. 

17 
9.1.2 Conflicts Arising After NCDOT Regional Conformity Determination--

After the NCDOT has made its conformity determination by resolution 

and adoption/approval, NCDENR may appeal said conformity 

determination by resolution and adoption/approval to the Governor of 

North Carolina within fourteen (14) days of confirmation that NCDENR 

received notice. IfNCDENR appeals to the Governor, the final 

conformity analysis and determination must have the concurrence of the 

Governor ofNorth Carolina. NCDENR shall provide written notice of 

appeal under this subsection to the Secretary ofNCDOT, the FHW A 

North Carolina Division Administrator, and the USEPA and FTA Region 

4 Administrators. Notwithstanding NCDENR's right of appeal, if 

NCDENR supports the final conformity determination, NCDENR may 

voluntarily waive its right of appeal, in writing. 

9.1.2.1 Resolution ofNCDENR Appeal-- The Governor may delegate 

his or her role in this appeals process to another official or 

agency within the State, but not to the head or staff ofNCDENR, 

NCDOT, the North Carolina Board of Transportation, or any 

agency that has responsibility for any one of these functions. 

If the NCDENR does not appeal to the Governor within fourteen 

(14) days of the NCDOT's notification of conformity on the TIP 

the NCDOT may continue submission of its conformity 

determination to USDOT for their final review and conformity 

determination. The NCDOT does not have to make conformity 

determinations on projects. 

9.2 RESOLUTION OF CONFLICTS AT THE FEDERAL LEVEL 

It is the affirmative responsibility of FHW A and FT A to raise issues prior to the end of 

any agreed upon review period. If FHW A or FT A determines there is a significant issue, 

it is that agency's affirmative responsibility to arrange a meeting with the Parties to 

resolve the issue prior to writing negative comments or fmding that the TIP in question 

does not conform to the intent of the North Carolina SIP. 

If, after the fourteen (14) day prior notice of the NCDOT's final conformity 

determination by resolution and approval/adoption, NCDENR has not appealed said final 

conformity determination (or waived it's right to appeal earlier), FHW A and FTA may 

provide written approval or rejection of the final conformity determination within fortyfive ( 45) days of notice of final conformity determination. 

9.2.1 Consensus Among Federal Agencies-- If, within the forty-five (45) day 

period the FHW A and FT A are in disagreement over the approval or 

rejection ofthe conformity determination, the FHWA and FTA may 

escalate the conflict among their respective agencies in an attempt to 

resolve the issue within the forty-five ( 45) days time period. 

9.2.2 Rejection by the Federal Agencies-- If the FHWA and FTA reject the 

conformity determination, the NCDOT or NCDENR may appeal said 

rejection to the Secretary ofUSDOT. 

18 
9.2.3 No Action after Forty-Five (45) Days-- If after forty-five (45) days, no 

written approval or rejection has been provided from FHW A and PTA, the 

Secretary ofNCDOT, or the Secretary ofNCDENR may provide a written 

request of review by the Secretary of the US DOT seeking a resolution 

among the FHW A and FT A. 

10.0 MODIFICATIONS OF AGREEMENT 

The Parties may propose revision(s) to this MOA, and request that Parties meet to 

consider such a revision. A change in duties will require this MOA to be reviewed. 

11.0 TERMINATION OF AGREEMENT 

11.1 TERMINATION AND AUTOMATIC RENEWAL 

The natural term of this MOA is ten (10) years from the date of execution. 

Notwithstanding the natural term, the MOA will be automatically renewed every 

ten (1 0) years from the date of execution. If a Party desires to cancel the automatic 

renewal and re-negotiate a new agreement, the canceling Party must provide written 

notice to all other Parties at least six ( 6) months before the automatic renewal date. 

In the event that a Party seeks to renegotiate the MOA and an agreement on the new 

MOA is not reached prior to the expiration of the 10-year term, the previous MOA 

will remain in effect until such time as a new agreement is approved by all Parties 

and formally adopted into the SIP. 

19 
12.0 SAVINGS PROVISIONS AND OTHER 

12.1 This MOA does not change any of the requirements and obligations 

contained in any existing law or regulation, including but not limited to 

Clean Air Act, transportation conformity regulations ( 40 CFR Parts 51 and 

93), National Environmental Policy Act (NEPA), or the North Carolina 

Administrative Code at 15A NCAC. In the event of conflict between the 

provisions of this agreement and an existing regulatory provision, the 

regulatory provision shall prevail. 

12.2 This MOA supersedes any and all previous agreements between the 

signatories with respect to matters addressed herein. 

12.3 This MOA does not create any, nor does it affect any existing, 

administrative or judicial right of the Parties. 

12.4 If any provision of this MOA is rendered or declared invalid by any final 

court action or decree, or by reason of preemptive legislation, the 

remaining sections of this MOA shall remain in full force and effect for 

the duration of the MOA. 

12.5 Unless otherwise specified, in computing any period of time prescribed or 

allowed in this MOA, Rule 6 "Time" ofthe North Carolina Rules of Civil 

Procedure shall apply. 

20 
IN WITNESS WHEREOF, the Parties have executed this AGREEMENT on this 

the l +vl day of R!:?W tlVkJ , 2011. 

NCDOT 

By ~ (/ (!,._{i: 

Name: [ujen-e 1\ Co ~j,· 

Title: Secretary ofTransportation 

21 
Name:])-ee_ A- i'i:ee.M.,o..Y\.... 

Title: Sec.,~-\-cu·'J ) 1\)C.-])EtJR 

22 
IN WITNESS THEREOF, the Parties have executed this AGREEMENT on this 

The g_-11-- day of cr~ ' 2013 

USEPA 

By.~r~ Name: Gwendolyn Keyes Fleming 

Title: Regional Administrator 

23 
IN WITNESS WHEREOF, the Parties executed this AGREEMENT on this 

the ;z. :r~ day of ro/ltv, , 2011. 

By:~ j-~~ 

Name: John F. Sullivan III, P.E. 

Title: FHW A NC Division Administrator 

24 
IN WITNESS WHEREOF, the P!es have executed this AGREEMENT on this 

the S '\b day of ?fr~ l , 2011. 

FTA 

By: Yvette G. Taylor 

Name~\NJ;t \(\, \tb'q\r- ~ 

Title: Regional Administrator 

25