April, 2012 (Revised) 1 

RULES 

OF 

TENNESSEE DEPARTMENT OF ENVIRONMENT AND CONSERVATION 

BUREAU OF ENVIRONMENT 

DIVISION OF AIR POLLUTION CONTROL 

CHAPTER 1200-03-34 

CONFORMITY 

TABLE OF CONTENTS 

1200-03-34-.01 Transportation Conformity Interagency 1200-03-34-.02 Conformity of General Federal Actions 

 Consultation and General Provisions 

1200-03-34-.01 TRANSPORTATION CONFORMITY INTERAGENCY CONSULTATIONAND 

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 (FTA) 

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 (TAPCD) 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: 

 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 agencies 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. 
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April, 2012 (Revised) 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. 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 preceding documents, and all conformity determinations required 

by this rule. 

2. 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. 

3. 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 TDOT 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. 

4. 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. 

5. 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 §93.105, assure policy-level contact 

with those agencies, consider the views of each agency and respond to those 
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April, 2012 (Revised) 3

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 (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 §93.105 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 provide all 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 TDOT, 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, TDOT, 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 
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April, 2012 (Revised) 4

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

development, the following: 

(i) Developing emissions inventories; 

(ii) Developing emissions budgets; 

(iii) Conducting air quality modeling; 

(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- or facility-based or other programmatic (nonregulatory) TCMs; 

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

(vi) Performing transportation modeling, including: 

(I) Selecting and evaluating such models; 
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April, 2012 (Revised) 5

(II) Documenting their use in conformity determinations; and 

(III) 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 §93.106(d); and 

(xi) Identifying planning assumptions and evaluating those assumptions for 

consistency with SIP assumptions. 

3. The Tennessee Department of Transportation shall be responsible for: 

(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 

(III) 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; 
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(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 §93.109(l)(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: 

(i) Reviewing motor vehicle emissions budgets in submitted SIPs and finding 

them adequate or inadequate based on adequacy criteria and procedures; 

(ii) Providing guidance on conformity criteria and procedures to agencies in 

interagency consultation; 

(iii) Approving or disapproving submitted SIP revisions (including TCMs); 

(iv) Providing modeling and emissions inventory development assistance to 

TAPCD, TDOT and MPOs; and 

(v) Providing comments on the regional emissions 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) TDOT 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 §93.109(l)(2)(iii); and 

(iii) MPOs and TDOT 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 TDOT to 

submit any conformity determinations to the FHWA, FTA, EPA, TACPD, local air 

agencies, TDOT, 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. 
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April, 2012 (Revised) 7

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

made available for review and comment to the TAPCD, 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 assumptions 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 determination(s); and 

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

the conformity demonstration may appeal to the Technical Secretary if the 

request seems unreasonable. 

6. TAPCD (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; 

(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 TDOT, where applicable) making 

a conformity determination, to provide TAPCD and the applicable local air 

agencies, FTA, FHWA and the EPA with documentation of the conformity 

determination. 

8. It shall be the responsibility of TAPCD to provide affected MPOs, FHWA, FTA, 

EPA, local air agencies and TDOT with appropriate information regarding any 

SIP changes that could impact the conformity process. 

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

and FTA, FHWA, TDOT, and the affected MPOs information regarding changes 

to the Conformity Rule that could impact conformity determinations. 
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April, 2012 (Revised) 8

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 TDOT, 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 TDOT, 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, 

TAPCD, TDOT, or the MPO where one exists. 

(e) Implementation Plans: 

1. 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 TDOT, 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. 

2. TAPCD 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 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, 

TDOT, 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, 
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April, 2012 (Revised) 9

TAPCD will include the following items for discussion during interagency 

consultation meetings in advance of a conformity determination: 

(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 §93.104; 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. TAPCD 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) 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, TDOT, 

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; 

(ii) Comments will be resolved by FHWA and FTA, in concert with EPA, with 

the MPO or TDOT, in their respective areas, as necessary; 

(iii) FHWA and FTA will jointly prepare correspondence to make the conformity 

finding. Joint conformity findings will be addressed to the MPO (or TDOT 

where no MPO exists), with a copy to TDOT, EPA, TAPCD and any 

applicable local air agencies. The findings of FTA and FHWA together 

constitute the DOT conformity findings; 

(iv) In the event that the MPO or TDOT 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 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 
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April, 2012 (Revised) 10

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 TDOT 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 TDOT 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 TDOT 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 TDOT or the MPO) will make a PM2.5 hot-spot determination 

(i.e., project-level conformity determination) 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 (TDOT 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 TDOT, if 

applicable) shall consider the views of each agency that comments and respond 

in writing. 

7. Transportation Control Measures (TCMs): 

(i) 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 TCMs are giving maximum priority to approval or 
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April, 2012 (Revised) 11

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 other emission 

reduction measures. 

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

of TCMs shall be developed by TDEC (and local air agencies, if applicable) 

in cooperation with the MPO, TDOT, or both. 

8. Exempt projects which may be non-exempt: 

 The MPO (or TDOT where applicable) shall commence consultation regarding 

potentially exempt projects to (occasionally, alternate schedules may be used 

with 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 TDOT 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 emissions 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 modeling assumptions and emissions rates that affect both 

areas. This provision also applies to MPOs and TDOT where the nonattainment 

area extends beyond the MPO’s boundary. TAPCD and/or local air agencies 

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

areas extend beyond Tennessee’s borders. 

10. Project disclosure: 

(i) 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 TDOT 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 
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April, 2012 (Revised) 12

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 on the completion of the regionally significant project. To help 

assure timely disclosure, the sponsor of any potential regionally significant 

project shall disclose to TDOT or the MPO (whichever is appropriate) on a 

schedule prescribed by TDOT 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 TDOT) to perform a regional emissions analysis. This 

consultation process pursuant to this rule shall be initiated by TDOT, 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 TDOT, 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 TDOT) approved conformity determinations on the 

transportation plan, TIP, or projects (including project-level determinations), including 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.01, continued) 

April, 2012 (Revised) 13

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 TDOT determines that every effort has been made 

to address TAPCD concerns and no further progress is possible, the MPO or 

TDOT shall notify the Director of TAPCD in writing to this effect. The 

memorandum shall delineate each unresolved issue to be appealed, and shall 

include, at a minimum: 

(i) The legal basis of the issue/conflict and steps taken to resolve the conflict; 

(ii) 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; 

(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 TAPCD 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 TAPCD agrees. 

4. If TAPCD 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 TAPCD. 

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

TAPCD, TDOT, 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: 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.01, continued) 

April, 2012 (Revised) 14

1. 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, TDOT 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. TAPCD 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, must be responded to, 

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

2. 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 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 (TAPCD) 

Tennessee Department of Transportation (TDOT) 

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 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.01, continued) 

April, 2012 (Revised) 15

Metropolitan Planning Organizations: 

Chattanooga-Hamilton County Regional Planning Agency 

Clarksville-Montgomery 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. Administrative History: Original rule filed March 29, 1995; effective 

June 14, 1995. Amendment filed August 31, 2001; effective November 14, 2001. Repeal and new rule 

filed January 18, 2012; effective April 17, 2012. 

1200-03-34-.02 CONFORMITY OF GENERAL FEDERAL ACTIONS. 

(1) Adopted herein by reference are the federal regulations in Paragraph (2) of this rule as 

published in the Code of Federal Regulations (CFR ) as Subpart W of 40 CFR § 51.850 et 

seq., Federal Register November 30, 1993 

(2) SUBPART W -- DETERMINING CONFORMITY OF GENERAL FEDERAL ACTIONS TO 

STATE OR FEDERAL IMPLEMENTATION PLANS 

§51.850 Prohibition. 

(a) No department, agency or instrumentality of the Federal Government shall engage in, 

support in any way or provide financial assistance for, license or permit, or approve any 

activity which does not conform to an applicable implementation plan. 

(b) A Federal agency must make a determination that a Federal action conforms to the 

applicable implementation plan in accordance with the requirements of this rule before 

the action is taken. 

(c) The preceding sentence does not include Federal actions where either: 

(1) A National Environmental Policy Act (NEPA) analysis was completed as 

evidenced by a final environmental assessment (EA), environmental impact 

statement (EIS), or finding of no significant impact (FONSI) that was prepared 

prior to January 31, 1994, or 

(2) (i) Prior to January 31, 1994, an EA was commenced or a contract was 

awarded to develop the specific environmental analysis; 

(ii) Sufficient environmental analysis is completed by March 15,1994 so that 

the Federal agency may determine that the Federal action is in conformity 

with the specific requirements and the purposes of the applicable SIP 

pursuant to the agency's affirmative obligation under section 176(c) of the 

Clean Air Act (Act); and 

(iii) A written determination of conformity under section 176(c) of the Act has 

been made by the Federal agency responsible for the Federal action by 

March 15, 1994. 

(d) Notwithstanding any provision of this subpart, a determination that an action is in 

conformance with the applicable implementation plan does not exempt the action from 

any other requirements of the applicable implementation plan, the NEPA, or the Act. 

§51.851 State implementation plan (SIP) revision. 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.02, continued) 

April, 2012 (Revised) 16

(a) Each State must submit to the Environmental Protection Agency (EPA) a revision to its 

applicable implementation plan which contains criteria and procedures for assessing 

the conformity of Federal actions to the applicable implementation plan, consistent with 

this subpart. The State must submit the conformity provisions within 12 months after 

November 30, 1993, or within 12 months of an area's designation to nonattainment, 

whichever date is later. 

(b) The Federal conformity rules under this subpart and 40 CFR part 93, in addition to any 

existing applicable State requirements, establish the conformity criteria and procedures 

necessary to meet the Act requirements until such time as the required conformity SIP 

revision is approved by EPA. A State's conformity provisions must contain criteria and 

procedures that are no less stringent than the requirements described in this subpart. 

A State may establish more stringent conformity criteria and procedures only if they 

apply equally to non-Federal as well as Federal entities. Following EPA approval of the 

State conformity provisions (or a portion thereof) in a revision to the applicable SIP, the 

approved (or approved portion of the) State criteria and procedures would govern 

conformity determinations and the Federal conformity regulations contained in 40 CFR 

part 93 would apply only for the portion, if any, of the State's conformity provisions that 

is not approved by EPA. In addition, any previously applicable SIP requirements 

relating to conformity remain enforceable until the State revises its SIP to specifically 

remove them from the SIP and that revision is approved by EPA. 

§51.852 Definitions. 

Terms used but not defined in this part shall have the meaning given them by the Act and 

EPA's regulations (40 CFR chapter 1), in that order of priority. 

Affected Federal land manager means the Federal agency or the Federal official charged 

with direct responsibility for management of an area designated as Class I under 42 U.S.C. 

7472 of the Act that is located within 100 km of the proposed Federal action. 

Applicable implementation plan or applicable SIP means the portion (or portions) of the SIP 

or most recent revision thereof, which has been approved under section 110 of the Act, or 

promulgated under section 110(c) of the Act (Federal implementation plan), or promulgated 

or approved pursuant to regulations promulgated under section 301(d) of the Act and which 

implements the relevant requirements of the Act. 

Areawide air quality modeling analysis means an assessment on a scale that includes the 

entire nonattainment or maintenance area which uses an air quality dispersion model to 

determine the effects of emissions on air quality. 

Cause or contribute to a new violation means a Federal action that: 

(1) Causes a new violation of a national ambient air quality standard (NAAQS) at a 

location in a nonattainment or maintenance area which would otherwise not be in 

violation of the standard during the future period in question if the Federal action 

were not taken, or 

(2) Contributes, in conjunction with other reasonably foreseeable actions, to a new 

violation of a NAAQS at a location in a nonattainment or maintenance area in a 

manner that would increase the frequency or severity of the new violation. 

Caused by, as used in the terms "direct emissions" and "indirect emissions," means 

emissions that would not otherwise occur in the absence of the Federal action. 

Criteria pollutant or standard means any pollutant for which there is established a NAAQS 

at 40 CFR part 50. 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.02, continued) 

April, 2012 (Revised) 17

Direct emissions means those emissions of a criteria pollutant or its precursors that are 

caused or initiated by the Federal action and occur at the same time and place as the 

action. 

Emergency means a situation where extremely quick action on the part of the Federal 

agencies involved is needed and where the timing of such Federal activities makes it 

impractical to meet the requirements of this rule, such as natural disasters like hurricanes 

or earthquakes, civil disturbances such as terrorist acts, and military mobilizations. 

Emissions budgets are those portions of the applicable SIP's projected emissions 

inventories that describe the levels of emissions (mobile, stationary, area, etc.) that provide 

for meeting reasonable further progress milestones, attainment, and/or maintenance for 

any criteria pollutant or its precursors. 

Emission offsets, for purposes of section 51.858, are emissions reductions which are 

quantifiable, consistent with the applicable SIP attainment and reasonable further progress 

demonstrations, surplus to reductions required by, and credited to, other applicable SIP 

provisions, enforceable at both the State and Federal levels, and permanent within the time 

frame specified by the program. 

Emissions that a Federal agency has a continuing program responsibility for means 

emissions that are specifically caused by an agency carrying out its authorities, and does 

not include emissions that occur due to subsequent activities, unless such activities are 

required by the Federal agency. Where an agency, in performing its normal program 

responsibilities, takes actions itself or imposes conditions that result in air pollutant 

emissions by a non-Federal entity taking subsequent actions, such emissions are covered 

by the meaning of a continuing program responsibility. 

EPA means the Environmental Protection Agency. 

Federal action means any activity engaged in by a department, agency, or instrumentality 

of the Federal government, or any activity that a department, agency or instrumentality of 

the Federal government supports in any way, provides financial assistance for, licenses, 

permits, or approves, other than activities related to transportation plans, programs, and 

projects developed, funded, or approved under title 23 U.S.C. or the Federal Transit Act (49 

U.S.C. 1601 et seq.). Where the Federal action is a permit, license, or other approval for 

some aspect of a non-Federal undertaking, the relevant activity is the part, portion, or 

phase or the non-Federal undertaking that requires the Federal permit, license, or approval. 

Federal agency means, for purposes of this rule, a Federal department, agency, or 

instrumentality of the Federal government. 

Increase the frequency or severity of any existing violation of any standard in any area 

means to cause a nonattainment area to exceed a standard more often or to cause a 

violation at a greater concentration than previously existed and/or would otherwise exist 

during the future period in question, if the project were not implemented. 

Indirect emissions means those emissions of a criteria pollutant or its precursors that: 

(1) Are caused by the Federal action, but may occur later in time and/or may be farther 

removed in distance from the action itself but are still reasonably foreseeable; and 

(2) The Federal agency can practicably control and will maintain control over due to a 

continuing program responsibility of the Federal agency. 

Local air quality modeling analysis means an assessment of localized impacts on a scale 

smaller than the entire nonattainment or maintenance area, including, for example, 

congested roadway intersections and highways or transit terminals, which uses an air 

quality dispersion model to determine the effects of emissions on air quality. 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.02, continued) 

April, 2012 (Revised) 18

Maintenance area means an area with a maintenance plan approved under section 175A of 

the Act. 

Maintenance plan means a revision to the applicable SIP, meeting the requirements of 

section 175A of the Act. 

Metropolitan Planning Organization (MPO) is that organization designated as being 

responsible, together with the State, for conducting the continuing, cooperative, and 

comprehensive planning process under 23 U.S.C. 134 and 49 U.S.C. 1607. 

Milestone has the meaning given in sections 182(g)(1) and 189(c)(1) of the Act. 

National ambient air quality standards (NAAQS) are those standards established pursuant 

to section 109 of the Act and include standards for carbon monoxide (CO), lead (Pb), 

nitrogen dioxide (NO2), ozone, particulate matter (PM-10), and sulfur dioxide (SO2). 

NEPA is the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et 

seq.). 

Nonattainment Area (NAA) means an area designated as nonattainment under section 107 

of the Act and described in 40 CFR part 81. 

Precursors of a criteria pollutant are: 

(1) For ozone, nitrogen oxides (NOx), unless an area is exempted from NOx 

requirements under section 182(f) of the Act, and volatile organic compounds (VOC); 

and 

(2) For PM-10, those pollutants described in the PM-10 nonattainment area applicable 

SIP as significant contributors to the PM-10 levels. 

Reasonably foreseeable emissions are projected future indirect emissions that are 

identified at the time the conformity determination is made; the location of such emissions 

is known and the emissions are quantifiable, as described and documented by the Federal 

agency based on its own information and after reviewing any information presented to the 

Federal agency. 

Regional water and/or wastewater projects include construction, operation, and 

maintenance of water or wastewater conveyances, water or wastewater treatment facilities, 

and water storage reservoirs which affect a large portion of a nonattainment or 

maintenance area. 

Regionally significant action means a Federal action for which the direct and indirect 

emissions of any pollutant represent 10 percent or more of a nonattainment or maintenance 

area's emissions inventory for that pollutant. 

Total of direct and indirect emissions means the sum of direct and indirect emissions 

increases and decreases caused by the Federal action; i.e., the "net" emissions 

considering all direct and indirect emissions. The portion of emissions which are exempt or 

presumed to conform under section 51.853, paragraphs (c), (d), (e), or (f) are not included 

in the "total of direct and indirect emissions." The "total of direct and indirect emissions" 

includes emissions of criteria pollutants and emissions of precursors of criteria pollutants. 

§51.853 Applicability. 

(a) Conformity determinations for Federal actions related to transportation plans, 

programs, and projects developed, funded, or approved under title 23 U.S.C. or the 

Federal Transit Act (49 U.S.C. 1601 et seq.) must meet the procedures and criteria of 

40 CFR part 51, subpart T, in lieu of the procedures set forth in this subpart. 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.02, continued) 

April, 2012 (Revised) 19

(b) For Federal actions not covered by paragraph (a) of this section, a conformity 

determination is required for each pollutant where the total of direct and indirect 

emissions in a nonattainment or maintenance area caused by a Federal action would 

equal or exceed any of the rates in paragraphs (b)(1) or (2) of this section. 

(1) For purposes of paragraph (b) of this section, the following rates apply in 

nonattainment areas (NAAs): 

 Tons/Year 

 Ozone (VOC's or NOx) 

 Serious NAA's 50 

 Severe NAA's 25 

 Extreme NAA's 10 

 Other ozone NAA's outside an 

 ozone transport region 100 

 Marginal and moderate NAA's 

 inside an ozone transport region 

 VOC 50 

 NOx 100 

 Carbon monoxide 

 All NAA's 100 

 SO2 or NO2 All NAA's 100 

 PM-10 

 Moderate NAA's 100 

 Serious NAA's 70 

 Pb 

 All NAA's 25 

(2) For purposes of paragraph (b) of this section, the following rates apply in 

maintenance areas: 

 Tons/Year 

 Ozone (NOx), SO2 or NO2 All Maintenance Areas 100 

 Ozone (VOC's) 

 Maintenance areas inside 

 an ozone transport region 50 

 Maintenance areas outside 

 an ozone transport region 100 

 Carbon monoxide 

 All maintenance areas 100 

 PM-10 

 All maintenance areas 100 

 Pb 

 All maintenance areas 25 

(c) The requirements of this subpart shall not apply to: 

(1) Actions where the total of direct and indirect emissions are below the emissions 

levels specified in paragraph (b) of this section. 

(2) The following actions which would result in no emissions increase or an increase 

in emissions that is clearly de minimus: 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.02, continued) 

April, 2012 (Revised) 20

(i) Judicial and legislative proceedings. 

(ii) Continuing and recurring activities such as permit renewals where activities 

conducted will be similar in scope and operation to activities currently 

being conducted. 

(iii) Rulemaking and policy development and issuance. 

(iv) Routine maintenance and repair activities, including repair and 

maintenance of administrative sites, roads, trails, and facilities. 

(v) Civil and criminal enforcement activities, such as investigations, audits, 

inspections, examinations, prosecutions, and the training of law 

enforcement personnel. 

(vi) Administrative actions such as personnel actions, organizational changes, 

debt management or collection, cash management, internal agency audits, 

program budget proposals, and matters relating to the administration and 

collection of taxes, duties and fees. 

(vii) The routine, recurring transportation of material and personnel. 

(viii) Routine movement of mobile assets, such as ships and aircraft, in home 

port reassignments and stations (when no new support facilities or 

personnel are required) to perform as operational groups and/or for repair 

or overhaul. 

(ix) Maintenance dredging and debris disposal where no new depths are 

required, applicable permits are secured, and disposal will be at an 

approved disposal site. 

(x) Actions, such as the following, with respect to existing structures, 

properties, facilities and lands where future activities conducted will be 

similar in scope and operation to activities currently being conducted at the 

existing structures, properties, facilities, and lands; for example, relocation 

of personnel, disposition of federally-owned existing structures, properties, 

facilities, and lands, rent subsidies, operation and maintenance cost 

subsidies, the exercise of receivership or conservatorship authority, 

assistance in purchasing structures, and the production of coins and 

currency. 

(xi) The granting of leases, licenses such as for exports and trade, permits, 

and easements where activities conducted will be similar in scope and 

operation to activities currently being conducted. 

(xii) Planning, studies, and provision of technical assistance. 

(xiii) Routine operation of facilities, mobile assets and equipment. 

(xiv) Transfers of ownership, interests, and titles in land, facilities, and real and 

personal properties, regardless of the form or method of the transfer. 

(xv) The designation of empowerment zones, enterprise communities, or 

viticultural areas. 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.02, continued) 

April, 2012 (Revised) 21

(xvi) Actions by any of the Federal banking agencies or the Federal Reserve 

Banks, including actions regarding charters, applications, notices, licenses, 

the supervision or examination of depository institutions or depository 

institution holding companies, access to the discount window, or the 

provision of financial services to banking organizations or to any 

department, agency or instrumentality of the United States. 

(xvii) Actions by the Board of Governors of the Federal Reserve System or any 

Federal Reserve Bank to effect monetary or exchange rate policy. 

(xviii) Actions that implement a foreign affairs function of the United States. 

(xix) Actions (or portions thereof) associated with transfers of land, facilities, 

title, and real properties through an enforceable contract or lease 

agreement where the delivery of the deed is required to occur promptly 

after a specific, reasonable condition is met, such as promptly after the 

land is certified as meeting the requirements of the Comprehensive 

Environmental Response, Compensation, and Liability Act (CERCLA), and 

where the Federal agency does not retain continuing authority to control 

emissions associated with the lands, facilities, title, or real properties. 

(xx) Transfers of real property, including land, facilities, and related personal 

property from a Federal entity to another Federal entity and assignments of 

real property, including land, facilities, and related personal property from a 

Federal entity to another Federal entity for subsequent deeding to eligible 

applicants. 

(xxi) Actions by the Department of the Treasury to effect fiscal policy and to 

exercise the borrowing authority of the United States. 

(3) The following actions where the emissions are not reasonably foreseeable: 

(i) Initial Outer Continental Shelf lease sales which are made on a broad 

scale and are followed by exploration and development plans on a project 

level. 

(ii) Electric power marketing activities that involve the acquisition, sale and 

transmission of electric energy. 

(4) Actions which implement a decision to conduct or carry out a conforming 

program such as prescribed burning actions which are consistent with a 

conforming land management plan. 

(d) Notwithstanding the other requirements of this subpart, a conformity determination is 

not required for the following Federal actions (or portion thereof): 

(1) The portion of an action that includes major new or modified stationary sources 

that require a permit under the new source review (NSR) program (section 173 of 

the Act) or the prevention of significant deterioration (PSD) program (title I, part C 

of the Act). 

(2) Actions in response to emergencies or natural disasters such as hurricanes, 

earthquakes, etc., which are commenced on the order of hours or days after the 

emergency or disaster and, if applicable, which meet the requirements of 

paragraph (e) of this section; 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.02, continued) 

April, 2012 (Revised) 22

(3) Research, investigations, studies, demonstrations, or training [other than those 

exempted under section 51.853(c)(2)], where no environmental detriment is 

incurred and/or, the particular action furthers air quality research, as determined 

by the State agency primarily responsible for the applicable SIP; 

(4) Alteration and additions of existing structures as specifically required by new or 

existing applicable environmental legislation or environmental regulations (e.g., 

hush houses for aircraft engines and scrubbers for air emissions). 

(5) Direct emissions from remedial and removal actions carried out under the 

Comprehensive Environmental Response, Compensation and Liability Act 

(CERCLA) and associated regulations to the extent such emissions either 

comply with the substantive requirements of the PSD/NSR permitting program or 

are exempted from other environmental regulation under the provisions of 

CERCLA and applicable regulations issued under CERCLA. 

(e) Federal actions which are part of a continuing response to an emergency or disaster 

under section 51.853(d)(2) and which are to be taken more than 6 months after the 

commencement of the response to the emergency or disaster under section 

51.853(d)(2) are exempt from the requirements of this subpart only if: 

(1) The Federal agency taking the actions makes a written determination that, for a 

specified period not to exceed an additional 6 months, it is impractical to prepare 

the conformity analyses which would otherwise be required and the actions 

cannot be delayed due to overriding concerns for public health and welfare, 

national security interests and foreign policy commitments; or 

(2) For actions which are to be taken after those actions covered by paragraph (e)(1) 

of this section, the Federal agency makes a new determination as provided in 

paragraph (e)(1) of this section. 

(f) Notwithstanding other requirements of this subpart, actions specified by individual 

Federal agencies that have met the criteria set forth in either paragraph (g)(1) or (g)(2) 

and the procedures set forth in paragraph (h) of this section are presumed to conform, 

except as provided in paragraph (j) of this section. 

(g) The Federal agency must meet the criteria for establishing activities that are presumed 

to conform by fulfilling the requirements set forth in either paragraph (g)(1) or (g)(2) of 

this section: 

(1) The Federal agency must clearly demonstrate using methods consistent with this 

rule that the total of direct and indirect emissions from the type of activities which 

would be presumed to conform would not: 

(i) Cause or contribute to any new violation of any standard in any area; 

(ii) Interfere with provisions in the applicable SIP for maintenance of any 

standard; 

(iii) Increase the frequency or severity of any existing violation of any standard 

in any area; or 

(iv) Delay timely attainment of any standard or any required interim emission 

reductions or other milestones in any area including, where applicable, 

emission levels specified in the applicable SIP for purposes of: 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.02, continued) 

April, 2012 (Revised) 23

(A) A demonstration of reasonable further progress; 

(B) A demonstration of attainment; or 

(C) A maintenance plan; or 

(2) The Federal agency must provide documentation that the total of direct and 

indirect emissions from such future actions would be below the emission rates for 

a conformity determination that are established in paragraph (b) of this section, 

based, for example, on similar actions taken over recent years. 

(h) In addition to meeting the criteria for establishing exemptions set forth in paragraphs 

(g)(1) or (g)(2) of this section, the following procedures must also be complied with to 

presume that activities will conform: 

(1) The Federal agency must identify through publication in the Federal Register its 

list of proposed activities that are presumed to conform and the basis for the 

presumptions; 

(2) The Federal agency must notify the appropriate EPA Regional Office(s), State 

and local air quality agencies and, where applicable, the agency designated 

under section 174 of the Act and the MPO and provide at least 30 days for the 

public to comment on the list of proposed activities presumed to conform; 

(3) The Federal agency must document its response to all the comments received 

and make the comments, response, and final list of activities available to the 

public upon request; and 

(4) The Federal agency must publish the final list of such activities in the Federal 

Register. 

(i) Notwithstanding the other requirements of this subpart, when the total of direct and 

indirect emissions of any pollutant from a Federal action does not equal or exceed the 

rates specified in paragraph (b) of this section, but represents 10 percent or more of a 

nonattainment or maintenance area's total emissions of that pollutant, the action is 

defined as a regionally significant action and the requirements of section 51.850 and 

sections 51.855-860 shall apply for the Federal action. 

(j) Where an action otherwise presumed to conform under paragraph (f) of this section is 

a regionally significant action or does not in fact meet one of the criteria in paragraph 

(g)(1) of this section, that action shall not be presumed to conform and the 

requirements of section 51.850 and sections 51.855-860 shall apply for the Federal 

action. 

(k) The provisions of this subpart shall apply in all nonattainment and maintenance areas. 

§51.854 Conformity analysis. 

Any Federal department, agency, or instrumentality of the Federal government taking an 

action subject to this subpart must make its own conformity determination consistent with 

the requirements of this subpart. In making its conformity determination, a Federal agency 

must consider comments from any interested parties. Where multiple Federal agencies 

have jurisdiction for various aspects of a project, a Federal agency may choose to adopt 

the analysis of another Federal agency or develop its own analysis in order to make its 

conformity determination. 

§51.855 Reporting requirements. 
CONFORMITY CHAPTER 1200-03-34 

(Rule 1200-03-34-.02, continued) 

April, 2012 (Revised) 24

(a) A Federal agency making a conformity determination under section 51.858 must 

provide to the appropriate EPA Regional Office(s), State and local air quality agencies 

and, where applicable, affected Federal land managers, the agency designated under 

section 174 of the Act and the MPO a 30 day notice which describes the proposed 

action and the Federal agency's draft conformity determination on the action. 

(b) A Federal agency must notify the appropriate EPA Regional Office(s), State and local 

air quality agencies and, where applicable, affected Federal land managers, the 

agency designated under section 174 of the Clean Air Act and the MPO within 30 days 

after making a final conformity determination under section 51.858. 

§51.856 Public participation. 

(a) Upon request by any person regarding a specific Federal action, a Federal agency 

must make available for review its draft conformity determination under section 51.858 

with supporting materials which describe the analytical methods and conclusions relied 

upon in making the applicability analysis and draft conformity determination. 

(b) A Federal agency must make public its draft conformity determination under section 

51.858 by placing a notice by prominent advertisement in a daily newspaper of general 

circulation in the area affected by the action and by providing 30 days for written public 

comment prior to taking any formal action on the draft determination. This comment 

period may be concurrent with any other public involvement, such as occurs in the 

NEPA process. 

(c) A Federal agency must document its response to all the comments received on its draft 

conformity determination under section 51.858 and make the comments and responses 

available, upon request by any person regarding a specific Federal action, within 30 

days of the final conformity determination. 

(d) A Federal agency must make public its final conformity determination under section 

51.858 for a Federal action by placing a notice by prominent advertisement in a daily 

newspaper of general circulation in the area affected by the action within 30 days of the 

final conformity determination. 

§51.857 Frequency of conformity determinations. 

(a) The conformity status of a Federal action automatically lapses 5 years from the date a 

final conformity determination is reported under section 51.855, unless the Federal 

action has been completed or a continuous program has been commenced to 

implement that Federal action within a reasonable time. 

(b) Ongoing Federal activities at a given site showing continuous progress are not new 

actions and do not require periodic redeterminations so long as such activities are 

within the scope of the final conformity determination reported under section 51.855. 

(c) If, after the conformity determination is made, the Federal action is changed so that 

there is an increase in the total of direct and indirect emissions above the levels in 

section 51.853(b), a new conformity determination is required. 

§51.858 Criteria for determining conformity of general Federal actions. 

(a) An action required under section 51.853 to have a conformity determination for a 

specific pollutant, will be determined to conform to the applicable SIP if, for each 

pollutant that exceeds the rates in section 51.853, paragraph (b), or otherwise requires 
CONFORMITY CHAPTER 1200-03-34 

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April, 2012 (Revised) 25

a conformity determination due to the total of direct and indirect emissions from the 

action, the action meets the requirements of paragraph (c) of this section, and meets 

any of the following requirements: 

(1) For any criteria pollutant, the total of direct and indirect emissions from the action 

are specifically identified and accounted for in the applicable SIP's attainment or 

maintenance demonstration; 

(2) For ozone or nitrogen dioxide, the total of direct and indirect emissions from the 

action are fully offset within the same nonattainment or maintenance area 

through a revision to the applicable SIP or a similarly enforceable measure that 

effects emission reductions so that there is no net increase in emissions of that 

pollutant; 

(3) For any criteria pollutant, except ozone and nitrogen dioxide, the total of direct 

and indirect emissions from the action meet the requirements: 

(i) Specified in paragraph (b) of this section, based on areawide air quality 

modeling analysis and local air quality modeling analysis; or 

(ii) Meet the requirements of paragraph (a)(5) and, for local air quality 

modeling analysis, the requirement of paragraph (b) of this section; 

(4) For CO or PM-10, 

(i) Where the State agency primarily responsible for the applicable SIP 

determines that an areawide air quality modeling analysis is not needed, 

the total of direct and indirect emissions from the action meet the 

requirements specified in paragraph (b) of this section, based on local air 

quality modeling analysis; or 

(ii) Where the State agency primarily responsible for the applicable SIP 

determines that an areawide air quality modeling analysis is appropriate 

and that a local air quality modeling analysis is not needed, the total of 

direct and indirect emissions from the action meet the requirements 

specified in paragraph (b) of this section, based on areawide modeling, or 

meet the requirements of paragraph (a)(5) of this section; or 

(5) For ozone or nitrogen dioxide, and for purposes of paragraphs (a)(3)(ii) and 

(a)(4)(ii) of this section, each portion of the action or the action as a whole meets 

any of the following requirements: 

(i) Where EPA has approved a revision to an area's attainment or 

maintenance demonstration after 1990 and the State makes a 

determination as provided in paragraph (2)(5)(i)(A) of this section; or 

where the State makes a commitment as provided in paragraph (2)(5)(i)(B) 

of this section; 

(A) The total of direct and indirect emissions from the action (or portion 

thereof) is determined and documented by the State agency 

primarily responsible for the applicable SIP to result in a level of 

emissions which, together with all other emissions in the 

nonattainment (or maintenance) area, would not exceed the 

emissions budgets specified in the applicable SIP; 
CONFORMITY CHAPTER 1200-03-34 

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April, 2012 (Revised) 26

(B) The total of direct and indirect emissions from the action (or portion 

thereof) is determined by the State agency responsible for the 

applicable SIP to result in a level of emissions which, together with 

all other emissions in the nonattainment (or maintenance) area, 

would exceed an emissions budget specified in the applicable SIP 

and the State Governor or the Governor's designee for SIP actions 

makes a written commitment to EPA which includes the following: 

(1) A specific schedule for adoption and submittal of a revision to 

the SIP which would achieve the needed emission reductions 

prior to the time emissions from the Federal action would 

occur; 

(2) Identification of specific measures for incorporation into the 

SIP which would result in a level of emissions which, together 

with all other emissions in the nonattainment or maintenance 

area, would not exceed any emissions budget specified in the 

applicable SIP; 

(3) A demonstration that all existing applicable SIP requirements 

are being implemented in the area for the pollutants affected 

by the Federal action, and that local authority to implement 

additional requirements has been fully pursued; 

(4) A determination that the responsible Federal agencies have 

required all reasonable mitigation measures associated with 

their action; and 

(5) Written documentation including all air quality analyses 

supporting the conformity determination. 

(C) Where a Federal agency made a conformity determination based on 

a State commitment under paragraph (a)(5)(i)(B) of this section, 

such a State commitment is automatically deemed a call for a SIP 

revision by EPA under section 110(k)(5) of the Act, effective on the 

date of the Federal conformity determination and requiring response 

within 18 months or any shorter time within which the State commits 

to revise the applicable SIP; 

(ii) The action (or portion thereof), as determined by the MPO, is specifically 

included in a current transportation plan and transportation improvement 

program which have been found to conform to the applicable SIP under 40 

CFR part 51, subpart T, or 40 CFR part 93, subpart A; 

(iii) The action (or portion thereof) fully offsets its emissions within the same 

nonattainment or maintenance area through a revision to the applicable 

SIP or an equally enforceable measure that effects emission reductions 

equal to or greater than the total of direct and indirect emissions from the 

action so that there is no net increase in emissions of that pollutant; 

(iv) Where EPA has not approved a revision to the relevant SIP attainment or 

maintenance demonstration since 1990, the total of direct and indirect 

emissions from the action for the future years [described in paragraph (d) 

of section 51.859] do not increase emissions with respect to the baseline 

emissions; 
CONFORMITY CHAPTER 1200-03-34 

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April, 2012 (Revised) 27

(A) The baseline emissions reflect the historical activity levels that 

occurred in the geographic area affected by the proposed Federal 

action during: 

(1) Calendar year 1990; 

(2) The calendar year that is the basis for the classification (or, 

where the classification is based on multiple years, the most 

representative year), if a classification is promulgated in 40 

CFR part 81; or 

(3) The year of the baseline inventory in the PM-10 applicable 

SIP; 

(B) The baseline emissions are the total of direct and indirect emissions 

calculated for the future years [described in paragraph (d) of section 

51.859] using the historic activity levels [described in paragraph 

(a)(5)(iv)(A) of this section] and appropriate emission factors for the 

future years; or 

(v) Where the action involves regional water and/or wastewater projects, such 

projects are sized to meet only the needs of population projections that are 

in the applicable SIP. 

(b) The areawide and/or local air quality modeling analyses must: 

(1) Meet the requirements in section 51.859; and 

(2) Show that the action does not: 

(i) Cause or contribute to any new violation of any standard in any area; or 

(ii) Increase the frequency or severity of any existing violation of any standard 

in any area. 

(c) Notwithstanding any other requirements of this section, an action subject to this 

subpart may not be determined to conform to the applicable SIP unless the total of 

direct and indirect emissions from the action is in compliance or consistent with all 

relevant requirements and milestones contained in the applicable SIP, such as 

elements identified as part of the reasonable further progress schedules, assumptions 

specified in the attainment or maintenance demonstration, prohibitions, numerical 

emission limits, and work practice requirements. 

(d) Any analyses required under this section must be completed, and any mitigation 

requirements necessary for a finding of conformity must be identified before the 

determination of conformity is made. 

§51.859 Procedures for conformity determinations of general Federal actions. 

(a) The analyses required under this subpart must be based on the latest planning 

assumptions. 

(1) All planning assumptions must be derived from the estimates of population, 

employment, travel, and congestion most recently approved by the MPO, or 

other agency authorized to make such estimates, where available. 
CONFORMITY CHAPTER 1200-03-34 

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April, 2012 (Revised) 28

(2) Any revisions to these estimates used as part of the conformity determination, 

including projected shifts in geographic location or level of population, 

employment, travel, and congestion, must be approved by the MPO or other 

agency authorized to make such estimates for the urban area. 

(b) The analyses required under this subpart must be based on the latest and most 

accurate emission estimation techniques available as described below, unless such 

techniques are inappropriate. If such techniques are inappropriate and written 

approval of the EPA Regional Administrator is obtained for any modification or 

substitution, they may be modified or another technique substituted on a case-by-case 

basis or, where appropriate, on a generic basis for a specific Federal agency program. 

(1) For motor vehicle emissions, the most current version of the motor vehicle 

emissions model specified by EPA and available for use in the preparation or 

revision of SIPs in that State must be used for the conformity analysis as 

specified below: 

(i) The EPA must publish in the Federal Register a notice of availability of any 

new motor vehicle emissions model; and 

(ii) A grace period of three months shall apply during which the motor vehicle 

emissions model previously specified by EPA as the most current version 

may be used. Conformity analyses for which the analysis was begun 

during the grace period or no more than 3 years before the Federal 

Register notice of availability of the latest emission model may continue to 

use the previous version of the model specified by EPA. 

(2) For non-motor vehicle sources, including stationary and area source emissions, 

the latest emission factors specified by EPA in the "Compilation of Air Pollutant 

Emission Factors (AP-42)" must be used for the conformity analysis unless more 

accurate emission data are available, such as actual stack test data from 

stationary sources which are part of the conformity analysis. 

(c) The air quality modeling analyses required under this subpart must be based on the 

applicable air quality models, data bases, and other requirements specified in the most 

recent version of the "Guideline on Air Quality Models (Revised)" (1986), including 

supplements (EPA publication no. 450/2-78-027R), unless: 

(1) The guideline techniques are inappropriate, in which case the model may be 

modified or another model substituted on a case-by-case basis or, where 

appropriate, on a generic basis for a specific Federal agency program; and 

(2) Written approval of the EPA Regional Administrator is obtained for any 

modification or substitution. 

(d) The analyses required under this subpart, except section 51.858(a)(1), must be based 

on the total of direct and indirect emissions from the action and must reflect emission 

scenarios that are expected to occur under each of the following cases: 

(1) The Act mandated attainment year or, if applicable, the farthest year for which 

emissions are projected in the maintenance plan; 

(2) The year during which the total of direct and indirect emissions from the action is 

expected to be the greatest on an annual basis; and 

(3) Any year for which the applicable SIP specifies an emissions budget. 
CONFORMITY CHAPTER 1200-03-34 

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April, 2012 (Revised) 29

§51.860 Mitigation of air quality impacts. 

(a) Any measures that are intended to mitigate air quality impacts must be identified and 

the process for implementation and enforcement of such measures must be described, 

including an implementation schedule containing explicit timelines for implementation. 

(b) Prior to determining that a Federal action is in conformity, the Federal agency making 

the conformity determination must obtain written commitments from the appropriate 

persons or agencies to implement any mitigation measures which are identified as 

conditions for making conformity determinations. 

(c) Persons or agencies voluntarily committing to mitigation measures to facilitate positive 

conformity determinations must comply with the obligations of such commitments. 

(d) In instances where the Federal agency is licensing, permitting or otherwise approving 

the action of another governmental or private entity, approval by the Federal agency 

must be conditioned on the other entity meeting the mitigation measures set forth in the 

conformity determination. 

(e) When necessary because of changed circumstances, mitigation measures may be 

modified so long as the new mitigation measures continue to support the conformity 

determination. Any proposed change in the mitigation measures is subject to the 

reporting requirements of section 51.856 and the public participation requirements of 

section 51.857. 

(f) The implementation plan revision required in section 51.851 of this subpart shall 

provide that written commitments to mitigation measures must be obtained prior to a 

positive conformity determination and that such commitments must be fulfilled. 

(g) After a State revises its SIP to adopt its general conformity rules and EPA approves 

that SIP revision, any agreements, including mitigation measures, necessary for a 

conformity determination will be both State and federally enforceable. Enforceability 

through the applicable SIP will apply to all persons who agree to mitigate direct and 

indirect emissions associated with a Federal action for a conformity determination. 

Authority: T.C.A. §§ 4-5-201 et. seq. and 68-201-105. Administrative History: Original rule filed 

March 29, 1995; effective June 14, 1995.