Oregon

John A. Kitzhaber, MD, Governor

Department of Environmental Quality

Headquarters

811 SW Sixth Avenue

__Cortland, OR 97204-1390

E C E V E (503) 229-5696

FAX (503) 229-6124

August 31, 2011 TTY: 711

SEP - 6 2011 'J

Dennis McLerran, Regional Administrator

U.S. Environmental Protection Agency, Region 10 OFFICE OF THE EXECUTIVE

1200 Sixth Avenue

Seattle, WA 98101

RE: Oregon Transportation Conformity Rules: SIP Revision Issues

Dear Mr. McLerran:

In August 2010, Oregon DEQ submitted changes to our transportation conformity rules as a

revision to our State Implementation Plan under OAR 340-200-0040. EPA staff reviewed this

submittal and identified several issues needing further explanation by DEQ. This letter responds

to the issues raised by EPA.

Issue 1

Oregon Administrative Rule 340-252-0060(4) incorrectly refers to federal requirements at 23

CFR 450.316(b) and 49 CFR 7.95. These citations formerly described the federal requirements

for public involvement processes and the charges to be assessed for public inspection and

copying of rule-related documents. These requirements have been renumbered and are now

properly cited as 23 CFR 450.316(a) and 49 CFR 7.43.

Response

DEQ corrected these rule references through the Oregon Secretary of State's administrative

process. A corrected copy of OAR 340-252-0060(4) is attached, and will be posted on the

Secretary of State's administrative rules website September 1, 2011.

Issue 2

EPA points out Oregon's rules do not specify a process to be used to determine the "design

concept" and "scope" of projects in cases where those are not adequately defined for regional

emissions analysis as intended by 40 CFR 93.105(c)(5). EPA requests an explanation of how

Oregon's rules apply to this requirement.

Response

Oregon DEQ acknowledges that projects must be defined in order to be included in a regional

emissions analysis. To be represented in a transportation model, each project must be described

by a specific beginning, a specific ending, and a maximum capacity. In circumstances where

design concept and scope are not fully defined, Oregon's rules indirectly prescribe how parties

will interact to correct the deficiency so a conformity determination can be completed. The

process is adequately described by Oregon's rules because several related provisions apply

simultaneously. OAR 340-252-0060(1)(d)(D)(i) makes the Metropolitan Planning Organization

(MPO) responsible for conformity determinations in general, and 340-252-0060(1)(d)(D)(vi)

makes the MPO responsible for transportation modeling in particular (which requires projects to

be fully defined as mentioned above). At the same time, 340-252-0060(1)(b) makes the party

responsible for conformity determinations also responsible for assuring the adequacy of the
interagency consultation process with respect to the development of the transportation plan, the

TIP, and any determinations of conformity under this rule."

In addition, OAR 340-252-0060(2)(b) designates standing committees `for purposes of

consultation required under this rule... " which makes those committees the proper forums for

such discussions. The same provision also establishes rules and procedures for how the

committees conduct business. Since Oregon's conformity rules were adopted in 1995, these

committees have resolved all potentially contentious conformity issues under existing authority

and without using the appeal process provided under 340-252-0060(3).

Issue 3

EPA notes that Oregon's conformity rules do not identify an explicit procedure for starting the

14-day period during which a conformity-related decision may be appealed to the governor. EPA

asks DEQ to clarify how parties responsible for conformity determinations notify air quality

agencies that all comments on proposed conformity determinations have been resolved-this

notification being the action that initiates the 14-day clock.

Response

OAR 340-252-0060(3) provides that an air quality agency may appeal a decision on a conformity

determination to the governor within 14 days of being notified that all comments on the proposed

conformity determination have been resolved. Although this remedy has never been pursued in

Oregon, DEQ considers the trigger for this notification to be the publication of the proposed final

action (also called the "proposed final" or the "adoption" draft). This is the document presented

to the deciding body for adoption and also describes how all comments have been addressed.

This notification is given directly to the appropriate air quality agency along with other interested

parties and is typically in the form of electronic mail. In the event the decision-making body

takes an action that is significantly different than the action proposed, that action is taken to be a

newly-proposed decision for the purpose of initiating the 14-day period for appeal.

Thank you for EPA's coordination with our agency and thoughtful evaluation of the issues

raised. If you have questions about the development of these changes, please contact Dave

Nordberg at (503) 229-5519.

Sincerely,

Joni Hammond

Deputy Director,

Department of Environmental Quality

cc w/attachrnents: Donna Deneen, EPA, Region 10

Andy Ginsburg, Air Quality Division Administrator

Nicole Vick, DEQ AQ SIP Coordinator

Paul Koprowski, EPA Oregon Operations office
DEPARTMENT OF ENVIRONMENTAL QUALITY

DIVISION 252

TRANSPORTATION CONFORMITY

340-252-0060

Consultation

(4) Public consultation procedures. Affected agencies making conformity determinations

on transportation plans, programs, and projects shall establish a proactive public

involvement process which provides opportunity for public review and comment by, at a

minimum, providing reasonable public access to technical and policy information

considered by the agency at the beginning of the public comment period and prior to

taking formal action on a conformity determination for all transportation plans and TIPs,

consistent with these requirements and those or 23 CFR 450.316(a). Any charges

imposed for public inspection and copying should be consistent with the fee schedule

contained in 49 CFR 7.43. In addition, these agencies must specifically address in

writing all public comments that known plans for a regionally significant project which is

not receiving FHWA or FTA funding or approval have not been properly reflected in the

emissions analysis supporting a proposed conformity finding for a transportation plan or

TIP. These agencies shall also provide opportunity for public involvement in conformity

determinations for projects where otherwise required by law.

[NOTE: This rule is included in the State of Oregon Clean Air Act Implementation Plan

as adopted by the Environmental Quality Commission under OAR 340-200-00401

[Publications: The publications referred to or incorporated by reference in this rule are

available from the agency.]

Stat. Auth.: ORS 468.020

Stats. Implemented: ORS 468A.035

Hist.: DEQ 7-1995, f. & cert. ef. 3-29-95; DEQ 17-1998, f. & cert. ef. 9-23-98; DEQ 14-

1999, f. & cert. ef. 10-14-99, Renumbered from 340-020-0760

a

3