# 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 theinteragency 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 officeDEPARTMENT 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

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