Chapter 26 Conformity 

Authority: Environment Article, §§1-101, 1-404, 2-101—2-103, 2-301—2-303, 10-102, and 10-103, 

Annotated Code of Maryland

.01 Purpose and Scope. 

The purpose of this chapter is to implement §176(c)(4)(E) of the Clean Air Act (CAA), as amended (42 U.S.C. 

§7401 et seq.), and the related requirements of 23 U.S.C. §109(j), with respect to the conformity of transportation 

plans, programs, and projects which are developed, funded, or approved by the United States Department of 

Transportation (DOT), and by metropolitan planning organizations (MPOs) or other recipients of funds under Title 

23 U.S.C. or the Federal Transit Laws (49 U.S.C. Chapter 53). This chapter sets forth policy, criteria, and 

procedures for demonstrating and assuring conformity of these activities to an applicable implementation plan 

developed pursuant to §110 and Part D of the CAA. The requirements in this chapter are applicable in areas of the 

State designated by the U.S. Environmental Protection Agency as nonattainment or maintenance areas for any 

relevant National Ambient Air Quality Standards (NAAQS). 

.02 Definitions. 

 A. In this chapter, all terms not defined in this regulation have the meanings stated in 40 CFR §§93.101 

and 93.152, as amended, which is incorporated by reference. 

 B. Terms Defined. 

 (1) "Adopt or approve of" a regionally significant project means the first time any of the 

following actions are necessary to authorize a project to occur: 

 (a) Any policy board action necessary for the project to proceed; 

 (b) The issuance of administrative permits for the project; 

 (c) The execution of a contract to construct the project; 

 (d) Any final action of a board, commission, or administrator authorizing or directing 

employees to proceed with construction of the project; or 

 (e) Any written decision or authorization from the metropolitan planning organization 

(MPO) that the project may be adopted or approved. 

 (2) "Applicable implementation plan", "applicable SIP", and "State implementation plan" mean 

the Maryland State Implementation Plan (SIP), including revisions approved by the United States Environmental 

Protection Agency (EPA) and any Federal Implementation Plan adopted by EPA that applies to Maryland. 

 (3) "Cooperation" means that the parties involved in carrying out the planning, programming, and 

management systems processes work together to achieve a common goal or objective. 

 (4) "Department" means the Department of the Environment. 

 (5) "Governor" means the Governor of Maryland. 

 (6) "MDOT" means the Maryland Department of Transportation. 

 1
 (7) Metropolitan Planning Organization (MPO). 

 (a) "Metropolitan planning organization (MPO)" means the: 

 (i) Organization 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. §5303; and 

 (ii) Forum for cooperative transportation decision making. 

 (b) "Metropolitan planning organization (MPO)" includes: 

 (i) The "Baltimore Regional Transportation Board (BRTB)," the MPO for the 

Baltimore region, which includes Anne Arundel, Baltimore, Carroll, Harford, and Howard counties and the cities of 

Baltimore and Annapolis; 

 (ii) The "Hagerstown/Eastern Panhandle (HEP)" MPO for the Hagerstown area, 

which includes Washington County, Maryland and the counties of Berkeley and Jefferson in West Virginia; 

 (iii) The "National Capital Transportation Planning Board (TPB) ", the MPO for 

the Washington region, which includes Frederick, Montgomery, and Prince George's counties in Maryland, the 

District of Columbia, and Northern Virginia; and 

 (iv) The "Wilmington Area Planning Council (WILMAPCO)", the MPO for 

New Castle County, Delaware and Cecil County, Maryland. 

 (8) Regional Planning Organization (RPO). 

 (a) "Regional planning organization" means an organization certified by the Governor as 

being responsible for the preparation of air quality plans for a nonattainment area under §174 of the federal Clean 

Air Act. 

 (b) "Regional planning organization" may include elected officials of State and local 

governments in the affected nonattainment area, or representatives of the MDE, MDOT, and MPOs for the affected 

area. 

 (c) "Regional planning organization" is the forum for a cooperative decision-making 

process for air quality planning in the RPO's specific nonattainment area. 

 (9) "State" means the State of Maryland. 

 (10) "State air agency" means the Maryland Department of the Environment, Air and Radiation 

Management Administration. 

 (11) "Statewide transportation improvement program (STIP)" means a staged, multiyear, 

intermodal program of transportation projects covering the State, which is consistent with the Statewide 

transportation plan and metropolitan transportation plans, and developed under 23 CFR 450. 

 (12) "Statewide transportation plan" means the official intermodal Statewide transportation plan 

that is developed through the Statewide planning process for the State, under 23 CFR 450. 

 (13) Transportation Control Measure (TCM). 

 2
 (a) "Transportation Control Measure" means: 

 (i) A measure that is specifically identified and committed to in the applicable 

implementation plan that is either one of the types listed in §108 of the Clean Air Act; or 

 (ii) Any other measure for the purpose of reducing emissions or concentrations 

of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion 

conditions. 

 (b) "Transportation control measure" does not include vehicle technology-based, fuelbased, and maintenance-based measures which control the emissions from vehicles under fixed traffic conditions. 

.03 Transportation Conformity. 

 A. Applicability to Transportation-Related Projects Subject to Federal Regulations. All transportation 

plans, programs, and projects developed, funded, or approved in Maryland, under Title 23 U.S.C. or the Federal 

Transit Act (49 U.S.C. §1601 et seq.) shall conform to the Maryland State Implementation Plan. 

 B. Requirement for Conformity. Each agency and organization charged with the responsibility to make 

transportation conformity determinations shall do so pursuant to this chapter and the provisions of 40 CFR Part 93, 

Subpart A, as amended, which is incorporated by reference. 

.04 Transportation Conformity—Consultation in General. 

 A. The MPOs, RPOs, the Department, and MDOT shall comply with the procedures in this chapter 

governing interagency consultation, conflict resolution, and public consultation with each other and with divisional 

or regional offices of the EPA, Federal Highway Administration (FHWA), and Federal Transit Administration 

(FTA) on the development of: 

 (1) Control strategy implementation and maintenance plan revisions; 

 (2) The list of TCMs in applicable implementation plans; 

 (3) The Unified Planning Work Program (UPWP) under 23 CFR §450.314; 

 (4) Transportation plans; 

 (5) Transportation improvement programs (TIPs); and 

 (6) Associated conformity determinations required by this chapter. 

 B. An agency may not participate in the consultation process unless it is identified as a participating 

agency in this chapter. 

.05 Transportation Conformity—Interagency Consultation Requirements. 

 A. Consultation Process. 

 (1) Representatives of the MPOs, RPOs, the Department, and MDOT shall undertake an 

interagency consultation process with the FHWA, FTA, and EPA, in accordance with this regulation and 

Regulations .06—.08 of this chapter on the development of: 

 3
 (a) UPWP, transportation plans, TIPs, any revisions to them, and associated conformity 

determinations; and 

 (b) The SIP and revisions to the SIP. 

 (2) The MPOs are the lead agencies responsible for preparing an amendment or revision of the 

UPWP, the transportation plan, or the TIP and for making conformity determinations. 

 (3) In nonmetropolitan, or rural nonattainment and maintenance areas, the MDOT is the lead 

agency responsible for preparing amendments or revisions to the Statewide transportation plan, or the Statewide 

TIP, and making conformity determinations. 

 (4) The Department is the lead agency responsible for preparing revisions to the SIP and 

incorporating TCMs recommended by the MPOs and MDOT. 

 (5) In the case of metropolitan nonattainment and maintenance areas that have a certified RPO, 

the RPO is the agency responsible for preparing an air quality plan and for assuring the adequacy of the interagency 

consultation process with respect to the development of the proposed air quality plan, and any amendments or 

revisions to the plan. 

 B. When serving as lead agency, the MPOs, RPOs, MDOT, and MDE have the following responsibilities: 

 (1) Initiating the applicable consultation process by notifying other participants, convening 

meetings, preparing summaries, assuring that all relevant documents and information are supplied to all participants 

in the consultation process in a timely manner, maintaining a written record of the consultation process, and 

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

 (2) Enabling regular consultation on major activities (such as the development of a transportation 

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

of a SIP) including meetings beginning on a date determined by the lead agency to be adequate to meet the date a 

final decision is required and continuing at a frequency mutually agreed upon by the affected agencies; 

 (3) Convening meetings of technical staff as necessary; 

 (4) Conferring with all other agencies identified in §A of this regulation with an interest in the 

planning process, providing all information to those agencies needed for meaningful input, soliciting early and 

continuing input from those agencies, before taking any action, considering the views of each agency and 

responding to those views in a timely, substantive written manner, and making the views and written response part 

of the record of any decision or action; 

 (5) When not fulfilling the responsibilities of a lead agency, reviewing and commenting as 

appropriate (including comments in writing) on all proposed decisions and actions in a timely manner, attending 

consultation and decision meetings, providing input on any area of substantive expertise or responsibility, and 

providing technical assistance to the lead agency or to the consultation process when requested. 

 C. In addition to serving as lead agency pursuant to §A(2) of this regulation, the MPOs are responsible for: 

 (1) Developing or approving transportation and related socioeconomic data and local planning 

assumptions, or both, and providing data and assumptions for use in air quality analysis for SIP tracking and 

conformity of transportation plans, TIPs, and projects; 

 (2) Providing transportation demand forecasting for development of on-road mobile source 

emissions inventories by the Department and MDOT; 

 4
 (3) In cooperation with MDOT, evaluating potential TCM projects and impacts; 

 (4) In cooperation with MDOT, monitor regionally significant projects to determine a need for 

emissions modeling; 

 (5) In cooperation with MDOT, providing technical and policy input into the development of 

emissions budgets; 

 (6) In cooperation with MDOT, consulting with other MPOs on emissions analysis for 

transportation activities which cross the borders of the MPOs or nonattainment areas; 

 (7) In cooperation with MDOT, determining which transportation projects should be considered 

"regionally significant" for the purpose of regional emission analysis (in addition to those functionally classified as 

principal arterial roadway or higher classifications, 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; 

 (8) In cooperation with MDOT, assuring that plans for construction of regionally significant 

projects which are not FHWA or FTA funded or approved projects (including projects for which alternative 

locations, design concept and scope, or the no-build options are still being considered), including all plans by 

recipients of funds designated under 23 U.S.C or the Federal Transit Act, are disclosed by the MPO members on a 

regular basis, and assuring that any changes to those plans are immediately disclosed and the interagency 

consultation process undertaken involving the MPO and MDOT and the recipients of funds designated under 23 

U.S.C. or the Federal Transit Act; 

 (9) In cooperation with MDOT, designing, scheduling, and funding research and data collection 

efforts and model developments in regional transportation, such as household or travel transportation surveys; 

 (10) In cooperation with MDOT and the Department, evaluating and choosing each model or 

models and associated methods and assumptions to be used in regional transportation demand analysis, including 

vehicle miles traveled (VMT) forecasting; 

 (11) In cooperation with the Department and MDOT, evaluating whether projects otherwise 

exempted from meeting the requirements of 40 CFR §93.127 should be treated as nonexempt in cases where 

potential adverse emissions impacts may exist for any reason; 

 (12) In cooperation with MDOT and the Department, making a determination as required by 40 

CFR §93.113, whether past obstacles to implementation of TCMs that are behind the schedule established in the 

applicable implementation plan have been identified and are being overcome, and whether State and local agencies 

with influence over approvals or funding for TCMs are giving maximum priority to approvals or funding for TCMs, 

and as part of this consultation, considering whether delays in TCM implementation necessitate revisions to the 

applicable implementation plan to remove TCM or substitute TCMs or other emission reduction measures; 

 (13) In cooperation with MDOT and the Department, determining what forecast of vehicle miles 

traveled (VMT) to use in establishing or tracking emissions budgets, developing transportation plans, TIPs, or 

control strategy implementation plan revisions, or making conformity determinations; 

 (14) In cooperation with MDOT and the Department, evaluating events which may trigger new 

conformity determinations in addition to those triggering events established by 40 CFR §93.104; 

 (15) In cooperation with MDOT and the Department, developing assumptions regarding the 

location and design concept and scope of projects which are disclosed to the MPO as required by this regulation, but 

 5
whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis 

according to the requirements of 40 CFR §93.122, as amended; 

 (16) In cooperation with MDOT and the Department, consulting with the FHWA and FTA on 

timely action on final findings of conformity; and 

 (17) In cooperation with MDOT and the Department, obtaining guidance on conformity and the 

transportation planning process for agencies involved in the interagency consultation process. 

 D. In addition to serving as lead agency pursuant to §A(3) of this regulation, MDOT is responsible for: 

 (1) Circulating draft and final environmental impact or assessment documents to appropriate 

agencies; 

 (2) Convening air quality technical review meetings on specific projects as needed or when 

requested by other agencies; 

 (3) In rural nonattainment areas and areas not included in an MPO, assuring the proper 

completion of transportation modeling and regional emissions analyses and the documentation of timely 

implementation of TCMs needed for conformity assessments; and 

 (4) Representing jurisdictions outside the metropolitan planning area within the nonattainment or 

maintenance area on the MPO when determining conformity on all projects in those areas. 

 E. In addition to serving as lead agency pursuant to §A(4) of this regulation, the Department is responsible 

for: 

 (1) Developing emissions inventories and budgets; 

 (2) Tracking attainment of air quality standards and emission factor model updates; 

 (3) Gaining final approval at the State level for control strategy implementation plan revisions and 

maintenance plans; 

 (4) In cooperation with MDOT, choosing conformity tests and methodologies for isolated rural 

nonattainment and maintenance areas; 

 (5) In cooperation with MDOT, evaluating and choosing each model or models and associated 

methods and assumptions to be used in hot-spot analysis; 

 (6) In cooperation with MDOT and MPOs, consulting with the EPA on review and approval of 

updated motor vehicle emissions factors, emission inventories, and budgets; 

 (7) In cooperation with MDOT and MPOs, obtaining guidance on conformity criteria and 

procedures for the agencies involved in the interagency consultation process; and 

 (8) In nonattainment areas where an RPO has been certified, cooperating with the RPO in the 

development of emissions inventories and budgets, and in the development of regional air quality plans. 

 6
.06 Transportation Conformity-----Conflict Resolution Associated with 

Conformity Determinations. 

 A. Unresolved conflicts among State agencies, or between State agencies and the MPOs, or among the 

MPO member jurisdictions, shall be identified by an MPO or agency in writing to the other MPO, the Department, 

or MDOT, with copies to the FHWA, FTA, and EPA. The MPOs or agency's written notice shall: 

 (1) Explain the nature of the conflict; 

 (2) Review options for resolving the conflict; 

 (3) Describe the MPO's or agency's proposal to resolve the conflict; 

 (4) Explain the consequences of not reaching a resolution; and 

 (5) Request that comments on the matter be received within 2 weeks. 

 B. If the action in §A of this regulation does not result in a resolution of the conflict, one of the following 

applies: 

 (1) If the conflict is between the MPOs or between the MPOs and MDOT then the parties shall 

follow the coordination procedures of 23 CFR §450.210; 

 (2) If the conflict is between the MPOs or MDOT and the Department and the conflict cannot be 

resolved by the affected agency heads: 

 (a) The Secretary of the Environment may elevate the conflict to the Governor in 

accordance with the procedures of §C of this regulation, or 

 (b) If the MDE Secretary does not appeal to the Governor within 14 days as provided in 

§C of this regulation, the MPO or MDOT may proceed with its final conformity determination; 

 (3) In the case of interstate nonattainment areas, if the conflict involves agencies outside of 

Maryland, and the conflict cannot be resolved by the affected agency heads, the conflict may be resolved in a 

manner mutually agreed to by the parties involved. 

 C. Appeals to the Governor by the Secretary of the Environment under the provisions of §B(2) of this 

regulation shall be in accordance with the following procedures: 

 (1) The Secretary of the Environment has 14 calendar days to appeal to the Governor after the 

MPO or MDOT has notified the Secretary of the MPO's or MDOT's resolution of the Department's comments; 

 (2) The notification to the Secretary shall be in writing and shall be hand-delivered; 

 (3) The 14-day appeal commences when MDOT or MPO has confirmed receipt by the Secretary 

of the agency's or MPO's resolution of the Department's comments; 

 (4) The appeal to the Governor shall contain: 

 (a) The conformity determination and any supporting documentation, 

 7
 (b) The Department's comments on the determination, and 

 (c) Any response by the MPOs or MDOT to the MDE; 

 (5) The Department shall provide a complete appeal package to the MPO and MDOT within 24 

hours following the date on which the appeal is filed with the Governor's Office; 

 (6) If the Governor does not concur with the conformity determination, the Governor may direct 

revision of the applicable implementation plan, revision of the planned program of projects, revision of the 

conformity analysis, or any combination of these; 

 (7) If the Governor concurs with the conformity determination made by the MPO and MDOT, the 

MPO and MDOT may proceed with the final conformity determination; and 

 (8) The Governor may delegate the Governor's role in this process, but not to the agency head or 

staff of the MDE or MDOT. 

 D. This regulation does not prevent the State agencies and MPOs from making efforts on their own 

initiative to obtain mutual conflict resolution through conferences or other appropriate means. 

.07 Transportation Conformity—Public Consultation Procedures. 

 A. In accordance with 40 CFR §93.105(e), the MPOs shall: 

 (1) Establish a proactive public involvement process which provides reasonable opportunity for 

review and comment before taking formal action on a conformity determination for all transportation plans and 

TIPs, consistent with the requirements of 23 CFR §450.316(b); 

 (2) Release information supporting conformity determinations at the beginning of the public 

comment period; and 

 (3) Assess and impose reasonable charges for public inspection and copying of such information, 

consistent with the fee schedule contained in 49 CFR §7.43. 

 B. If the public disagrees with the MPO's decision about whether a project is regionally significant and 

whether it was modeled properly in the emission analysis supporting a proposed conformity finding for a 

transportation plan or TIP, a written explanation shall be provided by the MPO upon request by the public. 

 C. The MPOs shall also provide an opportunity for public involvement in conformity determinations for 

projects when otherwise required by law. 

.08 Transportation Conformity—Interagency Consultation Procedures. 

The MPOs, RPOs, MDOT, and the Department may enter into agreements to set forth specific consultation 

procedures in more detail that are not in conflict with this chapter. 

.09 General Conformity. 

Each department, agency, and instrumentality of the federal government shall comply with the general conformity 

requirements of 40 CFR Part 93, Subpart B, as amended, which is incorporated by reference. This regulation 

 8
 9

addresses and replaces the requirements at 40 CFR §93.151 for a revision to the Maryland State Implementation 

Plan. 

Administrative History 

Effective date: June 5, 1995 (22:11 Md. R. 825) 

Chapter revised effective April 6, 1998 (25:7 Md. R. 530) 

—————— 

Chapter revised effective August 9, 1999 (26:16 Md. R. 1246) 

Regulation .01 amended effective January 29, 2007 (34:2 Md. R. 139) 

Regulation .02 amended effective January 29, 2007 (34:2 Md. R. 139) 

Regulation .03B amended effective January 29, 2007 (34:2 Md. R. 139) 

Regulation .04 amended effective January 29, 2007 (34:2 Md. R. 139) 

Regulation .05C amended effective January 29, 2007 (34:2 Md. R. 139) 

Regulation .05E amended effective January 29, 2007 (34:2 Md. R. 139); June 30, 2008 (35:13 Md. R. 1182) 

Regulation .07A amended effective January 29, 2007 (34:2 Md. R. 139) 

Regulation .08 amended effective January 29, 2007 (34:2 Md. R. 139) 

Regulation .09 amended effective January 29, 2007 (34:2 Md. R. 139)