Reply to: AWT-107 

MEMORANDUM

SUBJECT: Technical Support Document: Oregon Transportation Conformity SIP Revision 

FROM: Claudia Vergnani Vaupel, Environmental Protection Specialist 

TO: Docket EPA-R10-OAR-2010-0912 (Oregon Transportation Conformity SIP Revision) 

This technical support document (TSD) presents my evaluation of the Oregon Department of 

Environmental Quality’s (ODEQ) October 12, 2010, submittal requesting approval of the revised 

transportation conformity provisions of the Oregon State Implementation Plan (SIP) and ODEQ’s 

August 31, 2011, supplementary letter. This TSD documents my conclusion that the submittal meets the 

requirements of the Clean Air Act (CAA or the Act). 

Background 

In August 2005, section 176(c)(4)(E) of the CAA was amended by the Safe, Accountable, Flexible, 

Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). This amendment 

significantly streamlined the requirements for State conformity SIPs. Prior to the SAFETEA-LU 

amendments, States were required to address all of the Federal transportation conformity provisions. 

Most of the sections of the Federal rule were required to be copied verbatim into the SIP. EPA approved 

Oregon’s transportation conformity rules most recently on March 22, 2000 (see 65 FR 15244). On 

October 12, 2010, ODEQ submitted a revised transportation conformity SIP to EPA that allows the State 

to take advantage of streamlining afforded by SAFETEA-LU. Section 176(c)(4)(E) of the Act and 40 

CFR 51.390(b) now require states to submit transportation conformity SIPs that address only the 

following provisions of the Federal conformity rule: 

 40 CFR 93.105, which addresses consultation procedures; 

 40 CFR 93.122(a)(4)(ii), which states that conformity SIPs must require that written 

commitments to control measures be obtained prior to a conformity determination if the control 

measures are not included in a metropolitan planning organization’s (MPO’s) transportation plan 

and transportation improvement program (TIP); and that such a commitment be fulfilled; and 

 40 CFR 93.125(c), which states that conformity SIPs must require that written commitments to 

mitigation measures be obtained prior to a project-level conformity determination, and that 

project sponsors comply with such commitments. 
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EPA’s Review of the Oregon Submittal 

On October 12, 2010, EPA received a submittal from ODEQ revising the transportation conformity rules 

that were most recently approved by EPA on March 22, 2000 (see 65 FR 15244). EPA reviewed the 

submittal for consistency with the January 2009 Guidance for Developing Transportation Conformity 

State Implementation Plans (SIPs).” The guidance document can be found at 

http://epa.gov/otaq/stateresources/transconf/policy.htm. ODEQ’s submittal repeals, amends, and adds 

the following provisions of Oregon Administrative Code (OAR) Chapter 340, Division 252 - 

Transportation Conformity. 

Provisions Repealed 

Oregon’s submittal repeals transportation conformity provisions that are no longer required to be 

included in transportation conformity SIPs following implementation of the SAFETEA-LU amendments 

(73 FR 4420, January 24, 2008). EPA is proposing to approve the State’s repeal of the following 

provisions: 

OAR 340-252-0020 – Applicability 

OAR 340-252-0040 – Priority 

OAR 340-252-0050 – Frequency of Conformity Determinations 

OAR 340-252-0070 – Content of Transportation Plans 

OAR 340-252-0080 – Relationship of Transportation Plan and TIP Conformity with the NEPA 

Process 

OAR 340-252-0090 – Fiscal Constraints for Transportation Plans and TIPs 

OAR 340-252-0100 – Criteria and Procedures for Determining Conformity of Transportation 

Plans, Programs, and Projects: General 

OAR 340-252-0110 – Criteria and Procedures: Latest Planning Assumptions 

OAR 340-252-0120 – Criteria and Procedures: Latest Emissions Model 

OAR 340-252-0130 – Criteria and Procedures: Consultation 

OAR 340-252-0140 – Criteria and Procedures: Timely Implementation of TCMs 

OAR 340-252-0150 – Criteria and Procedures: Currently Conforming Transportation Plan and 

TIP 

OAR 340-252-0160 – Criteria and Procedures: Projects from a Plan and TIP 

OAR 340-252-0170 – Criteria and Procedures: Localized CO and PM10 Violations (Hot-spots) 

OAR 340-252-0180 – Criteria and Procedures: Compliance with PM10 Control Measures 

OAR 340-252-0190 – Criteria and Procedures: Motor Vehicle Emissions Budget 

OAR 340-252-0200 – Criteria and Procedures: Emission Reductions in Areas Without Motor 

Vehicle Emissions Budgets 

OAR 340-252-0210 – Consequences of Control Strategy Implementation Plan Failures 

OAR 340-252-0220 – Requirements for Adoption or Approval of Projects by Other Recipients 

of Funds Designated under Title 23 U.S.C. or the Federal Transit Laws 

OAR-340-252-0230 – Procedures for Determining Regional Transportation-Related Emissions 

OAR 340-252-0240 – Procedures for Determining Localized CO and PM10 Concentrations 

(Hot-spot Analysis) 

OAR 340-252-0250 – Using the Motor Vehicle Emissions Budget in the Applicable 

Implementation Plan (or Implementation Plan Submission) 
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OAR 340-252-0260 – Enforceability of Design Concept and Scope and Project-Level Mitigation 

and Control Measures 

OAR 340-252-0270 – Exempt Projects 

OAR 340-252-0280 – Projects Exempt from Regional Emissions Analyses 

OAR 340-252-0290 – Traffic Signal Synchronization Projects 

Provisions Amended 

Oregon’s submittal amends the following provisions: 

OAR 340-252-0030 – Definitions 

OAR 340-252-0060 – Consultation 

The amendments to OAR 340-252-0030 repeal definitions that duplicate 40 CFR 93.101. EPA is 

proposing to approve the State’s revised OAR 340-252-0030. 

Our analysis of the amendments to the consultation provisions, OAR 340-252-0060, and an August 31, 

2011, supplementary letter are presented below in Table 1. The requirements of 40 CFR 93.105 are 

shown in the left-hand column of Table 1 and the provisions in the submittal that I have determined 

address the requirements are shown in the right-hand column. 

Table 1. Evaluation of Consultation Requirements 

INTERAGENCY CONSULTATION 

GENERAL: [93.105(a)]. A conformity SIP shall include procedures for interagency consultation, 

conflict resolution, and public consultation. EPA encourages development of “extensive, effective 

consultation procedures that will resolve problems as early in the process as possible.” 58 FR 62188 at 

62201, November 24, 1993. The procedures must be written in a manner that gives them full legal 

effect. 40 CFR 51.390. 

Consultation is required on the development of the 

regional transportation plan (RTP), the transportation 

improvement program (TIP), on conformity 

determinations, and on the development of state 

implementation plan (SIP) revisions that affect 

transportation. [93.105(a)(1)]. 

OAR 340-252-0060(1)(a)-(c) 

MPOs and State departments of transportation must 

provide reasonable opportunity for consultation with State 

air agencies, local air quality and transportation agencies, 

DOT, and EPA, including consultation on specific 

processes for interagency consultation. [93.105(a)(2)] 

OAR 340-252-0060(1)(a)-(c) 

INTERAGENCY CONSULTATION PROCEDURES: GENERAL FACTORS [93.105(b)]. States shall provide 

well defined consultation procedures in the implementation plan. Organizations with responsibilities 

for developing, submitting or implementing provisions of an implementation plan (including MPOs, 

State and local air quality planning agencies, and State and local transportation agencies) must consult 

with each other and with local or regional offices of EPA, the Federal Highway Administration 
4 

(FHWA), and the Federal Transit Administration (FTA). 

The interagency consultation procedures must include, at a minimum, the following general factors: 

procedures that require that agencies consult on the 

development of the implementation plan, the 

transportation plan, the TIP, and associated conformity 

determinations [93.105(b)(1)]; 

OAR 340-252-0060(1)(a)-(c) 

OAR 340-252-0060(2)(a)-(d),(f)-(h) 

the roles and responsibilities of each agency at each stage 

in the SIP development process and the transportation 

planning process, including technical meetings 

[93.105(b)(2)(i)]; 

OAR 340-252-0060(1)(d) 

OAR 340-252-0060(2)(a)-(d),(f)-(h) 

the organizational level of regular consultation

[93.105(b)(2)(ii)]; 

OAR 340-252-0060(2)(a)(B) 

a process for circulating (or providing ready access to) 

draft documents and supporting materials for comment 

before formal adoption or publication [93.105(b)(2)(iii)]; 

OAR 340-252-0060(2)(a)(A),(C) 

OAR 340-252-0060(2)(b)(E),(F),(G) 

OAR 340-252-0060(2)(d)(C) 

OAR 340-252-0060(2)(f)-(h) 

the frequency of, or process for convening, consultation 

meetings and responsibility for establishing meeting 

agendas [93.105(b)(2)(iv)]; 

OAR 340-252-0060(1)(d)(E) 

OAR 340-252-0060(2)(a)(A),(B) 

OAR 340-252-0060(2)(b)(A)-(C), 

(E),(F) 

OAR 340-252-0060(2)(d)(B) 

a process for responding to significant comments of 

involved agencies [93.105(b)(2)(v)]; and 

OAR 340-252-0060(2)(a)(C) 

OAR 340-252-0060(2)(b)(G) 

OAR 340-252-0060(2)(d)(C) 

OAR 340-252-0060(2)(f)(C) 

a process for the development of a list of the 

transportation control measures (TCMs) that are in the 

applicable implementation plan [93.105(b)(2)(vi)]. 

OAR 340-252-0060(1)(d)(B),(C) 

OAR 340-252-0060(1)(d)(D)(iv) 

OAR 340-252-0060(2)(c) 

SPECIFIC PROCESSES Interagency consultation procedures shall include the specific processes listed 

below [93.105(c)]: 

A process involving at least the MPO(s), State and local air quality planning and transportation 

agencies, EPA, and the Department of Transportation (DOT) for the following [93.105(c)(1)]: 

Evaluating and choosing models and associated methods 

and assumptions for hot-spot and regional emissions 

analyses [93.105(c)(1)(i)]; 

OAR 340-252-0060(2)(e)(D) 

Determining which minor arterials and other projects are 

“regionally significant” for the regional emissions analysis 

(in addition to those functionally classified as principal 

arterials or higher or fixed guide way systems or 

extensions that offer an alternative to regional highway 

OAR 340-252-0060(2)(b)(D)(i) 

OAR 340-252-0060(2)(d)(B)(i) 
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travel) [93.105(c)(1)(ii)]; 

Determining which projects should be considered to have 

a significant change in design concept and scope from the 

RTP or TIP [93.105(c)(1)(ii)]; 

OAR 340-252-0060(2)(b)(D)(ii) 

OAR 340-252-0060(2)(d)(B)(ii) 

Evaluating whether otherwise exempt projects (see 93.126 

and 93.127) should be treated as non-exempt where 

adverse impacts are possible for any reason 

[93.105(c)(1)(iii)]; 

OAR 340-252-0060(2)(b)(D)(iii) 

OAR 340-252-0060(2)(d)(B)(iii) 

Determining whether past obstacles to implementation of 

transportation control measures (TCMs) in approved SIPs 

have been identified and are being overcome (for TCMs 

behind SIP schedules) [93.105(c)(1)(iv); 93.113(c)(1)]; 

OAR 340-252-0060(2)(b)(D)(iv) 

OAR 340-252-0060(2)(d)(B)(iv) 

Determining whether State and local agencies are giving 

maximum priority to approval and funding for TCMs in 

approved SIPs [93.105(c)(1)(iv)]; 

OAR 340-252-0060(2)(d)(B)(iv) 

OAR 340-252-0060(2)(b)(D)(iv) 

Determining whether delays in the implementation of 

approved SIP TCMs necessitate revisions to the SIP to 

remove or substitute such TCMs or other emission 

reduction measures [93.105(c)(1)(iv)]; 

OAR 340-252-0060(2)(b)(D)(iv) 

OAR 340-252-0060(2)(d)(B)(iv) 

Notification of transportation plan and TIP amendments 

which only add or delete exempt projects listed in 93.126 

and 93.127 [93.105(c)(1)(v)]; and 

OAR 340-252-0060(2)(b)(D)(xvi) 

OAR 340-252-0060(2)(d)(B)(xii) 

Choosing conformity tests and methodologies for isolated 

rural nonattainment and maintenance areas, as required by 

93.109(l)(2)(iii) [93.105(c)(1)(vi)]. 

OAR 340-252-0060(2)(d)(B)(xiii) 

A process involving at least the MPO and State and local air and transportation agencies for 

[93.105(c)(2)]: 

Evaluating events that will trigger new conformity 

determinations in addition to those required by 93.104 

[93.105(c)(2)(i)]; and 

OAR 340-252-0060(2)(b)(D)(ix) 

OAR 340-252-0060(2)(d)(B)(viii) 

Consulting on emissions analysis for transportation 

activities which cross borders of MPOs, nonattainment 

areas or air basins [93.105(c)(2)(ii)]. 

OAR 340-252-0060(2)(b)(D)(x) 

Where the metropolitan planning area does not include the 

entire nonattainment or maintenance area, procedures must 

specify a process involving the MPO and the State DOT for 

cooperative planning and analysis for determining conformity 

of projects outside the metropolitan area and within the 

nonattainment or maintenance area [93.105(c)(3)]. 

OAR 340-252-0060(1)(d)(D)(ii) 
6 

Specifies a process to ensure disclosure of plans for regionally 

significant non-FHWA/FTA projects (including projects for 

which alternatives are still being considered) to the MPO on a 

regular basis, and immediate disclosure of any changes to 

those plans [93.105(c)(4)]. 

OAR 340-252-0060(2)(b)(D)(xi) 

OAR 340-252-0060(2)(d)(B)(ix) 

Provides a process involving the MPO and other federal funds 

recipients for assuming project location and design 

concept/scope where these features are not adequately defined 

for regional emissions analysis [93.105(c)(5)]. 

The State’s August 31, 2011, 

supplementary letter explains that 

the following provisions apply 

simultaneously to define the features 

necessary to conduct a regional 

emissions analysis: 

OAR 340-252-0060(1)(d)(D)(i), 

OAR 340-252-0060(1)(d)(D)(vi), 

OAR 340-252-0060(1)(b) and OAR 

340-252-0060(2)(b). 

Specifies a process for consulting on design, schedule, and 

funding of research and data collection efforts and regional 

transportation model development by the MPO [93.105(c)(6)]. 

OAR 340-252-0060(2)(b)(D)(xii) 

OAR 340-252-0060(2)(d)(B)(x) 

Specifies a process for providing final documents and 

supporting information to each agency (including federal 

agencies) after approval or adoption [93.105(c)(7)]. 

OAR 340-252-0060(2)(g) 

RESOLVING CONFLICTS [93.105(d)]. 

The process for resolving conflicts must specify that: 

Unresolvable conflicts among state agencies or between 

state agencies and an MPO shall be escalated to the 

Governor or Governor’s designee (designee cannot be the 

State or local air agency, State department of 

transportation, State transportation commission or board, 

or an MPO) [93.105(d)]; 

OAR 340-252-0060(3)(a) 

The State air agency has 14 calendar days (the 

implementation plan should define the procedures for 

starting the 14-day clock) to appeal to the Governor after 

the State DOT or MPO has notified the State air agency 

head of the resolution of his or her comments [93.105(d)]; 

and 

The State’s August 31, 2011, 

supplementary letter explains that 

OAR 340-252-0060(3) provides for 

the 14-day clock to be initiated upon 

notification of the resolution of all 

comments. The State further 

clarified that such notification is 

triggered by the publication of the 

proposed final action, which is the 

document presented to the deciding 

body for adoption and describes how 

all comments have been addressed. 

This State explains that notification 

is given to given directly to the 
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appropriate air quality agency and 

other interested parties and is 

typically in the form of electronic 

mail. 

If the State air agency appeals to the Governor, the final 

conformity determination must have Governor’s 

concurrence. If there is no appeal, the MPO or state DOT 

may proceed with the final conformity determination 

[93.105(d)]. 

OAR 340-252-0060(3)(b) 

PUBLIC CONSULTATION PROCEDURES. Affected agencies making conformity determinations on 

transportation plans, TIPs, and projects shall establish a proactive public involvement process 

[93.105(e)]. This general requirement can be satisfied by referencing the MPO’s procedures, in 

addition to specifying or referencing the additional items listed below. 

Consultation procedures must set out a public process that, at a minimum: 

Provides for 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 transportation plan or TIP 

conformity determination, consistent with 93.105 and 23 

CFR 450.316(a) [93.105(e)]; 

OAR 340-252-0060(4) 

[note: citation to 23 CFR 450.316(b) 

was corrected to 23 CFR 450.316(a) 

as explained in the State’s August 

31, 2011, supplementary letter] 

Ensures that any charges imposed for public inspection or 

copying are reasonable [49 CFR 7.43, 93.105(e)]; 

OAR 340-252-0060(4) 

[note: citation to 49 CFR 7.95 was 

corrected to 7.43 as explained in the 

State’s August 31, 2011, 

supplementary letter] 

Provides that agencies must specifically address in writing 

all public comments that plans for regionally significant 

non-FHWA/FTA projects are not properly reflected in the 

emissions analysis [93.105(e)]; and 

OAR 340-252-0060(4) 

Provides opportunity for public involvement in project 

conformity determinations as otherwise required by law 

[93.105(e)]. 

OAR 340-252-0060(4) 

Provisions Added 

Oregon’s submittal adds the following provisions: 

OAR 340-252-0070 – Timeframe of Conformity Determinations 

OAR 340-252-0230 – Written Commitments 

Changes to the timeframe of conformity determinations are addressed in a new provision, OAR 340-

252-0070. This provision requires approval by the air quality agency in order for an MPO to shorten the 

timeframe of a conformity determination. In addition, the new provision provides an example for 
8 

shortening the timeframe. EPA believes that the example provided in this rule may create confusion 

regarding the appropriate reason to use the shortening option provided in CAA section 176(c)(7) and 40 

CFR 93.106(d). Therefore, EPA is proposing to approve OAR-340-252-0070 with the exception of the 

second and third sentences. 

EPA has reviewed the written commitments provisions of OAR 340-252-0230 and determined that they 

adequately address the requirements of 40 CFR 93.122(a)(4)(ii) and 40 CFR 93.125(c), see Table 2 

below. EPA is proposing to approve revisions to OAR 340-252-0230. 

Table 2. Evaluation of Written Commitments Requirements

OTHER CONFORMITY PROCEDURES: Under the CAA, as amended by SAFETEA-LU, conformity 

SIPs must also include conformity procedures that address 40 CFR 93.122(a)(4)(ii) and 93.125(c). All 

other federal conformity regulations apply automatically and states are not required to address them in 

conformity SIPs. 

ENFORCEABLE WRITTEN COMMITMENTS REQUIRED FOR EMISSIONS REDUCTION CREDIT: 

Emissions reduction credit from any 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 the conformity determination includes written commitments to 

implementation from the appropriate entities [93.122(a)(4)(ii)]. 

Language addressing 93.122(a)(4)(ii) should include, at a minimum, the following: 

In accordance with 40 CFR 93.122(a)(4)(ii), prior to making 

a conformity determination on the Transportation Plan or 

TIP, [insert MPO name] will not include emissions 

reduction credits from any control measures that are not 

included in the Transportation Plan or TIP and that do not 

require a regulatory action in the regional emissions analysis 

used in the conformity analysis unless [insert MPO name] or 

FHWA/FTA obtains written commitments, as defined in 40 

CFR 93.101, from the appropriate entities to implement 

those control measures. The written commitments to 

implement those control measures must be fulfilled by the 

appropriate entities [93.122(a)(4)(ii)]. 

OAR 340-340-252-0230(1) 

ENFORCEABILITY OF DESIGN CONCEPT AND SCOPE AND PROJECT-LEVEL MITIGATION AND 

CONTROL MEASURES: Before a conformity determination is made, written commitments must be 

obtained for any project-level mitigation or control measures. [93.125(c)] 

Language addressing 93.125(c) should include, at a minimum, the following: 

In accordance with 40 CFR 93.125(c), prior to making a 

project-level conformity determination for a transportation 

project, FHWA/FTA must obtain from the project sponsor 

and/or operator written commitments, as defined in 40 CFR 

93.101, to implement any project-level mitigation or control 

measures in the construction or operation of the project 

OAR 340-340-252-0230(2) 
9 

identified as conditions for NEPA process completion. The 

written commitments to implement those project-level 

mitigation or control measures must be fulfilled by the 

appropriate entities. Prior to making a conformity 

determination on the Transportation Plan or TIP, [insert 

MPO name] will ensure any project-level mitigation or 

control measures are included in the project design concept 

and scope and are appropriately identified in the regional 

emissions analysis used in the conformity analysis. Prior to 

making a project-level conformity determination, written 

commitments will be obtained before such mitigation or 

control measures are used in a project-level hot-spot 

conformity analysis. 

EPA’s Action

EPA is proposing to approve the State’s repeal of provisions that are no longer required to be in State 

transportation conformity SIPs following implementation of the SAFETEA-LU amendments to the 

CAA. EPA is proposing to approve the State’s Definitions provisions (OAR 340-252-0030), Written 

Commitments provisions (OAR 340-252-0230) and Consultation provisions (OAR 340-252-0060). EPA 

is proposing to approve part of the Timeframe of Conformity Determinations provision (OAR-340-252-

0070).