Reply to: AWT-107

MEMORANDUM

SUBJECT: Technical Support Document: Oregon Tr ansportation Conformity SIP Revision

FROM: Claudia Vergnani Vaupel, Envi ronmental Protection Specialist

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

This technical support document (TSD) presents my evaluation of the Oregon Department of Environmental Quality’s (ODEQ) October 12, 20 10, submittal requesting approval of the revised transportation conformity provisions of the Or egon 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 requ irements 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 SA FETEA-LU. Section 176(c )(4)(E) of the Act and 40 CFR 51.390(b) now require states to submit transpor tation conformity SIPs that address only the following provisions of the Fe deral conformity rule:

 40 CFR 93.105, which addresses consultation procedures;

 40 CFR 93.122(a)(4)(ii), which st ates that conformity SIPs must require that written commitments to control measures be obtained prio r to a conformity determination if the control measures are not included in a metropolitan pl anning organization’s (MPO ’s) transpor tation plan and transportation improvement program (TIP); a nd that such a commitment be fulfilled; and

 40 CFR 93.125(c), which states that conformity SI Ps must require that written commitments to mitigation measures be obtained prior to a proj ect-level conformity determination, and that project sponsors comply with such commitments.2 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 appr oved 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/statere sources/transconf/policy.htm . ODEQ’s submittal repeals, amends, and adds the following provisions of Oregon Administ rative Code (OAR) Chapter 340, Division 252 - Transportation Conformity.

Provisions Repealed Oregon’s submittal repeals transpor tation conformity provisions that are no longer required to be included in transportation conformity SIPs follo wing 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 C onformity 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 Proce dures: Latest Planning Assumptions
OAR 340-252-0120 – Criteria and Proce dures: 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: Cu rrently Conforming Transportation Plan and

TIP
OAR 340-252-0160 – Criteria and Procedur es: Projects from a Plan and TIP
OAR 340-252-0170 – Criteria and Procedures: Local ized 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: Em ission Reductions in Areas Without Motor Vehicle Emissions Budgets OAR 340-252-0210 – Consequences of Contro l 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 Determini ng 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)3 OAR 340-252-0260 – Enforceability of Design Con cept and Scope and Project-Level Mitigation
and Control Measures OAR 340-252-0270 – Exempt Projects OAR 340-252-0280 – Projects Exempt fr om Regional Emissions Analyses OAR 340-252-0290 – Traffic Signa l 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 defi nitions 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 consul tation 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 Co nsultation Requirements

I NTERAGENCY C ONSULTATION

G ENERAL : [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)

I NTERAGENCY C ONSULTATION P ROCEDURES : G ENERAL F ACTORS [93.105(b)]. States shall provide well defined consultation procedures in the implem entation 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 offi ces of EPA, the Federal Highway Administration4 (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)

S PECIFIC P ROCESSES 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)5 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)

R ESOLVING C ONFLICTS [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 the7 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)

P UBLIC C ONSULTATION P ROCEDURES . 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 satis fied 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 determin ations are addressed in a new provision, OAR 340- 252-0070. This provision requires approval by the air qual ity agency in order for an MPO to shorten the timeframe of a conformity dete rmination. In addition, the new pr ovision provides an example for8 shortening the timeframe. EPA believes that the exam ple provided in this rule may create confusion regarding the appropriate reason to use the shorte ning option provided in C AA 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 provis ions of OAR 340-252-0230 and determined that they adequately address the require ments of 40 CFR 93.122(a)(4)(ii) and 40 CFR 93.125(c), see Table 2 below. EPA is proposing to appr ove revisions to OAR 340-252-0230.

Table 2. Evaluation of Wr itten Commitments Requirements

OTHER C ONFORMITY P ROCEDURES : 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.

E NFORCEABLE WRITTEN COMMITMENTS REQUIR ED 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)

E NFORCEABILITY 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 pr ovisions that are no longer re quired to be in State transportation conformity SIPs following implemen tation of the SAFETEA-LU amendments to the CAA. EPA is proposing to appr ove the State’s Definitions pr ovisions (OAR 340-252-0030), Written Commitments provisions (OAR 340-252-0230) and C onsultation provisions (OAR 340-252-0060). EPA is proposing to approve part of the Timeframe of Conformity Determinations provision (OAR-340-252- 0070).